As filed with the Securities and Exchange Commission on May 4, 1999
Registration No. 333-75289
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
AMENDMENT NO. 1
to
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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MORGAN STANLEY DEAN WITTER & 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)
------------------------------
1585 Broadway
New York, New York 10036
(212) 761-4000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
-----------------------------
Christine A. Edwards, Esq.
Executive Vice President, Chief Legal Officer
and Secretary
Morgan Stanley Dean Witter & Co
1585 Broadway
New York, New York 10036
(212) 761-4000
(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. [ ]
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.
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act, the Prospectus which is a part of this registration statement is
a combined Prospectus relating also to $4,256,130,907 of securities registered
and remaining unissued under registration statement no. 333-46935 previously
filed by Registrant and declared effective by the Commission.
================================================================================
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting offers to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS (Subject to Completion, Issued May 4, 1999)
$16,256,130,907
Morgan Stanley Dean Witter & Co.
DEBT SECURITIES
UNITS
WARRANTS
PURCHASE CONTRACTS
PREFERRED STOCK
--------------------
We, Morgan Stanley Dean Witter & Co., may offer from time to time debt
securities, units, warrants, purchase contracts and preferred stock. This
prospectus describes the general terms of these securities and the general
manner in which we will offer the securities. The specific terms of any
securities we offer will be included in a supplement to this prospectus. The
prospectus supplement will also describe the specific manner in which we will
offer the securities.
--------------------
The Securities and Exchange Commission and state securities regulators have
not approved or disapproved these securities, or determined if this prospectus
is truthful or complete. Any representation to the contrary is a criminal
offense.
--------------------
MORGAN STANLEY DEAN WITTER
, 1999
<PAGE>
You should rely only on the information we incorporate by reference or provide
in this prospectus or the relevant prospectus supplement. This prospectus
together with the prospectus supplement dated May , 1999, our Annual Report on
Form 10-K for the fiscal year ended November 30, 1998, our Quarterly Report on
Form 10-Q for the quarter ended February 28, 1999 and our Current Reports on
Form 8-K dated January 7, 1999, January 12, 1999 and March 25, 1999, constitute
the Listing Particulars for the purposes of the London Stock Exchange. We have
not authorized anyone else to provide you with different or additional
information. We are not making an offer of these securities in any state where
the offer is not permitted. Except as we indicate under the headings "Morgan
Stanley Dean Witter" and "Use of Proceeds," the terms "MSDW," "we," "us," and
"our" refer to Morgan Stanley Dean Witter & Co.
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SUMMARY
We, Morgan Stanley Dean Witter & Co., may offer any of the following securities:
debt securities, units, warrants, purchase contracts and preferred stock. The
following summary describes these securities in general terms only. You should
read the summary together with the more detailed information contained in the
rest of this prospectus and the applicable prospectus supplement.
Debt Securities.................. Our debt securities may be senior or
subordinated in priority of payment.
We will provide a prospectus
supplement that describes the ranking,
whether senior or subordinated, the
specific designation, the aggregate
principal amount, the purchase price,
the maturity, the redemption terms,
the interest rate or manner of
calculating the interest rate, the
time of payment of interest, if any,
the terms for any conversion or
exchange, including the terms relating
to the adjustment of any conversion or
exchange mechanism, the listing, if
any, on a securities exchange and any
other specific terms of the debt
securities.
The senior and subordinated debt
securities will be issued under
separate indentures between us and a
U.S. banking institution as trustee.
Neither of the indentures that govern
our debt securities limits the amount
of additional indebtedness that we or
any of our subsidiaries may incur. We
have summarized the general features
of the indentures under the heading
"Description of Debt Securities." We
encourage you to read the indentures,
which are exhibits to our registration
statement No. 333-75289.
Units............................ We may sell any combination of our debt
securities, warrants and purchase
contracts together as units. In a
prospectus supplement, we will
describe the particular combination of
purchase contracts, warrants and debt
securities constituting any units and
any other specific terms of the units.
Warrants......................... We may sell two types of warrants:
o warrants to purchase our debt
securities, or
o universal warrants to purchase or
sell (1) securities of an entity
not affiliated with us, a basket
of these securities, an index or
indices of these securities or
any combination of the above, (2)
currencies or (3) commodities.
In a prospectus supplement, we will
specify the type of warrant and inform
you of the exercise price and other
specific terms of the warrants,
including whether our or your
obligations, if any, under any
universal warrants may be satisfied by
delivering or purchasing the
underlying securities, currencies or
commodities, or their cash value.
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Purchase Contracts............... We may sell purchase contracts requiring
the holders to purchase or sell (1)
securities of an entity not affiliated
with us, a basket of these securities,
an index or indices of these
securities or any combination of the
above, (2) currencies or (3)
commodities. In a prospectus
supplement, we will describe the
specific terms of the purchase
contracts, including whether we will
satisfy our obligations, if any, or
you will satisfy your obligations, if
any, under any purchase contracts by
delivering the underlying securities,
currencies or commodities or their
cash value.
Form.............................. We may issue debt securities, units,
warrants and purchase contracts in
fully registered form or in bearer
form and, in each case, in definitive
form or global form.
Preferred Stock................... We may sell our preferred stock, par
value $0.01 per share, in one or more
series. In a prospectus supplement,
we will describe the specific
designation, the aggregate number of
shares offered, the dividend rate or
manner of calculating the dividend
rate, the dividend periods or manner
of calculating the dividend periods,
the stated value of the shares of the
series, the voting rights of the
shares of the series, whether or not
and on what terms the shares of the
series will be convertible or
exchangeable, whether and on what
terms we can redeem the shares of the
series, whether we will offer
depositary shares representing shares
of the series and if so, the fraction
or multiple of a share of preferred
stock represented by each depositary
share, whether we will list the
preferred stock or depositary shares
on a securities exchange and any other
specific terms of the series of
preferred stock.
Terms Specified in
Prospectus Supplements............ When we decide to sell particular
securities, we will prepare a
prospectus supplement describing the
securities offering and the specific
terms of the securities. You should
carefully read this prospectus and the
applicable prospectus supplement.
We will offer our debt securities,
warrants, purchase contracts, units
and preferred stock to investors on
terms determined by market and other
conditions. Our securities may be
sold for U.S. dollars or foreign
currency. Principal of and any
premium or interest on debt securities
and cash amounts payable under
warrants or purchase contracts may be
payable in U.S. dollars or foreign
currency, as we specifically designate
in the related prospectus supplement.
In any prospectus supplement we
prepare, we will provide 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
for any securities sold to or through
underwriters. Any underwriters,
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including managing underwriters,
dealers or agents in the United States
will include Morgan Stanley & Co.
Incorporated and/or Dean Witter
Reynolds Inc. and any outside the
United States will include Morgan
Stanley & Co. International Limited
or other affiliates of ours.
Structural Subordination; Our Receipt
of Cash from Our Subsidiaries
May be Restricted................. The securities are unsecured senior or
subordinated obligations of ours, but
our assets consist primarily of equity
in our subsidiaries. As a result, our
ability to make payments on our debt
securities and/or pay dividends on our
preferred stock depends upon our
receipt of dividends, loan payments
and other funds from our subsidiaries.
In addition, if any of our
subsidiaries becomes insolvent, the
direct creditors of that subsidiary
will have a prior claim on its assets,
and our rights and the rights of our
creditors, including your rights as an
owner of our debt securities, units,
warrants, purchase contracts or
preferred stock, will be subject to
that prior claim, unless we are also a
direct creditor of that subsidiary.
This subordination of creditors of a
parent company to prior claims of
creditors of its subsidiaries is
commonly referred to as structural
subordination.
In addition, various statutes and
regulations restrict some of our
subsidiaries from paying dividends or
making loans or advances to us. These
restrictions could prevent those
subsidiaries from paying the cash to
us that we need in order to pay you.
These restrictions include:
o the net capital requirements under
the Securities Exchange Act of 1934,
and the rules of some exchanges and
other regulatory bodies, which apply
to some of our principal
subsidiaries, such as Morgan Stanley
& Co. Incorporated, Morgan Stanley
& Co. International Limited and
Dean Witter Reynolds Inc., and
o banking regulations, which apply to
Greenwood Trust Company, a Delaware
chartered bank, and other bank
subsidiaries of ours.
Market-making by Our Affiliates..... Following the initial distribution of
an offering of securities, Morgan
Stanley & Co. Incorporated, Morgan
Stanley & Co. International
Limited, Dean Witter Reynolds Inc.
and other affiliates of ours may
offer and sell those 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, Inc. for any of these
offers and sales our United States
affiliates may make. Morgan Stanley
& Co. Incorporated, Morgan Stanley
& Co. International Limited, Dean
Witter Reynolds Inc. and other
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affiliates of ours may act as a
principal or agent in these
transactions. This prospectus and
the applicable prospectus supplement
will also be used in connection with
those transactions. Sales in any of
those transactions will be made at
varying prices related to prevailing
market prices and other
circumstances at the time of sale.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual reports, proxy statements and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
room 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. Please call the SEC at 1-800-SEC-0300 for further
information on the public reference room. In addition, the SEC maintains a
Website that contains reports, proxy statements and other information that we
electronically file. The address of the SEC's Website is http://www.sec.gov.
This prospectus is part of a registration statement we filed with the SEC.
This prospectus omits some information contained in the registration statement
in accordance with SEC rules and regulations. You should review the information
and exhibits in the registration statement for further information on us and our
consolidated subsidiaries and the securities we are offering. Statements in this
prospectus concerning any document we filed as an exhibit to the registration
statement or that we otherwise filed with the SEC are not intended to be
comprehensive and are qualified by reference to these filings. You should review
the complete document to evaluate these statements.
Our common stock, par value $0.01 per share, is listed on the New York
Stock Exchange, Inc. and the Pacific Exchange, Inc. under the symbol "MWD." You
may inspect reports, proxy statements and other information concerning us and
our consolidated subsidiaries at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005, and the Pacific Exchange, Inc.,
301 Pine Street, San Francisco, California 94104 or 233 South Beaudry Avenue,
Los Angeles, California 90012.
The SEC allows us to incorporate by reference much of the information we
file with them, which means that we can disclose important information to you by
referring you to those publicly available documents. The information that we
incorporate by reference in this prospectus is considered to be part of this
prospectus. Because we are incorporating by reference future filings with the
SEC, this prospectus is continually updated and those future filings may modify
or supersede some of the information included or incorporated in this
prospectus. This means that you must look at all of the SEC filings that we
incorporate by reference to determine if any of the statements in this
prospectus or in any document previously incorporated by reference have been
modified or superseded. This prospectus incorporates by reference the documents
listed below and any future filings we make with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until we complete our
offering of the securities to be issued under the registration statement or, if
later, the date on which any of our affiliates cease offering and selling these
securities:
(a) Annual Report on Form 10-K for the fiscal year ended November 30,
1998;
(b) Quarterly Report on Form 10-Q for the quarter ended February 28, 1999;
and
(c) Current Reports on Form 8-K dated January 7, 1999, January 12, 1999
and March 25, 1999.
You can request a copy of these documents, excluding exhibits, at no cost,
by writing or telephoning us at the following address:
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention: Investor Relations
(212) 762-8131
We have not submitted and will not submit any document incorporated or
deemed to be incorporated by reference in this prospectus 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.
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CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth our consolidated ratios of earnings to
fixed charges and earnings to fixed charges and preferred stock dividends for
the periods indicated. The fiscal year information for 1996, 1995 and 1994
combines the historical financial information of Dean Witter, Discover & Co. for
the years ended December 31, 1996, 1995 and 1994 with the historical financial
information of Morgan Stanley Group Inc. for the fiscal years ended November 30,
1996, 1995 and 1994. Subsequent to the merger between Dean Witter, Discover &
Co. and Morgan Stanley Group Inc., in May 1997, we adopted a fiscal year end of
November 30. The fiscal year information for 1998 and 1997 reflects the change
in fiscal year end.
<TABLE>
(Unaudited)
Three Months Ended Fiscal Year
------------------------- ------------------------------------
February 28, February 28,
1999 1998 1998 1997 1996 1995 1994
------------ ------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges......... 1.6 1.4 1.4 1.4 1.3 1.3 1.3
Ratio of earnings to fixed charges and
preferred stock dividends............... 1.6 1.3 1.4 1.4 1.3 1.3 1.3
</TABLE>
For purposes of calculating the ratio of earnings to fixed charges and the
ratio of earnings to fixed charges and preferred stock dividends, earnings are
the sum of:
o pre-tax income;
o fixed charges; and
o amortization of capitalized interest;
less:
o capitalized interest.
For purposes of calculating both ratios, fixed charges are the sum of:
o interest expensed and capitalized;
o amortized premiums, discounts and capitalized expenses related to
indebtedness; and
o our estimate of the interest within rental expenses.
Additionally, for purposes of calculating the ratio of earnings to fixed
charges and preferred stock dividends, preferred stock dividends are included in
the denominator of the ratio on a pre-tax basis.
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MORGAN STANLEY DEAN WITTER
Morgan Stanley Dean Witter & 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 and transaction services.
MSDW combines global strength in investment banking (including the origination
of underwritten public offerings and in mergers and acquisitions advice) and
institutional sales and trading with strength in providing investment and global
asset management products and services and, primarily through its Discover(R)
Card brand, quality consumer credit products.
As of November 30, 1998, MSDW had the second largest financial advisor
sales organization in the United States, with 11,238 professional financial
advisors and 438 securities branch offices. MSDW also had one of the largest
global asset management operations of any full-service securities firm, with
total assets under management and supervision of $376 billion. In addition,
based on its approximately 38 million general purpose credit card accounts as of
November 30, 1998, MSDW was the nation's third largest credit card issuer as
measured by number of accounts, with the largest proprietary merchant and cash
access network in the United States.
MSDW, through its subsidiaries, provides a wide range of financial and
securities services on a global basis and provides credit and transaction
services nationally. Its securities businesses include securities underwriting,
distribution and trading; merger, acquisition, restructuring, real estate,
project finance and other corporate finance advisory activities; full-service
brokerage services; research services; the trading of foreign exchange and
commodities, as well as derivatives, on a broad range of asset categories, rates
and indices; and securities lending. MSDW's asset management businesses include
providing global asset management advice and services to individual and
institutional investors through a variety of product lines and brand names,
including Morgan Stanley Dean Witter Advisors (formerly known as Dean Witter
InterCapital), Van Kampen Investments, Morgan Stanley Dean Witter Investment
Management and Miller Anderson & Sherrerd; and principal investment activities.
MSDW's credit and transaction services businesses include the issuance of the
Discover Card and other proprietary general purpose credit cards, the operation
of the Discover/NOVUS(R) Network, a proprietary network of merchant and cash
access locations, and direct-marketed activities such as the on-line securities
services offered by Discover Brokerage Direct Inc. MSDW's products and services
are provided to a large and diversified group of clients and customers including
corporations, governments, financial institutions and individuals.
MSDW conducts its business from its headquarters in New York City, its
regional offices and branches throughout the United States, and its principal
offices in London, Tokyo, Hong Kong and other financial centers throughout the
world. At November 30, 1998, MSDW had 45,712 employees. None of MSDW's employees
is covered by a collective bargaining agreement. MSDW is a combination of Dean
Witter, Discover & Co. and Morgan Stanley Group Inc. and was formed in a merger
of equals that was effected on May 31, 1997. MSDW was originally incorporated
under the laws of the State of Delaware in 1981, and its predecessor companies
date back to 1924.
MSDW's principal executive offices are at 1585 Broadway, New York, New
York 10036, and its telephone number is (212) 761-4000. Under this heading and
"Use of Proceeds" below, the term "MSDW" includes Morgan Stanley Dean Witter &
Co. and its consolidated subsidiaries.
USE OF PROCEEDS
MSDW will use the net proceeds from the sale of the securities we offer by
this prospectus for general corporate purposes or for any other purposes
described in the applicable prospectus supplement. General corporate purposes
may include additions to working capital, the redemption of outstanding
preferred stock, the repurchase of outstanding common stock and the repayment of
indebtedness. MSDW 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.
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DESCRIPTION OF DEBT SECURITIES
Debt May Be Senior or Subordinated
We may issue senior or subordinated debt securities. The senior debt
securities and, in the case of debt securities in bearer form, any coupons to
these securities, will constitute part of our senior debt, will be issued under
our Senior Debt Indenture, as defined below, and will rank on a parity with all
of our other unsecured and unsubordinated debt. The subordinated debt securities
and any coupons will constitute part of our subordinated debt, will be issued
under our Subordinated Debt Indenture, as defined below, and will be subordinate
and junior in right of payment, as set forth in the Subordinated Debt Indenture,
to all of our "senior indebtedness," which is defined in our Subordinated Debt
Indenture. If this prospectus is being delivered in connection with a series of
subordinated debt securities, the accompanying prospectus supplement or the
information we incorporate in this prospectus by reference will indicate the
approximate amount of senior indebtedness outstanding as of the end of the most
recent fiscal quarter. We refer to our Senior Debt Indenture and our
Subordinated Debt Indenture individually as an "indenture" and collectively as
the "indentures."
We have summarized below the material provisions of the indentures and the
debt securities, or indicated which material provisions will be described in the
related prospectus supplement. These descriptions are only summaries, and each
investor should refer to the applicable indenture, which describes completely
the terms and definitions summarized below and contains additional information
regarding the debt securities. Where appropriate, we use parentheses to refer
you to the particular sections of the applicable indenture. Any reference to
particular sections or defined terms of the applicable indenture in any
statement under this heading qualifies the entire statement and incorporates by
reference the applicable section or definition into that statement. The
indentures are substantially identical, except for the provisions relating to
MSDW's negative pledge, which is included in the Senior Debt Indenture only, and
to subordination.
Payments
We may issue debt securities from time to time in one or more series. The
debt securities may be denominated and payable in U.S. dollars or foreign
currencies. We may also issue debt securities, from time to time, with the
principal amount or interest payable on any relevant 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 these types of
debt securities will receive payments of principal or interest that depend upon
the value of the applicable currency, security or basket of securities,
commodity or index on the relevant payment dates.
Debt securities may bear interest at a fixed rate, which may be zero, or a
floating rate. Debt securities bearing no interest or interest at a rate that at
the time of issuance is below the prevailing market rate may be sold at a
discount below their stated principal amount.
Terms Specified in Prospectus Supplement
The prospectus supplement will contain, where applicable, the following
terms of and other information relating to any offered debt securities:
o classification as senior or subordinated debt securities and the
specific designation;
o aggregate principal amount, purchase price and denomination;
o currency in which the debt securities are denominated and/or in which
principal, and premium, if any, and/or interest, if any, is payable;
o date of maturity;
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o the interest rate or rates or the method by which the calculation
agent will determine the interest rate or rates, if any;
o the interest payment dates, if any;
o the place or places for payment of the principal of and any premium
and/or interest on the debt securities;
o any repayment, redemption, prepayment or sinking fund provisions,
including any redemption notice provisions;
o whether we will issue the debt securities in registered form or bearer
form or both and, if we are offering debt securities in bearer form,
any restrictions applicable to the exchange of one form for another
and to the offer, sale and delivery of those debt securities in bearer
form;
o whether we will issue the debt securities in definitive form and
under what terms and conditions;
o the terms on which holders of the debt securities may convert or
exchange these securities into or for stock or other securities of an
entity unaffiliated with us, any specific terms relating to the
adjustment of the conversion or exchange feature and the period during
which the holders may make the conversion or exchange;
o information as to the methods for determining the amount of principal
or interest payable on any date and/or the currencies, securities or
baskets of securities, commodities or indices to which the amount
payable on that date is linked;
o any agents for the debt securities, including trustees, depositories,
authenticating or paying agents, transfer agents or registrars.
o any applicable United States federal income tax consequences,
including, but not limited to:
o whether and under what circumstances we will pay additional
amounts on debt securities held by a person who is not a U.S.
person for any tax, assessment or governmental charge withheld or
deducted and, if so, whether we will have the option to redeem
those debt securities rather than pay the additional amounts;
o tax considerations applicable to any discounted debt securities
or to debt securities issued at par that are treated as having
been issued at a discount for United States federal income tax
purposes;
o tax considerations applicable to any debt securities denominated
and payable in foreign currencies; and
o any other specific terms of the debt securities, including any
additional events of default or covenants, and any terms required by
or advisable under applicable laws or regulations.
Registration and Transfer of Debt Securities
Holders may present debt securities for exchange, and holders of
registered debt securities may present these securities for transfer, in the
manner, at the places and subject to the restrictions stated in the debt
securities and described in the applicable prospectus supplement. We will
provide these services without charge except for any tax or other governmental
charge payable in connection with these services and subject to any limitations
provided in the applicable indenture.
Holders may transfer debt securities in bearer form and the related
coupons, if any, by delivery to the transferee. If any of the securities are
held in global form, the procedures for transfer of interests in those
securities will depend upon the procedures of the depositary for those global
securities. See "Forms of Securities."
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Indentures
Debt securities that will be senior debt will be issued under an Amended
and Restated Senior Indenture dated as of May 1, 1999 between MSDW and The Chase
Manhattan Bank, as trustee. We call that indenture, as it may be supplemented
from time to time, the Senior Debt Indenture. Debt securities that will be
subordinated debt will be issued under an Amended and Restated Subordinated
Indenture dated as of May 1, 1999 between MSDW and The First National Bank of
Chicago, as trustee. We call that indenture, as it may be supplemented from time
to time, the Subordinated Debt Indenture. We refer to The Chase Manhattan Bank
and The First National Bank of Chicago individually as a "trustee" and
collectively as the "trustees."
Subordination Provisions
Holders of subordinated debt securities should recognize that contractual
provisions in the Subordinated Debt Indenture may prohibit us from making
payments on these securities. Subordinated debt securities are subordinate and
junior in right of payment, to the extent and in the manner stated in the
Subordinated Debt Indenture, to all of our senior indebtedness. The Subordinated
Debt Indenture defines senior indebtedness as obligations of, or guaranteed or
assumed by, MSDW for borrowed money or evidenced by bonds, debentures, notes or
other similar instruments, and amendments, renewals, extensions, modifications
and refundings of any of that indebtedness or of those obligations. Nonrecourse
obligations, the subordinated debt securities and any other obligations
specifically designated as being subordinate in right of payment to senior
indebtedness are not senior indebtedness as defined under the Subordinated Debt
Indenture. (Subordinated Debt Indenture, Section 1.01).
The Subordinated Debt Indenture provides that, unless all principal of and
any premium or interest on the senior indebtedness has been paid in full, or
provision has been made to make these payments in full, no payment of principal
of, or any premium or interest on, any subordinated debt securities may be made
in the event:
o of any insolvency or bankruptcy proceedings, or any receivership,
liquidation, reorganization or other similar proceedings involving us
or a substantial part of our property;
o that (a) a default has occurred in the payment of principal, any
premium, interest or other monetary amounts due and payable on any
senior indebtedness or (b) there has occurred any other event of
default concerning senior indebtedness, that permits the holder or
holders of the senior indebtedness to accelerate the maturity of the
senior indebtedness, with notice or passage of time, or both, and that
event of default has continued beyond the applicable grace period, if
any, and that default or event of default has not been cured or waived
or has not ceased to exist; or
o that the principal of and accrued interest on any subordinated debt
securities have been declared due and payable upon an event of default
as defined under the Subordinated Debt Indenture and that declaration
has not been rescinded and annulled as provided under the Subordinated
Debt Indenture. (Subordinated Debt Indenture, Section 13.01)
Covenants Restricting Pledges, Mergers and Other Significant Corporate Actions
Negative Pledge. Because we are a holding company, our assets consist
primarily of the securities of our subsidiaries. The negative pledge provisions
of the Senior Debt Indenture limit our ability to pledge some of these
securities. The Senior Debt Indenture provides that we will not, and will not
permit any subsidiary to create, assume, incur or guarantee any indebtedness for
borrowed money that is secured by a pledge, lien or other encumbrance except for
liens specifically permitted by the Senior Debt Indenture on:
(1) the voting securities of Morgan Stanley & Co. Incorporated, Morgan
Stanley & Co. International Limited, Dean Witter Reynolds Inc., Greenwood
Trust Company, or any subsidiary succeeding to any substantial part of the
business now conducted by any of those corporations, which we refer to
collectively as the "principal subsidiaries," or
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(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the debt securities issued under the
Senior Debt Indenture will be secured equally and ratably with indebtedness so
secured.
For these purposes, "subsidiary" means any corporation, partnership or
other entity of which at the time of determination we own or control directly or
indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "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 relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened. (Senior Debt Indenture, Section
3.06)
The Subordinated Debt Indenture does not include negative pledge
provisions.
Merger, Consolidation, Sale, Lease or Conveyance. Each indenture provides
that we will not merge or consolidate with any other person and will not sell,
lease or convey all or substantially all of our assets to any person, unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the indenture
and the debt securities issued under the indenture; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
indenture applicable to us. (Indentures, Section 9.01)
Absence of Protections against All Potential Actions of MSDW. There are no
covenants or other provisions in the indentures that would afford holders of
debt securities additional protection in the event of a recapitalization
transaction, a change of control of MSDW or a highly leveraged transaction. The
merger covenant described above would only apply if the recapitalization
transaction, change of control or highly leveraged transaction were structured
to include a merger or consolidation of MSDW or a sale, lease or conveyance of
all or substantially all of our assets. However, we may provide specific
protections, such as a put right or increased interest, for particular debt
securities, which we would describe in the applicable prospectus supplement.
Events of Default
The indentures provide holders of debt securities with remedies if we fail
to perform specific obligations, such as making payments on the debt securities
or other indebtedness, or if we become bankrupt. Holders should review these
provisions and understand which of our actions trigger an event of default and
which actions do not. Each indenture permits the issuance of debt securities in
one or more series, and, in many cases, whether an event of default has occurred
is determined on a series by series basis.
An event of default is defined under each indenture, with respect to any
series of debt securities issued under that indenture, as being:
o default in payment of any principal of the debt securities of that
series, either at maturity or upon any redemption, by declaration or
otherwise;
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o default for 30 days in payment of any interest on any debt securities
of that series;
o default for 60 days after written notice in the observance or
performance of any other covenant or agreement in the debt securities
of that series or the related indenture, other than a covenant
included in that indenture solely for the benefit of a different
series of debt securities;
o events of bankruptcy, insolvency or reorganization;
o failure to make any payment at maturity, including any applicable
grace period, on other indebtedness in an amount in excess of
$10,000,000 and continuance of that failure for a period of 30 days
after written notice of the failure to us by the applicable trustee,
or to us and the applicable trustee by the holders of not less than
25% in principal amount of the outstanding debt securities, treated as
one class, issued under the indenture;
o default with respect to any other indebtedness, which default results
in the acceleration of indebtedness in an amount in excess of
$10,000,000 without the indebtedness having been discharged or the
acceleration having been cured, waived, rescinded or annulled for a
period of 30 days after written notice of the acceleration to us by
the applicable trustee, or to us and the applicable trustee by the
holders of not less than 25% in principal amount of the outstanding
debt securities, treated as one class, issued under the indenture; or
o any other event of default provided in the supplemental indenture
under which that series of debt securities is issued.
For purposes of the fifth and sixth clauses above, indebtedness means
obligations of, or guaranteed or assumed by, MSDW for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments, but does not
include non-recourse obligations. In addition, if a failure, default or
acceleration referred to in the fifth and sixth clauses above ceases or is
cured, waived, rescinded or annulled, then the event of default under the
applicable indenture caused by that failure, default or acceleration will also
be considered cured. (Indentures, Section 5.01)
Acceleration of Debt Securities Upon an Event of Default. Each indenture
provides that:
o if an event of default due to the default in payment of principal of,
or any premium or interest on, any series of debt securities issued
under that indenture, or due to the default in the performance or
breach of any other covenant or warranty of MSDW applicable to the
debt securities of that series but not applicable to all outstanding
debt securities issued under that indenture occurs and is continuing,
either the trustee or the holders of not less than 25% in aggregate
principal amount of the outstanding debt securities of each affected
series, voting as one class, by notice in writing to MSDW, may declare
the principal of all debt securities of each affected series and
interest accrued thereon to be due and payable immediately; and
o if an event of default due to a default in the performance of any
other of the covenants or agreements in that indenture applicable to
all outstanding debt securities issued under that indenture or due to
specified events of bankruptcy, insolvency or reorganization of MSDW,
occurs and is continuing, either the trustee or the holders of not
less than 25% in aggregate principal amount of all outstanding debt
securities issued under that indenture, voting as one class, by notice
in writing to MSDW may declare the principal of all those debt
securities and interest accrued thereon to be due and payable
immediately. (Indentures, Section 5.01)
Annulment of Acceleration and Waiver of Defaults. In some circumstances,
if any and all events of default under the indenture, other than the non-payment
of the principal of the securities, which has become due as a result of an
acceleration, have been cured, waived or otherwise remedied, then the holders of
a majority in principal amount of all series of outstanding debt securities
affected, voting as one class, may annul past declarations of acceleration of or
waive past defaults of the debt securities. (Indentures, Sections 5.01 and 5.10)
Indemnification of Trustee for Actions Taken on Your Behalf. 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
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by the holders of debt securities issued under that indenture before proceeding
to exercise any right or power at the request of holders. (Indentures, Section
6.02) Subject to these provisions and some other limitations, the holders of a
majority in principal amount of each series of outstanding debt securities of
each affected series, voting as one class, 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
5.09)
Limitation on Actions by You as an Individual Holder. Each indenture
provides that no individual holder of debt securities may institute any action
against us under that indenture, except actions for payment of overdue principal
and interest, unless the following actions have occurred:
o the holder must have previously given written notice to the trustee of
the continuing default;
o the holders of not less than 25% in aggregate principal amount of the
outstanding debt securities of each affected series, treated as one
class, must have (1) requested the trustee to institute that action
and (2) offered the trustee reasonable indemnity;
o the trustee must have failed to institute that action within 60 days
after receipt of the request referred to above; and
o the holders of a majority in principal amount of the outstanding debt
securities of each affected series, voting as one class, must not have
given directions to the trustee inconsistent with those of the holders
referred to above. (Indentures, Sections 5.06 and 5.09)
Each indenture contains a covenant that we will file annually with the
trustee a certificate of no default or a certificate specifying any default that
exists. (Indentures, Section 3.05)
Discharge, Defeasance and Covenant Defeasance
We have the ability to eliminate most or all of our obligations on any
series of debt securities prior to maturity if we comply with the following
provisions. (Indentures, Section 10.01)
Discharge of Indenture. We may discharge all of our obligations, other
than as to transfers and exchanges, under the relevant indenture after we have:
o paid or caused to be paid the principal and interest on all of the
outstanding debt securities in accordance with their terms;
o delivered to the applicable trustee for cancellation all of the
outstanding debt securities; or
o irrevocably deposited with the applicable trustee cash or U.S.
government obligations in trust for the benefit of the holders of any
series of debt securities issued under the Indenture that have either
become due and payable, or are by their terms due and payable, or are
scheduled for redemption, within one year, in an amount certified to
be sufficient to pay on each date that they become due and payable,
the principal of and interest on, and any mandatory sinking fund
payments for, those debt securities, except that the deposit of cash
or U.S. government obligations for the benefit of holders of a series
of debt securities that are due and payable, or are scheduled for
redemption, within one year will discharge obligations under the
relevant indenture relating only to that series of debt securities.
Defeasance of a Series of Securities at Any Time. We may also discharge
all of our obligations, other than as to transfers and exchanges, under any
series of debt securities at any time, which we refer to as defeasance.
We may be released with respect to any outstanding series of debt
securities from the obligations imposed by Sections 3.06 (in the case of the
Senior Debt Indenture) and 9.01, which sections contain the covenants described
above
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limiting liens and consolidations, mergers, asset sales and leases, and elect
not to comply with those sections without creating an event of default.
Discharge under those procedures is called "covenant defeasance."
Defeasance or covenant defeasance may be effected only if, among other
things:
o we irrevocably deposit 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 on each date that they become due and payable, the principal of
and interest on, and any mandatory sinking fund payments for, all
outstanding debt securities of the series being defeased;
o we deliver to the relevant trustee an opinion of counsel to the effect
that:
o the holders of the series of debt securities being defeased will
not recognize income, gain or loss for United States federal
income tax purposes as a result of the defeasance or covenant
defeasance; and
o the defeasance or covenant defeasance will not otherwise alter
those holders' United States federal income tax treatment of
principal and interest payments on the series of debt securities
being defeased; in the case of a defeasance, this 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
this prospectus, since that result would not occur under current
tax law; and
o in the case of the Subordinated Debt Indenture:
o no event or condition will exist that, under the provisions
described under "--Subordination Provisions" above, would prevent
us from making payments of principal or 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 that deposit date; and
o we deliver to the trustee for the Subordinated Debt Indenture an
opinion of counsel to the effect that (i) the trust funds will
not be subject to any rights of holders of senior indebtedness
and (ii) after the 91st day following the deposit, the trust
funds will not be subject to any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors'
rights generally, except that if a court were to rule under any
of those laws in any case or proceeding that the trust funds
remained our property, then the relevant trustee and the holders
of the subordinated debt securities would be entitled to some
enumerated rights as secured creditors in the trust funds.
(Subordinated Debt Indenture, Section 10.01)
Modification of the Indentures
Modification without Consent of Holders. We and the trustee may enter into
supplemental indentures without the consent of the holders of debt securities
issued under a particular indenture to:
o secure any debt securities;
o evidence the assumption by a successor corporation of our obligations;
o add covenants for the protection of the holders of debt securities;
o cure any ambiguity or correct any inconsistency;
o establish the forms or terms of debt securities of any series; or
o evidence the acceptance of appointment by a successor trustee.
(Indentures, Section 8.01)
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Modification with Consent of Holders. We and the trustee, with the consent
of the holders of not less than a majority in aggregate principal amount of each
affected series of outstanding debt securities, voting as one class, may add any
provisions to, or change in any manner or eliminate any of the provisions of,
the indenture or modify in any manner the rights of the holders of those debt
securities. However, we and the trustee may not make any of the following
changes to any outstanding debt security without the consent of each potentially
affected holder:
o extend the final maturity of the principal;
o reduce the principal amount;
o reduce the rate or extend the time of payment of interest;
o reduce any amount payable on redemption;
o change the currency in which the principal, including any amount of
original issue discount, premium, or interest thereon is payable;
o modify or amend the provisions for conversion of any currency into
another currency;
o reduce the amount of any original issue discount security payable upon
acceleration or provable in bankruptcy;
o alter the terms on which holders of the debt securities may convert or
exchange debt securities for stock or other securities of MSDW or of
other entities or for other property or the cash value of the
property, other than in accordance with the antidilution provisions or
other similar adjustment provisions included in the terms of the debt
securities;
o impair the right to institute suit for the enforcement of any payment
on any debt security when due; or
o reduce the percentage of debt securities the consent of whose owners
is required for modification of the indentures.
Modification of Subordination Provisions. We may not amend the
Subordinated Debt Indenture to alter the subordination of any outstanding
subordinated debt securities without the written consent of each potentially
adversely affected holder of senior indebtedness then outstanding. (Subordinated
Debt Indenture, Section 8.06)
Concerning Our Relationship with the Trustees
We and our subsidiaries maintain ordinary banking relationships and credit
facilities with The Chase Manhattan Bank and The First National Bank of Chicago.
DESCRIPTION OF UNITS
Units will consist of one or more debt securities, universal warrants and
purchase contracts or any combination of them. The applicable prospectus
supplement will also describe:
o the designation and the terms of the units and of any combination of
debt securities, universal warrants and purchase contracts
constituting the units, including whether and under what circumstances
the debt securities, universal warrants or purchase contracts may be
traded separately;
o any additional terms of the governing Unit Agreement;
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o any additional provisions for the issuance, payment, settlement,
transfer or exchange of the units or of the debt securities, universal
warrants or purchase contracts constituting the units; and
o any applicable United States federal income tax consequences.
The terms and conditions described under "Description of Debt Securities,"
"Description of Warrants" and "Description of Purchase Contracts" and those
described below under "--Significant Provisions of the Unit Agreement" and
"--Significant Provisions of the Unit Agreement Without Holders' Obligations"
will apply to each unit and to any debt security, universal warrant or purchase
contract included in each unit, respectively, unless otherwise specified in the
applicable prospectus supplement.
We will issue the units under one or more Unit Agreements, each referred
to as a Unit Agreement, to be entered into between us and a bank or trust
company, as unit agent. We may issue units in one or more series, which will be
described in the applicable prospectus supplement. Units that include purchase
contracts that are all pre-paid purchase contracts, as defined below under
"Description of Purchase Contracts," will be governed by one or more Unit
Agreements designed for units where the holders do not have any further
obligations under the purchase contracts, which we refer to as Unit Agreements
Without Holders' Obligations. We have filed the form of Unit Agreement and Unit
Agreement Without Holders' Obligations as exhibits to the registration
statement. Although we have described below the material provisions of the Unit
Agreement, the Unit Agreement Without Holders' Obligations and the units, these
descriptions are not complete, and you should review the detailed provisions of
the Unit Agreement and Unit Agreement Without Holders' Obligations for a full
description, including the definition of some of the terms used in this
prospectus and for other information regarding the units.
Significant Provisions of the Unit Agreement
Obligations of Unit Holder. Under the terms of the Unit Agreement, each
owner of a unit:
o consents to and agrees to be bound by the terms of the Unit Agreement,
o appoints the unit agent as its authorized agent to execute, deliver
and perform any purchase contract included in the unit in which that
owner has an interest, except in the case of pre-paid purchase
contracts which require no further performance by the owner, and
o irrevocably agrees to be a party to and be bound by the terms of any
purchase contract, other than a pre-paid purchase contract, included
in the unit in which that owner has an interest.
Assumption of Obligations by Transferee. Upon the registration of transfer
of a unit, the transferee will assume the obligations, if any, of the transferor
under any purchase contract included in the unit and under any other security
constituting that unit, and the transferor will be released from those
obligations. Under the Unit Agreement, we consent to the transfer of these
obligations to the transferee, to the assumption of these obligations by the
transferee and to the release of the transferor, if the transfer is made in
accordance with the provisions of the Unit Agreement.
Remedies. Upon the acceleration of the debt securities constituting any
units, our obligations and those of the owners under any purchase contracts
constituting a part of the units may also be accelerated upon the request of the
owners of not less than 25% of the affected purchase contracts, on behalf of all
the owners.
Limitation on Actions by You as an Individual Holder. No owner of any unit
will have any right under the Unit Agreement to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise regarding the Unit
Agreement, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official, unless the owner will have given written notice to
the unit agent and to us of the occurrence and continuance of a default
thereunder and:
o in the case of an event of default under the debt securities or the
relevant indenture, unless the procedures, including notice to us and
the trustee, described in the indenture have been complied with; and
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o in the case of a failure by MSDW to observe or perform any of its
obligations under the Unit Agreement relating to any purchase
contracts, other than pre-paid purchase contracts, included in the
unit, unless:
o owners of not less than 25% of the affected purchase contracts
have (a) requested the unit agent to institute that action or
proceeding in its own name as unit agent under the Unit Agreement
and (b) offered the unit agent reasonable indemnity;
o the unit agent has failed to institute that action or proceeding
within 60 days of that request by the owners referred to above;
and
o the owners of a majority of the outstanding affected units have
not given directions to the unit agent inconsistent with those of
the owners referred to above.
If these conditions have been satisfied, any owner of an affected unit may then,
but only then, institute an action or proceeding. Notwithstanding the above, the
owner of any unit or purchase contract will have the unconditional right to
purchase or sell, as the case may be, purchase contract property under the
purchase contract and to institute suit for the enforcement of that right.
Purchase contract property is defined under "Description of Purchase Contracts"
below.
Negative Pledge. Because we are a holding company, our assets consist
primarily of the securities of our subsidiaries. The negative pledge provisions
of the Unit Agreement limit our ability to pledge some of these securities. The
Unit Agreement provides that we will not, and will not permit any subsidiary to
create, assume, incur or guarantee any indebtedness for borrowed money that is
secured by a pledge, lien or other encumbrance except for liens specifically
permitted by the Unit Agreement on:
(1) the voting securities of Morgan Stanley & Co. Incorporated, Morgan
Stanley & Co. International Limited, Dean Witter Reynolds Inc., Greenwood
Trust Company, or any subsidiary succeeding to any substantial part of the
business now conducted by any of those corporations, which we refer to
collectively as the "principal subsidiaries," or
(2) the voting securities of a subsidiary that owns, directly or
indirectly, the voting securities of any of the principal subsidiaries,
other than directors' qualifying shares,
without making effective provisions so that the units and the securities
constituting the units under the Unit Agreement will be secured equally and
ratably with indebtedness so secured.
For these purposes, "subsidiary" means any corporation, partnership or other
entity of which at the time of determination we own or control directly or
indirectly more than 50% of the shares of the voting stock or equivalent
interest, and "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 relevant subsidiary, other than
stock that carries only the conditional right to vote upon the happening of an
event, whether or not that event has happened.
Absence of Protections against All Potential Actions of MSDW. There are no
covenants or other provisions in the Unit Agreement providing for a put right or
increased interest or otherwise that would afford holders of units additional
protection in the event of a recapitalization transaction, a change of control
of MSDW or a highly leveraged transaction.
Modification without Consent of Holders. We and the unit agent may amend
the Unit Agreement and the terms of the purchase contracts and the purchase
contract certificates without the consent of the holders to:
o cure any ambiguity;
o correct or supplement any defective or inconsistent provision; or
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o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
Modification with Consent of Holders. We and the unit agent, with the
consent of the holders of not less than a majority of all series of outstanding
units affected, voting as one class, may modify the rights of the holders of the
units of each series so affected or the terms of any purchase contracts included
in any of those series of units and the terms of the Unit Agreement relating to
the purchase contracts of each series so affected. However, we and the unit
agent may not make any of the following modifications without the consent of the
holder of each outstanding unit affected by the modification:
o impair the right to institute suit for the enforcement of any purchase
contract;
o materially adversely affect the holders' rights under any purchase
contract;
o reduce the percentage of purchase contracts constituting part of
outstanding units the consent of whose owners is required for the
modification of the provisions of the Unit Agreement relating to those
purchase contracts or for the waiver of any defaults under the Unit
Agreement relating to those purchase contracts;
o materially adversely affect the holders' units or the terms of the
Unit Agreement (other than terms related to the first three clauses
above); or
o reduce the percentage of outstanding units the consent of whose owners
is required for the modification of the provisions of the Unit
Agreement (other than terms related to the first three clauses above).
Modifications of any debt securities or pre-paid purchase contracts
included in units may only be made in accordance with the applicable indenture,
as described under "Description of Debt Securities--Modification of the
Indentures." Modifications of any universal warrants included in units may only
be made in accordance with the terms of the universal warrant agreement as
described under "Description of Warrants--Significant Provisions of the Warrant
Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
provides that we will not merge or consolidate with any other person and will
not sell, lease or convey all or substantially all of our assets to any person
unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the Unit
Agreement; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement applicable to us.
Replacement of Unit Certificates or Purchase Contract Certificates. We
will replace any mutilated certificate evidencing a definitive unit or purchase
contract at the expense of the holder upon surrender of that certificate to the
unit agent. We will replace certificates that have been destroyed, lost or
stolen at the expense of the holder upon delivery to us and the unit agent of
evidence satisfactory to us and the unit agent of the destruction, loss or theft
of the certificates. In the case of a destroyed, lost or stolen certificate, an
indemnity satisfactory to the unit agent and to us may be required at the
expense of the holder of the units or purchase contracts evidenced by that
certificate before a replacement will be issued.
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The Unit Agreement provides that, notwithstanding the foregoing, no
replacement certificate need be delivered:
o during the period beginning 15 days before the day of mailing of a
notice of redemption or of any other exercise of any right held by
MSDW with respect to the unit or any security constituting the unit
evidenced by the mutilated, destroyed, lost or stolen certificate and
ending on the day of the giving of that notice;
o if the mutilated, destroyed, lost or stolen certificate evidences any
security selected or called for redemption or other exercise of a
right held by MSDW; or
o at any time on or after the date of settlement or redemption for any
purchase contract included in the unit, or at any time on or after the
last exercise date for any universal warrant included in the unit,
evidenced by the mutilated, destroyed, lost or stolen certificate,
except with respect to any units that remain or will remain
outstanding following the date of settlement or redemption or the last
exercise date.
Unit Agreement Not Qualified under Trust Indenture Act. The Unit Agreement
will not be qualified as an indenture under, and the unit agent will not be
required to qualify as a trustee under, the Trust Indenture Act. Accordingly,
the holders of units and purchase contracts, other than pre-paid purchase
contracts, will not have the benefits of the protections of the Trust Indenture
Act. However, any debt securities or pre-paid purchase contracts issued as part
of a unit will be issued under an indenture qualified under the Trust Indenture
Act, and the trustee under that indenture will be qualified as a trustee under
the Trust Indenture Act.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner, notwithstanding
any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement, the units and the purchase
contracts constituting part of the units will be governed by, and construed in
accordance with, the laws of the State of New York.
Significant Provisions of the Unit Agreement Without Holders' Obligations
Remedies. The unit agent will act solely as our agent in connection with
the units governed by the Unit Agreement Without Holders' Obligations and will
not assume any obligation or relationship of agency or trust for or with any
holders of units or interests in those units. Any holder of units or interests
in those units may, without the consent of the unit agent or any other holder or
beneficial owner of units, enforce by appropriate legal action, on its own
behalf, its rights under the Unit Agreement Without Holders' Obligations.
However, the holders of units or interests in those units may only enforce their
rights under the purchase contracts and any debt securities or under any
universal warrants issued as parts of those units in accordance with the terms
of the applicable indenture and the warrant agreement.
Modification. We and the unit agent may amend the Unit Agreement Without
Holders' Obligations without the consent of the holders to:
o cure any ambiguity;
o cure, correct or supplement any defective or inconsistent provision in
the agreement; or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interest of the
affected holders of units in any material respect.
We and the unit agent, with the consent of the holders of not less than a
majority of units at the time outstanding, may modify or amend the rights of the
affected holders of the affected units and the terms of the Unit Agreement
Without Holders' Obligations. However, we and the unit agent may not, without
the consent of each affected holder of units, make any modifications or
amendments that would:
o materially and adversely affect the exercise rights of the affected
holders, or
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o reduce the percentage of outstanding units the consent of whose owners
is required to consent to a modification or amendment of the Unit
Agreement Without Holders' Obligations.
Pre-paid purchase contracts and any debt securities issued as part of
units governed by the Unit Agreement Without Holders' Obligations may be
modified only in accordance with the applicable indenture, as described above
under "Description of Debt Securities--Modification of the Indentures." Any
universal warrants issued as part of units may be modified only in accordance
with the terms of the warrant agreement as described in "Description of
Warrants--Significant Provisions of the Warrant Agreement."
Merger, Consolidation, Sale, Lease or Conveyance. The Unit Agreement
Without Holders' Obligations provides that we will not merge or consolidate with
any other person and will not sell, lease or convey all or substantially all of
our assets to any person unless:
o we will be the continuing corporation; or
o the successor corporation or person that acquires all or substantially
all of our assets:
o will be a corporation organized under the laws of the United
States, a state of the United States or the District of Columbia;
and
o will expressly assume all of our obligations under the Unit
Agreement Without Holders' Obligations; and
o immediately after the merger, consolidation, sale, lease or
conveyance, we, that person or that successor corporation will not be
in default in the performance of the covenants and conditions of the
Unit Agreement Without Holders' Obligations applicable to us.
Replacement of Unit Certificates. We will replace any mutilated
certificate evidencing a definitive unit at the expense of the holder upon
surrender of that certificate to the unit agent. We will replace certificates
that have been destroyed, lost or stolen at the expense of the holder upon
delivery to us and the unit agent of evidence satisfactory to us and the unit
agent of the destruction, loss or theft of the certificates. In the case of a
destroyed, lost or stolen certificate, an indemnity satisfactory to the unit
agent and to us may be required at the expense of the holder of the units or
prepaid purchase contracts evidenced by that certificate before a replacement
will be issued.
Title. We, the unit agent, the trustee, the warrant agent and any of their
agents will treat the registered owner of any unit as its owner, notwithstanding
any notice to the contrary, for all purposes.
New York Law to Govern. The Unit Agreement Without Holders' Obligations,
the units and the pre-paid purchase contracts constituting part of the units
will be governed by, and construed in accordance with, the laws of the State of
New York.
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DESCRIPTION OF WARRANTS
Offered Warrants
We may issue warrants that are debt warrants or universal warrants. We may
offer warrants separately or together with one or more additional warrants,
purchase contracts or debt securities or any combination of those securities in
the form of units, as described in the applicable prospectus supplement. If we
issue warrants as part of a unit, the accompanying prospectus supplement will
specify whether those warrants may be separated from the other securities in the
unit prior to the warrants' expiration date. Universal warrants issued in the
United States may not be so separated prior to the 91st day after the issuance
of the unit, unless otherwise specified in the applicable prospectus supplement.
Debt Warrants. We may issue, together with debt securities or separately,
warrants for the purchase of debt securities on terms to be determined at the
time of sale. We refer to this type of warrant as a debt warrant.
Universal Warrants. We may also issue warrants to purchase or sell, on
terms to be determined at the time of sale:
o securities of an entity not affiliated with us, a basket of those
securities, an index or indices of those securities or any combination
of the above;
o currencies; or
o commodities.
We refer to the property in the above clauses as "warrant property." We
refer to this type of warrant as a "universal warrant." We may satisfy our
obligations, if any, with respect to any universal warrants by delivering the
warrant property or, in the case of warrants to purchase or sell securities or
commodities, the cash value of the securities or commodities, as described in
the applicable prospectus supplement.
Further Information in Prospectus Supplement
General Terms of Warrants. The applicable prospectus supplement will
contain, where applicable, the following terms of and other information relating
to the warrants:
o the specific designation and aggregate number of, and the price at
which we will issue, the warrants;
o the currency with which the warrants may be purchased;
o the date on which the right to exercise the warrants will begin and
the date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the warrants;
o whether the warrants will be issued in fully registered form or bearer
form, in definitive or global form or in any combination of these
forms, although, in any case, the form of a warrant included in a unit
will correspond to the form of the unit and of any debt security or
purchase contract included in that unit;
o any applicable United States federal income tax consequences;
o the identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents, registrars,
determination, or other agents;
o the proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities exchange;
o whether the warrants are to be sold separately or with other
securities as part of units; and
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o any other terms of the warrants.
Additional Terms of Debt Warrants. The prospectus supplement will contain,
where applicable, the following terms of and other information relating to any
debt warrants:
o the designation, aggregate principal amount, currency and terms of the
debt securities that may be purchased upon exercise of the debt
warrants;
o if applicable, the designation and terms of the debt securities with
which the debt warrants are issued and the number of the debt warrants
issued with each of the debt securities;
o if applicable, the date on and after which the debt warrants and the
related debt securities will be separately transferable; and
o the principal amount of debt securities purchasable upon exercise of
each debt warrant, the price at which and the currency in which the
debt securities may be purchased and the method of exercise.
Additional Terms of Universal Warrants. The applicable prospectus
supplement will contain, where applicable, the following terms of and other
information relating to any universal warrants:
o whether the universal warrants are put warrants or call warrants and
whether you or we will be entitled to exercise the warrants;
o the specific warrant property, and the amount or the method for
determining the amount of the warrant property, purchasable or
saleable upon exercise of each universal warrant;
o the price at which and the currency with which the underlying
securities, currencies or commodities may be purchased or sold upon
the exercise of each universal warrant, or the method of determining
that price;
o whether the exercise price may be paid in cash, by the exchange of any
other security offered with the universal warrants or both and the
method of exercising the universal warrants; and
o whether the exercise of the universal warrants is to be settled in
cash or by delivery of the underlying securities, commodities, or
both.
Significant Provisions of the Warrant Agreements
We will issue the warrants under one or more warrant agreements to be
entered into between us and a bank or trust company, as warrant agent, in one or
more series, which will be described in the prospectus supplement for the
warrants. The forms of warrant agreements are filed as exhibits to the
registration statement. The following summaries of significant provisions of the
warrant agreements and the warrants are not intended to be comprehensive and
holders of warrants should review the detailed provisions of the relevant
warrant agreement for a full description and for other information regarding the
warrants.
Modifications without Consent of Warrantholders. We and the warrant agent
may amend the terms of the warrants and the warrant certificates without the
consent of the holders to:
o cure any ambiguity,
o cure, correct or supplement any defective or inconsistent provision,
or
o amend the terms in any other manner which we may deem necessary or
desirable and which will not adversely affect the interests of the
affected holders in any material respect.
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Modifications with Consent of Warrantholders. We and the warrant agent,
with the consent of the holders of not less than a majority in number of the
then outstanding unexercised warrants affected, may modify or amend the warrant
agreement. However, we and the warrant agent may not make any of the following
modifications or amendments without the consent of each affected warrantholder:
o change the exercise price of the warrants;
o reduce the amount receivable upon exercise, cancellation or expiration
of the warrants other than in accordance with the antidilution
provisions or other similar adjustment provisions included in the
terms of the warrants;
o shorten the period of time during which the warrants may be exercised;
o materially and adversely affect the rights of the owners of the
warrants; or
o reduce the percentage of outstanding warrants the consent of whose
owners is required for the modification of the applicable warrant
agreement.
Merger, Consolidation, Sale or Other Disposition. If at any time there
will be a merger or consolidation of MSDW or a transfer of substantially all of
our assets, the successor corporation will succeed to and assume all of our
obligations under each warrant agreement and the warrant certificates. We will
then be relieved of any further obligation under each of those warrant
agreements and the warrants issued under those warrant agreements. See
"Description of Debt Securities--Covenants Restricting Pledges, Mergers and
other Significant Corporate Actions."
Enforceability of Rights of Warrantholders. The warrant agents will act
solely as our agents 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
any other person, enforce by appropriate legal action, on its own behalf, its
right to exercise the warrants evidenced by the warrant certificates in the
manner provided for in that series of warrants or pursuant to the applicable
warrant agreement. No holder of any warrant certificate or beneficial owner of
any warrants will be entitled to any of the rights of a holder of the debt
securities or any other warrant property purchasable upon exercise of the
warrants, including, without limitation, the right to receive the payments on
those debt securities or other warrant property or to enforce any of the
covenants or rights in the relevant indenture or any other similar agreement.
Registration and Transfer of Warrants. Subject to the terms of the
applicable warrant agreement, warrants in registered, definitive form may be
presented for exchange and for registration of transfer, at the corporate trust
office of the warrant agent for that series of warrants, or at any other office
indicated in the prospectus supplement relating to that series of warrants,
without service charge. However, the holder will be required to pay any taxes
and other governmental charges as described in the warrant agreement. The
transfer or exchange will be effected only if the warrant agent for the series
of warrants is satisfied with the documents of title and identity of the person
making the request.
New York Law to Govern. The warrants and each warrant agreement will be
governed by, and construed in accordance with, the laws of the State of New
York.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including purchase contracts issued as
part of a unit with one or more debt securities or universal warrants, for the
purchase or sale of:
o securities of an entity not affiliated with MSDW, a basket of those
securities, an index or indices of those securities or any combination
of the above;
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o currencies; or
o commodities.
We refer to this property in the above clauses as "purchase contract property."
Each purchase contract will obligate the holder to purchase or sell, and
obligate MSDW to sell or purchase, on specified dates, the purchase contract
property at a specified price or prices, all as described in the applicable
prospectus supplement. The applicable prospectus supplement will also specify
the methods by which the holders may purchase or sell the purchase contract
property and any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract.
Pre-paid Purchase Contracts
Purchase contracts may require holders to satisfy their obligations under
the purchase contracts at the time they are issued. We refer to these purchase
contracts as "pre-paid purchase contracts." MSDW's obligation to settle pre-paid
purchase contracts on the relevant settlement date will constitute senior
indebtedness or subordinated indebtedness of MSDW. Accordingly, pre-paid
purchase contracts will be issued under the Senior Debt Indenture or the
Subordinated Debt Indenture, as specified in the applicable prospectus
supplement.
Purchase Contracts Issued as Part of Units
Purchase contracts issued as part of a unit will be governed by the terms
and provisions of a Unit Agreement or, in the case of pre-paid purchase
contracts issued as part of a unit that contains no other purchase contracts, a
Unit Agreement Without Holders' Obligations. See "Description of
Units--Significant Provisions of the Unit Agreement" and "--Significant
Provisions of the Unit Agreement Without Holders' Obligations." The applicable
prospectus supplement will specify the following:
o whether the purchase contract obligates the holder to purchase or sell
the purchase contract property;
o whether a purchase contract issued as part of a unit may be separated
from the other securities constituting part of that unit prior to the
purchase contract's settlement date, except that purchase contracts
issued in the United States may not be so separated prior to the 91st
day after the issuance of a unit;
o the methods by which the holders may purchase or sell the purchase
contract property;
o any acceleration, cancellation or termination provisions or other
provisions relating to the settlement of a purchase contract; and
o whether the purchase contracts will be issued in fully registered or
bearer form, in definitive or global form or in any combination of
these forms, although, in any case, the form of a purchase contract
included in a unit will correspond to the form of the unit and of any
debt security or universal warrant included in that unit.
Settlement of Purchase Contracts. Where purchase contracts issued together
with debt securities as part of a unit require the holders to buy purchase
contract property, the unit agent may apply principal payments from the debt
securities in satisfaction of the holders' obligations under the related
purchase contract as specified in the prospectus supplement. The unit agent will
not so apply the principal payments if the holder has delivered cash to meet its
obligations under the purchase contract. To settle the purchase contract and
receive the purchase contract property, the holder must present and surrender
the unit certificates at the office of the unit agent. If a holder settles its
obligations under a purchase contract that is part of a unit in cash rather than
by delivering the debt security that is part of the unit, that debt security
will remain outstanding if the maturity extends beyond the relevant settlement
date and, as more fully described in the applicable prospectus supplement, the
holder will receive that debt security or an interest in the relevant global
debt security.
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Pledge by Purchase Contract Holders to Secure Performance. To secure the
obligations of the purchase contract holders contained in the Unit Agreement and
in the purchase contracts, the holders, acting through the unit agent, as their
attorney-in-fact, will grant, sell, convey, assign, transfer and pledge the
items in the following sentence, which we refer to as the "pledge," to The Chase
Manhattan Bank, in its capacity as collateral agent, for our benefit. The pledge
is a security interest in and to, and a lien upon and right of set-off against,
all of the holders' right, title and interest in and to:
o any debt securities that are part of units that include the purchase
contracts, or other property as may be specified in the applicable
prospectus supplement, which we refer to as the "pledged items";
o all additions to and substitutions for the pledged items as may be
permissible, if so specified in the applicable prospectus supplement;
o all income, proceeds and collections received or to be received, or
derived or to be derived, at any time from or in connection with the
pledged items described in the two clauses above; and
o all powers and rights owned or thereafter acquired under or with
respect to the pledged items.
The pledge constitutes collateral security for the performance when due by
each holder of its obligations under the Unit Agreement and the applicable
purchase contract. The collateral agent will forward all payments from the
pledged items to us, unless the payments have been released from the pledge in
accordance with the Unit Agreement. We will use the payments received from the
pledged items to satisfy the obligations of the holder of the Unit under the
related purchase contract.
Property Held in Trust by Unit Agent. If a holder fails to settle in cash
its obligations under a purchase contract that is part of a unit and fails to
present and surrender its unit certificate to the unit agent when required, that
holder will not receive the purchase contract property. Instead, the unit agent
will hold that holder's purchase contract property, together with any
distributions, as the registered owner in trust for the benefit of the holder
until the holder presents and surrenders the certificate or provides
satisfactory evidence that the certificate has been destroyed, lost or stolen.
The unit agent or MSDW may require an indemnity from the holder for liabilities
related to any destroyed, lost or stolen certificate. If the holder does not
present the unit certificate, or provide the necessary evidence of destruction
or loss and indemnity, on or before the second anniversary of the settlement
date of the related purchase contract, the unit agent will pay to us the amounts
it received in trust for that holder. Thereafter, the holder may recover those
amounts only from us and not the unit agent. The unit agent will have no
obligation to invest or to pay interest on any amounts it holds in trust pending
distribution.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, MSDW'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.
The rights of holders of preferred stock offered by this prospectus will
be subject to, and may be adversely affected by, issuances of preferred stock in
the future. Under some circumstances, alone or in combination with other
provisions of our certificate of incorporation, described under "--Additional
Provisions of MSDW's Certificate of Incorporation and By-laws" below, our
issuances of preferred stock may discourage or make more difficult an
acquisition of MSDW that the Board of Directors deems undesirable.
The Board of Directors of MSDW 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 other
terms applicable to the preferred stock to be issued. The Board of Directors may
issue preferred stock to obtain additional financing, in connection with
acquisitions, to officers, directors or employees of MSDW and its subsidiaries
in accordance with benefit plans or otherwise and for other proper corporate
purposes.
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Outstanding Capital Stock
Outstanding Common Stock. As of March 31, 1999, there were approximately
570,574,025 shares of our common stock outstanding.
Outstanding Preferred Stock. On March 31, 1999, MSDW also had outstanding
the following series of preferred stock:
o approximately 3,548,234 shares of ESOP Convertible Preferred Stock,
with a liquidation value of $35.875 per share, which we refer to as
the ESOP Preferred Stock, issued in connection with MSDW's Employee
Stock Ownership Plan;
o 1,000,000 shares of 7-3/4% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 7-3/4% Preferred
Stock; and
o 1,725,000 shares of Series A Fixed/Adjustable Rate Cumulative
Preferred Stock, with a stated value of $200.00 per share, which we
refer to as the Series A Fixed/Adjustable Rate Preferred Stock.
We refer to the 7-3/4% Preferred Stock and the Series A Fixed/Adjustable
Rate Preferred Stock as the Existing Cumulative Preferred Stock.
Cumulative Preferred Stock Issuable under the Capital Units. In addition,
we and our wholly-owned subsidiary Morgan Stanley Finance plc have outstanding
Capital Units. Each Capital Unit consists of a subordinated debenture issued by
Morgan Stanley Finance plc, which we guaranteed on a subordinated basis, and a
related purchase contract we issued that requires the holder to purchase one
depositary share representing ownership of a fraction or multiple of a share of
our preferred stock. The Capital Units may result in the issuance at any time of
up to:
o 720,900 shares of our 9.00% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 9.00% Preferred
Stock;
o 996,776 shares of our 8.40% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.40% Preferred
Stock;
o 847,500 shares of our 8.20% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.20% Preferred
Stock; and
o 670,000 shares of our 8.03% Cumulative Preferred Stock, with a stated
value of $200.00 per share, which we refer to as the 8.03% Preferred
Stock.
We refer to the 9.00% Preferred Stock, the 8.40% Preferred Stock, the
8.20% Preferred Stock and the 8.03% Preferred Stock collectively as the Capital
Units Cumulative Preferred Stock.
Series A Junior Participating Preferred Stock Issuable under Rights Plan.
In addition, we have authorized for issuance up to 450,000 shares of Series A
Junior Participating Preferred Stock, par value $0.01 per share, which may be
issued upon the exercise of rights issued to the holders of our common stock
under our Rights Plan. See "--The Rights Plan."
The preceding summary and the following summary of the terms of the
offered preferred stock do not purport to be complete and are qualified by our
certificate of incorporation and by the Certificates of Designation of
Preferences and Rights for each of the ESOP Preferred Stock, each series of
Existing Cumulative Preferred Stock, each series of Capital Units Cumulative
Preferred Stock and the Series A Junior Participating Preferred Stock.
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Offered Preferred Stock
Our Board of Directors has authorized the issuance in series of additional
shares of preferred stock and has authorized a committee of the Board of
Directors 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
preferred stock offered by this prospectus and the applicable prospectus
supplement. The shares of offered preferred stock, when issued and sold, will be
fully paid and nonassessable.
Terms Specified in Prospectus Supplement. The following description sets
forth some general terms and provisions of the offered preferred stock. The
number of shares and all of the relative rights, preferences and limitations of
the respective series of offered preferred stock that the Board of Directors or
the committee establishes will be described in the applicable prospectus
supplement. The terms of particular series of offered preferred stock may
differ, among other things, in:
o designation;
o number of shares that constitute the series;
o dividend rate, or the method of calculating the dividend rate;
o dividend periods, or the method of calculating the dividend periods;
o redemption provisions, including whether or not, on what terms and at
what prices the shares will be subject to redemption at our option;
o voting rights;
o preferences and rights upon liquidation or winding-up;
o whether or not and on what terms the shares will be convertible into
or exchangeable for shares of any other class, series or security of
MSDW or any other corporation or any other property;
o whether depositary shares representing the offered preferred stock
will be offered and, if so, the fraction or multiple of a share that
each depositary share will represent; and
o the other rights and privileges and any qualifications, limitations or
restrictions of those rights or privileges.
We have summarized below the material provisions of a certificate of
designation authorizing the issuance of any series of offered preferred stock.
These summaries are not complete and each investor should refer to the form of
certificate of designation which has been filed as an exhibit to the
registration statement and to our certificate of incorporation for a complete
description of the terms and definitions. The Board of Directors or a duly
authorized committee of the Board of Directors will adopt the resolutions to be
included in the certificate of designation prior to the issuance of a series of
offered preferred stock, and the certificate of designation will be filed with
the Secretary of State of the State of Delaware as soon thereafter as reasonably
practicable.
Rank. Each series of offered preferred stock will rank, with respect to
voting powers, preferences or relative, participating, optional and other
special rights, including with respect to the payment of dividends and the
distribution of assets, whether upon liquidation or otherwise:
o junior to any series of capital stock of MSDW expressly stated to be
senior to that series of offered preferred stock,
o senior to the common stock of MSDW and any class of capital stock of
MSDW expressly stated to be junior to that series of offered preferred
stock; and
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o on a parity with each other series of offered preferred stock and all
other classes of capital stock of MSDW.
The offered preferred stock will rank, as to payment of dividends and amounts
payable on liquidation, on a parity with the ESOP Preferred Stock, each series
of the Existing Cumulative Preferred Stock and, if issued, the Capital Units
Cumulative Preferred Stock.
Dividends. If described in the applicable prospectus supplement, we will
pay cumulative cash dividends to the holders of offered preferred stock, when
and as declared by the Board of Directors or the committee out of funds legally
available for payment. The prospectus supplement will detail the annual rate of
dividends or the method or formula for determining or calculating them, and the
payment dates and payment periods for dividends. The Board of Directors or the
committee will fix a record date for the payment of dividends not more than 60
or less than 10 days preceding the dividend payment date. We will pay dividends
on the offered preferred stock to the holders of record on that record date.
Dividends will be cumulative from the date of original issue of the series. A
series of offered preferred stock will be junior as to payment of dividends to
any series of preferred stock that may be issued in the future that is expressly
stated to be senior as to payment of dividends to that series. If at any time we
have failed to pay accrued dividends on any of those senior shares when payable,
we may not pay any dividend on that series of offered preferred stock or redeem
or otherwise repurchase any shares of that series until we have paid or set
aside for payment the full amount of the accumulated but unpaid dividends on the
senior shares.
We will not declare, pay or set aside for payment any dividends on any
preferred stock ranking on a parity as to payment of dividends with the offered
preferred stock unless we declare, pay or set aside for payment, dividends on
all the outstanding shares of offered preferred stock for all dividend payment
periods ending on or before the dividend payment date for any parity stock. We
must declare, pay or set aside for payment any amounts on the offered preferred
stock ratably in proportion to the respective amounts of dividends (1)
accumulated and unpaid or payable on that parity stock, on the one hand, and (2)
accumulated and unpaid or payable through the dividend payment period or periods
of the offered preferred stock next preceding the dividend payment date, on the
other hand.
Except as described above, unless we have paid the full cumulative
dividends on the outstanding shares of offered preferred stock, we may not take
any of the following actions with respect to our common stock or any other
preferred stock of MSDW ranking junior or on parity with the offered preferred
stock as to dividend payments:
o declare, pay or set aside for payment any dividends, other than
dividends payable in our common stock,
o make other distributions,
o redeem, purchase or otherwise acquire our common stock or junior
preferred stock for any consideration, or
o make any payment to or available for a sinking fund for the redemption
of our common stock or junior preferred stock.
Preferred stock on a parity with offered preferred stock currently includes the
ESOP Preferred Stock and the Existing Cumulative Preferred Stock and, if issued,
would include the Capital Units Cumulative Preferred Stock.
The provisions of the immediately preceding paragraph will not apply to
any monies we deposit in any sinking fund with respect to any preferred stock in
compliance with the provisions of the sinking fund. We may apply monies so
deposited to the purchase or redemption of the preferred stock in accordance
with the terms of the sinking fund, regardless of whether at the time of
application we have paid or declared and set aside for payment full cumulative
dividends upon shares of the offered preferred stock outstanding on the last
dividend payment date for any series of offered preferred stock. The provisions
of the immediately preceding paragraph also do not restrict the ability of a
holder of any junior or parity preferred stock or common stock to convert those
securities into or exchange those securities for MSDW capital stock ranking
junior to the offered preferred stock as to dividend payments.
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We will compute the amount of dividends payable for the initial dividend
period or any period shorter than a full dividend period on the basis of a
360-day year of twelve 30-day months, unless otherwise indicated in the
prospectus supplement. Accrued but unpaid dividends will not bear interest.
Redemption. The prospectus supplement will indicate whether, and on what
terms, shares of any series of offered preferred stock will be subject to
mandatory redemption or sinking fund provision. The prospectus supplement will
also indicate whether, and on what terms, including the date on or after which
redemption may occur, we may redeem shares of a series of the offered preferred
stock. We will effect any optional redemption 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 we have not
paid full cumulative dividends on all outstanding shares of offered preferred
stock we may not redeem any shares of offered preferred stock in part and we may
not purchase or acquire any shares of offered preferred stock, otherwise than by
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, we will select those to be redeemed
by lot or a substantially equivalent method.
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of MSDW, the holders of shares of offered preferred stock will be
entitled to receive, out of the assets of MSDW available for distribution to
stockholders, liquidating distributions in an amount equal to the stated value
per share of offered preferred stock, as described in the applicable prospectus
supplement, plus accrued and accumulated but unpaid dividends to the date of
final distribution, before any distribution is made to holders of
o any other shares of preferred stock ranking junior to the offered
preferred stock as to rights upon liquidation, dissolution or winding
up or
o our common stock.
However, holders of the shares of offered preferred stock will not be entitled
to receive the liquidation price of their shares until we have paid or set aside
an amount sufficient to pay in full the liquidation preference of any other
shares of MSDW's capital stock ranking senior as to rights upon liquidation,
dissolution or winding up. Neither a consolidation or merger of MSDW with or
into another corporation nor a merger of another corporation with or into MSDW
nor a sale or transfer of all or part of MSDW's assets for cash or securities
will be considered a liquidation, dissolution or winding up of MSDW.
If upon any liquidation, dissolution or winding up of MSDW, we have not
paid the amounts payable with respect to the offered preferred stock and any
other preferred stock ranking on parity with the offered preferred stock as to
rights upon liquidation, dissolution or winding up, the holders of the offered
preferred stock and of that other preferred stock will share ratably in any
distribution in proportion to the full respective preferential amounts to which
they are entitled. After we have paid 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 MSDW.
Voting Rights. Unless otherwise determined by our Board of Directors and
indicated in the prospectus supplement, holders of the offered preferred stock
will not have any voting rights except as described 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 are 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 offered preferred stock, voting separately as a class with all other
series of preferred stock, including the Existing Cumulative Preferred Stock,
having similar voting rights that are exercisable, will be entitled to vote for
the election of two of the authorized number of directors of MSDW at the next
annual meeting of stockholders and at each subsequent meeting until we have paid
or set apart for payment all dividends accumulated on the offered preferred
stock. The term of office of all directors elected by the holders of preferred
stock will 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.
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So long as any shares of the offered preferred stock remain outstanding,
we will not, without the consent of the holders of at least two-thirds of the
shares of offered preferred stock outstanding at the time
o 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
o amend, alter or repeal the provisions of our 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 their holders.
Holders of the offered preferred stock will vote separately as a class with all
other series of preferred stock, including the Existing Cumulative Preferred
Stock and any issued Capital Units Cumulative Preferred Stock, having similar
voting rights have been conferred that are exercisable. For purposes of the
preceding sentence, 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 will not be
considered to materially and adversely affect those powers, preferences or
special rights.
Agents and Registrar for Offered Preferred Stock. The transfer agent,
dividend disbursing agent and registrar for each series of offered preferred
stock will be The Bank of New York.
Depositary Shares
We may, at our option, elect to offer fractional shares or some multiple
of shares of offered preferred stock, rather than individual shares of offered
preferred stock. If we choose to do so, we will issue depositary receipts for
depositary shares, each of which will represent a fraction or a multiple of a
share of a particular series of offered preferred stock as described below.
The following statements concerning depositary shares, depositary
receipts, and the deposit agreement are not intended to be comprehensive and are
qualified in their entirety by reference to the forms of these documents, which
we have filed as exhibits to the registration statement. Each investor should
refer to the detailed provisions of those documents, as we have explained under
the heading "Where You Can Find More Information" in the Summary.
The shares of any series of offered preferred stock represented by
depositary shares will be deposited under a deposit agreement among MSDW, The
Bank of New York, as depositary, which we refer to as the Preferred Stock
Depositary, and the holders from time to time of depositary receipts issued
under the agreement. Subject to the terms of the deposit agreement, each holder
of a depositary share will be entitled, in proportion to the fraction or
multiple of a share of offered preferred stock represented by that depositary
share, to all the rights and preferences of the offered preferred stock
represented by that depositary share, including dividend, voting and liquidation
rights.
The depositary shares will be evidenced by depositary receipts issued
under the deposit agreement. Depositary receipts will be distributed to those
persons purchasing the fractional or multiple shares of the related series of
offered preferred stock. Immediately following the issuance of shares of a
series of offered preferred stock, we will deposit those shares with the
Preferred Stock Depositary, which will then issue and deliver the depositary
receipts to the purchasers. Depositary receipts will only be issued evidencing
whole depositary shares. A depositary receipt may evidence any number of whole
depositary shares.
Dividends and Other Distributions. The Preferred Stock Depositary will
distribute all cash dividends or other cash distributions received on the
related series of offered preferred stock to the record holders of depositary
shares relating to those series in proportion to the number of the depositary
shares those holders own.
If we make a distribution other than in cash, the Preferred Stock
Depositary will distribute the property it receives to the record holders of
depositary shares in proportion to the number of depositary shares those holders
own, unless the Preferred Stock Depositary determines that the distribution
cannot be made proportionately among those holders or that it is not feasible to
make the distribution. In that event, the Preferred Stock Depositary may, with
our approval,
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sell the property and distribute the net proceeds to the holders in proportion
to the number of depositary shares they own.
The amount distributed to holders of depositary shares will be reduced by
any amounts required to be withheld by MSDW 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 compliance
with any other requirement of the deposit agreement, the holder of the
depositary shares evidenced by those depositary receipts is entitled to delivery
of the number of whole shares of the related series of offered preferred stock
and any money or other property, if any, represented by those shares. Holders of
depositary shares will be entitled to receive whole shares of the related series
of offered preferred stock, but holders of whole shares of offered preferred
stock will not thereafter be entitled to deposit their 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 representing whole shares of
the related series of offered preferred stock to be withdrawn, the Preferred
Stock Depositary will deliver to the holder, or upon his or her order, at the
same time a new depositary receipt evidencing the excess number of depositary
shares.
Voting the Offered Preferred Stock. Upon receiving 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
the notice to the record holders of the depositary shares relating to that
series of offered preferred stock. Each record holder of the depositary shares
on the record date, which will be the same date as the record date for the
related series of offered preferred stock, may instruct the Preferred Stock
Depositary how to exercise his or her voting rights. 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 those
depositary shares in accordance with those instructions, if the Preferred Stock
Depositary receives the instructions sufficiently in advance of the meeting, and
we 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 any shares of the
offered preferred stock if it does not receive specific instructions from the
holder of the depositary shares representing them.
Redemption of Depositary Shares. Depositary shares will be redeemed from
any proceeds received by the Preferred Stock Depositary resulting from the
redemption, in whole or in part, of the series of the offered preferred stock
represented by those depositary shares. The redemption price per depositary
share will equal the applicable fraction or multiple of the redemption price per
share payable with respect to the series of the offered preferred stock. If we
redeem 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 that we redeem. If less than all the depositary shares will 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 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
monies payable upon the redemption and any other property to which the holders
were entitled upon the redemption upon surrender to the Preferred Stock
Depositary of the depositary receipts evidencing the depositary shares. Any
funds deposited by us with the Preferred Stock Depositary for any depositary
shares that the holders fail to redeem will be returned to us after a period of
two years from the date the funds are deposited.
Amendment and Termination of the Deposit Agreement. We may amend the form
of depositary receipt evidencing the depositary shares and any provision of the
deposit agreement at any time and from time to time by agreement with 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 it has been approved by the holders of at least a majority of the
depositary shares then outstanding, and no amendment may impair the right of any
holder of any depositary shares, described above under "--Withdrawal of Stock,"
to receive shares of the related series of offered preferred stock and any money
or other property represented by those depositary shares, except in order to
comply with mandatory provisions of applicable law. We may terminate the deposit
agreement at any time with at least 60 days' prior written
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notice to the Preferred Stock Depositary. Within 30 days of that date, the
Preferred Stock Depositary will deliver or make available for delivery to
holders of depositary shares, upon surrender of the depositary receipts
evidencing the depositary shares, the number of whole or fractional shares of
the related series of offered preferred stock as are represented by the
depositary shares. The deposit agreement will automatically terminate after
there has been a final distribution on the related series of offered preferred
stock in connection with any liquidation, dissolution or winding up of MSDW and
that distribution has been made to the holders of depositary shares.
Charges of Preferred Stock Depositary. We will pay all transfer and other
taxes and governmental charges arising solely from the existence of the
depositary arrangements. We will pay charges of the Preferred Stock Depositary,
including charges in connection with the initial deposit of the related series
of offered preferred stock, the initial issuance of the depositary shares and
all withdrawals of shares of the related series of offered preferred stock.
However, holders of depositary shares will pay other transfer and other taxes
and governmental charges and the other charges expressly provided in the deposit
agreement to be for their accounts.
Limitation on Liability of Company and Preferred Stock Depositary. Neither
the Preferred Stock Depositary nor MSDW will be liable if it is prevented or
delayed by law or any circumstance beyond its control from performing its
obligations under the deposit agreement. The obligations of MSDW 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 will be liable for willful misconduct in the performance of
their duties thereunder, and they will not be obligated to appear in, prosecute
or defend any legal proceeding related to any depositary receipts, depositary
shares or series of offered preferred stock unless satisfactory indemnity is
furnished.
Corporate Trust Office of Preferred Stock Depositary. 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 us written notice of its
election to do so, and we may at any time remove the Preferred Stock Depositary.
Any resignation or removal will take effect upon the appointment of a successor
Preferred Stock Depositary. A successor 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 a combined capital
and surplus of at least $50,000,000.
Reports to Holders. We will deliver all required reports and
communications to holders of the offered preferred stock to the Preferred Stock
Depositary, and it will forward those reports and communications to the holders
of depositary shares.
Existing Common Stock
Each holder of our common stock has one vote per share on all matters
voted on generally by the stockholders, including the election of directors.
Except as otherwise required by law or as provided with respect to any series of
preferred stock, including the ESOP Preferred Stock, the holders of our common
stock, together with the holders of ESOP Preferred Stock, will possess all
voting power. The Board of Directors is divided into three classes of directors
with the term of one class expiring at each annual meeting of stockholders.
Because our 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, which we refer to as the "voting stock," represented at a meeting
will be able to elect all the directors standing for election at the meeting. As
of February 9, 1999, some of the current and former senior officers of MSDW and
its subsidiaries beneficially owned in the aggregate 71,303,320 shares of MSDW
common stock subject to voting restrictions contained in various voting
agreements. As of that date, those shares constituted approximately 12.15% of
the votes that are entitled to be cast at the 1999 annual meeting of our
stockholders.
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The holders of our common stock are entitled to share equally in 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 Capital Units
Cumulative Preferred Stock.
Upon voluntary or involuntary liquidation, dissolution or winding up of
MSDW, the holders of the common stock will share pro rata in the assets
remaining after payments to creditors and holders 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 Capital Units Cumulative Preferred Stock. There are no preemptive
or other subscription rights, conversion rights or redemption or sinking fund
provisions with respect to shares of our common stock.
All of the outstanding shares of our common stock are fully paid and
nonassessable.
The transfer agent and registrar for the common stock is Morgan Stanley
Dean Witter Trust FSB.
Existing ESOP Convertible Preferred Stock
The ESOP Preferred Stock is senior to our common stock and ranks on a
parity with the offered preferred stock, the Existing Cumulative Preferred Stock
and any issued Capital Units Cumulative 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 legally available funds,
cash dividends in the amount of $2.78 per share each year, payable either
annually or semiannually, at the election of the Board of Directors. Holders of
ESOP Preferred Stock are entitled to receive $35.875 per share, which we refer
to as the "ESOP Preferred Stock liquidation price," upon dissolution or
liquidation of MSDW.
So long as any shares of ESOP Preferred Stock are outstanding, we will not
declare or pay, or set aside for payment dividends, on any preferred stock
ranking on a parity as to payment of dividends with the ESOP Preferred Stock
unless we also declare or pay, or set aside for payment, dividends on the
outstanding shares of ESOP Preferred Stock for all dividend payment periods
ending on or before the dividend payment date of any parity stock. We must
declare, pay or set aside for payment any amounts on the ESOP Preferred Stock
ratably in proportion to the respective amounts of dividends (1) accumulated and
unpaid or payable on that parity stock, on the one hand, and (2) accumulated and
unpaid or payable through the dividend payment period or periods of the ESOP
Preferred Stock next preceding the dividend payment date, on the other hand.
Holders of ESOP Preferred Stock can vote on all matters submitted to a
vote of the holders of shares of our common stock, voting together with the
holders of shares of common stock as one class. Each share of ESOP Preferred
Stock has a number of votes equal to 1.35 times the number of shares of common
stock into which that share of ESOP Preferred Stock could be converted on the
record date for a 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.
We have the option to redeem the ESOP Preferred Stock at the ESOP
Preferred Stock liquidation price plus accrued dividends at any time after
September 19, 2000 and prior to that date under some circumstances at specified
prices. We may pay the redemption price of the ESOP Preferred Stock in cash, in
shares of common stock or a combination of the two. The restrictions on voting
and disposition contained in the voting agreements, described in the first
paragraph under "--Existing Common Stock" above, do not apply to the ESOP
Preferred Stock or the shares of common stock issued upon conversion of the ESOP
Preferred Stock.
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Existing Cumulative Preferred Stock and Capital Units Cumulative Preferred Stock
Unless otherwise indicated, the terms and provisions described below
relate to each of the 7-3/4% Preferred Stock, the Series A Fixed/Adjustable Rate
Preferred Stock and the Capital Units Cumulative Preferred Stock. Other than as
described below, the terms of the 7-3/4% Preferred Stock, the Series A
Fixed/Adjustable Rate Preferred Stock and, if issued, the Capital Units
Cumulative Preferred Stock are identical, and the discussion below relating to
the Existing Cumulative Preferred Stock also applies to the Capital Units
Cumulative Preferred Stock.
Rank. Each series of the Existing Cumulative Preferred Stock and, if
issued, the Capital Units Cumulative Preferred Stock ranks on a parity with each
other, with the offered preferred stock and with the ESOP Preferred Stock, and
ranks 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 MSDW and have no
preemptive rights.
Dividends. Holders of the corresponding 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 out of
legally available funds, cumulative cash dividends payable quarterly at the rate
of:
o 7-3/4% per year (for the 7-3/4% Preferred Stock),
o 9.00% per year (if the 9.00% Preferred Stock is issued),
o 8.40% per year (if the 8.40% Preferred Stock is issued),
o 8.20% per year (if the 8.20% Preferred Stock is issued), and
o 8.03% per year (if the 8.03% Preferred Stock is issued).
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 out of
legally available funds, 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. However, the dividends payable on the Series A
Fixed/Adjustable Rate Preferred Stock will not be less than 6.41% nor greater
than 12.41% per year.
The amount of dividends payable on the 7-3/4% Preferred Stock and the
Series A Fixed/Adjustable Rate Preferred Stock will be adjusted in the event of
specified amendments to the Internal Revenue Code of 1986 relating to 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 we have
failed to pay accrued dividends on any of those senior shares at the time they
are payable, we may not pay any dividend on the Existing Cumulative Preferred
Stock or redeem or otherwise repurchase any shares of Existing Cumulative
Preferred Stock until we have paid in full, or set aside dividends for payment,
the accumulated but unpaid dividends on those senior shares.
We will not declare or pay or set aside for payment dividends on any
preferred stock ranking on a parity as to payment of dividends with the Existing
Cumulative Preferred Stock unless we also declare or pay or set aside for
payment dividends on the outstanding shares of Existing Cumulative Preferred
Stock for all dividend payment periods ending on or before the dividend payment
date of any parity stock. We must declare, pay or set aside for payment any
amounts on the Existing Cumulative Preferred Stock ratably in proportion to the
respective amounts of dividends (1) accumulated and unpaid or payable on that
parity stock, on the one hand, and (2) accumulated and unpaid or payable through
the dividend payment period or periods of each series of the Existing Cumulative
Preferred Stock next preceding the dividend payment date, on the other hand.
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Except as described above, unless we have paid the full cumulative
dividends on the outstanding shares of Existing Cumulative Preferred Stock, we
may not with respect to our common stock or any other preferred stock of MSDW
ranking junior to or on a parity with the Existing Cumulative Preferred Stock as
to dividend payments:
o declare, pay or set aside for payment any dividends, other than
dividends payable in our common stock,
o make other distributions,
o redeem, purchase or otherwise acquire our common stock or junior
preferred stock for any consideration, or
o make any payment to or available for a sinking fund for redemption of
our common stock or junior preferred stock.
The provisions of the immediately preceding paragraph do not apply to any
monies we deposit in any sinking fund with respect to any preferred stock in
compliance with the provisions of that sinking fund. We may apply monies so
deposited to the purchase or redemption of the preferred stock in accordance
with the terms of the sinking fund, regardless of whether at the time of
application we have paid or declared or set aside for payment full cumulative
dividends upon shares of any series of Existing Cumulative Preferred Stock. The
provisions of the immediately preceding paragraph also do not restrict the
ability of the holder of any junior or parity preferred stock or common stock to
convert their securities into or exchange those securities for MSDW capital
stock ranking junior to the Existing Cumulative Preferred Stock as to dividend
payments.
Redemption. The Existing Cumulative Preferred Stock is not and will not
be subject to any mandatory redemption or sinking fund provision and is
redeemable as follows:
o the 7-3/4% Preferred Stock is not redeemable prior to August 30, 2001,
except that under some circumstances it may be redeemed prior to that
date at specified prices;
o the Series A Fixed/Adjustable Rate Preferred Stock is not redeemable
prior to November 30, 2001, except that under some circumstances it
may be redeemed prior to that date at specified prices;
o if issued, the 9.00% Preferred Stock will not be redeemable prior to
February 28, 2000;
o if issued, the 8.40% Preferred Stock will not be redeemable prior to
August 30, 2000;
o if issued, the 8.20% Preferred Stock will not be redeemable prior to
November 30, 2000; and
o if issued, the 8.03% Preferred Stock will not be redeemable prior to
February 28, 2007, except that under some circumstances it may be
redeemed prior to that date at specified prices.
On or after these dates, the applicable series of Existing Cumulative Preferred
Stock will be redeemable at our option, in whole or in part, upon not less than
30 days' notice, in each case at a redemption price equal to $200.00 per share
(except that the 8.03% Preferred Stock is redeemable at specified prices during
specified periods following the indicated date) 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 MSDW, the holders of shares of Existing Cumulative Preferred Stock
and will be entitled to receive liquidating distributions in the amount of
$200.00 per share plus accrued and accumulated but unpaid dividends to the date
of final distribution before any distribution is made to holders of
o any other shares of preferred stock ranking junior to the Existing
Cumulative Preferred Stock, as to rights upon liquidation, dissolution
or winding up, and
o common stock.
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However, the holders of the shares of Existing Cumulative Preferred Stock will
not be entitled to receive the liquidation price of these shares until the
liquidation preference of any other shares of MSDW's capital stock ranking
senior as to rights upon liquidation, dissolution or winding up will have been
paid in full or a sum set aside therefor sufficient to provide for payment in
full.
If upon any liquidation, dissolution or winding up of MSDW, the amounts
payable with respect to the Existing Cumulative Preferred Stock and any other
preferred stock ranking on parity as to rights upon liquidation, dissolution or
winding up are not paid in full, the holders of the Existing Cumulative
Preferred Stock and of that other preferred stock will share ratably in any
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 will not be entitled to any further participation in any
distribution of assets by MSDW.
Voting Rights. Holders of Existing Cumulative Preferred Stock do not have
any voting rights except as described 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
that series of Existing Cumulative Preferred Stock with respect to the payment
of dividends are 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 Existing Cumulative Preferred Stock, voting
separately as a class with all other series of preferred stock having similar
voting rights that are exercisable, will be entitled to vote for the election of
two of the authorized number of directors of MSDW at the next annual meeting of
stockholders and at each subsequent meeting until we have paid or set apart for
payment all dividends accumulated on the Existing Cumulative Preferred Stock.
The term of office of all directors elected by the holders of preferred
stock will 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, we will not, without the consent of the holders of at least
two-thirds of the shares 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
o 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
o amend, alter or repeal the provisions of our certificate of
incorporation or of the resolutions contained in the certificate of
designation relating to that 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 that series of Existing Cumulative Preferred Stock or of its
holders.
For purposes of the preceding sentence any increase in the authorized amount of
common stock or 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 will
not be deemed to materially and adversely affect those powers, preferences or
special rights.
Transfer Agent for Existing Cumulative Preferred Stock. The transfer agent
and registrar for each series of Existing Cumulative Preferred Stock is The Bank
of New York.
Additional Provisions of MSDW's Certificate of Incorporation and By-laws
Size of the Board of Directors, Removal of Directors and Filling Vacancies
on the Board of Directors. Our Board of Directors currently consists of 13
directors. The Board of Directors is divided into three classes. At each annual
meeting of stockholders, a class of directors is elected for a term expiring at
the third succeeding annual meeting of stockholders after its election, to
succeed that class of directors whose term then expires. Under our amended and
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restated by-laws, a majority vote of the Board of Directors may increase or
decrease the number of directors, except that a three-quarters vote of the Board
of Directors will be required to change the number of directors to an odd
number. However, the by-laws provide that the Board shall consist of not less
than three nor more than fifteen members. Our 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 will be filled by a majority vote of the remaining
directors then in office though less than a quorum, and those newly elected
directors will 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.
Limitations on Actions by Stockholders; Calling Special Meetings of
Stockholders. Our certificate of incorporation provides that, subject to the
rights of holders of any series of preferred stock or any other series of
capital stock set forth in the certificate of incorporation, any action required
or permitted to be taken by our stockholders must be effected at a duly called
annual or special meeting of stockholders and may not be effected by any consent
in writing in lieu of a meeting. Our by-laws provide that special meetings of
the stockholders may be called at any time only by the Secretary of MSDW at the
direction of and pursuant to a resolution of the Board of Directors.
Amendment of Governing Documents. Our certificate of incorporation
provides that, generally, it can be amended in accordance with the provisions of
the laws of the State of Delaware. Under Section 242 of the Delaware General
Corporation Law, the Board of Directors may propose, and the stockholders may
adopt by a majority vote of the voting stock, an amendment to our certificate of
incorporation. However, our 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 of incorporation relating to
amendment of the by-laws, actions of stockholders and the Board of Directors and
to change the provisions establishing this 80% vote requirement.
Our certificate of incorporation provides that our by-laws 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 MSDW, 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 MSDW. However, 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 or any modification of the
roles, duties or authority of the Chairman or President of MSDW as of May 31,
1997. In addition, 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 provisions of the by-laws relating to actions
requiring a supermajority vote of the Board of Directors, actions by the Board
of Directors designating one or more directors to fill any vacancies on the
Board of Directors or on a committee and this supermajority amendment provision
of the by-laws.
Limitation of Directors' Liability. Section 102 of the Delaware General
Corporation Law 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 or redemption in
violation of the Delaware General Corporation Law or obtained an improper
personal benefit. Under our certificate of incorporation, a director of MSDW
will not be liable to MSDW or its stockholders for monetary damages for breach
of fiduciary duty as a director, except to the extent the exemption from
liability or limitation of liability is not permitted under the Delaware General
Corporation Law as in effect or as that law may be amended.
The Rights Plan
Under a rights agreement, which we refer to as the Rights Plan, dated as
of April 25, 1995 and amended as of February 4, 1997, with The Chase Manhattan
Bank, as rights agent, holders of shares of our common stock have the right,
each referred to as a Right, to purchase from us a unit consisting of one
one-thousandth of a share of Series A Junior Participating Preferred Stock at a
purchase price of $175 per unit subject to adjustment under the specific
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circumstances described below. At present, each share of common stock is
entitled to one-half of one Right. These rights are sometimes referred to as a
poison pill.
The Rights will become exercisable upon the earlier of
o 10 days following a public announcement that a person or group of
affiliated or associated persons, each referred to as an "acquiring
person," has acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of our common
stock, which we refer to as the "stock acquisition date," and
o 10 business days following the commencement of a tender offer or
exchange offer that would result in a person or group beneficially
owning 15% or more of the outstanding shares of our common stock.
After the Rights become exercisable, the Rights, other than rights held by an
acquiring person, will entitle the holders to purchase, under some
circumstances, either our common stock or common stock of the potential acquirer
at a substantially reduced price. We are generally entitled to redeem the Rights
at a price of $0.01 per Right at any time until ten days following the stock
acquisition date. The holder of a Right will have no rights as a stockholder of
MSDW, including, without limitation, the right to vote or to receive dividends,
until the Right is exercised. Unless earlier redeemed, the Rights will expire at
the close of business on April 21, 2005.
The foregoing description of the Rights is qualified in its entirety by
reference to the description of the Rights Plan contained in MSDW's Registration
Statement on Form 8-A dated April 26, 1995, as amended by a Form 8-A/A dated May
4, 1995 and as further amended by a Current Report on Form 8-K dated February
14, 1997.
FORMS OF SECURITIES
Each debt security, warrant, purchase contract and unit will be
represented either by a certificate issued in definitive form to a particular
investor or by one or more global securities representing the entire issuance of
securities. Both certificated securities in definitive form and global
securities may be issued either (1) in registered form, where our obligation
runs to the holder of the security named on the face of the security or (2)
subject to the limitations explained below under "--Limitations on Issuance of
Bearer Securities and Bearer Debt Warrants," in bearer form, where our
obligation runs to the bearer of the security. Definitive securities name you or
your nominee as the owner of the security (other than definitive bearer
securities, which name the bearer as owner), and in order to transfer or
exchange these securities or to receive payments other than interest or other
interim payments, you or your nominee must physically deliver the securities to
the trustee, registrar, paying agent or other agent, as applicable. Global
securities name a depositary or its nominee as the owner of the debt securities,
warrants, purchase contracts or units represented by these global securities
(other than global bearer securities, which name the bearer as owner). The
depositary maintains a computerized system that will reflect each investor's
beneficial ownership of the securities through an account maintained by the
investor with its broker/dealer, bank, trust company or other representative, as
we explain more fully below.
Global Securities
Registered Global Securities. We may issue the registered debt securities,
warrants, purchase contracts and units in the form of one or more fully
registered global securities that will be deposited with a depositary or its
nominee identified in the applicable prospectus supplement and registered in the
name of that depositary or nominee. In those cases, 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 the securities
to be represented by 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 and among the
depositary for the registered global security, the nominees of the depositary or
any successors of the depositary or those nominees.
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If not described below, any specific terms of the depositary arrangement
with respect to any securities to be represented by a registered global security
will be described in the prospectus supplement relating to those securities. We
anticipate that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with the depositary
or persons that may hold interests through participants. Upon the issuance of a
registered global security, the depositary will credit, on its book-entry
registration and transfer system, the participants' accounts with the respective
principal or face amounts of the securities beneficially owned by the
participants. Any dealers, underwriters or agents participating in the
distribution of the securities will designate the accounts to be credited.
Ownership of beneficial interests in a registered global security will be shown
on, and the transfer of ownership interests will be effected only through,
records maintained by the depositary, 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 some purchasers
of securities take physical delivery of these securities in definitive form.
These laws may impair your ability to own, transfer or pledge beneficial
interests in registered global securities.
So long as the depositary, or its nominee, is the registered owner of a
registered global security, that depositary or its nominee, as the case may be,
will be considered the sole owner or holder of the securities represented by the
registered global security for all purposes under the applicable indenture,
warrant agreement, purchase contract or unit agreement. Except as described
below, owners of beneficial interests in a registered global security will not
be entitled to have the securities represented by the registered global security
registered in their names, will not receive or be entitled to receive physical
delivery of the securities in definitive form and will not be considered the
owners or holders of the securities 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 that registered global security and, if that
person is not a participant, on the procedures of the participant through which
the person owns its interest, to exercise any rights of a holder under the
applicable indenture, warrant agreement, purchase contract or unit agreement. We
understand that under existing industry practices, if we request any action of
holders or if an owner of a beneficial interest in a registered global security
desires to give or take any action that a holder is entitled to give or take
under the applicable indenture, warrant agreement, purchase contract or unit
agreement, the depositary for the registered global security would authorize the
participants holding the relevant beneficial interests to give or take that
action, and the participants would authorize beneficial owners owning through
them to give or take that 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 the depositary or its nominee, as the
case may be, as the registered owner of the registered global security. None of
MSDW, the trustees, the warrant agents, the unit agents or any other agent of
MSDW, 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
payments made on account of beneficial ownership interests in the registered
global security or for maintaining, supervising or reviewing any records
relating to those beneficial ownership interests.
We expect that the depositary for any of the securities represented by a
registered global security, upon receipt of any payment of principal, premium,
interest or other distribution of underlying securities or other property to
holders on that registered global security, will immediately credit
participants' accounts in amounts proportionate to their respective beneficial
interests in that registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners of beneficial
interests in a registered global security held through 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 those
participants.
If the depositary for any of these 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 Securities Exchange Act of
1934, and a successor depositary registered as a clearing agency under the
Securities Exchange Act of 1934 is not appointed by us within 90 days, we will
issue securities in definitive form in exchange for the registered global
security that had been held by the depositary. In addition, we may at any time
and in our sole discretion decide not to have any of the
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securities represented by one or more registered global securities. If we make
that decision, we will issue securities in definitive form in exchange for all
of the registered global security or securities representing those securities.
Any securities issued in definitive form in exchange for a registered global
security will be registered in the name or names that the depositary gives to
the relevant trustee, warrant agent, unit agent or other relevant agent of ours
or theirs. It is expected that the depositary's instructions will be based upon
directions received by the depositary from participants with respect to
ownership of beneficial interests in the registered global security that had
been held by the depositary.
Bearer Global Securities. The securities may also be issued in the form of
one or more bearer global securities that will be deposited with a common
depositary for the Euroclear System and Cedelbank or with a nominee for the
depositary identified in the prospectus supplement relating to those securities.
The specific terms and procedures, including the specific terms of the
depositary arrangement, with respect to any securities to be represented by a
bearer global security will be described in the prospectus supplement relating
to those securities.
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:
o 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)), which we
refer to as 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
o 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 underwriters, agents or dealers must have procedures reasonably
designed to ensure that their 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.
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 MSDW 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 the date of that certificate the
bearer security:
o is owned by a person that is not a United States person;
o is owned by a United States person that (a) is a foreign branch of a
United States financial institution, as defined in applicable United
States Treasury Regulations, which we refer to as a "financial
institution," purchasing for its own account or for resale, or (b) is
acquiring the bearer security through a foreign branch of a United
States financial institution and who holds the bearer security through
that financial institution through that date, and in either case (a)
or (b) above, each of those United States financial institutions
agrees, on its own behalf or through its agent, that MSDW 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 and the
regulations thereunder; or
o 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 the bearer security is a United States or foreign
financial institution described in this clause, whether or not also
described in the first or second clause above, the financial
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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.
We will not issue bearer debt warrants in definitive form.
We will make payments on bearer securities and bearer debt warrants 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
issued with bearer securities will bear the following legend: "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 Internal Revenue Code." The sections referred to in this
legend provide that, with 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 that bearer security or coupon.
As used in the preceding three 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 a citizen or resident of the United States for
United States federal income tax purposes, a corporation or partnership,
including an entity treated as a corporation or partnership for United States
federal income tax purposes, created or organized in or under the laws of the
United States, or any state of the United States or the District of Columbia, an
estate the income of which is subject to United States federal income taxation
regardless of its source, or a trust if a court within the United States is able
to exercise primary supervision of the administration of the trust and one or
more United States persons have the authority to control all substantial
decisions of the trust. In addition, some trusts treated as United States
persons before August 20, 1996 may elect to continue to be so treated to the
extent provided in the Treasury Regulations.
Form of Securities Included in Units
The form of the universal warrant or purchase contract included in a unit
will correspond to the form of the unit and of any other security included in
that unit.
PLAN OF DISTRIBUTION
We may sell the securities being offered by this prospectus in three ways:
(1) through agents, (2) through underwriters and (3) through dealers. Any of
these agents, underwriters or dealers in the United States will include Morgan
Stanley & Co. Incorporated, which we refer to as MS & Co., and/or Dean Witter
Reynolds Inc., which we refer to as DWR, and any of these agents, underwriters,
or dealers outside the United States will include Morgan Stanley & Co.
International Limited, which we refer to as MSIL, or other affiliates of ours.
We may designate agents from time to time to solicit offers to purchase
these securities. We will name any such agent, who may be deemed to be an
underwriter as that term is defined in the Securities Act, and state any
commissions we are to pay to that agent in the applicable prospectus supplement.
That 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.
If we use any underwriters to offer and sell these securities, we will
enter into an underwriting agreement with those underwriters when we and they
determine the offering price of the securities, and we will include the names of
the underwriters and the terms of the transaction in the applicable prospectus
supplement.
If we use a dealer to offer and sell these securities, we will sell the
securities to the dealer, as principal, and will name the dealer in the
applicable prospectus supplement. The dealer may then resell the securities to
the public at varying prices to be determined by that dealer at the time of
resale.
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Our net proceeds 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.
In order to facilitate the offering of these securities, the underwriters
may engage in transactions that stabilize, maintain or otherwise affect the
price of these securities or any other securities the prices of which may be
used to determine payments on these securities. Specifically, the underwriters
may over-allot in connection with the offering, creating a short position in
these securities for their own accounts. In addition, to cover over-allotments
or to stabilize the price of these securities or of any other securities, the
underwriters may bid for, and purchase, these securities or any 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 these
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 these 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.
If so indicated in the applicable prospectus supplement, one or more
firms, including MS & Co., MSIL and DWR, which we refer to as "remarketing
firms," acting as principals for their own accounts or as agents for us, may
offer and sell these securities as part of a remarketing upon their purchase, in
accordance with their terms. We will identify any remarketing firm, the terms of
its agreement, if any, with us and its compensation in the applicable prospectus
supplement.
Remarketing firms, agents, underwriters and dealers may be entitled under
agreements with us to indemnification by us against some civil liabilities,
including liabilities under the Securities Act, and may be customers of, engage
in transactions with or perform services for us in the ordinary course of
business.
If so indicated in the prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers by some purchasers to purchase debt
securities or warrants, purchase contracts or units, as the case may be, from us
at the public offering price stated in the prospectus supplement under delayed
delivery contracts providing for payment and delivery on a specified date in the
future. These contracts will be subject to only those conditions described in
the prospectus supplement, and the prospectus supplement will state the
commission payable for solicitation of these offers.
Any underwriter, agent or dealer utilized in the initial offering of
securities will not confirm sales to accounts over which it exercises
discretionary authority without the prior specific written approval of its
customer.
MS & Co., MSIL and DWR are wholly-owned subsidiaries of MSDW. Each initial
offering of securities will be conducted in compliance with the requirements of
Rule 2720 of the National Association of Securities Dealers, Inc., which is
commonly referred to as the NASD, regarding a NASD member firm's distributing
the securities of an affiliate. Following the initial distribution of any of
these securities, MS & Co., MSIL, DWR and other affiliates of MSDW may offer and
sell these 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 New York Stock Exchange, Inc. for any of these offers
and sales MS & Co. and DWR may make. MS & Co., MSIL, DWR and other affiliates
may act as principals or agents in these transactions and may make any sales at
varying prices related to prevailing market prices at the time of sale or
otherwise. MS & Co., MSIL, DWR and other affiliates may use this prospectus in
connection with these transactions. None of MS & Co., MSIL, DWR or any other
affiliate is obligated to make a market in any of these securities and may
discontinue any market-making activities at any time without notice.
LEGAL MATTERS
The validity of these securities will be passed upon for MSDW by Brown &
Wood LLP, or other counsel who is satisfactory to MS & Co., MSIL or DWR, as the
case may be, and who may be an officer of MSDW. Davis Polk & Wardwell will pass
upon some legal matters relating to these securities for the underwriters. Davis
Polk & Wardwell
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has in the past represented MSDW and continues to represent MSDW on a regular
basis and in a variety of matters, including in connection with its private
equity and leveraged capital activities.
EXPERTS
The consolidated financial statements and financial statement schedules of
MSDW and its subsidiaries, at fiscal years ended 1998 and 1997 and for each of
the three fiscal years in the period ended 1998 included in and incorporated by
reference in MSDW's Annual Report on Form 10-K for the fiscal year ended
November 30, 1998 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports thereon and incorporated herein by
reference (which express an unqualified opinion and which report on the
consolidated financial statements includes an explanatory paragraph for a change
in the method of accounting for certain offering costs of closed-end funds). The
financial statements and financial statement schedule of Morgan Stanley Group
Inc. for the year ended November 30, 1996 have been audited by Ernst & Young
LLP, independent auditors, as stated in their report and relied upon by Deloitte
& Touche LLP in their reports that we incorporate by reference. These
consolidated financial statements have been incorporated by reference in
reliance upon the respective reports given upon the authority of these firms as
experts in accounting and auditing.
With respect to unaudited interim financial information for the periods
included in any of the Quarterly Reports on Form 10-Q which may be incorporated
herein by reference, Deloitte & Touche LLP have applied limited procedures in
accordance with professional standards for a review of such information.
However, as stated in their report included in any such Quarterly Report on Form
10-Q and incorporated by reference herein, they did not audit and they do not
express an opinion on such 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 of 1933 for their reports on the unaudited interim financial information
because those reports are not "reports" or a "part" of the registration
statement prepared or certified by an accountant within the meaning of Section 7
and 11 of the Securities Act of 1933.
ERISA MATTERS FOR PENSION PLANS AND INSURANCE COMPANIES
MSDW and some of our affiliates, including MS & Co. and DWR, may each be
considered a "party in interest" within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, which is commonly referred to as 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 MS & Co., DWR or any of their affiliates is a
service provider, unless those 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 one of
these plans 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 that purchase universal warrants or purchase contracts should consider
the possible implications of owning the securities underlying those instruments
in the event of settlement by physical delivery. Any insurance company or
pension, employee benefit plan, or any person investing the assets of a 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.
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MORGAN STANLEY DEAN WITTER & CO.
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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 these expenses are
estimated.
Registration fee................................................. $3,336,000
NASD filing fee.................................................. 30,500
Blue Sky fees and expenses....................................... 15,000
Rating agency fees............................................... 375,000
Printing and engraving expenses.................................. 1,162,500
Legal fees and expenses.......................................... 450,000
Accounting fees and expenses..................................... 112,500
Unit Agents', Warrant Agents', Trustees' and Preferred Stock
Depositary's fees and expenses (including counsel fees)..... 202,500
Total.................................................. $5,684,000
Item 15. Indemnification of Officers and Directors
Article VIII of the Amended and Restated Certificate of Incorporation of
MSDW ("Certificate of Incorporation") and Section 6.07 of the Amended and
Restated By-laws of MSDW ("By-laws"), each as amended to date, provide for the
indemnification of MSDW's directors and officers. The Certificate of
Incorporation provides that any person who is a director or officer of MSDW
shall be indemnified by MSDW to the fullest extent permitted from time to time
by applicable law. In addition, the By-laws provide that each person who was or
is made a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
or a person of whom he or she is the legal representative is or was a director
or officer of MSDW or a director or elected officer of a corporation a majority
of the capital stock (other than directors' qualifying shares) of which is owned
directly or indirectly by MSDW (a "Subsidiary") shall be indemnified by MSDW to
the fullest extent permitted by applicable law. The right to indemnification
under the By-laws includes the right to be paid the expenses incurred in
defending a proceeding in advance of its final disposition upon receipt (unless
MSDW 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 MSDW.
MSDW's By-laws also provide that MSDW may, to the extent authorized from
time to time by the Board of Directors, provide rights to indemnification, and
rights to be paid by MSDW the expenses incurred in defending any proceeding in
advance of its final disposition, to any person who is or was an employee or
agent (other than a director or officer) of MSDW or a Subsidiary and to any
person who is or was serving at the request of MSDW or a Subsidiary 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 MSDW or a Subsidiary, to the same extent as the By-laws
provide with respect to indemnification of, and advancement of expenses for,
directors and officers of MSDW.
Under the By-laws, MSDW 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 MSDW or of its subsidiary, or of another corporation,
partnership, limited liability company, joint venture, trust or other
enterprise, against any expense, liability or loss whether or not MSDW or its
subsidiary would have the power to indemnify that person against that expense,
liability or loss under the provisions of applicable law.
MSDW has in effect insurance policies in the amount of $125 million for
general officers' and directors' liability insurance and $25 million for
fiduciary liability insurance covering all of our directors and officers in some
of the instances where by law they may not be indemnified by MSDW.
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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 some provisions relating to the indemnification of MSDW's directors,
officers and controlling persons.
Item 16. Exhibits
Exhibit Description
---------- -----------
1-a Form of Underwriting Agreements for Debt Securities, Warrants,
Purchase Contracts and Units (previously filed as an exhibit to
MSDW's Registration Statement on Form S-3, Registration No.
333- 27919, and incorporated herein by reference).
1-b Form of Underwriting Agreement for Preferred Stock and
Depositary Shares (previously filed as an exhibit to MSDW's
Registration Statement on Form S-3, Registration No. 333-27919,
and incorporated herein by reference).
1-c Form of U.S. Distribution Agreement.
1-d Form of Euro Distribution Agreement.
4-a Amended and Restated Certificate of Incorporation of MSDW
(previously filed as an exhibit to MSDW's Annual Report on Form
10-K dated November 30, 1998 and incorporated herein by
reference).
4-b Form of Certificate of Designation of Offered Preferred Stock
(previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-27919, and
incorporated herein by reference).
4-c Form of Certificate of Offered Preferred Stock (previously
filed as an exhibit to MSDW's Registration Statement on Form
S-3, Registration No. 333-27919, and incorporated herein by
reference).
4-d Form of Deposit Agreement (including Form of Depositary
Receipt) (previously filed as an exhibit to MSDW's Registration
Statement on Form S-3, Registration No. 333-27919, and
incorporated herein by reference).
4-e Amended and Restated Senior Indenture dated as of May 1, 1999
between Morgan Stanley Dean Witter & Co. and The Chase Manhattan
Bank, Trustee.
4-f Amended and Restated Subordinated Indenture dated as of May 1, 1999
between Morgan Stanley Dean Witter & Co. and The First National Bank
of Chicago, Trustee.
4-g Form of Floating Rate Senior Note.
4-h Form of Fixed Rate Senior Note.
4-i Form of Senior Variable Rate Renewable Note.
4-j Form of Floating Rate Subordinated Note.
4-k Form of Fixed Rate Subordinated Note.
4-l Form of Subordinated Variable Rate Renewable Note.
4-m Form of Temporary Global Floating Rate Senior Bearer Note.
II-2
<PAGE>
4-n Form of Temporary Global Fixed Rate Senior Bearer Note.
4-o Form of Permanent Global Floating Rate Senior Bearer Note.
4-p Form of Permanent Global Fixed Rate Senior Bearer Note.
4-q Form of Euro Fixed Rate Senior Bearer Note.
4-r Form of Euro Fixed Rate Senior Registered Note.
4-s Form of Floating/Fixed Rate Senior Note.
4-t Form of Senior Dollarized Bull Note.
4-u Form of S&P Indexed (Bull) Note.
4-v Form of S&P Indexed (Bear) Note.
4-w Form of Euro Fixed Rate Subordinated Registered Note.
4-x Form of Fixed Rate Amortizing Senior Note.
4-y Form of Senior Dollarized Yield Curve Note (Bond Basis).
4-z Form of Senior Dollarized Yield Curve Note (Money Market Basis).
4-aa Form of Permanent Global Senior Bull Note.
4-bb Form of Definitive Floating Rate Senior Bearer Note.
4-cc Form of Debt Warrant Agreement for Warrants Sold Attached to
Debt Securities.
4-dd Form of Debt Warrant Agreement for Warrants Sold Alone.
4-ee Form of Warrant Agreement for Universal Warrants.
4-ff Form of Unit Agreement.
4-gg Form of Put Warrant (included in Exhibit 4-ee).
4-hh Form of Call Warrant (included in Exhibit 4-ee).
4-ii Form of Purchase Contract (Issuer Sale) (included in
Exhibit 4-ff).
4-jj Form of Purchase Contract (Issuer Purchase) (included in Exhibit
4-ff).
4-kk Form of Unit Certificate (included in Exhibit 4-ff).
4-ll Form of Pre-Paid Purchase Contract.
II-3
<PAGE>
4-mm Form of Unit Agreement Without Holders' Obligations.
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.
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.
25-a* Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Senior Debt Indenture.
25-b* Statement of Eligibility of The First National Bank of Chicago,
Trustee under the Amended and Restated Subordinated Debt
Indenture.
- --------------------
* Previously filed.
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:
II-4
<PAGE>
(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.
II-5
<PAGE>
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 Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in The City of New York, State of New
York, as of this 4th day of May, 1999.
MORGAN STANLEY DEAN WITTER & CO.
By: /s/ Martin M. Cohen
---------------------------------------
Name: Martin M. Cohen
Title: Assistant Secretary
Pursuant to the requirement of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement has been signed below by the
following persons on behalf of the Registrant and in the capacities indicated as
of this 4th day of May, 1999.
Signature Title
--------- -----
*
- --------------------------- Chairman of the Board and Chief Executive
Philip J. Purcell Officer
*
- --------------------------- President, Chief Operating Officer and Director
John J. Mack
*
- --------------------------- Executive Vice President and Chief Financial
Robert G. Scott Officer (Principal Financial Officer)
*
- --------------------------- Controller
Joanne Pace (Principal Accounting Officer)
*
- --------------------------- Director
Robert P. Bauman
*
- --------------------------- Director
Edward A. Brennan
*
- --------------------------- Director
Diana D. Brooks
*
- --------------------------- Director
Daniel B. Burke
*
- --------------------------- Director
C. Robert Kidder
*
- --------------------------- Director
Charles F. Knight
*
- --------------------------- Director
Miles L. Marsh
*
- --------------------------- Director
Michael A. Miles
*
- --------------------------- Director
Allen E. Murray
*
- --------------------------- Director
Clarence B. Rogers, Jr.
*
- --------------------------- Director
Laura D'Andrea Tyson
*By: /s/ Martin M. Cohen
------------------------------
Name: Martin M. Cohen
Attorney-in-Fact
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
1-c Form of U.S. Distribution Agreement.
1-d Form of Euro Distribution Agreement.
4-e Amended and Restated Senior Indenture dated as of May 1, 1999
between Morgan Stanley Dean Witter & Co. and The Chase
Manhattan Bank, Trustee.
4-f Amended and Restated Subordinated Indenture dated as of May 1,
1999 between Morgan Stanley Dean Witter & Co. and The First
National Bank of Chicago, Trustee.
4-g Form of Floating Rate Senior Note.
4-h Form of Fixed Rate Senior Note.
4-i Form of Senior Variable Rate Renewable Note.
4-j Form of Floating Rate Subordinated Note.
4-k Form of Fixed Rate Subordinated Note.
4-l Form of Subordinated Variable Rate Renewable Note.
4-m Form of Temporary Global Floating Rate Senior Bearer Note.
4-n Form of Temporary Global Fixed Rate Senior Bearer Note.
4-o Form of Permanent Global Floating Rate Senior Bearer Note.
4-p Form of Permanent Global Fixed Rate Senior Bearer Note.
4-q Form of Euro Fixed Rate Senior Bearer Note.
4-r Form of Euro Fixed Rate Senior Registered Note.
4-s Form of Floating/Fixed Rate Senior Note.
4-t Form of Senior Dollarized Bull Note.
4-u Form of S&P Indexed (Bull) Note.
4-v Form of S&P Indexed (Bear) Note.
4-w Form of Euro Fixed Rate Subordinated Registered Note.
4-x Form of Fixed Rate Amortizing Senior Note.
4-y Form of Senior Dollarized Yield Curve Note (Bond Basis).
II-8
<PAGE>
Exhibit
Number Description
------- -----------
4-z Form of Senior Dollarized Yield Curve Note (Money Market
Basis).
4-aa Form of Permanent Global Senior Bull Note.
4-bb Form of Definitive Floating Rate Senior Bearer Note.
4-cc Form of Debt Warrant Agreement for Warrants Sold Attached to
Debt Securities.
4-dd Form of Debt Warrant Agreement for Warrants Sold Alone.
4-ee Form of Warrant Agreement for Universal Warrants.
4-ff Form of Unit Agreement.
4-gg Form of Put Warrant (included in Exhibit 4-ee).
4-hh Form of Call Warrant (included in Exhibit 4-ee).
4-ii Form of Purchase Contract (Issuer Sale) (included in
Exhibit 4-ff).
4-jj Form of Purchase Contract (Issuer Purchase) (included in
Exhibit 4-ff).
4-kk Form of Unit Certificate (included in Exhibit 4-ff).
4-ll Form of Pre-Paid Purchase Contract.
4-mm Form of Unit Agreement Without Holders' Obligations.
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.
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.
25-a* Statement of Eligibility of The Chase Manhattan Bank, Trustee
under the Amended and Restated Senior Debt Indenture.
25-b* Statement of Eligibility of The First National Bank of Chicago,
Trustee under the Amended and Restated Subordinated Debt
Indenture.
- --------------------
* Previously filed.
EXHIBIT 1-c
MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
May 6, 1999
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 & 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 $16,256,130,907 (or the equivalent thereof in one
or more foreign 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 an amended and restated senior
indenture dated as of May 1, 1999, between the Company and The Chase Manhattan
Bank, as trustee (the "Senior Debt Trustee") (as may be supplemented or amended
from time to time, the "Senior Debt Indenture"). The Series C Subordinated Notes
will be issued pursuant to the provisions of an amended and restated
subordinated indenture dated as of May 1, 1999, between the Company and The
First National Bank of Chicago, as trustee (the "Subordinated Debt Trustee") (as
may be supplemented or amended from time to time, the "Subordinated Debt
Indenture"). The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures," and the Senior Debt Trustee and the
Subordinated Debt Trustee are sometimes hereinafter referred to individually as
a "Trustee" and collectively as the "Trustees." Purchase contracts ("Purchase
Contracts") that require holders to satisfy their obligations thereunder when
such Purchase Contracts are issued ("Pre-paid Purchase Contracts") will be
issued under the Indentures.
The Units will be issued pursuant to the Unit Agreement dated as of May 6,
1999, 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 (as may be amended from time to
time, the "Unit Agreement") or, if the Units do not include Purchase Contracts
(other than Pre-paid Purchase Contracts), pursuant to a Unit Agreement between
the Company and The Chase Manhattan Bank, as Unit Agent, as Trustee and Paying
Agent under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein in the form of such agreement filed as an
exhibit to the Registration Statement referred to below (each such agreement, a
"Unit Agreement Without Holders' Obligations"). 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 (c) commodities,
(iii) Purchase Contracts, including Pre-paid Purchase Contracts, requiring the
holders thereof to purchase or sell (a) securities or 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 (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 May 6, 1999 (as may be amended from time to time, the "Universal Warrant
Agreement") between the Company and The Chase Manhattan Bank, as Warrant Agent.
Purchase Contracts other than Pre-paid Purchase Contracts ("Non-pre-paid
Purchase Contracts"), entered into by the Company and the holders thereof will
be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants will have the exercise prices, exercise dates, expiration
dates and other terms as set forth in supplements to the Basic Prospectus. The
Purchase Contracts 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 the 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"). If the Company has filed an abbreviated
registration statement to register additional Program Securities pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
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 Senior Indenture, the Subordinated Indenture, the Unit Agreement
and the Universal Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms 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 form of Unit Agreement Without Holders' Obligations has been duly
authorized by the Company and, when a Unit Agreement Without Holders'
Obligations has been duly executed and delivered by the Company, the Unit
Agreement Without Holders' Obligations will be a valid and binding agreement of
the Company, enforceable in accordance with its terms 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 forms of Notes (including the form of Pre-paid Purchase Contract),
whether issued alone or as part of a Unit, have been duly authorized and
established in conformity with the provisions of the relevant Indenture and,
when the Notes (and the Pre-paid Purchase Contracts) have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes (and the
Pre-paid Purchase Contracts) will be entitled to the benefits of such Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms 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 forms of Units under the Unit Agreement, including the forms of
Universal Warrants and Non-pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of (i) in the case
of such Units and Non-pre-paid Purchase Contracts, the Unit Agreement and (ii)
in the case of Universal Warrants, the Universal Warrant Agreement. When such
Units have been delivered to and duly paid for by the purchasers thereof and (A)
any Non-pre-paid Purchase Contracts included in such Units have been executed by
the Company and countersigned 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, such Units (including any such Non-pre-paid 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.
(j) When a Unit Agreement Without Holders' Obligations has been executed
and delivered by the Company, the Units to be issued thereunder will have been
duly authorized and when such Units have been established in conformity with the
provisions of the Unit Agreement Without Holders' Obligations and delivered to
and duly paid for by the purchasers thereof, and any Universal Warrants included
in such Units have been executed by the Company and countersigned by the Warrant
Agent, such Units (including any such Universal Warrants contained therein) will
be entitled to the benefits of the Unit Agreement Without Holders' Obligations
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms 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.
(k) The execution and delivery by the Company of this Agreement, the Notes
and Pre-paid Purchase Contracts (whether issued alone or as part of a Unit), the
Units (including any Purchase Contracts and Universal Warrants included
therein), the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, 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 Prepaid
Purchase Contracts, the Units (including any Purchase Contracts or Universal
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, 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 Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Universal Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, 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.
(l) 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.
(m) 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.
(n) 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.
(o) 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.
(p) 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.
(q) The Company is not and, after giving effect to the offering and sale of
the Program Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(r) The Company has no reason to believe, and does not believe, that there
are any issues related to the Company's preparedness to address any significant
risk that computer hardware or software applications used by the Company and its
subsidiaries will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000 that are of a character required
to be described or referred to in the Registration Statement or Prospectus which
have not been accurately described in the Registration Statement or Prospectus.
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 Units and Universal Warrants), 1(h)
(except as to due authorization of the Notes and Pre-paid Purchase Contracts),
1(i) (except as to due authorization of the Units, Universal Warrants and
Non-pre-paid Purchase Contracts), 1(j) and 1(k), 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
any 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 any Purchase Contracts issued as
part of a Unit, the settlement date, the purchase or sale price or any other
terms of such Purchase Contracts. Each such Notes Terms Agreement or Units Terms
Agreement may also specify any requirements for officers' certificates, opinions
of counsel and letters from the independent auditors of the Company pursuant to
Section 4 hereof. A Notes Terms Agreement and a Unit Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes or Units, as
the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall specify the
time and place of delivery of and payment for such Notes or Units, as the case
may be. Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, the procedural details relating to the issue and delivery of Notes or
Units, as the case may be, purchased by you as principal and the payment
therefor shall be as set forth in the Administrative Procedures. Each date of
delivery of and payment for Program Securities to be purchased by you as
principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as the
case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, if you are purchasing Program Securities, as principal you may resell
such Program Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the 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 agents 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 first 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 in New York City, without charge, (i) to each
Agent, a signed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and (ii) to each Agent that purchases Program
Securities pursuant to a Terms Agreement or solicits an offer to purchase
Program Securities that is accepted by the Company, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of such Terms Agreement
or the acceptance of such offer, as many copies of the Prospectus, as then
amended or supplemented (including the Prospectus Supplement relating to the
Program Securities to be purchased pursuant to such Terms Agreement or accepted
offer), as such Agent 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, any Unit Agreement Without Holders' Obligations, 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 the Company or 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, any Unit Agreement Without Holders' Obligations,
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 of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the Company on any exchange
or in any over-the-counter market, (C) 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 the Company or 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 Senior Indenture, the Subordinated
Indenture, the Unit Agreement and the Universal Warrant Agreement has
been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance
with its terms 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 Unit Agreement Without Holders' Obligations 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 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 (including the form of Pre-paid Purchase
Contracts), whether issued alone or as part of a Unit, have been duly
authorized and established in conformity with the provisions of the
relevant Indenture and, if the Notes and the Pre-paid Purchase
Contracts had been executed by the Company and authenticated by the
relevant Trustee or its duly appointed agent in accordance with the
provisions of the relevant Indenture and delivered to and duly paid
for by the purchasers thereof on the date of such opinion, the Notes
and the Pre-paid Purchase Contracts would be entitled to the benefits
of such Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms 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 forms of Units under the Unit Agreement, including the
forms of Universal Warrants and Non-pre-paid Purchase Contracts, have
been duly authorized and established in conformity with the provisions
of (i) in the case of Units under the Unit Agreement and Non-pre-paid
Purchase Contracts, the Unit Agreement and (ii) in the case of the
Universal Warrants, the Universal Warrant Agreement. If such Units
(including the Universal Warrants and the Non-pre-paid Purchase
Contracts) had been delivered to and duly paid for by the purchasers
thereof (and any Purchase Contracts included therein had been executed
by the Company and countersigned by the Unit Agent and any Universal
Warrants included therein had been executed by the Company and
countersigned by the Warrant Agent) on the date of such opinion, the
Units (including the Non-pre-paid Purchase Contracts and the Universal
Warrants 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;
(I) the Units under the Unit Agreement Without Holders'
Obligations have been duly authorized (and the forms of any Universal
Warrants included therein have been duly authorized and established in
conformity with the provisions of the Universal Warrant Agreement),
and if such Units (including the Universal Warrants) had been
delivered to and duly paid for by the purchasers thereof (and any
Universal Warrants included therein had been executed by the Company
and countersigned by the Warrant Agent) on the date of such opinion,
the Units (including the Universal Warrants contained therein) would
be entitled to the benefits of the Unit Agreement Without Holders'
Obligations 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;
(J) the execution and delivery by the Company of the Notes and
Pre-paid Purchase Contracts (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, any Unit
Agreement Without Holders' Obligations, 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, any Unit Agreement Without Holders'
Obligations, 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
Pre-paid Purchase Contracts, the Units (including any Purchase
Contracts or Universal Warrants included therein), the Indentures, the
Unit Agreement, any Unit Agreement Without the Holders' Obligations,
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;
(K) 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;
(L) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, and are
not so described or of any U.S. federal or state statutes,
regulations, contracts or other documents governed by U.S. federal or
state law that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, or to be
filed or incorporated by reference as exhibits to such Registration
Statement that are not described, filed or incorporated by reference
as required; and
(M) the Company is not and, after giving effect to the offering
and sale of the Program Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(N) 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 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) has no reason to believe 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), do not
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), (H), (I) and (K) (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 (N) in paragraph (b)(i) above.
The opinions described in subparagraphs (F) and (I) need only be
contained in an opinion delivered on a Settlement Date related to an
offering of Units under a Unit Agreement Without Holders' Obligations to be
executed on or prior to such Settlement Date.
Notwithstanding the foregoing, the opinions described in subparagraphs
(G) (except as to due authorization of the Notes and Pre-paid Purchase
Contracts), (H) (except as to due authorization of the Units, Universal
Warrants and Non-pre-paid Purchase Contracts), (I) (except as to due
authorization of the Units and Universal Warrants) (J), (K)(1) and (N)(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 (N) 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 (N) 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 "Forms of Securities -- 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; provided that each letter so furnished shall use a
"cut-off date" no more than three business days prior to the date of such
letter.
(e) On the Commencement Date and on each Settlement Date, the Company shall
have furnished to you such appropriate further information, certificates and
documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for (i) in the case of Notes, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes issued alone or as part of a Unit, (ii) in the case of
Units, (x) a change in the exercise price, exercise date or period or expiration
of an underlying Universal Warrant or (y) a change in the settlement date or
purchase or sale price of an underlying Purchase Contract or (iii) a change you
deem to be immaterial), the Company will deliver or cause to be delivered
forthwith to you a certificate signed by an executive officer of the Company,
dated the date of such amendment or supplement, as the case may be, in form
reasonably satisfactory to you, of the same tenor as the certificate referred to
in Section 4(c) relating to the Registration Statement or the Prospectus as
amended or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section 5(a)
(other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Current Report on Form 8-K unless you shall
reasonably request based on disclosure included or omitted from such Report),
the Company will furnish or cause to be furnished forthwith to you a written
opinion of counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred to
in Section 4(b), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to you may
furnish to you a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent auditors forthwith to
furnish you with a letter, dated the date of such amendment or supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of such
letter; provided that each letter so furnished shall use a "cut-off date" no
more than three business days prior to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof 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
and the 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 operative and in full force
and effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you 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 parties hereto, but without prejudice to any rights, obligations or
liabilities of either 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(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(d), 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,
Continuously Offered Products (telefax number: 212-761-2000), with a copy to
1585 Broadway, 34th Floor, New York, New York 10036, Attention: Peter Cooper,
Investment Banking Information Center (telefax number: 212-761-0260) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 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 & 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 & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated May 6, 1999
(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):
Optional Repayment Reference Dealers: Interest Reset Period:
Date(s):
Optional Redemption Face Amount (if any): Maximum Interest Rate:
Date(s):
Initial Redemption Date: Fixed Amount of each Minimum Interest Rate:
Indexed Currency (if any):
Initial Redemption Aggregate Fixed Amount of Interest Payment Period:
Percentage: each Indexed Currency (if
any):
Annual Redemption Applicability of Issuer's Calculation Agent:
Percentage Reduction: Option to Extend Original
Maturity Date:
Ranking: If yes, state Final Maturity Reporting Service:
Date:
Other Provisions: Variable Rate Renewable
Notes:
Redemption Dates:
Redemption Percentage:
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 also 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 & CO.
By:
------------------------------------
Name:
Title:
EXHIBIT A-1
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL UNITS, SERIES C
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated May 6, 1999 (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:]<F1>
[Formula for determining Method of Settlement:
Cash Settlement Value:]<F2>
[Amount of Warrant Currency of Settlement
Property Salable per Payment:
Warrant:]<F3>
[Put Price for such specified Contract Fees, if any:
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:
<FN>
<F1>
Applicable to Call Warrants
<F2>
Applicable to Put Warrants
<F3>
Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
</FN>
</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):
Reference Dealers: Interest Reset Period:
Face Amount (if any): Maximum Interest Rate:
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 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 also 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 & CO.
By:
---------------------------------
Name:
Title:
EXHIBIT B
MORGAN STANLEY DEAN WITTER & 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 &
Co. (the "Company") pursuant to the U.S. Distribution Agreement, dated May 6,
1999 (as may be amended from time to time, 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 an amended and restated senior indenture
dated as of May 1, 1999 (as it may be supplemented or amended from time to time,
the "Senior Debt Indenture"), between the Company and The Chase Manhattan Bank
("Chase"), as trustee. The Subordinated Notes will be issued pursuant to the
provisions of an amended and restated subordinated indenture, dated as of May 1,
1999 (as it may be 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." Purchase Contracts that require holders to
satisfy their obligations thereunder when such Purchase Contracts are issued
("Pre-paid Purchase Contracts") will be issued under an Indenture.
Unless otherwise specified in the applicable Pricing Supplement, the Units
will be issued (i) pursuant to the Unit Agreement dated as of May 6, 1999, 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 (as may be amended from time to time, the "Unit
Agreement") or (ii) if Units do not include Purchase Contracts (other than
Pre-paid Purchase Contracts), pursuant to a unit agreement among the Company,
The Chase Manhattan Bank, as Unit Agent, as Trustee under the Indenture referred
to therein, and as Warrant Agent under the Warrant Agreement referred to therein
in the form of such agreement filed as an exhibit to the Registratrion Statement
(each such agreement, a "Unit Agreement Without Holders' Obligations"). 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
(c) commodities, (iii) purchase contracts ("Purchase Contracts"), including
Pre-paid 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 (c) commodities or (iv) any combination thereof. The
applicable Pricing Supplement will specify whether or not any 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 May 6, 1999, between the
Company and Chase, as Warrant Agent (as may be amended from time to time, the
"Universal Warrant Agreement"). Purchase Contracts, other than Pre-paid Purchase
Contracts, entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes and Units for its own account, and 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 Note, 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
(or Pre-paid Purchase Contracts), the Unit Agreement or a Unit Agreement Without
Holders' Obligations, as applicable, in the case of Units and all other Purchase
Contracts, or the Universal Warrant Agreement, in the case of the Universal
Warrants, an owner of a Book-Entry Note or Book-Entry Unit (or of any Note,
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 (including with
respect to a Book-Entry Note included in a Book-Entry Unit) 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 Unit Agreement Without Holders' Obligations, 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 May [ ], 1999,
for medium-term notes (the "MTN Letter of Representations"), (ii) a letter of
representations from the Company and Chase to DTC, dated as of May [ ], 1999,
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 May [ ], 1999, 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
May [ ], 1999, 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 May [
], 1999, 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
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 applicability of
Modified Payment upon Acceleration (and,
if so, the Issue Price).
11. 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.
12. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
13. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
14. Any other applicable provisions.
B. In the case of a Book-Entry Unit, the Agent will
advise the Company by telephone that such Unit
is a Book-Entry Unit, of the information set
forth in Settlement Procedures "A" above with
respect to any Book-Entry Notes that constitute
a part of such Book-Entry Unit and of the
following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
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. Whether the Company or the holder is
the writer of the Universal Warrant.
o. Any other applicable provisions.
8. If the Book-Entry Unit comprises
Book-Entry Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise 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 and (iii) the Purchase Contract, if any,
issued as part of a 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 and Purchase
Contract issued as part of a Unit, as
applicable.
4. Whether the Global Note or Global Unit
will represent any other Book-Entry Note
or Book-Entry Unit, as the case may be (to
the extent known at such time).
5. Whether any Note, issued alone or as part
of a Unit, is an Amortizing Note (by an
appropriate notation in the comments field
of DTC's Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent
and 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 or, if there is not such
underlying Certificated Note on the date of the
other securities comprised thereby. Each
Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an
original Certificated Note (or any portion
thereof), its 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 applicability of
Modified Payment upon Acceleration (and
if so, the Issue Price).
16. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the
Election Dates and the Maturity Extension
Dates.
17. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
18. 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, if any (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. Whether the Company or the holder is
the writer of the warrant.
o. Any other applicable provisions.
12. If the Certificated Unit comprises
Certificated Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise 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 & CO.
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
May 6, 1999
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 & 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
$16,256,130,907 (or the equivalent thereof in one or more foreign 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 (i) Global Medium-Term Notes, Series C, to be sold
primarily inside the United States, (ii) Global Units, Series C, to be sold
primarily inside the United States, and (iii) 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 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.
<PAGE>
The Notes may be issued as senior indebtedness (the "Senior Notes") or
as subordinated indebtedness (the "Subordinated Notes") of the Company. The
Senior Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture, dated as of May 1, 1999,
between the Company and The Chase Manhattan Bank, as trustee (the "Senior Debt
Trustee") (as may be supplemented or amended from time to time, the "Senior Debt
Indenture"). The Subordinated Notes will be issued pursuant to the provisions of
an amended and restated subordinated indenture, dated as of dated as of May 1,
1999 between the Company and The First National Bank of Chicago, as trustee (the
"Subordinated Debt Trustee") (as may be supplemented or amended from time to
time, the "Subordinated Debt Indenture"). The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees." Purchase
contracts ("Purchase Contracts") that require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued ("Pre-paid
Purchase Contracts") will be issued under the Indentures.
The Units will be issued pursuant to the Unit Agreement dated as of May
6, 1999, 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 (as may be
amended from time to time, the "Unit Agreement") or, if the Units do not include
Purchase Contracts (other than Pre-paid Purchase Contracts), pursuant to a Unit
Agreement between the Company and The Chase Manhattan Bank, as Unit Agent, as
Trustee and Paying Agent under the Indenture referred to therein, and as Warrant
Agent under the Warrant Agreement referred to therein in the form of such
agreement filed as an exhibit to the Registration Statement referred to below
(each such agreement, a "Unit Agreement Without Holders' Obligations"). 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 (c)
commodities, (iii) Purchase Contracts, including Pre-paid 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 (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 May 6, 1999 (as may be amended from time
to time, the "Universal Warrant Agreement") between the Company and The Chase
2
<PAGE>
Manhattan Bank, as Warrant Agent. Purchase Contracts, other than Pre-paid
Purchase Contracts ("Non-pre-paid Purchase Contracts") entered into by the
Company and the holders thereof will be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants will have the exercise prices, exercise dates, expiration
dates and other terms as set forth in supplements to the Basic Prospectus. The
Purchase Contracts 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 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"), Cedelbank or any other relevant clearing system. Beneficial
interests in a temporary global Note or a temporary global Unit will be
exchangeable for beneficial interests in, in the case of a temporary global
Note, a permanent global Note and, in the case of a temporary global Unit, a
permanent global Unit. Beneficial interests in a permanent global Note will be
exchangeable in whole, but not in part, for definitive Notes in bearer form,
with interest coupons attached upon receipt of the Principal Paying Agent of an
initial request to so exchange by any holder of a beneficial interest in such
permanent global Note (such temporary global Note, permanent global Note and
definitive Notes in bearer form are collectively referred to as the "Bearer
Notes"), 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.
3
<PAGE>
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 hereof. 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 the 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"). If the Company has filed an abbreviated
registration statement to register additional Program Securities pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
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
4
<PAGE>
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, 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,
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 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 do not apply 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 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
5
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 Senior Indenture, the Subordinated Indenture, the Unit
Agreement and the Universal Warrant Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations has been
duly authorized by the Company and, when a Unit Agreement Without Holders'
Obligations has been duly executed and delivered by the Company, the Unit
Agreement Without Holders' Obligations will be a valid and binding agreement of
the Company, enforceable in accordance with its terms 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 forms of Notes (including the form of Pre-paid Purchase
Contract), whether issued alone or as part of a Unit, have been duly authorized
and established in conformity with the provisions of the relevant Indenture and,
when the Notes (and the Pre-paid Purchase Contracts) have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes will be
entitled
6
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 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 forms of Units under the Unit Agreement, including the forms
of Universal Warrants and Non-pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of in the case of
such Units and Non-pre-paid Purchase Contracts, the Unit Agreement and in the
case of Universal Warrants, the Universal Warrant Agreement. When such Units
have been delivered to and duly paid for by the purchasers thereof and any
Non-pre-paid Purchase Contracts included in such Units have been executed by the
Company and countersigned by the Unit Agent and any Universal Warrants included
in such Units have been executed by the Company and countersigned by the Warrant
Agent, such Units (including any such Non-pre-paid 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.
(j) When a Unit Agreement Without Holders' Obligations has been
executed and delivered by the Company, the Units to be issued thereunder will
have been duly authorized and when such Units have been established in
conformity with the provisions of the Unit Agreement Without Holders'
Obligations and delivered to and duly paid for by the purchasers thereof, and
any Universal Warrants included in such Units have been executed by the Company
and countersigned by the Warrant Agent, such Units (including any such Universal
Warrants contained therein) will be entitled to the benefits of the Unit
Agreement Without Holders' Obligations and will be valid and binding obligations
of the Company, enforceable in accordance with their respective terms 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.
(k) The execution and delivery by the Company of this Agreement, the
Notes and Pre-paid Purchase Contracts (whether issued alone or as part of a
Unit), the Units (including any Purchase Contracts and Universal Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without
7
Holders' Obligations, 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 Pre-paid
Purchase Contracts, the Units (including any Purchase Contracts or Universal
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, 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 Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Universal Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, 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.
(l) 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.
(m) 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.
(n) 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
8
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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.
(o) 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.
(p) 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.
(q) The Company is not and, after giving effect to the offering and
sale of the Program Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(r) The Company has no reason to believe, and does not believe, that
there are any issues related to the Company's preparedness to address any
significant risk that computer hardware or software applications used by the
Company and its subsidiaries will not, in the case of dates or time periods
occurring after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000 that are of a
character required to be described or referred to in the Registration Statement
or Prospectus which have not been accurately described in the Registration
Statement or Prospectus.
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(i)
(except as to due authorization of the Notes and Pre-paid Purchase Contracts)
and 1(j), 1(k) (except as to due authorization of the Units, Universal Warrants
and Non-pre-paid Purchase Contracts), 1(j) (except as to due authorization of
the Units and the Universal Warrants) and 1(k), 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.
9
<PAGE>
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 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
10
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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 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 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
any 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 any Purchase Contracts issued as
part of a Unit, the settlement date, the purchase or sale price or any other
terms of such Purchase Contracts. Each such Notes Terms Agreement or Units Terms
Agreement may also specify any requirements for officers' certificates, opinions
of counsel and letters from the independent auditors of the Company pursuant to
Section 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
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<PAGE>
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 of
this Agreement as a condition precedent to your obligation to begin soliciting
offers to purchase Program Securities as agents of the Company shall be
delivered at the office of 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 the date on which you begin soliciting offers to
purchase Program Securities and 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 of the filing of
any amendment or supplement to the Basic Prospectus, of the filing and
effectiveness of any amendment to the Registration Statement, of any request
12
<PAGE>
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, 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, 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 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 , and 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
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<PAGE>
Registration Statement, you will resume the solicitation of offers to purchase
Program Securities hereunder. Notwithstanding any other provision of this
Section , 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 , and 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 first 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 in The City of New York, without
charge, (i) to each Agent, a signed copy of the Registration Statement,
including exhibits and all amendments thereto, and as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as you may reasonably request and (ii) to each Agent that
purchases Program Securities pursuant to a Terms Agreement or solicits an offer
to purchase Program Securities that is accepted by the Company, prior to 10:00
a.m. New York City time on the business day next succeeding the date of such
Terms Agreement or the acceptance of such offer, as many copies of the
Prospectus, as then amended or supplemented (including the Prospectus Supplement
relating to the Program Securities to be purchased pursuant to such Terms
Agreement or accepted offer), as such Agent 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, any Unit Agreement Without Holders' Obligations,
the Warrant Agreement, the Notes, the Units, the Universal Warrants, the
Purchase Contracts, this Agreement, the Administrative Procedures, any Notes
Terms Agreement or
14
<PAGE>
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 the Company or 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: the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, the preparation, issuance
and delivery of the Program Securities, 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 Program
Securities appointed by the Company, 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(j), 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, the printing and
delivery to you of copies of the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations and the Universal Warrant Agreement, any
fees charged by rating agencies for the rating of the Program Securities, the
fees and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., 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
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 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 the
Notes that are to be sold pursuant to such Notes Terms Agreement, Notes
previously agreed to be sold by the Company and commercial paper issued in the
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<PAGE>
ordinary course of business) or in the case of Units, any securities
substantially similar to such Units (other than the Units that are sold pursuant
to such Units Terms Agreement or 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, 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 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
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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 the Company
or 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.
17
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(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;
18
<PAGE>
(D) each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement has been duly authorized,
executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust Indenture
Act and each of the Senior Indenture, the Subordinated Indenture, the Unit
Agreement and the Universal Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, enforceable in accordance with its terms 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 Unit Agreement Without Holders' Obligations 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 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 (including the form of Pre-paid Purchase
Contracts), whether issued alone or as part of a Unit, have been duly
authorized and established in conformity with the provisions of the
relevant Indenture and, if the Notes and the Prepaid Purchase Contracts had
been executed by the Company and authenticated by the relevant Trustee or
its duly appointed agent in accordance with the provisions of the relevant
Indenture and delivered to and duly paid for by the purchasers thereof on
the date of such opinion, the Notes and the Pre-paid Purchase Contracts
would be entitled to the benefits of such Indenture and would be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms 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;
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(H) the forms of Units under the Unit Agreement, including the forms of
Universal Warrants and Non-pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of (i) in the
case of Units under the Unit Agreement and Non-pre-paid Purchase Contracts,
the Unit Agreement and (ii) in the case of the Universal Warrants, the
Universal Warrant Agreement. If such Units (including the Universal
Warrants and the Non-pre-paid Purchase Contracts) had been delivered to and
duly paid for by the purchasers thereof (and any Purchase Contracts
included therein had been executed by the Company and countersigned by the
Unit Agent and any Universal Warrants included therein had been executed by
the Company and countersigned by the Warrant Agent) on the date of such
opinion, the Units (including the Non-pre-paid Purchase Contracts and the
Universal Warrants 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;
(I) the Units under the Unit Agreement Without Holders' Obligations
have been duly authorized (and the forms of any Universal Warrants included
therein have been duly authorized and established in conformity with the
provisions of the Universal Warrant Agreement), and if such Units
(including the Universal Warrants) had been delivered to and duly paid for
by the purchasers thereof (and any Universal Warrants included therein had
been executed by the Company and countersigned by the Warrant Agent) on the
date of such opinion, the Units (including the Universal Warrants contained
therein) would be entitled to the benefits of the Unit Agreement Without
Holders' Obligations 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;
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(J) the execution and delivery by the Company of the Notes and Pre-paid
Purchase Contracts (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, any Unit Agreement Without Holders'
Obligations, 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, any Unit Agreement Without
Holders' Obligations, 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 Pre-paid Purchase Contracts, the Units (including any
Purchase Contracts or Universal Warrants included therein), the Indentures,
the Unit Agreement, any Unit Agreement Without Holders' Obligations, 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;
(K) 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"
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(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;
(L) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is
subject that are required to be described in the Registration Statement or
the Prospectus, as then amended or supplemented, and are not so described
or of any U.S. federal or state statutes, regulations, contracts or other
documents governed by U.S. federal or state law that are required to be
described in the Registration Statement or the Prospectus, as then amended
or supplemented, or to be filed or incorporated by reference as exhibits to
such Registration Statement that are not described, filed or incorporated
by reference as required; and
(M) the Company is not and, after giving effect to the offering and
sale of the Program Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended;
(N) 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
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<PAGE>
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 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) has no reason to believe 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), do not 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 , 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),
(H), (I) and (K) (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 (N) in paragraph (b)(i) above.
The opinions described in subparagraphs (F) and (I) need only be
contained in an opinion delivered on a Settlement Date related to an offering of
Units under a Unit Agreement Without Holders' Obligations to be executed on or
prior to such Settlement Date.
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Notwithstanding the foregoing, the opinions described in subparagraphs
(G) (except as to due authorization of the Notes), (H) (except as to due
authorization of the Units, Universal Warrants and Purchase Contracts), (I)
(except as to due authorization of the Units and Universal Warrants), (J),
(K)(1) and (N)(3) and (4) of paragraph (b)(i) above, when contained in an
opinion delivered on the Commencement Date or pursuant to Section , 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 (N) 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 (N) 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 "Forms of Securities -- 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.
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(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; provided that each letter so furnished shall use a
"cut-off date" no more than three business days prior to the date of such
letter.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
(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 offered pursuant to
this Agreement, such listing shall have been granted, subject to official notice
of issuance.
5. Additional Agreements of the Company. Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for 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, in the case of Units,
(x) a change in the exercise price, exercise date or period or expiration of an
underlying Universal Warrant or (y) a change in the settlement date or purchase
or sale price of an underlying Purchase Contract or 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
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you, of the same tenor as the certificate referred to in Section 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 (other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Current Report on Form 8-K unless you shall
reasonably request based on disclosure included or omitted from such Report),
the Company will furnish or cause to be furnished forthwith to you a written
opinion of counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred to
in Section , 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 , with regard to the amended or
supplemental financial information included or incorporated by reference in the
Registration Statement or the Prospectus as amended or supplemented to the date
of such letter; provided that each letter so furnished shall use a "cut-off
date" no more than three business days prior to the date of such letter.
6. Indemnification and Contribution. 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
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
26
<PAGE>
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 the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or 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
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(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 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 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
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.
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(e) The Company and you agree that it would not be just or equitable
if contribution pursuant to this Section 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 , 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 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 and the 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 operative and in full
force and effect regardless of any termination of this Agreement or any such
Notes Terms Agreement or Units Terms Agreement, 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 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 offered or sold and will not offer or sell during
the Restricted Period (as defined below) Bearer Notes (whether offered
alone or as part of a Unit) (including any Note that is exchangeable for
Bearer Notes) directly or indirectly in the United States (as defined
below) or to or for the account of any United States person (as defined
below), other than to a Qualifying Foreign Branch (as defined below) or to
certain other persons as provided under United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and 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
above;
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(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 obtain from such
affiliate for the benefit of the Company the representations and agreements
contained in clauses (i), (ii) and (iii) above or 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 , 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 , "United States person" means a citizen or resident of the United
States, a corporation or partnership (including an entitly treated as a
corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, or an estate the income of which is subject
to United States federal income taxation regardless of its source or a trust if
both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust, "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch" means a branch of a
United States financial institution, as defined in the applicable United States
Treasury Regulations, located outside the 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
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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; 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; 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 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 above and subject to the obligations of the
Company set forth in
31
<PAGE>
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. Confirm.]
(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. Confirm.]
(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.
Confirm.]
(g) Each of the Agents and the Company represents and agrees that
Program Securities will be issued outside the Republic of France, that it will
not offer or sell any Program Securities in the Republic of France, in
connection with their initial distribution, and will not distribute or cause to
be distributed in the Republic of France the Prospectus or any other offering
material relating to Program Securities, except to (i) qualified investors
(investisseurs qualifies) or (ii) within a restricted circle of investors
(cercle restreint d'investisseurs), all as defined in Article 6 of Ordinance no
67-833 dated 28th September, 1967 (as amended) and Decree no 98-880 dated 1st
October, 1998.
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
32
<PAGE>
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), 3(i), 3(j), 6, 7, 8, and 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(d), 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 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),
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), Morgan Stanley
S.A., 25 rue Balzac, 75008 Paris, France to the attention of Debt Capital
Markets (Telephone No.: 011-33-1-5377-7879 or 7300; Telecopy No.: 011-33-1-5377-
7899) or Bank Morgan Stanley AG, Bahnhofstrasse 92-3rd Floor, Ch-8023, Zurich,
Switzerland, to the attention of John Webley (Telephone No. 011-41-1-220-9111;
Telecopy No. 011-41-1-220-9800) or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to the Company at 1585 Broadway, New York,
New York 10036, Attention: Secretary.
11. Successors. This Agreement and any 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.
33
<PAGE>
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
34
<PAGE>
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 &
CO.
By:___________________________
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:___________________
Name:
Title:
MORGAN STANLEY BANK AG
By:___________________
Name:
Title:
MORGAN STANLEY S.A.
By:___________________
Name:
Title:
35
<PAGE>
BANK MORGAN STANLEY AG
By:___________________
Name:
Title:
36
<PAGE>
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated May 6, 1999
(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 Spread:
Interest Payments:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
<PAGE>
All Notes Fixed Rate Notes Floating Rate Notes
- --------- ---------------- -------------------
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Optional Repayment Face Amount (if any): Minimum Interest Rate:
Date(s):
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Aggregate Fixed Amount of Calculation Agent:
each Indexed Currency (if
any):
Initial Redemption Reporting Service:
Percentage:
Annual Redemption Index Currency:
Percentage Reduction:
Ranking: Designated CMT Telerate
Page:
Series: Designated CMT Maturity
Index:
Minimum Denominations:
Other Terms:
</TABLE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
A-2
<PAGE>
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
------------------------
Name:
Title:
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
& CO.
By:
- --------------------------------------------------
Name:
Title:
A-3
<PAGE>
EXHIBIT A-1
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated May 6, 1999
(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: 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:
A-1-1
<PAGE>
Universal Warrants Issued Purchase Contracts Issued
All Units: as Part of a Unit: as Part of a Unit:
- ---------- ------------------------- -------------------------
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 specified Contract Fees, if any:
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: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event Spread:
Interest Payments:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
</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
A-1-2
<PAGE>
<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>
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:
Optional Repayment Face Amount (if any): Minimum Interest Rate:
Date(s):
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Aggregate Fixed Amount of Calculation Agent:
each Indexed Currency (if
any):
Initial Redemption Reporting Service:
Percentage:
Annual Redemption Index Currency:
Percentage Reduction:
Ranking: Designated CMT Telerate
Page:
Series: Designated CMT Maturity
Index:
Minimum Denominations:
Other Terms:
</TABLE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is 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: ___________.
A-1-3
<PAGE>
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
& CO.
By:
- -----------------------------
Name:
Title:
<PAGE>
EXHIBIT B
MORGAN STANLEY DEAN WITTER & 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 & Co. (the "Company") pursuant to the Euro Distribution Agreement
dated May 6, 1999 (as may be amended from time to time, the "Distribution
Agreement") among the Company, 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.
<PAGE>
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 an
amended and restated senior indenture, dated May 1, 1999 (as it may be
supplemented or amended from time to time, the "Senior Debt Indenture"),
between the Company and The Chase Manhattan Bank as trustee (the "Senior Debt
Trustee"). The Subordinated Notes will be issued pursuant to the provisions
of an amended and restated subordinated indenture, dated as of May 1, 1999 (as
it may be 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." Purchase Contracts that require holders to
satisfy their obligations thereunder when such Purchase Contracts are issued
("Pre-paid Purchase Contracts") will be issued under an Indenture.
Unless otherwise specified in the applicable Pricing Supplement,
the Units will be issued (1) pursuant to the Unit Agreement dated as of May 6,
1999, 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 (as may be amended from time to time, the
"Unit Agreement") or (ii) if Units do not include Purchase Contracts (other than
Pre-paid Purchase Contracts), pursuant to a unit agreement among the Company,
The Chase Manhattan Bank, as Unit Agent, as Trustee under the Indenture referred
to therein, and as Warrant Agent under the Warrant Agreement referred to therein
in the form of such agreement filed as an exhibit to the Registration Statement
(each such agreement, a "Unit Agreement Without Holders' Obligations"). Units
may include one or more (i) Series D & E 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
(c) commodities, (iii) purchase contracts ("Purchase Contracts"), including
Pre-paid 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 (c) commodities or (iv) any combination thereof. The
applicable Pricing Supplement will specify whether or not any 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 May 6, 1999, between the
Company and The Chase
<PAGE>
Manhattan Bank, as Warrant Agent (as may be amended from time to time, the
"Universal Warrant Agreement"). Purchase Contracts, other than Pre-paid Purchase
Contracts, entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use
reasonable efforts to solicit purchases of the Notes and the Units, and the
administrative procedures explained below will govern the issuance and
settlement of any Notes or Units sold through the Agent, as agent of the
Company. The Agent, as principal, may also purchase Notes or 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 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 Agreements. "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.
B-3
<PAGE>
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"), Cedelbank 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. Upon the first request by any beneficial owner to
exchange any interest in a Permanent Global Note to a definitive Bearer Note,
or if any Note represented by such Permanent Global Note is accelerated
following an event of default with respect to such Note or if either
Euroclear, Cedelbank or any other relevant clearing system is closed for
business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so, then all (and not less than all) interests in such Permanent
Global Note shall be exchanged for definitive Bearer Notes; provided that, if
the applicable Pricing Supplement so specifies, nothing herein shall prevent
the further exchange of definitive Bearer Notes for Registered Notes. Upon the
first request by any beneficial owner to exchange any interest in a Permanent
Global Unit to a definitive Bearer Unit, or if any Note comprised by such
Permanent Global Note is accelerated following an event of default with
respect to such Note or if either Euroclear, Cedelbank or any other relevant
clearing system is closed for business for a continuous period of fourteen
days (other than by reason of public holidays) or announces an intention to
cease business permanently or in fact does so, then all (and not less than
all) interests in such Permanent Global Unit shall be exchanged for definitive
Bearer Units; provided that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the further exchange of definitive
Bearer Units for Registered Units.
Unless otherwise defined herein, terms defined in the
Indentures, the Unit Agreement, the Unit Agreement Without Holders'
Obligations, the 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.
B-4
<PAGE>
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.
B-5
<PAGE>
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form)
will be deemed to be dated as of the
Original Issue Date of the Bearer Note
comprised by such Unit or, if there is no
such underlying Bearer Note, the date of
the other securities comprised thereby in
accordance with the procedures described
above.
Registered Units. Each Registered Unit
will be deemed to be dated as of the
Original Issue Date of the Registered Note
comprised by such Unit or, if there is no
such underlying Registered Note, as of the
date of the other securities comprised
thereby in accordance with the procedures
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
B-6
<PAGE>
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 any Notes or other
securities 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 any Notes or other
securities comprised by such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined
below) with respect to an issuance of
Bearer Notes has occurred, such Notes,
together with all other Bearer Notes that
have the same terms (other than their
respective principal amounts) (all such
Notes herein 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
B-7
<PAGE>
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 Cedelbank,
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 Cedelbank, the
Euroclear Operator or any other relevant
clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any
time, upon 30 days' written notice to the
Principal Paying Agent given by such
B-8
<PAGE>
beneficial owner through either Cedelbank,
the Euroclear Operator or any other
relevant clearing system, as the case may
be, or if any Note represented by such
Permanent Global Note is accelerated
following an event of default with respect
to such Note or if either Euroclear,
Cedelbank or any other relevant clearing
system is closed for business for a
continuous period of fourteen days (other
than by reason of public holidays) or
announces an intention to cease business
permanently or in fact does so, such
Permanent Global Note shall be exchanged
for one or more definitive Bearer Notes
with coupons attached, if appropriate, or,
if the applicable Pricing Supplement so
specifies, one or more Registered Notes in
authorized denominations equal in
aggregate principal amount to such
beneficial interest; provided that any
such exchange of an interest in a
Permanent Global Note for a definitive
Bearer Note shall result in the exchange of
all (and not less than all) interests in
such Permanent Global Note for definitive
Bearer Notes; provided further, that, if
the applicable Pricing Supplement so
specifies, nothing herein shall prevent
the further exchange of definitive Bearer
Notes for Registered Notes. To effect
such exchange, the interest of such
beneficial owner in such Permanent Global
Note shall be canceled and one or more
definitive Bearer Notes or Registered
Notes, as the case may be, shall be issued
to such beneficial owner, through the
Euroclear Operator or Cedelbank 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.
B-9
<PAGE>
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 Note
comprised by a Unit or, if there is no
such underlying Note, the date of the other
securities comprised thereby) with respect
to such Units, the Unit Agent shall
deposit the Temporary Global Unit (with the
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
B-10
<PAGE>
Cedelbank, the Euroclear Operator or any
other relevant clearing system.
On or after the Exchange Date of any
Temporary Global Note comprised by a
Temporary Global Unit, the interest of the
beneficial owners of the Units represented
by the Temporary Global Unit shall be
canceled and such interests shall
thereafter be represented by a Permanent
Global Unit in bearer form (with the
corresponding temporary global forms of
each security comprised by such Unit) held
in London by the Depositary; provided that
Final Certification (as described below)
of any Notes comprised by such Unit has
occurred. The interest of each beneficial
owner of Units represented by such
Permanent Global Unit will be credited to
the appropriate account with Cedelbank,
the Euroclear Operator or any other
relevant clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any
time, upon 30 days' written notice to the
Unit Agent given by such beneficial owner
through either Cedelbank, the Euroclear
Operator or any other relevant clearing
system, as the case may be, or if any Note
comprised by such Permanent Global Note
is accelerated following an event of
default with respect to such Note or if
either Euroclear, Cedelbank or any other
relevant clearing system is closed for
business for a continuous period of
fourteen days (other than by reason of
public holidays) or announces an intention
to cease business permanently or in fact
does so, such Permanent Global Unit shall
be exchanged for one or more definitive
Bearer Units or, if the applicable Pricing
Supplement so specifies, one or more
Registered Units in authorized
B-11
<PAGE>
denominations equal in aggregate number
and aggregate face amount to such
beneficial interest; provided that any
such exchange any an 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 Cedelbank 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 the applicable
United States Treasury Regulation section)
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
B-12
<PAGE>
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,
Cedelbank 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,
Cedelbank 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
B-13
<PAGE>
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:
B-14
<PAGE>
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.
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<PAGE>
9. Price.
10. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
11. Specified Currency.
12. Whether the Note is an
Original Issue Discount Note
(an "OID Note"), and if it is
an OID Note, the applicability
of Modified Payment upon
Acceleration (and, if so, the
Issue Price).
13. Agent's account number at
Cedelbank, 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. Face Amount.
B-16
<PAGE>
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. Whether, and the terms under
which, the Securities
comprised by such Unit will
be separately tradeable.
6. Any other provisions
applicable to the Unit (other
than those provisions
applicable to the securities
comprised by such Unit).
7. If the Bearer Unit comprises
Bearer Universal Warrants:
a. Designation of the
Series of Universal
Warrants: [Call] [Put]
Universal Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
B-17
<PAGE>
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. Whether the Company or
the holder is the writer
of the Universal Warrant.
B-18
<PAGE>
o. Any other applicable
provisions.
8. If the Bearer Unit comprises
Bearer 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.
B-19
<PAGE>
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, Cedelbank 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
B-20
<PAGE>
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 any 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, Cedelbank
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, Cedelbank
or any other relevant clearing
system. At settlement of any Note
Tranche, the Principal Paying Agent
will instruct the Euroclear
B-21
<PAGE>
Operator, Cedelbank 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,
Cedelbank 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, Cedelbank 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, Cedelbank 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, Cedelbank or any other
relevant clearing system.
E. The Euroclear Operator, Cedelbank
and any other relevant clearing
system shall debit and credit
accounts in accordance with
instructions received from the
B-22
<PAGE>
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:
B-23
<PAGE>
Settlement
Procedure;
Bearer Notes
and Bearer Units Time
A 12:00 P.M. (NYC time) three days
before settlement date
B 12:00 P.M. (NYC time) three days
before settlement date
C 9:00 A.M. (London time) two days
before settlement date
D 3:45 P.M. (London time) one day
before settlement date
E 5:00 P.M. (NYC time) on
settlement date
Settlement Procedures;
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.
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<PAGE>
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.
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<PAGE>
13. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note,
and if it is an OID Note, and the
applicability of Modified Payment
upon Acceleration (and if so, the
Issue Price).
17. Whether such Note is a Series 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 any Registered Notes
that constitute a part of such
Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit
Owner").
2. Address of the Registered Unit
Owner.
3. Taxpayer identification number
of the Registered Unit Owner (if
available).
4. Denominations.
5. Settlement date and time.
B-26
<PAGE>
6. Number of Units (and Face Amount).
7. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
8. Designation of the Securities
comprised by such Units:
a. Notes, if any (See
"Settlement Procedures;
Registered Notes and
Registered Units" "A" );
b. 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;
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<PAGE>
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. Whether the Company or the
holder is the writer of the
warrant.
n. Any other applicable
provisions.
11. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract
Property: Quantity;
b. Purchase Price;
B-28
<PAGE>
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
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<PAGE>
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 any 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
B-30
<PAGE>
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
B-31
<PAGE>
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
B-32
<PAGE>
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,
Cedelbank and any other relevant clearing
system, and, in the case of the Unit, the
Company, the Unit Agent, the Depositary, and
the Euroclear Operator, Cedelbank 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
B-33
<PAGE>
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
B-34
<PAGE>
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.
B-35
<PAGE>
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDELBANK AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley Dean Witter & 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, any estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust
if both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined
in the applicable U.S. Treasury Regulations section) ("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
<PAGE>
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.
2
<PAGE>
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]
[CEDELBANK]
[Other]
By_____________________
3
<PAGE>
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR AND CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley Dean Witter & 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, any estate the income of
which is subject to United States Federal income taxation regardless of its
source or a trust if both (x) a court within the United States is able to
exercise primary supervision over the administration of the trust and (y) one
or more United States persons have the authority to control all substantial
decisions of the trust ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in the applicable U.S. Treasury Regulations section)
("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
<PAGE>
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:
2
<PAGE>
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 May 6, 1999
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,
Cedelbank and/or any other relevant clearing system in order for you to:
(4) Credit account of [Name of Agent] with
[Euroclear/Cedelbank/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.
<PAGE>
<TABLE>
<CAPTION>
Fixed Rate Floating 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 any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Optional Redemption Face Amount: Minimum Interest Rate:
Date(s):
Initial Redemption Date: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
Initial Redemption Aggregate Fixed Amount of Calculation Agent:
Percentage: each Indexed Currency (if
any):
Annual Redemption Indexed Currency (if any): Reporting Service:
Percentage Reduction:
Ranking: Index Currency:
Series: Designated CMT
Telerate Page:
Minimum Denominations: Designated CMT
Maturity Index:
Other Provisions:
</TABLE>
2
<PAGE>
against payment of [ ].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By:_________________________________
_________________________________
3
<PAGE>
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
To: The Chase Manhattan Bank,
Attention:__________________
__________________
Re: Euro Distribution Agreement
dated May 6, 1999
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, Cedelbank and/or
any other relevant clearing system in order for you to:
(1) Credit account of [Name of Agent] with
[Euroclear/Cedelbank/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.
<PAGE>
<TABLE>
<CAPTION>
Universal Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
- ---------- ------------------------- -------------------------
<S> <C> <C>
Principal Amount: Price: Price:
Purchase Price: Specified Currency or Settlement Date and Time:
Composite Currency:
Price to Public: Exercise Date: Buy or Sell:
Place of Delivery: Warrant Property: Purchase Contract
Property:
Specified Currency: Permitted Payment: Purchase or Sale Price:
Original Issue Date: Exercise Price:
Expiration Date: Specified Currency or
Composite Currency:
Put or Call: Permitted Payment:
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
All Notes Issued Fixed Rate Notes Issued Floating Rate Notes
as Part of a Unit: as Part of a Unit: Issued 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
Currencies (if any): Date:
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:
Optional Repayment Face Amount: Minimum Interest Rate:
Date(s):
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Aggregate Fixed Amount Calculation Agent:
of each Indexed Currency
(if any):
Initial Redemption Indexed Currency (if any): Reporting Service:
Percentage:
Annual Redemption Index Currency:
Percentage Reduction:
Ranking: Designated CMT
Telerate Page:
Series: Designated CMT
Maturity Index:
Minimum Denominations:
Other Provisions:
</TABLE>
against payment of [ ].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By:________________________________
________________________________
4
EXHIBIT 4e
EXECUTION COPY
- --------------------------------------------------------------------------------
MORGAN STANLEY DEAN WITTER & CO.
AND
THE CHASE MANHATTAN BANK, Trustee
Amended and Restated Senior Indenture
Dated as of May 1, 1999
------------------
- --------------------------------------------------------------------------------
<PAGE>
CROSS REFERENCE SHEET1
----------
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of May 1,
1999, between MORGAN STANLEY DEAN WITTER & CO. and THE CHASE MANHATTAN BANK,
Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2)................................6.09
310(a)(3) and (4)................................Inapplicable
310(b)...........................................6.08 and 6.10 (a), (b) and (d)
310(c)...........................................Inapplicable
311(a)...........................................6.13
311(b)...........................................6.13
311(c)...........................................Inapplicable
312(a)...........................................4.01
312(b)...........................................4.02
312(c)...........................................4.02
313(a)...........................................4.04
313(b)(1)........................................Inapplicable
313(b)(2)........................................4.04
313(c)...........................................4.04
313(d)...........................................4.04
314(a)...........................................4.03
314(b)...........................................Inapplicable
314(c)(1) and (2)................................11.05
314(c)(3)........................................Inapplicable
314(d)...........................................Inapplicable
314(e)...........................................11.05
314(f)...........................................Inapplicable
315(a), (c) and (d)..............................6.01
315(b)...........................................5.11
315(e)...........................................5.12
316(a)(1)........................................5.09
316(a)(2)........................................Not required
316(a) (last sentence)...........................7.04
316(b)...........................................5.07
317(a)...........................................5.02
317(b)...........................................3.04(a) and (b)
318(a)...........................................11.07
- --------
1 This Cross Reference Sheet is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined..........................................2
SECTION 1.02. Application of Certain Notice Provisions.......................7
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally................................................8
SECTION 2.02. Form of Trustee's Certificate of Authentication................8
SECTION 2.03. Amount Unlimited; Issuable in Series...........................9
SECTION 2.04. Authentication and Delivery of Securities.....................12
SECTION 2.05. Execution of Securities.......................................15
SECTION 2.06. Certificate of Authentication.................................16
SECTION 2.07. Denomination and Date of Securities; Payments of
Interest..................................................16
SECTION 2.08. Registration, Transfer and Exchange...........................17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities................................................21
SECTION 2.10. Cancellation of Securities; Disposition Thereof...............22
SECTION 2.11. Temporary Securities..........................................22
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest.............................23
SECTION 3.02. Offices for Payments, etc.....................................24
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee............25
SECTION 3.04. Paying Agents.................................................25
SECTION 3.05. Written Statement to Trustee..................................26
SECTION 3.06. Negative Pledge...............................................26
SECTION 3.07. Luxembourg Publications.......................................27
ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders..........................28
<PAGE>
PAGE
SECTION 4.02. Preservation and Disclosure of Securityholders
Lists.....................................................28
SECTION 4.03. Reports by the Issuer.........................................28
SECTION 4.04. Reports by the Trustee........................................28
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of
Maturity; Waiver of Default...............................28
SECTION 5.02. Collection of Indebtedness by Trustee; Trustee
May Prove Debt............................................32
SECTION 5.03. Application of Proceeds.......................................34
SECTION 5.04. Suits for Enforcement.........................................36
SECTION 5.05. Restoration of Rights on Abandonment of
Proceedings...............................................36
SECTION 5.06. Limitations on Suits by Securityholders.......................36
SECTION 5.07. Unconditional Right of Securityholders to Institute
Certain Suits.............................................37
SECTION 5.08. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default............................37
SECTION 5.09. Control by Holders of Securities..............................37
SECTION 5.10. Waiver of Past Defaults.......................................38
SECTION 5.11. Trustee to Give Notice of Default; But May
Withhold in Certain Circumstances.........................38
SECTION 5.12. Right of Court to Require Filing of Undertaking to
Pay Costs.................................................39
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default.................................40
SECTION 6.02. Certain Rights of the Trustee.................................41
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof..........42
SECTION 6.04. Trustee and Agents May Hold Securities or
Coupons; Collections, etc.................................43
SECTION 6.05. Moneys Held by Trustee........................................43
SECTION 6.06. Compensation and Indemnification of Trustee and
Its Prior Claim...........................................43
<PAGE>
PAGE
SECTION 6.07. Right of Trustee to Rely on Officer's Certificate,
etc........................................................44
SECTION 6.08. Indentures Not Creating Potential Conflicting
Interests for the Trustee..................................44
SECTION 6.09. Persons Eligible for Appointment as Trustee....................44
SECTION 6.10. Resignation and Removal; Appointment of
Successor Trustee..........................................45
SECTION 6.11. Acceptance of Appointment by Successor Trustee.................46
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business of Trustee.....................................48
SECTION 6.13. Preferential Collection of Claims Against the
Issuer.....................................................48
SECTION 6.14. Appointment of Authenticating Agent............................48
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders....................50
SECTION 7.02. Proof of Execution of Instruments and of Holding
of Securities..............................................50
SECTION 7.03. Holders to Be Treated as Owners................................51
SECTION 7.04. Securities Owned by Issuer Deemed Not
Outstanding................................................52
SECTION 7.05. Right of Revocation of Action Taken............................52
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Securityholders............................................53
SECTION 8.02. Supplemental Indentures with Consent of
Securityholders............................................54
SECTION 8.03. Effect of Supplemental Indenture...............................56
SECTION 8.04. Documents to Be Given to Trustee...............................56
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures.................................................57
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PAGE
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions............57
SECTION 9.02. Successor Corporation Substituted..............................57
SECTION 9.03. Opinion of Counsel Delivered to Trustee........................58
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture.......................58
SECTION 10.02. Application by Trustee of Funds Deposited for
Payment of Securities......................................63
SECTION 10.03. Repayment of Moneys Held by Paying Agent......................63
SECTION 10.04. Return of Moneys Held by Trustee and Paying
Agent Unclaimed for Two Years..............................63
SECTION 10.05. Indemnity for U.S. Government Obligations.....................64
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual
Liability..................................................64
SECTION 11.02. Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons..............64
SECTION 11.03. Successors and Assigns of Issuer Bound by
Indenture..................................................65
SECTION 11.04. Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons..........................65
SECTION 11.05. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein.........................66
SECTION 11.06. Payments Due on Saturdays, Sundays or
Holidays...................................................67
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939......................................67
SECTION 11.08. New York Law to Govern........................................67
SECTION 11.09. Counterparts..................................................67
SECTION 11.10. Effect of Headings............................................67
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SECTION 11.11. Securities in a Foreign Currency.............................67
SECTION 11.12. Judgment Currency............................................68
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article.....................................69
SECTION 12.02. Notice of Redemption; Partial Redemptions....................69
SECTION 12.03. Payment of Securities Called for Redemption..................71
SECTION 12.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption..............................72
SECTION 12.05. Mandatory and Optional Sinking Funds.........................72
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THIS AMENDED AND RESTATED INDENTURE, dated as of May 1, 1999 between
MORGAN STANLEY DEAN WITTER & CO., a Delaware corporation (the "Issuer"), and THE
CHASE MANHATTAN BANK, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee are parties to that certain Senior
Indenture dated as of April 15, 1989, as supplemented by a First Supplemental
Senior Indenture dated as of May 15, 1991 and a Second Supplemental Senior
Indenture dated as of April 15, 1996, each between Morgan Stanley Group Inc. (as
predecessor to the Issuer) and the Trustee (formerly known as Chemical Bank),
and by a Third Supplemental Senior Indenture dated as of June 1, 1997, and a
Fourth Supplemental Senior Indenture dated as of March 1, 1998, each between the
Issuer and the Trustee (such Indenture as so supplemented, the "Original
Indenture", and as amended and restated herein, the "Indenture");
WHEREAS, Section 8.1 of the Original Indenture provides that, without
the consent of the Holders of any Securities or Coupons, the Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may enter
into indentures supplemental to the Indenture for the purpose of, among other
things, making any provisions as the Issuer may deem necessary or desirable,
subject to the conditions set forth therein;
WHEREAS, the Issuer desires to amend and restate the Original Indenture
for the purpose of, among other things, combining the Senior Indenture dated as
of April 15, 1989 with each of the four supplemental indentures into this
Indenture, in accordance with and as authorized by the provisions of the
Original Indenture;
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
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NOW, THEREFORE:
The Issuer and the Trustee agree to amend and restate the Original
Indenture as provided herein. Upon the execution and delivery of counterpart
signature pages hereto by the Issuer and the Trustee, the Original Indenture
will be automatically amended and restated in its entirety to read as provided
herein.
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the date
of this Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted at the
time of any computation. The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"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), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be
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the Luxemburger Wort) 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, the
United Kingdom or in Luxembourg, as applicable. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer 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 Trustee.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in the borough of Manhattan, The City of New York.
"Coupon" means any interest coupon appertaining to a Security.
"covenant defeasance" shall have the meaning set forth in Section
10.01(c).
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is
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then a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global Securities of
that series.
"Dollar" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"Event of Default" means any event or condition specified as such in
Section 5.01.
"Foreign Currency" means a currency issued by the government of a
country other than the United States (or any currency unit comprised of any such
currencies).
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose name
such Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indebtedness" shall have the meaning set forth in Section 5.01.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article Six) Morgan
Stanley Dean Witter & Co., a Delaware corporation and, subject to Article Nine,
its successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by any one of the following: the Chairman of the
Board, the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer or any other person authorized by the Board of Directors to execute
any such written statement, request or order.
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"Judgment Currency" shall have the meaning set forth in Section 11.12.
"Officer's Certificate" means a certificate (i) signed by any one of
the following: the Chairman of the Board, the President, the Chief Financial
Officer, the Chief Strategic and Administrative Officer, the Chief Legal
Officer, the Treasurer, any Assistant Treasurer or any other person authorized
by the Board of Directors to execute any such certificate and (ii) delivered to
the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.05.
"Opinion of Counsel" means an opinion in writing signed by the Chief
Legal Officer of the Issuer or by such other legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture
Act of 1939 and include the statements provided for in Section 11.05.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"Outstanding" when used with reference to Securities, shall, subject to
the provisions of Section 7.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.01)
in the necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
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(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.09 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
person in whose hands such Security is a legal, valid and binding obligation of
the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"record date" shall have the meaning set forth in Section 2.07.
"Redemption Notice Period" shall have the meaning set forth in Section
12.02.
"Registered Global Security", means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.04, and bearing the legend prescribed in Section
2.04.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the Board of Directors, any vice chairman of the board of directors,
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the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
(whether or not designated by numbers or words added before or after the title
"vice president") the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the fourth recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Subsidiary" shall have the meaning set forth in Section 3.06.
"Trust Indenture Act of 1939" means the Trust Indenture Act of 1939.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article 6, shall also include
any successor trustee. "Trustee" shall also mean or include each Person who is
then a trustee hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.01(a).
"Voting Securities" shall have the meaning set forth in Section 3.06.
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
SECTION 1.02. Application of Certain Notice Provisions. The provision
in Sections 5.11, 6.10, 6.11, 8.02 and 10.04 permitting notice to be given to
Holders of Unregistered Securities through the customary notice provisions of
the clearing system or systems through which beneficial interests in such
Unregistered
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Securities are owned (if such Unregistered Securities are held only in global
form), in lieu of publication in an Authorized Newspaper, shall apply only to
Securities priced and sold under this Indenture after May 6, 1999.
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) 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) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, 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 Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within-mentioned
Senior Indenture.
__________________________
as Trustee
By:_______________________
Authorized Officer
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If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Senior Indenture.
___________________________
as Authenticating Agent
By:________________________
Authorized Officer
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
debt of the Issuer. 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 indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.08, 2.09, 2.11, 8.05 or 12.03);
(c) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency);
(d) the date or dates on which the principal of the Securities of the
series is payable;
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(e) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or
dates shall be determined;
(f) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.02);
(g) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, the price or
prices at which and any terms and conditions, including the Redemption Notice
Period, upon which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(h) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
(j) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(k) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(l) if the principal of or interest on the Securities of such series
are to be payable, at the election of the Issuer or a Holder thereof, in a coin
or currency other than that in which the Securities are denominated, the period
or periods within which, and the terms and conditions upon which, such election
may be made;
(m) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on a
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coin or currency other than that in which the Securities of the series are
denominated, or with reference to any currencies, securities or baskets of
securities, commodities or indices, the manner in which such amounts shall be
determined;
(n) if the Holders of the Securities of the series may convert or
exchange the Securities of the series into or for securities of the Issuer or of
other entities or other property (or the cash value thereof), the specific terms
of and period during which such conversion or exchange may be made;
(o) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions applicable to
the offer, sale, transfer, exchange or delivery of Unregistered Securities or
Registered Securities or the payment of interest thereon and, if other than as
provided in Section 2.08, the terms upon which Unregistered Securities of any
series may be exchanged for Registered Securities of such series and vice versa;
(p) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a Person who is not a
U.S. Person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(q) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security 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;
(r) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the Securities
of such series;
(s) any other events of default or covenants with respect to the
Securities of such series; and
(t) any other terms of the series.
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and except as may otherwise be provided by or
pursuant to the
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Board Resolution or Officer's Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities 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 Indenture, if so provided by or pursuant to such Board
Resolution, such Officer's Certificate or in any such indenture supplemental
hereto.
SECTION 2.04. Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto (including Redemption Notice
Periods) shall be determined by or pursuant to such Issuer Order and procedures.
If provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs 2.04(a)(ii),
2.04(a)(iii) and 2.04(a)(iv) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series)
and (subject to Section 6.01) shall be fully protected in relying upon, unless
and until such documents have been superceded or revoked:
(i) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are
not to be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such Issuer
Order may be delivered by the Issuer to the Trustee prior to the
delivery to the Trustee of such Securities for authentication and
delivery, (b) the Trustee shall authenticate and deliver Securities of
such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount
established for such series, pursuant to an Issuer Order or pursuant to
procedures acceptable to the Trustee as may be specified from time to
time by an Issuer Order, (c) the maturity date or dates, original issue
date or dates, interest rate or rates and any other terms of Securities
of such series (including Redemption Notice Periods) shall be
determined by an Issuer Order or pursuant to such procedures and (d) if
provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions
from the Issuer or its
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duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing;
(ii) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.01 and 2.03 by or
pursuant to which the forms and terms of the Securities and Coupons, if
any, were established;
(iii) an Officer's Certificate setting forth the form or forms
and terms of the Securities and Coupons, if any, stating that the form
or forms and terms of the Securities and Coupons, if any, have been
established pursuant to Sections 2.01 and 2.03 and comply with this
Indenture, and covering such other matters as the Trustee may
reasonably request; and
(iv) at the option of the Issuer, either an Opinion of Counsel,
or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel, substantially to the effect that:
(A) the forms of the Securities and Coupons, if any, have
been duly authorized and established in conformity with the
provisions of this Indenture;
(B) in the case of an underwritten offering, the terms of
the Securities have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the
case of an offering that is not underwritten, certain terms of
the Securities have been established pursuant to a Board
Resolution, an Officer's Certificate or a supplemental
indenture in accordance with this Indenture, and when such
other terms as are to be established pursuant to procedures
set forth in an Issuer Order shall have been established, all
such terms will have been duly authorized by the Issuer and
will have been established in conformity with the provisions
of this Indenture;
(C) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in
accordance with the provisions of this Indenture and delivered
to and duly paid for by the purchasers thereof, they will have
been duly issued under this Indenture and will be valid and
binding obligations of the Issuer, enforceable in accordance
with their respective terms, and will be entitled to the
benefits of this Indenture; and
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(D) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the
Securities and Coupons, if any, will not contravene any
provision of applicable law or the certificate of
incorporation or by-laws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its
consolidated subsidiaries that is material to the Issuer and
its 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 Issuer or any of its consolidated subsidiaries, and no
consent, approval or authorization of any U.S. governmental
body or agency is required for the performance by the Issuer
of its obligations under the Securities and Coupons, if any,
except such as are specified and have been obtained and 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
Securities and Coupons, if any.
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 Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes he and the Trustee 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
Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
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If the Issuer shall establish pursuant to Section 2.03 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee 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 Securities in
definitive registered form, this Security 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."
Each Depositary designated pursuant to Section 2.03 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.
SECTION 2.05. Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by any one of the following: the Chairman of the Board, the President,
the Chief Financial Officer, the Chief Strategic and Administrative Officer, the
Chief Legal Officer, the Treasurer, any Assistant Treasurer or any other person
authorized by the Board of Directors to execute Securities or, if applicable,
Coupons, which Securities or Coupons may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. Minor errors or defects in any such reproduction of any
such signature shall not affect the validity or enforceability of any Security
that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the
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date of the execution and delivery of this Indenture any such person was not
such an officer.
SECTION 2.06. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
SECTION 2.07. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.03.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.03.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the Persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five
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Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the Registered
Securities of such series established as contemplated by Section 2.03, or, if no
such date is so established, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.08. Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in Section
3.02 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.02, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.02
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.03, at
the
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option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.02, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant to Section 2.03,
such Unregistered Securities may be exchanged for Unregistered Securities of
such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.02 or as specified pursuant to Section 2.03, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. Unless otherwise
specified pursuant to Section 2.03, Registered Securities of any series may not
be exchanged for Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. All Securities and Coupons surrendered upon any exchange or
transfer provided for in this Indenture shall be promptly cancelled and disposed
of by the Trustee and the Trustee will deliver a certificate of disposition
thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for redemption,
in whole or in part,
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except, in the case of any Security to be redeemed in part, the portion thereof
not so to be redeemed or (c) any Securities if the Holder thereof has exercised
any right to require the Issuer to repurchase such Securities, in whole or in
part, except, in the case of any Security to be repurchased in part, the portion
thereof not so to be repurchased.
Notwithstanding any other provision of this Section 2.08, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities 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.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.04, the Issuer shall appoint a successor
Depositary eligible under Section 2.04 with respect to such Registered
Securities. If a successor Depositary eligible under Section 2.04 for such
Registered Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the Issuer's
election pursuant to Section 2.03 that such Registered Securities be represented
by one or more Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Trustee, upon receipt of an Officer's Certificate
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities, in exchange for such Registered Global Security or
Securities.
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If specified by the Issuer pursuant to Section 2.03 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause 2.08(a)(i) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee or an agent of the
Issuer or the Trustee. Securities in definitive registered form without coupons
issued in exchange for a Registered Global Security pursuant to this Section
2.08 shall be registered in such names and in such authorized denominations as
the Depositary for such Registered Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
Federal income tax
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purposes, the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, maturity date, interest rate and original
issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen with Coupons corresponding to the Coupons appertaining
to the Securities so mutilated, defaced, destroyed, lost or stolen, or in
exchange or substitution for the Security 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.
In every case the applicant for a substitute Security or Coupon shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as may be required by them to indemnify and defend and to
save each of them harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security and related Coupons to the Trustee or
such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer 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 Trustee or its agent) connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any agent of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the
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Issuer, whether or not the destroyed, lost or stolen Security or Coupon shall be
at any time enforceable by anyone and shall be entitled to all the benefits of
(but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or
Coupons of such series duly authenticated and delivered hereunder. All
Securities and Coupons shall be held and owned upon the express condition that,
to the extent permitted by law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, defaced or destroyed, lost
or stolen Securities and Coupons and shall preclude any and all other rights or
remedies notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 2.10. Cancellation of Securities; Disposition Thereof. All
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Registered Securities of such
series may
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be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.02 and, in
the case of Unregistered Securities, at any agency maintained by the Issuer for
such purpose as specified pursuant to Section 2.03, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.03. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.03 (including any provision that Unregistered Securities of such
series initially be issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency located outside the United States and
the procedures pursuant to which definitive or global Unregistered Securities of
such series would be issued in exchange for such temporary global Unregistered
Security).
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant
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to Section 2.03. The interest on Registered Securities (together with any
additional amounts payable pursuant to the terms of such Securities) shall be
payable only to or upon the written order of the Holders thereof and, at the
option of the Issuer, may be paid by wire transfer or by mailing checks for such
interest payable to or upon the written order of such Holders at their last
addresses as they appear on the registry books of the Issuer.
SECTION 3.02. Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or are
outstanding hereunder, the Issuer will maintain in the Borough of Manhattan, The
City of New York, an office or agency where the Registered Securities of each
series may be presented for payment, where the Securities of each series may be
presented for exchange as is provided in this Indenture and, if applicable,
pursuant to Section 2.03 and where the Registered Securities of each series may
be presented for registration of transfer as in this Indenture provided.
The Issuer 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 Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto may
be presented for payment. No payment on any Unregistered Security or Coupon will
be made upon presentation of such Unregistered Security or Coupon at an agency
of the Issuer 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 Issuer. Notwithstanding the
foregoing, payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Issuer maintained in the Borough of Manhattan, The City of New
York if such payment in Dollars at each agency maintained by the Issuer outside
the United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be located
in the Borough of Manhattan, The City of New York, or shall fail to give such
notice of
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the location or of any change in the location of any of the above agencies,
presentations and demands may be made and notices may be served at the Corporate
Trust Office of the Trustee.
The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.03 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.04. Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series, or Coupons appertaining thereto, if any, or of the
Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such series when the same
shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the continuance of
the failure referred to in clause 3.04(b) above.
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The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, but subject
to Section 10.01, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 10.03 and 10.04.
SECTION 3.05. Written Statement to Trustee. The Issuer will furnish to
the Trustee on or before March 31 in each year (beginning with March 31, 2000) a
brief certificate (which need not comply with Section 11.05) from the principal
executive, financial or accounting officer of the Issuer stating that in the
course of the performance by the signer of his duties as an officer of the
Issuer he would normally have knowledge of any default or non-compliance by the
Issuer in the performance of any covenants or conditions contained in this
Indenture, stating whether or not he has knowledge of any such default or
non-compliance and, if so, specifying each such default or non-compliance of
which the signer has knowledge and the nature thereof.
SECTION 3.06. Negative Pledge. Neither the Issuer 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 (i) the Voting Securities (as hereinafter defined) of
Morgan Stanley & Co. Incorporated, a Delaware corporation and a wholly owned
subsidiary of the Issuer, Morgan Stanley & Co. International Limited, an English
company and an
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indirect wholly owned subsidiary of the Issuer, Greenwood Trust Company, a
Delaware chartered bank and an indirect wholly owned subsidiary of the Issuer,
Dean Witter Reynolds Inc., a Delaware corporation and a wholly owned subsidiary
of the Issuer, 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 Issuer shall cause the Securities to
be secured equally and ratably with (or, at the Issuer's option, prior to) any
indebtedness secured thereby. "Subsidiary" means any corporation, partnership or
other entity of which at the time of determination the Issuer 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 Issuer 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 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.
SECTION 3.07. Luxembourg Publications. In the event of the publication
of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.02, 10.04, 12.02 or
12.05, 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 Securities of any series 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.
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ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than
15 days after each record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.03 for non-interest bearing Registered
Securities in each year, and (b) at such other times as the Trustee may request
in writing, within thirty days after receipt by the Issuer of any such request
as of a date not more than 15 days prior to the time such information is
furnished.
SECTION 4.02. Preservation and Disclosure of Securityholders Lists.
This Section intentionally left blank.
SECTION 4.03. Reports by the Issuer. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports that the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
or pursuant to Section 314 of the Trust Indenture Act of 1939.
SECTION 4.04. Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before January 15 in each year beginning January 15, 2000, as provided in
Section 313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
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whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any instalment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series (other than a covenant or warranty in respect of the Securities
of such series a default in the performance or breach of which is elsewhere in
this Section specifically dealt with) or in this Indenture contained for a
period of 60 days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default" hereunder and
demanding that the Issuer remedy the same, shall have been given by registered
or certified mail, return receipt requested, to the Issuer by the Trustee, or to
the Issuer and the Trustee by the holders of at least 25% in aggregate principal
amount of the Outstanding Securities of all series affected thereby; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer 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 Issuer 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
(e) the Issuer 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 or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of
the Issuer or for any substantial part of its property, or make any general
assignment for the benefit of creditors; or
(f) failure by the Issuer to make any payment at maturity, including
any applicable grace period, in respect of indebtedness, which term as used
herein means obligations (other than the Securities of such series or
non-recourse
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obligations) of, or guaranteed or assumed by, the Issuer for borrowed money or
evidenced by bonds, debentures, notes or other similar instruments
("Indebtedness") in an amount in excess of $10,000,000 or the equivalent thereof
in any other currency or composite currency and such failure shall have
continued for a period of thirty days after written notice thereof shall have
been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the holders of not
less than 25% in aggregate principal amount of the Outstanding Securities
(treated as one class); or
(g) a default with respect to any Indebtedness, which default results
in the acceleration of Indebtedness in an amount in excess of $10,000,000 or the
equivalent thereof in any other currency or composite currency without such
Indebtedness having been discharged or such acceleration having been cured,
waived, rescinded or annulled for a period of thirty days after written notice
thereof shall have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by the
holders of not less than 25% in aggregate principal amount of the Outstanding
Securities (treated as one class); or
(h) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security for
such series;
provided that if any such failure, default or acceleration referred to in
clauses 5.01(f) or 5.01(g) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon cured.
If an Event of Default described in clauses 5.01(a), 5.01(b), 5.01(c)
or 5.01(h) (if the Event of Default under clause 5.01(c) or 5.01(h), as the case
may be, is with respect to less than all series of Securities then Outstanding)
occurs and is continuing, then, and in each and every such case, except for any
series of Securities the principal of which shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of each such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause 5.01(c) or 5.01(h) (if the Event of Default
under clause 5.01(c) or 5.01(h), as the case may
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be, is with respect to all series of Securities then Outstanding), 5.01(d),
5.01(e), 5.01(f) or 5.01(g) occurs and is continuing, then and in each and every
such case, unless the principal of all the Securities shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of all the Securities then Outstanding hereunder
(treated as one class), by notice in writing to the Issuer (and to the Trustee
if given by Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or of all the Securities, as the case may be) and
the principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue instalments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of each
such series (or at the respective rates of interest or Yields to Maturity of all
the Securities, as the case may be) to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable compensation to the
Trustee and each predecessor Trustee, its agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith, and
if any and all Events of Default under the Indenture, other than the non-payment
of the principal of Securities which shall have become due by acceleration,
shall have been cured, waived or otherwise remedied as provided herein--then and
in every such case the Holders of a majority in aggregate principal amount of
all the Securities of each such series, or of all the Securities, in each case
voting as a single class, then Outstanding, by written notice to the Issuer and
to the Trustee, may waive all defaults with respect to each such series (or with
respect to all the Securities, as the case may be) and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
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For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any instalment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise -- then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
instalments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such Series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities
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and collect in the manner provided by law out of the property of the Issuer or
other obligor upon the Securities, wherever situated the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Trustee and each predecessor Trustee, except as a result of negligence
or bad faith) and of the Securityholders allowed in any judicial
proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other
obligor,
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or Person performing similar functions in comparable
proceedings, and
(iii) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute all amounts
received with respect to the claims of the Securityholders and of the
Trustee on their behalf; and any trustee, receiver, or liquidator,
custodian or other
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similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the Securityholders, to
pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and
their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.03. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in
the following order at the date or dates fixed by the Trustee and, in case of
the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereon the
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payment, or issuing Securities of such series in reduced principal amounts in
exchange for the presented Securities of like series if only partially paid, or
upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected,
including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and
attorneys and of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of
interest on the Securities of such series in default in the
order of the maturity of the instalments of such interest,
with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue instalments of
interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made
ratably to the Persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment
of the whole amount then owing and unpaid upon all the
Securities of such series for principal and interest, with
interest upon the overdue principal, and (to the extent that
such interest has been collected by the Trustee) upon
overdue instalments of interest at the same rate as the rate
of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of
such series; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without
preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal,
or of any instalment of interest over any other instalment of
interest, or of any Security of such series over any other
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Security of such series, ratably to the aggregate of
such principal and accrued and unpaid interest or
Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
SECTION 5.04. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual 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 covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.06. Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, 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 to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of each affected series then Outstanding
(treated as a single class) shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.09; it being understood and intended, and being
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expressly covenanted by the taker and Holder of every Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any other such
Holder of Securities or Coupons appertaining to such Securities, or to obtain or
seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities of the
applicable series and Coupons appertaining to such Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 5.07. Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons 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.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.09. Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
(with all such series voting as a single class) at the time Outstanding shall
have
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the right to 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 with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee 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 the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.01) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10. Waiver of Past Defaults. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.01, the Holders of a
majority in aggregate principal amount of the Securities of all series at the
time Outstanding with respect to which an event of default shall have occurred
and be continuing (voting as a single class) may on behalf of the Holders of all
such Securities waive any past default or Event of Default described in Section
5.01 and its consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the Issuer,
the Trustee and the Holders of all such Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.11. Trustee to Give Notice of Default; But May Withhold in
Certain Circumstances. The Trustee shall, within ninety days after the
occurrence
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of a default with respect to the Securities of any series, give notice of all
defaults with respect to that series known to the Trustee (i) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, (A) by mail to such Holders who have filed their names and
addresses with the Trustee within the two years preceding the notice at such
addresses as were so furnished to the Trustee and (B) either through the
customary notice provisions of the clearing system or systems through which
beneficial interests in such Unregistered Securities are owned if such
Unregistered Securities are held only in global form or by publication at least
once in an Authorized Newspaper in the Borough of Manhattan, The City of New
York, and at least once in an Authorized Newspaper in London (and, if required
by Section 3.07, at least once in an Authorized Newspaper in Luxembourg), and
(ii) if any Registered Securities of a series affected are then Outstanding, by
mailing notice to the Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books,
unless in each case such defaults shall have been cured before the mailing or
publication of such notice (the term "defaults" for the purpose of this Section
being hereby defined to mean any event or condition which is, or with notice or
lapse of time or both would become, an Event of Default); provided that, except
in the case of default in the payment of the principal of or interest on any of
the Securities of such series, or in the payment of any sinking fund instalment
on such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee, or a trust committee
of directors or trustees and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security or
Coupon 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 Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, 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; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause 5.01(c) or 5.01(h) (if the suit
relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause 5.01(c) or
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5.01(h) (if the suit under clause 5.01(c) or 5.01(h) relates to all the
Securities then Outstanding), 5.01(d), 5.01(e), 5.01(f) or 5.01(g), 10% in
aggregate principal amount of all Securities then Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security or any date fixed for redemption.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the
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correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee 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 pursuant to Section 5.09 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject
to Section 315 of the Trust Indenture Act of 1939.
SECTION 6.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, 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 Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
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(c) the Trustee may consult with counsel and any written advice or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in
good faith and in reliance thereon in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee 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 Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee 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 unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee 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.
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken
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as the statements of the Issuer, and the Trustee assumes no responsibility for
the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The
Trustee shall not be accountable for the use or application by the Issuer of any
of the Securities or of the proceeds thereof.
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
SECTION 6.05. Moneys Held by Trustee. Subject to the provisions of
Section 10.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.06. Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
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 Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional
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indebtedness shall be a senior claim to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders of particular Securities or Coupons, and the
Securities are hereby subordinated to such senior claim.
SECTION 6.07. Right of Trustee to Rely on Officer's Certificate, etc.
Subject to Sections 6.01 and 6.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.08. Indentures Not Creating Potential Conflicting Interests
for the Trustee. The following indentures are hereby specifically described for
the purposes of excluding such indentures and this Indenture with respect to
Securities of any other series from the operation of Section 310(b)(1) of the
Trust Indenture Act of 1939: the Indenture dated June 15, 1988 between the
Issuer and The Chase Manhattan Bank (formerly known as Chemical Bank), Trustee
relating to $100,000,000 principal amount of Debentures due 2008 and this
Indenture with respect to the Securities of any other series.
SECTION 6.09. Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $5,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. Such corporation shall have its
principal place of business in the Borough of Manhattan, The City of New York if
there be such a corporation in such location willing to act upon reasonable and
customary terms and conditions. If such corporation 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. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 6.10.
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The provisions of this Section 6.09 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof (A) by mail to such Holders who have filed
their names and addresses with the Trustee within the two years preceding the
notice at such addresses as were so furnished to the Trustee and (B) either
through the customary notice provisions of the clearing system or systems
through which beneficial interests in such Unregistered Securities are owned if
such Unregistered Securities are held only in global form or by publication at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York, and at least once in an Authorized Newspaper in London (and, if
required by Section 3.07, at least once in an Authorized Newspaper in
Luxembourg), and (ii) if any Registered Securities of a series affected are then
Outstanding, by mailing notice of such resignation to the Holders of then
Outstanding Registered Securities of each series affected at their addresses as
they shall appear on the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 5.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or by
any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
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(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series 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 Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.01 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
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effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.04,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.06.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.09.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof (i) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof,
(A) by mail to such Holders who have filed their names and addresses with the
Trustee within the two years preceding the notice at such addresses as were so
furnished to the Trustee and (B) either through the customary notice provisions
of the clearing system or systems through which beneficial interests in such
Unregistered Securities are owned if such Unregistered Securities are held only
in global form or by publication at least once in an Authorized Newspaper in the
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Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.07, at least once in an
Authorized Newspaper in Luxembourg), and (ii) if any Registered Securities of a
series affected are then Outstanding, by mailing notice to the Holders of then
Outstanding Registered Securities of each series affected at their addresses as
they shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee 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 Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under Section
310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of
Section 6.09, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13. Preferential Collection of Claims Against the Issuer.
This Section intentionally left blank.
SECTION 6.14. Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
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writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.09.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.09 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee shall upon receipt of an Issuer Order appoint
a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.04. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
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Sections 6.02, 6.03, 6.04, 6.06, 6.09 and 7.03 shall be applicable to
any Authenticating Agent.
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by 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 Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same. The fact of the holding by any Holder of an Unregistered Security of any
series, and the identifying number of such Security and the date of his holding
the same, may be proved by the production of such Security or by a certificate
executed by any trust company, bank, banker or recognized securities dealer
wherever situated satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall be dated
and shall state that on the date thereof a Security of such series bearing a
specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the Person named in
such certificate. Any such certificate may
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be issued in respect of one or more Unregistered Securities of one or more
series specified therein. The holding by the Person named in any such
certificate of any Unregistered Securities of any series specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (1) another
certificate bearing a later date issued in respect of the same Securities shall
be produced, or (2) the Security of such series specified in such certificate
shall be produced by some other Person, or (3) the Security of such series
specified in such certificate shall have ceased to be Outstanding. Subject to
Sections 6.01 and 6.02, the fact and date of the execution of any such
instrument and the amount and numbers of Securities of any series held by the
Person so executing such instrument and the amount and numbers of any Security
or Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee for such
series or in any other manner which the Trustee for such series may deem
sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security registrar.
The Issuer may set a record date for purposes of determining the
identity of Holders of Registered Securities of any series entitled to vote or
consent to any action referred to in Section 7.01, which record date may be set
at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
SECTION 7.03. Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor
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any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary. All such payments so 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 any such Unregistered
Security or Coupon.
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer's Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.01 and 6.02, the Trustee
shall be entitled to accept such Officer's Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
SECTION 7.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security
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shall be conclusive and binding upon such Holder and upon all future Holders and
owners of such Security and of any Securities issued in exchange or substitution
therefor or on registration of transfer thereof, irrespective of whether or not
any notation in regard thereto is made upon any such Security. Any action taken
by the Holders of the percentage in aggregate principal amount of the Securities
of any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which 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), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Issuer pursuant to Article 9;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons, and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture 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 an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of
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a majority in aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided that no such action shall adversely affect the interests of
the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.01 and
2.03; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article 7) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors
(which 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), and the Trustee may, from time
to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of
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modifying in any manner the rights of the Holders of the Securities of each such
series or of the Coupons appertaining to such Securities; provided, that no such
supplemental indenture shall (a)(i) extend the final maturity of any Security,
(ii) reduce the principal amount thereof, (iii) reduce the rate or extend the
time of payment of interest thereon, (iv) reduce any amount payable on
redemption thereof, (v) make the principal thereof (including any amount in
respect of original issue discount), or interest thereon payable in any coin or
currency other than that provided in the Securities and Coupons or in accordance
with the terms thereof, (vi) modify or amend any provisions for converting any
currency into any other currency as provided in the Securities or Coupons or in
accordance with the terms thereof, (vii) reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon an
acceleration of the maturity thereof pursuant to Section 5.01 or the amount
thereof provable in bankruptcy pursuant to Section 5.02, (viii) modify or amend
any provisions relating to the conversion or exchange of the Securities or
Coupons for securities of the Issuer or of other entities or other property (or
the cash value thereof), including the determination of the amount of securities
or other property (or cash) into which the Securities shall be converted or
exchanged, other than as provided in the antidilution provisions or other
similar adjustment provisions of the Securities or Coupons or otherwise in
accordance with the terms thereof, (ix) alter the provisions of Section 11.11 or
11.12 or impair or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any right of
repayment at the option of the Securityholder, in each case without the consent
of the Holder of each Security so affected, or (b) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders
of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which 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)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if
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any, required by Section 7.01, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (i) if any Unregistered Securities of a series
affected are then Outstanding, to the Holders thereof, (A) by mail to such
Holders who have filed their names and addresses with the Trustee within the two
years preceding the notice at such addresses as were so furnished to the Trustee
and (B) either through the customary notice provisions of the clearing system or
systems through which beneficial interests in such Unregistered Securities are
owned if such Unregistered Securities are held only in global form or by
publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.07, at least once in an Authorized
Newspaper in Luxembourg), (ii) if any Registered Securities of a series affected
are then Outstanding, by mailing notice thereof by first class mail to the
Holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books, and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.03. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.04. Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.01 and 6.02, may receive an Officer's
Certificate and
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an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Issuer covenants that it will not
merge or consolidate with any other Person or sell, lease or convey all or
substantially all of its assets to any other Person, unless (i) either the
Issuer shall be the continuing corporation, or the successor corporation or the
Person which acquires by sale, lease or conveyance substantially all the assets
of the Issuer (if other than the Issuer) shall be a corporation organized under
the laws of the United States of America or any State thereof or the District of
Columbia and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities and Coupons, if any, according
to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed or observed by
the Issuer, by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation, and (ii) the Issuer, such Person
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, lease or conveyance, be in default
in the performance of any such covenant or condition.
SECTION 9.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either
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in its own name or in the name of the Issuer prior to such succession any or all
of the Securities issuable hereunder which together with any Coupons
appertaining thereto theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor corporation,
instead of the Issuer, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities together with any Coupons appertaining thereto which previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued together with any Coupons appertaining
thereto shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phrasing and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
SECTION 9.03. Opinion of Counsel Delivered to Trustee. The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease
or conveyance, and any such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture. (a) If at any
time (i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 2.09) as and when the same
shall
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have become due and payable, or (ii) the Issuer shall have delivered to the
Trustee for cancellation all Securities of any series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any Securities of
such series and Coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.09) or (iii) in the case of any series of Securities where the exact amount
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (B)
below, (A) all the Securities of such series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (B) the Issuer shall have irrevocably deposited or caused to be deposited
with the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance with
Section 10.04) or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United States of America,
backed by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (1) the principal
and interest on all Securities of such series and Coupons appertaining thereto
on each date that such principal or interest is due and payable and (2) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series; and if, in any such case, the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer, then this Indenture shall cease
to be of further effect (except as to (i) rights of registration of transfer and
exchange of Securities of such Series and of Coupons appertaining thereto and
the Issuer's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vi) the obligations of the Issuer under
Section 3.02) and the Trustee, on demand of the Issuer accompanied by an
Officer's Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture; provided, that
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the rights of Holders of the Securities and Coupons to receive amounts in
respect of principal of and interest on the Securities and Coupons held by them
shall not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Securities are listed. The
Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 2.03.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (i) below,
the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such a series and the Coupons appertaining thereto on
the 91st day after the date of the deposit referred to in clause (i) below, and
the provisions of this Indenture with respect to the Securities of such series
and Coupons appertaining thereto shall no longer be in effect (except as to (1)
rights of registration of transfer and exchange of Securities of such series and
of Coupons appertaining thereto and the Issuer's right of optional redemption,
if any, (2) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (3) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (4) the rights, obligations, duties and immunities of the
Trustee hereunder, (5) the rights of the Holders of Securities of such series
and Coupons appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (6) the
obligations of the Issuer under Section 3.02) and the Trustee, at the expense of
the Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if
(i) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series and Coupons appertaining thereto (A) cash in an amount, or
(B) in the case of any series of Securities the payments on which may
only be made in Dollars, U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as will insure
the availability of cash or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized
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firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay (1) the
principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is
due and payable and (2) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
(iii) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such
series and Coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred; and
(iv) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with.
(c) The Issuer shall be released from its obligations under Sections
3.06 and 9.01 with respect to the Securities of any Series, and any Coupons
appertaining thereto, Outstanding on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
any Series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in such Sections, whether
directly or indirectly by reason of any reference elsewhere herein to such
Sections or by reason of any reference in such Sections to any other provision
herein or in any other document and such omission to comply shall not constitute
an Event of Default under Section 5.01, but the remainder of this Indenture and
such Securities and Coupons shall be unaffected thereby. The following shall be
the conditions to application of this subsection (c) of this Section 10.01:
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(i) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Securities
of such series and Coupons appertaining thereto, (A) cash in an amount,
or (B) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations maturing as to
principal and interest at such times and in such amounts as will insure
the availability of cash or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay (1) the principal and interest on all Securities of
such series and Coupons appertaining thereto and (2) any mandatory
sinking fund payments on the day on which such payments are due and
payable in accordance with the terms of the Indenture and the
Securities of such series.
(ii) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 5.01(d) and 5.01(e) are concerned,
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(iii) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the Trust Indenture Act of
1939 with respect to any securities of the Issuer.
(iv) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by
which it is bound.
(v) Such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted.
(vi) The Issuer shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel to the effect that the Holders of
the Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on
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the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance had not occurred.
(vii) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the covenant defeasance contemplated
by this provision have been complied with.
SECTION 10.02. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.04, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 10.01 shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any Security of
any series or Coupons attached thereto and not applied but remaining unclaimed
for two years after the date upon which such principal or interest shall have
become due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series
or such paying agent, and the Holder of the Securities of such series and of any
Coupons appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders
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of such Securities at their addresses as they shall appear on the Security
register, and (b) in respect of Unregistered Securities of any series, shall at
the expense of the Issuer either give through the customary notice provisions of
the clearing system or systems through which beneficial interests in such
Unregistered Securities are owned if such Unregistered Securities are held only
in global form or cause to be published once, in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and once in an Authorized Newspaper
in London (and if required by Section 3.07, once in an Authorized Newspaper in
Luxembourg), notice, that such moneys remain and that, after a date specified
therein, which shall not be less than thirty days from the date of such mailing
or publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer.
SECTION 10.05. Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.01 or the principal or interest received in respect of such
obligations.
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any
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covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities or Coupons, if any.
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Morgan Stanley Dean Witter & Co., 1585
Broadway, New York, New York 10036, Attention: Secretary. Any notice, direction,
request or demand by the Issuer or any Holder of Securities or Coupons to or
upon the Trustee shall be deemed to have been sufficiently given or served by
being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Trustee is
filed by the Trustee with the Issuer) to The Chase Manhattan Bank, 450 West 33rd
Street, New York, New York 10001, Attention: Capital Markets Fiduciary Services.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. In any case where notice to such 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 Indenture 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 Trustee, 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 or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
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SECTION 11.05. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officer's Certificate stating that
all conditions precedent provided for in this Indenture 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 have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, 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 (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer 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 his
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 Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his 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 an officer of the Issuer 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 Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the
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accounting matters upon which his 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 Trustee shall contain a statement
that such firm is independent.
SECTION 11.06. Payments Due on Saturdays, Sundays or Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon shall not be a Business Day, then payment of
interest or principal 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 date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939, such
imposed duties or incorporated provision shall control.
SECTION 11.08. New York Law to Govern. This Indenture and each Security
and Coupon 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
such State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.09. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11. Securities in a Foreign Currency. Unless otherwise
specified in an Officer's Certificate delivered pursuant to Section 2.03 of this
Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all series or all
series affected by a
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particular action at the time Outstanding and, at such time, there are
Outstanding Securities of any series which are denominated in a coin or currency
other than Dollars, then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall
mean the noon Dollar buying rate in New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York. If such Market
Exchange Rate is not available for any reason with respect to such currency, the
Trustee shall use, in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in The City of New
York or in the country of issue of the currency in question, or such other
quotations as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a series denominated in a currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms
of this Indenture including without limitation any determination contemplated in
Section 5.01(f) or 5.01(g).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12. Judgment Currency. The Issuer 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 principal of or interest on the Securities 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 Trustee 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, then, 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 Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture 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 subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall
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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 the amount, if any, by which such actual
receipt shall fall short of the full amount of 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 Indenture. 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.
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 12.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books at least 30 days and not more than 60 days prior to the date
fixed for redemption, or within such other redemption notice period as has been
designated for any Securities of such series pursuant to Section 2.03 or 2.04
(the "Redemption Notice Period"). Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee within two years preceding such
notice of redemption, shall be given by mailing notice of such redemption, by
first class mail, postage prepaid, at least 30 and not more than 60 days prior
to the date fixed for redemption or within any applicable Redemption Notice
Period to such Holders at such addresses as were so furnished to the Trustee
(and, in the case of any such notice given by the Issuer, the Trustee shall make
such information available to the Issuer for such purpose). Notice of redemption
to all other Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London (and, if required by Section 3.07, in an
Authorized Newspaper in
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Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the date
fixed for redemption or within any applicable Redemption Notice Period; provided
that notice to Holders of Unregistered Securities held only in global form and
issued after March 1, 1998 may be made, at the option of the Issuer, through the
customary notice provisions of the clearing system or systems through which
beneficial interests in such Unregistered Securities are owned. Any notice which
is mailed 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 Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such Holder shall specify, the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price (or if not then
ascertainable, the manner of calculation thereof), the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with Coupons attached thereto, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both,
if such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.04) an
amount of money or other property sufficient to redeem on the redemption date
all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 70 days prior to the
date fixed for redemption or at least 10 days prior to the first day of any
applicable Redemption Notice Period an Officer's Certificate stating the
aggregate principal amount of Securities to be
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redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officer's Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 12.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities 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, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.05 and 10.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.03 and 2.07 hereof.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 12.05. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive
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credit for optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of such series
(not previously so credited) redeemed by the Issuer through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
or the 30th day next preceding the last day of any applicable Redemption Notice
Period relating to a sinking fund payment date for any series, the Issuer will
deliver to the Trustee an Officer's Certificate (which need not contain the
statements required by Section 11.05) (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series and the basis for
such credit, (b) stating that none of the Securities of such series has
theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such series have occurred (which
have not been waived or cured) and are continuing and (d) stating whether or not
the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officer's Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officer's Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such 60th day or 30th day, if
applicable, to deliver such Officer's Certificate and Securities specified in
this paragraph, if any, shall not constitute a default but shall constitute, on
and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to
deliver or credit Securities of such series in respect thereof and (ii) that the
Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or the equivalent thereof in any Foreign Currency) or a lesser sum in
Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer
73
<PAGE>
shall so request with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency) or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 (or the equivalent thereof in any Foreign Currency) is
available. The Trustee shall select, in the manner provided in Section 12.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officer's Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment date
or at least 30 days prior to the last day of any applicable Redemption Notice
Period relating to a sinking fund payment date as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b)
an entity specifically identified in such Officer's Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer. The Trustee, in the name and at the expense of the
Issuer (or the Issuer, if it shall so request the Trustee in writing) shall
cause notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.02 (and with the effect provided
in Section 12.03) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such series shall
be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in
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payment of interest on such Securities or of any Event of Default except that,
where the giving of notice of redemption of any Securities shall theretofore
have been made, the Trustee shall redeem or cause to be redeemed such
Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 5 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.10 or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
75
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of May 1, 1999.
MORGAN STANLEY DEAN WITTER &
CO.
[CORPORATE SEAL]
By:___________________________
Name:
Title:
Attest:
By:_______________________
[Assistant Secretary]
THE CHASE MANHATTAN BANK,
TRUSTEE
[CORPORATE SEAL]
By:___________________________
Name:
Title: Vice President
Attest:
By:_______________________
[Trust Officer]
76
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ of ________, 1999 before me personally came , to
me personally known, who, being by me duly sworn, did depose and say that he
resides at that he is the of Morgan Stanley Dean Witter & Co.,
one of the corporations described in and which executed the above instrument;
that he knows the corporate seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
[NOTARIAL SEAL]
_____________________________
Notary Public
77
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this ____ of _________, 1999 before me personally came , to
me personally known, who, being by me duly sworn, did depose and say that he
resides at that he is a Vice President of The Chase Manhattan
Bank, one of the corporations described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
_______________________________
Notary Public
EXHIBIT 4f
EXECUTION COPY
================================================================================
MORGAN STANLEY DEAN WITTER & CO.
AND
THE FIRST NATIONAL BANK OF CHICAGO, Trustee
Amended and Restated Subordinated Indenture
Dated as of May 1, 1999
------------------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined..........................................2
SECTION 1.02. Application of Certain Notice Provisions.......................8
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally................................................8
SECTION 2.02. Form of Trustee's Certificate of Authentication................8
SECTION 2.03. Amount Unlimited; Issuable in Series...........................9
SECTION 2.04. Authentication and Delivery of Securities.....................12
SECTION 2.05. Execution of Securities.......................................15
SECTION 2.06. Certificate of Authentication.................................16
SECTION 2.07. Denomination and Date of Securities; Payments of Interest.....16
SECTION 2.08. Registration, Transfer and Exchange...........................17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.....21
SECTION 2.10. Cancellation of Securities; Disposition Thereof...............22
SECTION 2.11. Temporary Securities..........................................22
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest.............................23
SECTION 3.02. Offices for Payments, etc.....................................24
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee............25
SECTION 3.04. Paying Agents.................................................25
SECTION 3.05. Written Statement to Trustee..................................26
SECTION 3.06. Luxembourg Publications.......................................26
ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders................................27
SECTION 4.02. Preservation and Disclosure of Securityholders Lists..........27
SECTION 4.03. Reports by the Issuer.........................................27
SECTION 4.04. Reports by the Trustee........................................27
i
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PAGE
ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default...........................................28
SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt........................................................31
SECTION 5.03. Application of Proceeds.......................................33
SECTION 5.04. Suits for Enforcement.........................................35
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings...........35
SECTION 5.06. Limitations on Suits by Securityholders.......................35
SECTION 5.07. Unconditional Right of Securityholders to Institute Certain
Suits.......................................................36
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default...........................................36
SECTION 5.09. Control by Holders of Securities..............................36
SECTION 5.10. Waiver of Past Defaults.......................................37
SECTION 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances.......................................37
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs.......................................................38
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default............................................39
SECTION 6.02. Certain Rights of the Trustee.................................40
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof...............41
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons;
Collections, etc............................................42
SECTION 6.05. Moneys Held by Trustee........................................42
SECTION 6.06. Compensation and Indemnification of Trustee and Its
Prior Claim.................................................42
SECTION 6.07. Right of Trustee to Rely on Officer's Certificate, etc........43
SECTION 6.08. Indentures Not Creating Potential Conflicting Interests for
the Trustee.................................................43
SECTION 6.09. Persons Eligible for Appointment as Trustee...................43
ii
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PAGE
SECTION 6.10. Resignation and Removal; Appointment of Successor
Trustee.....................................................43
SECTION 6.11. Acceptance of Appointment by Successor Trustee................45
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee.........................................47
SECTION 6.13. Preferential Collection of Claims Against the Issuer..........47
SECTION 6.14. Appointment of Authenticating Agent...........................47
ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders...................49
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Securities..................................................49
SECTION 7.03. Holders to Be Treated as Owners...............................50
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding.............51
SECTION 7.05. Right of Revocation of Action Taken...........................51
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Securityholders.............................................52
SECTION 8.02. Supplemental Indentures with Consent of Securityholders.......53
SECTION 8.03. Effect of Supplemental Indenture..............................55
SECTION 8.04. Documents to Be Given to Trustee..............................55
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures..................................................55
SECTION 8.06. Subordination Unimpaired......................................56
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions....................56
SECTION 9.02. Successor Corporation Substituted.............................56
SECTION 9.03. Opinion of Counsel Delivered to Trustee.......................57
iii
<PAGE>
PAGE
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture......................57
SECTION 10.02. Application by Trustee of Funds Deposited for Payment
of Securities..............................................63
SECTION 10.03. Repayment of Moneys Held by Paying Agent.....................63
SECTION 10.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years....................................64
SECTION 10.05. Indemnity for U.S. Government Obligations....................64
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability....................65
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons..........................65
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture..........65
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons.....................................65
SECTION 11.05. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein.........................66
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays..............67
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939......................................68
SECTION 11.08. New York Law to Govern.......................................68
SECTION 11.09. Counterparts.................................................68
SECTION 11.10. Effect of Headings...........................................68
SECTION 11.11. Securities in a Foreign Currency.............................68
SECTION 11.12. Judgment Currency............................................69
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article.....................................70
SECTION 12.02. Notice of Redemption; Partial Redemptions....................70
SECTION 12.03. Payment of Securities Called for Redemption..................72
SECTION 12.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption...................................73
SECTION 12.05. Mandatory and Optional Sinking Funds.........................73
iv
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PAGE
ARTICLE 13
SUBORDINATION
SECTION 13.01. Securities and Coupons Subordinated to Senior
Indebtedness...............................................76
SECTION 13.02. Disputes with Holders of Certain Senior Indebtedness.........78
SECTION 13.03. Subrogation..................................................78
SECTION 13.04. Obligation of Issuer Unconditional...........................78
SECTION 13.05. Payments on Securities and Coupons Permitted.................79
SECTION 13.06. Effectuation of Subordination by Trustee.....................79
SECTION 13.07. Knowledge of Trustee.........................................79
SECTION 13.08. Trustee May Hold Senior Indebtedness.........................80
SECTION 13.09. Rights of Holders of Senior Indebtedness Not Impaired........80
SECTION 13.10. Article Applicable to Paying Agents..........................80
SECTION 13.11. Trustee; Compensation Not Prejudiced.........................80
v
<PAGE>
THIS AMENDED AND RESTATED INDENTURE, dated as of May 1, 1999 between
MORGAN STANLEY DEAN WITTER & CO., a Delaware corporation (the "Issuer"), and THE
FIRST NATIONAL BANK OF CHICAGO, as trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee are parties to that certain
Subordinated Indenture dated as of April 15, 1989, as supplemental 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 Group Inc. (as predecessor to the Issuer) and the Trustee, and by
a Third Supplemental Subordinated Indenture dated as of June 1, 1997, and a
Fourth Supplemental Subordinated Indenture dated as of March 1, 1998, each
between the Issuer and the Trustee (such Indenture as so supplemented, the
"Original Indenture", and as amended and restated herein, the "Indenture");
WHEREAS, Section 8.1 of the Original Indenture provides that, without
the consent of the Holders of any Securities or Coupons, the Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may enter
into indentures supplemental to the Indenture for the purpose of, among other
things, making any provisions as the Issuer may deem necessary or desirable,
subject to the conditions set forth therein;
WHEREAS, the Issuer desires to amend and restate the Original Indenture
for the purpose of, among other things, combining the Subordinated Indenture
dated as of April 15, 1989 with each of the four supplemental indentures into
this Indenture, in accordance with and as authorized by the provisions of the
Original Indenture;
WHEREAS, the Issuer has duly authorized the issue from time to time of
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
<PAGE>
NOW, THEREFORE:
The Issuer and the Trustee agree to amend and restate the Original
Indenture as provided herein. Upon the execution and delivery of counterpart
signature pages hereto by the Issuer and the Trustee, the Original Indenture
will be automatically amended and restated in its entirety to read as provided
herein.
In consideration of the premises and the purchases of the Securities by
the holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective holders from time to time
of the Securities and of the coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise requires), shall have the meanings assigned to such terms
in said Trust Indenture Act and in said Securities Act as in force at the date
of this Indenture. All accounting terms used herein and not expressly defined
shall have the meanings assigned to such terms in accordance with generally
accepted accounting principles, and the term "generally accepted accounting
principles" means such accounting principles as are generally accepted at the
time of any computation. The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this
Article have the meanings assigned to them in this Article and include the
plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"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), in the case of the United Kingdom, will, if practicable, be the
Financial Times (London Edition) and, in the case of Luxembourg, will, if
practicable, be
2
<PAGE>
the Luxemburger Wort) 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, the
United Kingdom or in Luxembourg, as applicable. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Issuer 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 Trustee.
"Business Day" means, with respect to any Security, a day that in the
city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, is not a day on which banking
institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in Chicago, Illinois.
"Coupon" means any interest coupon appertaining to a Security.
"covenant defeasance" shall have the meaning set forth in Section
10.01(c).
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Issuer pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is
3
<PAGE>
then a Depositary hereunder, and if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Registered Global Securities of
that series.
"Dollar" means the coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"Event of Default" means any event or condition specified as such in
Section 5.01.
"Foreign Currency" means a currency issued by the government of a
country other than the United States (or any currency unit comprised of any such
currencies).
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose name
such Security is registered in the security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indebtedness" shall have the meaning set forth in Section 5.01.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, and shall include the forms and terms of particular series of
Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Issuer" means (except as otherwise provided in Article 6) Morgan
Stanley Dean Witter & Co., a Delaware corporation and, subject to Article 9, its
successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by any one of the following: the Chairman of the
Board, the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer or any other person authorized by the Board of Directors to execute
any such written statement, request or order.
4
<PAGE>
"Judgment Currency" shall have the meaning set forth in Section 11.12.
"Officer's Certificate" means a certificate (i) signed by any one of
the following: the Chairman of the Board, the President, the Chief Financial
Officer, the Chief Strategic and Administrative Officer, the Chief Legal
Officer, the Treasurer, any Assistant Treasurer or any other person authorized
by the Board of Directors to execute any such certificate and (ii) delivered to
the Trustee. Each such certificate shall comply with Section 314 of the Trust
Indenture Act of 1939 and include the statements provided for in Section 11.05.
"Opinion of Counsel" means an opinion in writing signed by the Chief
Legal Officer of the Issuer, or by such other legal counsel who may be an
employee of or counsel to the Issuer and who shall be satisfactory to the
Trustee. Each such opinion shall comply with Section 314 of the Trust Indenture
Act of 1939 and include the statements provided for in Section 11.05.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.01.
"Outstanding" when used with reference to Securities, shall, subject to
the provisions of Section 7.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys or U.S. Government Obligations (as provided for in Section 10.01)
in the necessary amount shall have been deposited in trust with the Trustee or
with any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such Securities
(if the Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereof, are to be redeemed prior to the maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
5
<PAGE>
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.09 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a
person in whose hands such Security is a legal, valid and binding obligation of
the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"record date" shall have the meaning set forth in Section 2.07.
"Redemption Notice Period" shall have the meaning set forth in Section
12.02.
"Registered Global Security", means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.04, and bearing the legend prescribed in Section
2.04.
"Registered Security" means any Security registered on the Security
register of the Issuer.
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer" when used with respect to the Trustee means the
chairman of the Board of Directors, any vice chairman of the board of directors,
6
<PAGE>
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president,
(whether or not designated by numbers or words added before or after the title
"vice president") the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the fourth recital
of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Senior Indebtedness" means obligations (other than non-recourse
obligations, the Securities 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.
"Trust Indenture Act of 1939" means the Trust Indenture Act of 1939.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article 6, shall also include
any successor trustee. "Trustee" shall also mean or include each Person who is
then a trustee hereunder and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.01(a).
"Yield to Maturity" means the yield to maturity on a series of
securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
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SECTION 1.02. Application of Certain Notice Provisions. The provision
in Sections 5.11, 6.10, 6.11, 8.02 and 10.04 permitting notice to be given to
Holders of Unregistered Securities through the customary notice provisions of
the clearing system or systems through which beneficial interests in such
Unregistered Securities are owned (if such Unregistered Securities are held only
in global form), in lieu of publication in an Authorized Newspaper, shall apply
only to Securities priced and sold under this Indenture after May 6, 1999.
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally. The Securities of each series and the
Coupons, if any, to be attached thereto shall be substantially in such form (not
inconsistent with this Indenture) 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) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons.
The definitive Securities and Coupons, if any, 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 Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the
within-mentioned Subordinated Indenture.
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as Trustee
By:______________________________
Authorized Officer
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Trustee's Certificate of
Authentication to be borne by the Securities of each such series shall be
substantially as follows:
"This is one of the Securities referred to in the
within-mentioned Subordinated Indenture.
as Authenticating Agent
By:_________________________
Authorized Officer
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities
of each such series shall rank equally and pari passu with the Securities of
each other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
13, to all Senior Indebtedness of the Issuer. 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
indentures supplemental hereto, prior to the initial issuance of Securities of
any series,
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.08, 2.09, 2.11, 8.05 or 12.03);
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(c) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency);
(d) the date or dates on which the principal of the Securities of the
series is payable;
(e) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue, on
which such interest shall be payable and (in the case of Registered Securities)
on which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or
dates shall be determined;
(f) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section
3.02);
(g) the right, if any, of the Issuer to redeem Securities, in whole or
in part, at its option and the period or periods within which, the price or
prices at which and any terms and conditions, including the Redemption Notice
Period, upon which Securities of the series may be so redeemed, pursuant to any
sinking fund or otherwise;
(h) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series pursuant to any mandatory redemption, sinking fund or
analogous provisions or at the option of a Holder thereof and the price or
prices at which and the period or periods within which and any terms and
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any integral multiple
thereof in the case of Registered Securities, or $1,000 and $5,000 in the case
of Unregistered Securities, the denominations in which Securities of the series
shall be issuable;
(j) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(k) if other than the coin or currency in which the Securities of that
series are denominated, the coin or currency in which payment of the principal
of or interest on the Securities of such series shall be payable;
(l) if the principal of or interest on the Securities of such series
are to be payable, at the election of the Issuer or a Holder thereof, in a coin
or currency
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other than that in which the Securities are denominated, the period or periods
within which, and the terms and conditions upon which, such election may be
made;
(m) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index based on a
coin or currency other than that in which the Securities of the series are
denominated, or with reference to any currencies, securities or baskets of
securities, commodities or indices, the manner in which such amounts shall be
determined;
(n) if the Holders of the Securities of the series may convert or
exchange the Securities of the series into or for securities of the Issuer or of
other entities or other property (or the cash value thereof), the specific terms
of and period during which such conversion or exchange may be made;
(o) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions applicable to
the offer, sale, transfer, exchange or delivery of Unregistered Securities or
Registered Securities or the payment of interest thereon and, if other than as
provided in Section 2.08, the terms upon which Unregistered Securities of any
series may be exchanged for Registered Securities of such series and vice versa;
(p) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a Person who is not a
U.S. Person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Issuer will have the option to redeem such
Securities rather than pay such additional amounts;
(q) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security 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;
(r) any trustees, depositaries, authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the Securities
of such series;
(s) any other events of default or covenants with respect to the
Securities of such series; and
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(t) any other terms of the series.
All Securities of any one series and Coupons, if any, appertaining
thereto, shall be substantially identical, except in the case of Registered
Securities as to denomination and 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 indenture supplemental hereto. All Securities 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 Indenture, if so provided by or pursuant
to such Board Resolution, such Officer's Certificate or in any such indenture
supplemental hereto.
SECTION 2.04. Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series having attached thereto appropriate Coupons, if
any, executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients as
may be specified from time to time by an Issuer Order. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto (including Redemption Notice
Periods) shall be determined by or pursuant to such Issuer Order and procedures.
If provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (b), (c) and
(d) below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.01)
shall be fully protected in relying upon, unless and until such documents have
been superceded or revoked:
(a) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (i) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (ii) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to an Issuer Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by an Issuer Order, (iii) the
maturity date or dates,
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original issue date or dates, interest rate or rates and any other terms of
Securities of such series (including Redemption Notice Periods) shall be
determined by an Issuer Order or pursuant to such procedures and (iv) if
provided for in such procedures, such Issuer Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Issuer or its
duly authorized agent or agents, which oral instructions shall be promptly
confirmed in writing;
(b) any Board Resolution, Officer's Certificate and/or executed
supplemental indenture referred to in Sections 2.01 and 2.03 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(c) an Officer's Certificate setting forth the form or forms and terms
of the Securities and Coupons, if any, stating that the form or forms and terms
of the Securities and Coupons, if any, have been established pursuant to
Sections 2.01 and 2.03 and comply with this Indenture, and covering such other
matters as the Trustee may reasonably request; and
(d) at the option of the Issuer, either an Opinion of Counsel, or a
letter addressed to the Trustee permitting it to rely on an Opinion of Counsel,
substantially to the effect that:
(i) the forms of the Securities and Coupons, if any, have been
duly authorized and established in conformity with the provisions of
this Indenture;
(ii) in the case of an underwritten offering, the terms of the
Securities have been duly authorized and established in conformity with
the provisions of this Indenture, and, in the case of an offering that
is not underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officer's Certificate or
a supplemental indenture in accordance with this Indenture, and when
such other terms as are to be established pursuant to procedures set
forth in an Issuer Order shall have been established, all such terms
will have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this Indenture;
(iii) when the Securities and Coupons, if any, have been executed
by the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this
Indenture and will be valid and binding obligations of the Issuer,
enforceable in
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accordance with their respective terms, and will be entitled to the
benefits of this Indenture; and
(iv) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities and
Coupons, if any, will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Issuer or any
agreement or other instrument binding upon the Issuer or any of its
consolidated subsidiaries that is material to the Issuer and its
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 Issuer or any of its
consolidated subsidiaries, and no consent, approval or authorization of
any U.S. governmental body or agency is required for the performance by
the Issuer of its obligations under the Securities and Coupons, if any,
except such as are specified and have been obtained and 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 Securities and Coupons, if
any.
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 Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes he and the Trustee 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
Issuer and its subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
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If the Issuer shall establish pursuant to Section 2.03 that the
Securities of a series are to be issued in the form of one or more Registered
Global Securities, then the Issuer shall execute and the Trustee shall, in
accordance with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Registered Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate principal
amount of all of the Securities of such series issued and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Registered
Global Security or Securities or the nominee of such Depositary, (iii) shall be
delivered by the Trustee 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 Securities in
definitive registered form, this Security 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."
Each Depositary designated pursuant to Section 2.03 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.
SECTION 2.05. Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by any one of the following: the Chairman of the Board, the President,
the Chief Financial Officer, the Chief Strategic and Administrative Officer, the
Chief Legal Officer, the Treasurer, any Assistant Treasurer or any other person
authorized by the Board of Directors to execute Securities or, if applicable,
Coupons, which Securities or Coupons may, but need not, be attested. Such
signatures may be the manual or facsimile signatures of the present or any
future such officers. Minor errors or defects in any such reproduction of any
such signature shall not affect the validity or enforceability of any Security
that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or Coupon
had not ceased to be such officer of the Issuer; and any Security or Coupon may
be signed on behalf of the Issuer by such persons as, at the actual date of the
execution of such Security or Coupon, shall be the proper officers of the
Issuer, although at the
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date of the execution and delivery of this Indenture any such person was not
such an officer.
SECTION 2.06. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. No Coupon shall be entitled to the
benefits of this Indenture or shall be valid and obligatory for any purpose
until the certificate of authentication on the Security to which such Coupon
appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
SECTION 2.07. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of $1,000
and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.03.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.03.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the Persons in whose names Outstanding
Registered Securities for such series are registered at the close of business on
a subsequent record date (which shall be not less than five
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Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) for the Securities of any
series shall mean the date specified as such in the terms of the Registered
Securities of such series established as contemplated by Section 2.03, or, if no
such date is so established, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.08. Registration, Transfer and Exchange. The Issuer will keep
at each office or agency to be maintained for the purpose as provided in Section
3.02 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Registered Securities of such series and the registration of
transfer of Registered Securities of such series. Such register shall be in
written form in the English language or in any other form capable of being
converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.02, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Registered Security or Registered Securities of the same series, maturity
date, interest rate and original issue date in authorized denominations for a
like aggregate principal amount.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.02
and upon payment, if the Issuer shall so require, of the charges hereinafter
provided. If the Securities of any series are issued in both registered and
unregistered form, except as otherwise specified pursuant to Section 2.03, at
the
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option of the Holder thereof, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall
be maintained for such purpose in accordance with Section 3.02, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured
Coupons and all matured Coupons in default thereto appertaining, and upon
payment, if the Issuer shall so require, of the charges hereinafter provided. At
the option of the Holder thereof, if Unregistered Securities of any series,
maturity date, interest rate and original issue date are issued in more than one
authorized denomination, except as otherwise specified pursuant to Section 2.03,
such Unregistered Securities may be exchanged for Unregistered Securities of
such series having authorized denominations and an equal aggregate principal
amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.02 or as specified pursuant to Section 2.03, with, in the case of
Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the
Issuer shall so require, of the charges hereinafter provided. Unless otherwise
specified pursuant to Section 2.03, Registered Securities of any series may not
be exchanged for Unregistered Securities of such series. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive. All Securities and Coupons surrendered upon any exchange or
transfer provided for in this Indenture shall be promptly cancelled and disposed
of by the Trustee and the Trustee will deliver a certificate of disposition
thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the Holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed or (b) any Securities selected, called or being called for redemption,
in whole or in part,
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except, in the case of any Security to be redeemed in part, the portion thereof
not so to be redeemed or (c) any Securities if the Holder thereof has exercised
any right to require the Issuer to repurchase such Securities, in whole or in
part, except, in the case of any Security to be repurchased in part, the portion
thereof not so to be repurchased.
Notwithstanding any other provision of this Section 2.08, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities 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.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or if at any time the Depositary for such Registered Securities shall
no longer be eligible under Section 2.04, the Issuer shall appoint a successor
Depositary eligible under Section 2.04 with respect to such Registered
Securities. If a successor Depositary eligible under Section 2.04 for such
Registered Securities is not appointed by the Issuer within 90 days after the
Issuer receives such notice or becomes aware of such ineligibility, the Issuer's
election pursuant to Section 2.03 that such Registered Securities be represented
by one or more Registered Global Securities shall no longer be effective and the
Issuer will execute, and the Trustee, upon receipt of an Officer's Certificate
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that
the Registered Securities of any series issued in the form of one or more
Registered Global Securities shall no longer be represented by a Registered
Global Security or Securities. In such event the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver,
Securities of such series in definitive registered form without coupons, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Registered Global Security or Securities representing
such Registered Securities, in exchange for such Registered Global Security or
Securities.
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If specified by the Issuer pursuant to Section 2.03 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Global
Security; and
(b) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to clause (a) above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Registered Global Security shall be cancelled by the Trustee or an agent of the
Issuer or the Trustee. Securities in definitive registered form without coupons
issued in exchange for a Registered Global Security pursuant to this Section
2.08 shall be registered in such names and in such authorized denominations as
the Depositary for such Registered Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee or an agent of the Issuer or the Trustee. The Trustee or such agent
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
Issuer or the Trustee (any of which, other than the Issuer, shall rely on an
Officer's Certificate and an Opinion of Counsel) shall be required to exchange
any Unregistered Security for a Registered Security if such exchange would
result in adverse Federal income tax consequences to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for
Federal income tax purposes, the interest payable on the Unregistered
Securities) under then applicable United States Federal income tax laws.
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SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security or any Coupon
appertaining to any Security shall become mutilated, defaced or be destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and deliver
a new Security of the same series, maturity date, interest rate and original
issue date, bearing a number or other distinguishing symbol not
contemporaneously outstanding, in exchange and substitution for the mutilated or
defaced Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen with Coupons corresponding to the Coupons appertaining
to the Securities so mutilated, defaced, destroyed, lost or stolen, or in
exchange or substitution for the Security 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.
In every case the applicant for a substitute Security or Coupon shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as may be required by them to indemnify and defend and to
save each of them harmless and, in every case of destruction, loss or theft,
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof and in the case of mutilation or
defacement shall surrender the Security and related Coupons to the Trustee or
such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer 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 Trustee or its agent) connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same or the relevant Coupon (without surrender
thereof except in the case of a mutilated or defaced Security or Coupon), if the
applicant for such payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction,
loss or theft, the applicant shall also furnish to the Issuer and the Trustee
and any agent of the Issuer or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security or Coupon and of the ownership
thereof.
Every substitute Security or Coupon of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security or
Coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally
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and proportionately with any and all other Securities or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall be
held and owned upon the express condition that, to the extent permitted by law,
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, defaced or destroyed, lost or stolen Securities and
Coupons and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10. Cancellation of Securities; Disposition Thereof. All
Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be cancelled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of cancelled Securities and Coupons held by it and
deliver a certificate of disposition to the Issuer. If the Issuer or its agent
shall acquire any of the Securities or Coupons, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or Coupons unless and until the same are delivered to the Trustee or
its agent for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer and
be authenticated by the Trustee upon the same conditions and in substantially
the same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Registered Securities of such
series may be surrendered in exchange therefor without charge at each office or
agency to be maintained by the Issuer for that purpose pursuant to Section 3.02
and, in the case of Unregistered Securities, at any agency maintained by the
Issuer for such
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purpose as specified pursuant to Section 2.03, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series an equal aggregate principal amount of definitive Securities of the same
series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged,
the temporary Securities of any series shall be entitled to the same benefits
under this Indenture as definitive Securities of such series, unless otherwise
established pursuant to Section 2.03. The provisions of this Section are subject
to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to
Section 2.03 (including any provision that Unregistered Securities of such
series initially be issued in the form of a single global Unregistered Security
to be delivered to a depositary or agency located outside the United States and
the procedures pursuant to which definitive or global Unregistered Securities of
such series would be issued in exchange for such temporary global Unregistered
Security).
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest. The Issuer covenants
and agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant to the terms of such Securities) at the place or places, at the
respective times and in the manner provided in such Securities and in the
Coupons, if any, appertaining thereto and in this Indenture. The interest on
Securities with Coupons attached (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. If any temporary Unregistered
Security provides that interest thereon may be paid while such Security is in
temporary form, the interest on any such temporary Unregistered Security
(together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest, in each case
subject to any restrictions that may be established pursuant to Section 2.03.
The interest on Registered Securities (together with any additional amounts
payable pursuant to the terms of such Securities) shall be payable only to or
upon the written order of the Holders thereof and, at the option
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of the Issuer, may be paid by wire transfer or by mailing checks for such
interest payable to or upon the written order of such Holders at their last
addresses as they appear on the registry books of the Issuer.
SECTION 3.02. Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or are
outstanding hereunder, the Issuer will maintain in the Borough of Manhattan, The
City of New York, an office or agency where the Registered Securities of each
series may be presented for payment, where the Securities of each series may be
presented for exchange as is provided in this Indenture and, if applicable,
pursuant to Section 2.03 and where the Registered Securities of each series may
be presented for registration of transfer as in this Indenture provided.
The Issuer 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 Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto may
be presented for payment. No payment on any Unregistered Security or Coupon will
be made upon presentation of such Unregistered Security or Coupon at an agency
of the Issuer 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 Issuer. Notwithstanding the
foregoing, payments in Dollars of Unregistered Securities of any series and
Coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Issuer maintained in the Borough of Manhattan, The City of New
York if such payment in Dollars at each agency maintained by the Issuer outside
the United States for payment on such Unregistered Securities is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of
each such office or agency and of any change of location thereof. In case the
Issuer shall fail to maintain any agency required by this Section to be located
in the Borough of Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the
Corporate Trust Office of the Trustee.
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The Issuer may from time to time designate one or more additional
offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.03 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.10, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.04. Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee, subject to the provisions of
this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series, or Coupons appertaining thereto, if any, or of the
Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such series when the same
shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to the
Trustee upon the Trustee's written request at any time during the continuance of
the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
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If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, but subject
to Section 10.01, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for any such series by the Issuer or any paying
agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Sections 10.03 and 10.04.
SECTION 3.05. Written Statement to Trustee. The Issuer will furnish to
the Trustee on or before March 31 in each year (beginning with March 31, 2000) a
brief certificate (which need not comply with Section 11.05) from the principal
executive, financial or accounting officer of the Issuer stating that in the
course of the performance by the signer of his duties as an officer of the
Issuer he would normally have knowledge of any default or non-compliance by the
Issuer in the performance of any covenants or conditions contained in this
Indenture, stating whether or not he has knowledge of any such default or
non-compliance and, if so, specifying each such default or non-compliance of
which the signer has knowledge and the nature thereof.
SECTION 3.06. Luxembourg Publications. In the event of the publication
of any notice pursuant to Section 5.11, 6.10(a), 6.11, 8.02, 10.04, 12.02 or
12.05, 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 Securities of any series 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.
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ARTICLE 4
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. If and so long as the Trustee shall not be the
Security registrar for the Securities of any series, the Issuer and any other
obligor on the Securities will furnish or cause to be furnished to the Trustee a
list in such form as the Trustee may reasonably require of the names and
addresses of the Holders of the Registered Securities of such series pursuant to
Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than
15 days after each record date for the payment of interest on such Registered
Securities, as hereinabove specified, as of such record date and on dates to be
determined pursuant to Section 2.03 for non-interest bearing Registered
Securities in each year and (b) at such other times as the Trustee may request
in writing, within 30 days after receipt by the Issuer of any such request as of
a date not more than 15 days prior to the time such information is furnished.
SECTION 4.02. Preservation and Disclosure of Securityholders Lists.
This Section intentionally left blank.
SECTION 4.03. Reports by the Issuer. The Issuer covenants to file with
the Trustee, within 15 days after the Issuer is required to file the same with
the Commission, copies of the annual reports and of the information, documents,
and other reports that the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
or pursuant to Section 314 of the Trust Indenture Act of 1939.
SECTION 4.04. Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on
or before July 15 in each year beginning July 15, 2000, as provided in Section
313(c) of the Trust Indenture Act of 1939, so long as any Securities are
Outstanding hereunder, and shall be dated as of a date convenient to the Trustee
no more than 60 days prior thereto.
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ARTICLE 5
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any series
wherever used herein, means each one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(a) default in the payment of any instalment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise; or
(c) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series (other than a covenant or warranty in respect of the Securities
of such series a default in the performance or breach of which is elsewhere in
this Section specifically dealt with) or in this Indenture contained for a
period of 60 days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default" hereunder and
demanding that the Issuer remedy the same, shall have been given by registered
or certified mail, return receipt requested, to the Issuer by the Trustee, or to
the Issuer and the Trustee by the holders of at least 25% in aggregate principal
amount of the Outstanding Securities of all series affected thereby; or
(d) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Issuer 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 Issuer 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
(e) the Issuer 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
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consent to the appointment or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Issuer
or for any substantial part of its property, or make any general assignment for
the benefit of creditors; or
(f) failure by the Issuer to make any payment at maturity, including
any applicable grace period, in respect of indebtedness, which term as used
herein means obligations (other than the Securities of such series or
non-recourse obligations) of, or guaranteed or assumed by, the Issuer for
borrowed money or evidenced by bonds, debentures, notes or other similar
instruments ("Indebtedness") in an amount in excess of $10,000,000 or the
equivalent thereof in any other currency or composite currency and such failure
shall have continued for a period of thirty days after written notice thereof
shall have been given by registered or certified mail, return receipt requested,
to the Issuer by the Trustee, or to the Issuer and the Trustee by the holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
(treated as one class); or
(g) a default with respect to any Indebtedness, which default results
in the acceleration of Indebtedness in an amount in excess of $10,000,000 or the
equivalent thereof in any other currency or composite currency without such
Indebtedness having been discharged or such acceleration having been cured,
waived, rescinded or annulled for a period of thirty days after written notice
thereof shall have been given by registered or certified mail, return receipt
requested, to the Issuer by the Trustee, or to the Issuer and the Trustee by the
holders of not less than 25% in aggregate principal amount of the Outstanding
Securities (treated as one class); or
(h) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security for
such series; provided that if any such failure, default or acceleration referred
to in clauses (f) or (g) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof shall be deemed
likewise to have been thereupon cured.
If an Event of Default described in clauses (a), (b), (c) or (h) (if
the Event of Default under clause (c) or (h), as the case may be, is with
respect to less than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(voting as a single class) by notice in writing to the Issuer (and to the
Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of any such affected series
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are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of such series) of all Securities of all such
affected series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration, the same shall become immediately
due and payable. If an Event of Default described in clause (c) or (h) (if the
Event of Default under clause (c) or (h), as the case may be, is with respect to
all series of Securities then Outstanding), (d), (e), (f) or (g) occurs and is
continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities then Outstanding, and interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured instalments of interest upon all the
Securities of each such series (or of all the Securities, as the case may be)
and the principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue instalments of
interest, at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series (or at the respective rates of interest or Yields to Maturity of all the
Securities, as the case may be) to the date of such payment or deposit) and such
amount as shall be sufficient to cover reasonable compensation to the Trustee
and each predecessor Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of negligence or bad faith, and if
any and all Events of Default under the Indenture, other than the non-payment of
the principal of Securities which shall have become due by acceleration, shall
have been cured, waived or otherwise remedied as provided herein -- then and in
every such case the Holders of a majority in aggregate principal amount of all
the Securities of each such series or of all the Securities, in each case voting
as a single class, then Outstanding, by written
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notice to the Issuer and to the Trustee, may waive all defaults with respect to
each such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that (a) in case default shall be made in the payment
of any instalment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities of any
series when the same shall have become due and payable, whether upon maturity of
the Securities of such series or upon any redemption or by declaration or
otherwise -- then upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the Holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series,
and such Coupons, for principal or interest, as the case may be (with interest
to the date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
instalments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series); and in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such Series be overdue.
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In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities
and collect in the manner provided by law out of the property of the Issuer or
other obligor upon the Securities, wherever situated the moneys adjudged or
decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities, or to the creditors or property of the Issuer or
such other obligor, the Trustee, irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) owing and unpaid in respect of the Securities of any
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the Issuer or
other obligor upon the Securities, or to the creditors or property of the Issuer
or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election of a
trustee or a standby trustee in arrangement, reorganization, liquidation or
other bankruptcy or insolvency proceedings or Person performing similar
functions in comparable proceedings, and
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(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of the
Securities of such series or Coupons appertaining to such Securities or the
production thereof on any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to such
Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.03. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of any series shall, subject to the
subordination provisions hereof, be applied in the following order at the date
or
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dates fixed by the Trustee and, in case of the distribution of such moneys on
account of principal or interest, upon presentation of the several Securities
and Coupons appertaining to such Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the instalments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
instalments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal
and interest, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue instalments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such principal and interest or Yield to Maturity, without preference
or priority of principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over principal, or of any instalment of
interest over any other instalment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
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FOURTH: To the payment of the remainder, if any, to the Issuer
or any other Person lawfully entitled thereto.
SECTION 5.04. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual 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 covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 5.06. Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding at law or in equity or in bankruptcy or otherwise upon
or under or with respect to this Indenture, 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 to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of each affected series then Outstanding
(treated as a single class) shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee such reasonable indemnity as it may require
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 5.09; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security or Coupon with
every other taker and Holder and the Trustee, that no one or more Holders of
Securities of any series or Coupons appertaining to such Securities shall have
any right in any manner whatever by virtue or by availing of any provision of
this
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Indenture to affect, disturb or prejudice the rights of any other such Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of the applicable
series and Coupons appertaining to such Securities. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
SECTION 5.07. Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any Holder of any Security or Coupon to
receive payment of the principal of and interest on such Security or Coupon on
or after the respective due dates expressed in such Security or Coupon, or to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 5.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
Coupons 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.
No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.09. Control by Holders of Securities. The Holders of a
majority in aggregate principal amount of the Securities of each series affected
(with all such series voting as a single class) at the time Outstanding shall
have the right to 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 with respect to the Securities of such series by
this Indenture; provided that such direction shall not be otherwise than in
accordance with law
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and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken or
if the Trustee in good faith by its board of directors, the executive committee,
or a trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee 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 the Securities of all series
so affected not joining in the giving of said direction, it being understood
that (subject to Section 6.01) the Trustee shall have no duty to ascertain
whether or not such actions or forebearances are unduly prejudicial to such
Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
SECTION 5.10. Waiver of Past Defaults. Prior to the acceleration of the
maturity of any Securities as provided in Section 5.01, the Holders of a
majority in aggregate principal amount of the Securities of all series at the
time Outstanding with respect to which an Event of Default shall have occurred
and be continuing (voting as a single class) may on behalf of the Holders of all
such Securities waive any past default or Event of Default described in Section
5.01 and its consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver, the Issuer,
the Trustee and the Holders of all such Securities shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, (A) by mail to such Holders who have filed their names and
addresses with the Trustee within
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the two years preceding the notice at such addresses as were so furnished to the
Trustee and (B) either through the customary notice provisions of the clearing
system or systems through which beneficial interests in such Unregistered
Securities are owned if such Unregistered Securities are held only in global
form or by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and at least once in an Authorized Newspaper
in London (and, if required by Section 3.06, at least once in an Authorized
Newspaper in Luxembourg), and (ii) if any Registered Securities of a series
affected are then Outstanding, by mailing notice to the Holders of then
Outstanding Registered Securities of each series affected at their addresses as
they shall appear on the registry books, unless in each case such defaults shall
have been cured before the mailing or publication of such notice (the term
"defaults" for the purpose of this Section being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in
the payment of the principal of or interest on any of the Securities of such
series, or in the payment of any sinking fund instalment on such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security or
Coupon 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 Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, 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; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clause (c) or (h) of Section 5.01 (if the
suit relates to Securities of more than one but less than all series), 10% in
aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (c) or (h) (if
the suit under clause (c) or (h) relates to all the Securities then
Outstanding), (d), (e), (f) or (g) of Section 5.01, 10% in aggregate principal
amount of all Securities then Outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the principal of or
interest
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on any Security on or after the due date expressed in such Security or any date
fixed for redemption.
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee 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 Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
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required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee 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 pursuant to Section 5.09 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject
to Section 315 of the Trust Indenture Act of 1939.
SECTION 6.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, 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 Issuer mentioned
herein shall be sufficiently evidenced by an Officer's Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written advice or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it hereunder in
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good faith and in reliance thereon in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee 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 Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee 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 unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee 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.
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The
Trustee shall not
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be accountable for the use or application by the Issuer of any of the Securities
or of the proceeds thereof.
SECTION 6.04. Trustee and Agents May Hold Securities or Coupons;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and may otherwise deal with the Issuer and receive, collect, hold and
retain collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
SECTION 6.05. Moneys Held by Trustee. Subject to the provisions of
Section 10.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 6.06. Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
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 Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the
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benefit of the Holders of particular Securities or Coupons, and the Securities
are hereby subordinated to such senior claim.
SECTION 6.07. Right of Trustee to Rely on Officer's Certificate, etc.
Subject to Sections 6.01 and 6.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officer's Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.08. Indentures Not Creating Potential Conflicting Interests
for the Trustee. The following indenture is hereby specifically described for
the purposes of Section 310(b)(1) of the Trust Indenture Act of 1939: this
Indenture with respect to the Securities of any other series.
SECTION 6.09. Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $5,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. Such corporation shall have a place of
business in the Borough of Manhattan, The City of New York if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation 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. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 6.10.
The provisions of this Section 6.09 are in furtherance of and subject
to Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at
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any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such
resignation to the Holders thereof (A) by mail to such Holders who have filed
their names and addresses with the Trustee within the two years preceding the
notice at such addresses as were so furnished to the Trustee and (B) either
through the customary notice provisions of the clearing system or systems
through which beneficial interests in such Unregistered Securities are owned if
such Unregistered Securities are held only in global form or by publication at
least once in an Authorized Newspaper in the Borough of Manhattan, The City of
New York, and at least once in an Authorized Newspaper in London (and, if
required by Section 3.06, at least once in an Authorized Newspaper in
Luxembourg), and (ii) if any Registered Securities of a series affected are then
Outstanding, by mailing notice of such resignation to the Holders of then
Outstanding Registered Securities of each series affected at their addresses as
they shall appear on the registry books. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee or trustees. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
mailing of such notice of resignation, the resigning trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee, or
any Securityholder who has been a bona fide Holder of a Security or Securities
of the applicable series for at least six months may, subject to the provisions
of Section 5.12, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or by
any Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.09 and Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request
therefor by the Issuer or by any Securityholder; or
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(iii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series 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 Trustee and the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 7.01 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
SECTION 6.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the
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trustee ceasing to act shall, subject to Section 10.04, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.06.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor trustee with respect to the
Securities of any series as to which the predecessor trustee is not retiring
shall continue to be vested in the predecessor trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under Section 310(b) of the
Trust Indenture Act of 1939 and eligible under the provisions of Section 6.09.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof (i) if any Unregistered
Securities of a series affected are then Outstanding, to the Holders thereof,
(A) by mail to such Holders who have filed their names and addresses with the
Trustee within the two years preceding the notice at such addresses as were so
furnished to the Trustee and (B) either through the customary notice provisions
of the clearing system or systems through which beneficial interests in such
Unregistered Securities are owned if such Unregistered Securities are held only
in global form or by publication at least once in an Authorized Newspaper in the
Borough of Manhattan, The City of New York, and at least once in an Authorized
Newspaper in London (and, if required by Section 3.06, at least once in an
Authorized Newspaper in Luxembourg), and (ii) if any Registered Securities of a
series affected are then Outstanding, by mailing notice to the Holders of then
Outstanding Registered Securities of each series affected at their addresses as
they
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shall appear on the registry books. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.10. If the Issuer fails to give such notice within ten days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Issuer.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee 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 Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under Section
310(b) of the Trust Indenture Act of 1939 and eligible under the provisions of
Section 6.09, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13. Preferential Collection of Claims Against the Issuer.
This Section intentionally left blank.
SECTION 6.14. Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.09.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits
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of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee. Whenever reference is made in this Indenture to
the authentication and delivery of Securities of any series by the Trustee or to
the Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.09 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee shall upon receipt of an Issuer Order appoint
a successor Authenticating Agent and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the
extent provided in Section 11.04. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.02, 6.03, 6.04, 6.06, 6.09 and 7.03 shall be applicable to
any Authenticating Agent.
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ARTICLE 7
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by 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 Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.01 and 6.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument
by a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same. The fact of the holding by any Holder of an Unregistered Security of any
series, and the identifying number of such Security and the date of his holding
the same, may be proved by the production of such Security or by a certificate
executed by any trust company, bank, banker or recognized securities dealer
wherever situated satisfactory to the Trustee, if such certificate shall be
deemed by the Trustee to be satisfactory. Each such certificate shall be dated
and shall state that on the date thereof a Security of such series bearing a
specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the Person named in
such certificate. Any such certificate may be issued in respect of one or more
Unregistered Securities of one or more series specified therein. The holding by
the Person named in any such certificate of any Unregistered Securities of any
series specified therein shall be presumed to continue for a period of one year
from the date of such certificate unless at the time of any determination of
such holding (i) another certificate bearing a later
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date issued in respect of the same Securities shall be produced, or (ii) the
Security of such series specified in such certificate shall be produced by some
other Person, or (iii) the Security of such series specified in such certificate
shall have ceased to be Outstanding. Subject to Sections 6.01 and 6.02, the fact
and date of the execution of any such instrument and the amount and numbers of
Securities of any series held by the Person so executing such instrument and the
amount and numbers of any Security or Securities for such series may also be
proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee for such series or in any other manner which the
Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security registrar.
The Issuer may set a record date for purposes of determining the
identity of Holders of Registered Securities of any series entitled to vote or
consent to any action referred to in Section 7.01, which record date may be set
at any time or from time to time by notice to the Trustee, for any date or dates
(in the case of any adjournment or reconsideration) not more than 60 days nor
less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, with respect to
Registered Securities of any series, only Holders of Registered Securities of
such series of record on such record date shall be entitled to so vote or give
such consent or revoke such vote or consent.
SECTION 7.03. Holders to Be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute
owner of such Unregistered Security or Coupon (whether or not such Unregistered
Security or Coupon shall be overdue) for the purpose of receiving payment
thereof or on account thereof and for all other purposes and neither the Issuer,
the Trustee, nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. All such payments so 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 any
such Unregistered Security or Coupon.
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SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities with respect to which such determination is being made
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case
of a dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officer's Certificate listing and identifying all Securities, if any, known by
the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.01 and 6.02, the Trustee
shall be entitled to accept such Officer's Certificate as conclusive evidence of
the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
SECTION 7.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration of transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with
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such action shall be conclusively binding upon the Issuer, the Trustee and the
Holders of all the Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which 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), and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Issuer pursuant to Article 9;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of Securities or Coupons, and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in respect of any
such additional covenant, restriction, condition or provision such supplemental
indenture 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 an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
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desirable, provided that no such action shall adversely affect the interests of
the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of
the Coupons appertaining to such Securities as permitted by Sections 2.01 and
2.03; and
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article 7) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of all series affected by such supplemental indenture (voting as one
class), the Issuer, when authorized by a resolution of its Board of Directors
(which 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), and the Trustee may, from time
to time and at any time, enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall (a)(i) extend
the final maturity of any Security, (ii) reduce the principal amount thereof,
(iii) reduce the rate or extend the time of payment of interest thereon, (iv)
reduce any amount payable on redemption thereof, (v) make the principal thereof
(including any amount in respect of original issue discount), or interest
thereon payable in any coin or currency other
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than that provided in the Securities and Coupons or in accordance with the terms
thereof, (vi) modify or amend any provisions for converting any currency into
any other currency as provided in the Securities or Coupons or in accordance
with the terms thereof, (vii) reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 5.01 or the amount thereof provable in
bankruptcy pursuant to Section 5.02, (viii) modify or amend any provisions
relating to the conversion or exchange of the Securities or Coupons for
securities of the Issuer or of other entities or other property (or the cash
value thereof), including the determination of the amount of securities or other
property (or cash) into which the Securities shall be converted or exchanged,
other than as provided in the antidilution provisions or other similar
adjustment provisions of the Securities or Coupons or otherwise in accordance
with the terms thereof, (ix) alter the provisions of Section 11.11 or 11.12 or
impair or affect the right of any Securityholder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of repayment
at the option of the Securityholder, in each case without the consent of the
Holder of each Security so affected, or (b) reduce the aforesaid percentage of
Securities of any series, the consent of the Holders of which is required for
any such supplemental indenture, without the consent of the Holders of each
Security so affected.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series, or of Coupons appertaining
to such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series or of the Coupons appertaining to such Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which 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)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.01, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
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It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give notice thereof (i) if any Unregistered Securities of a series
affected are then Outstanding, to the Holders thereof, (A) by mail to such
Holders who have filed their names and addresses with the Trustee within the two
years preceding the notice at such addresses as were so furnished to the Trustee
and (B) either through the customary notice provisions of the clearing system or
systems through which beneficial interests in such Unregistered Securities are
owned if such Unregistered Securities are held only in global form or by
publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized Newspaper in
London (and, if required by Section 3.06, at least once in an Authorized
Newspaper in Luxembourg), and (ii) if any Registered Securities of a series
affected are then Outstanding, by mailing notice thereof by first class mail to
the Holders of then Outstanding Registered Securities of each series affected at
their addresses as they shall appear on the registry books, and in each case
such notice shall set forth in general terms the substance of such supplemental
indenture. Any failure of the Issuer to give such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.03. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.04. Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.01 and 6.02, may receive an Officer's Certificate
and an Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article 8 complies with the applicable provisions of
this Indenture.
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
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execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
SECTION 8.06. Subordination Unimpaired. This Indenture may not be
amended to alter the subordination of any of the Outstanding Securities without
the written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. The Issuer covenants that it will not
merge or consolidate with any other Person or sell, lease or convey all or
substantially all of its assets to any other Person, unless (a) either the
Issuer shall be the continuing corporation, or the successor corporation or the
Person which acquires by sale, lease or conveyance substantially all the assets
of the Issuer (if other than the Issuer) shall be a corporation organized under
the laws of the United States of America or any State thereof or the District of
Columbia and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities and Coupons, if any, according
to their tenor, and the due and punctual performance and observance of all of
the covenants and conditions of this Indenture to be performed or observed by
the Issuer, by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation, and (b) the Issuer, such Person or
such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, lease or conveyance, be in default
in the performance of any such covenant or condition.
SECTION 9.02. Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named
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herein. Such successor corporation may cause to be signed, and may issue either
in its own name or in the name of the Issuer prior to such succession any or all
of the Securities issuable hereunder which together with any Coupons
appertaining thereto theretofore shall not have been signed by the Issuer and
delivered to the Trustee; and, upon the order of such successor corporation,
instead of the Issuer, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities together with any Coupons appertaining thereto which previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All of the Securities so issued together with any Coupons appertaining
thereto shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phrasing and form (but not in substance) may be made in the
Securities and Coupons thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
SECTION 9.03. Opinion of Counsel Delivered to Trustee. The Trustee,
subject to the provisions of Sections 6.01 and 6.02, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease
or conveyance, and any such assumption, and any such liquidation or dissolution,
complies with the applicable provisions of this Indenture.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.01. Satisfaction and Discharge of Indenture. (a) If at any
time (i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than Securities of such series and
Coupons appertaining thereto which have been destroyed, lost or stolen and which
have
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been replaced or paid as provided in Section 2.09) as and when the same shall
have become due and payable, or (ii) the Issuer shall have delivered to the
Trustee for cancellation all Securities of any series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any Securities of
such series and Coupons appertaining thereto which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.09) or (iii) in the case of any series of Securities where the exact amount
(including the currency of payment) of principal of and interest due on which
can be determined at the time of making the deposit referred to in clause (B)
below, (A) all the Securities of such series and all unmatured Coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation
shall have become due and payable, or are by their terms to become due and
payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
and (B) the Issuer shall have irrevocably deposited or caused to be deposited
with the Trustee as trust funds the entire amount in cash (other than moneys
repaid by the Trustee or any paying agent to the Issuer in accordance with
Section 10.04) or, in the case of any series of Securities the payments on which
may only be made in Dollars, direct obligations of the United States of America,
backed by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (1) the principal
and interest on all Securities of such series and Coupons appertaining thereto
on each date that such principal or interest is due and payable and (2) any
mandatory sinking fund payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of such
series; and if, in any such case, the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer, then this Indenture shall cease
to be of further effect (except as to (i) rights of registration of transfer and
exchange of Securities of such Series and of Coupons appertaining thereto and
the Issuer's right of optional redemption, if any, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of holders of Securities and Coupons appertaining thereto to receive
payments of principal thereof and interest thereon, upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series and Coupons appertaining thereto as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them, and (vi) the obligations of the Issuer under
Section 3.02) and the Trustee, on demand of the Issuer accompanied by an
Officer's Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments
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acknowledging such satisfaction of and discharging this Indenture; provided,
that the rights of Holders of the Securities and Coupons to receive amounts in
respect of principal of and interest on the Securities and Coupons held by them
shall not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Securities are listed. The
Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 2.03.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities the exact amounts (including
the currency of payment) of principal of and interest due on which can be
determined at the time of making the deposit referred to in clause (i) below,
the Issuer shall be deemed to have paid and discharged the entire indebtedness
on all the Securities of such a series and the Coupons appertaining thereto on
the 91st day after the date of the deposit referred to in clause (i) below, and
the provisions of this Indenture with respect to the Securities of such series
and Coupons appertaining thereto shall no longer be in effect (except as to (A)
rights of registration of transfer and exchange of Securities of such series and
of Coupons appertaining thereto and the Issuer's right of optional redemption,
if any, (B) substitution of mutilated, defaced, destroyed, lost or stolen
Securities or Coupons, (C) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive mandatory sinking
fund payments, if any, (D) the rights, obligations, duties and immunities of the
Trustee hereunder, (E) the rights of the Holders of Securities of such series
and Coupons appertaining thereto as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (F) the
obligations of the Issuer under Section 3.02) and the Trustee, at the expense of
the Issuer, shall at the Issuer's request, execute proper instruments
acknowledging the same, if
(i) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of
such series and Coupons appertaining thereto (A) cash in an amount, or
(B) in the case of any series of Securities the payments on which may
only be made in Dollars, U.S. Government Obligations, maturing as to
principal and interest at such times and in such amounts as will insure
the availability of cash or (C) a
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combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (1) the
principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is
due and payable and (2) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series;
(ii) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Issuer is a party or by which it is bound;
(iii) the Issuer has delivered to the Trustee an Opinion of
Counsel based on the fact that (x) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling or
(y) since the date hereof, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such
series and Coupons appertaining thereto will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amount and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and discharge had not
occurred;
(iv) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
provision have been complied with;
(v) no event or condition shall exist that, pursuant to the
provisions of Section 13.01, would prevent the Issuer from making
payments of the principal of or interest on the Securities of such
series and Coupons appertaining thereto on the date of such deposit or
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period); and
(vi) the Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that (x) the trust funds will not be subject to
any rights of holders of Senior Indebtedness, including without
limitation those arising under Article 13 of this Indenture, and (y)
after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable
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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 Issuer, no opinion is given as to the effect of such
laws on the trust funds except the following: (A) assuming such trust
funds remained in the Trustee's possession prior to such court ruling
to the extent not paid to Holders of Securities of such series and
Coupons appertaining thereto, the Trustee will hold, for the benefit of
such Holders, a valid and perfected security interest in such trust
funds that is not avoidable in bankruptcy or otherwise, (B) such
Holders will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used, and (C) no
property, rights in property or other interests granted to the Trustee
or such Holders in exchange for or with respect to any of such funds
will be subject to any prior rights of holders of Senior Indebtedness,
including without limitation those arising under Article 13 of this
Indenture.
(c) The Issuer shall be released from its obligations under Section
9.01 with respect to the Securities of any Series, and any Coupons appertaining
thereto, Outstanding on and after the date the conditions set forth below are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of any Series,
the Issuer may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in such Section, whether directly or
indirectly by reason of any reference elsewhere herein to such Section or by
reason of any reference in such Section to any other provision herein or in any
other document and such omission to comply shall not constitute an Event of
Default under Section 5.01, but the remainder of this Indenture and such
Securities and Coupons shall be unaffected thereby. The following shall be the
conditions to application of this subsection (c) of this Section 10.01:
(i) The Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the holders of the Securities
of such series and Coupons appertaining thereto, (A) cash in an amount,
or (B) in the case of any series of Securities the payments on which
may only be made in Dollars, U.S. Government Obligations maturing as to
principal and interest at such times and in such amounts as will insure
the availability of cash or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay (1) the principal and interest on all Securities of
such series and Coupons appertaining thereto and (2) any mandatory
sinking fund payments on the day on which such
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payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series.
(ii) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such
deposit or, insofar as subsections 5.01(d) and 5.01(e) are concerned,
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(iii) Such covenant defeasance shall not cause the Trustee to
have a conflicting interest for purposes of the Trust Indenture Act of
1939 with respect to any securities of the Issuer.
(iv) Such covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any
other agreement or instrument to which the Issuer is a party or by
which it is bound.
(v) Such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange under the
Securities Exchange Act of 1934, as amended, to be delisted.
(vi) No event or condition shall exist that, pursuant to the
provisions of Section 13.01, would prevent the Issuer from making
payments of the principal of or interest on the Securities of such
series and Coupons appertaining thereto on the date of such deposit or
at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(vii) The Issuer shall have delivered to the Trustee an Officer's
Certificate and Opinion of Counsel to the effect that the Holders of
the Securities of such series and Coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(viii) The Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions
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precedent provided for relating to the covenant defeasance contemplated
by this provision have been complied with.
(ix) The Issuer has delivered to the Trustee an Opinion of
Counsel to the effect that (x) the trust funds will not be subject to
any rights of holders of Senior Indebtedness, including without
limitation those arising under Article 13 of this Indenture, and (y)
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 Issuer, no
opinion is given as to the effect of such laws on the trust funds
except the following: (A) assuming such trust funds remained in the
Trustee's possession prior to such court ruling to the extent not paid
to Holders of Securities of such series and Coupons appertaining
thereto, the Trustee will hold, for the benefit of such Holders, a
valid and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise, (B) such Holders will be entitled
to receive adequate protection of their interests in such trust funds
if such trust funds are used, and (C) no property, rights in property
or other interests granted to the Trustee or such Holders in exchange
for or with respect to any of such funds will be subject to any prior
rights of holders of Senior Indebtedness, including without limitation
those arising under Article 13 of this Indenture.
SECTION 10.02. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.04, all moneys deposited with the Trustee (or
other trustee) pursuant to Section 10.01 shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the
Issuer acting as its own paying agent), to the Holders of the particular
Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 10.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
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SECTION 10.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest on any Security of
any series or Coupons attached thereto and not applied but remaining unclaimed
for two years after the date upon which such principal or interest shall have
become due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series
or such paying agent, and the Holder of the Securities of such series and of any
Coupons appertaining thereto shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment (a) in respect of
Registered Securities of any series, shall at the expense of the Issuer, mail by
first-class mail to Holders of such Securities at their addresses as they shall
appear on the Security register, and (b) in respect of Unregistered Securities
of any series, shall at the expense of the Issuer either give through the
customary notice provisions of the clearing system or systems through which
beneficial interests in such Unregistered Securities are owned if such
Unregistered Securities are held only in global form or cause to be published
once, in an Authorized Newspaper in the Borough of Manhattan, The City of New
York and once in an Authorized Newspaper in London (and if required by Section
3.06, once in an Authorized Newspaper in Luxembourg), notice, that such moneys
remain and that, after a date specified therein, which shall not be less than
thirty days from the date of such mailing or publication, any unclaimed balance
of such money then remaining will be repaid to the Issuer.
SECTION 10.05. Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.01 or the principal or interest received in respect of such
obligations.
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ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities and the Coupons appertaining
thereto by the Holders thereof and as part of the consideration for the issue of
the Securities and the Coupons appertaining thereto.
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities and Coupons. Nothing in this Indenture, in the
Securities or in the Coupons appertaining thereto, expressed or implied, shall
give or be construed to give to any person, firm or corporation, other than the
parties hereto and their successors and the holders of Senior Indebtedness and
the Holders of the Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors, the holders of the Senior Indebtedness and
the Holders of the Securities or Coupons, if any.
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities and Coupons. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities or Coupons to or on the Issuer may be given or served
by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Morgan Stanley Dean Witter & Co., 1585
Broadway, New York, New York 10036, Attention: Secretary. Any notice, direction,
request or demand by the Issuer or any Holder of Securities or Coupons to or
upon the Trustee shall be deemed to have been sufficiently given or served by
being
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deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Trustee is filed by the
Trustee with the Issuer) to The First National Bank of Chicago, 1 First National
Plaza, Suite 0126, Chicago, Illinois 60670, Attention: Corporate Trust
Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. In any case where notice to such 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 Indenture 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 Trustee, 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 or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer when such
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be reasonably satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.05. Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officer's Certificate stating that
all conditions precedent provided for in this Indenture 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 have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a
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statement that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer 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 his
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 Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his 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 an officer of the Issuer 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 Issuer, 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 his 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 Trustee shall contain a statement
that such firm is independent.
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any such Security or Coupon shall not be a Business Day, then payment of
interest or principal 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 date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
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SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by, or with another
provision (an "incorporated provision") included in this Indenture by operation
of, Sections 310 to 318, inclusive, of the Trust Indenture Act of 1939, such
imposed duties or incorporated provision shall control.
SECTION 11.08. New York Law to Govern. This Indenture and each Security
and Coupon 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
such State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.09. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11. Securities in a Foreign Currency. Unless otherwise
specified in an Officer's Certificate delivered pursuant to Section 2.03 of this
Indenture with respect to a particular series of Securities, whenever for
purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all series or all
series affected by a particular action at the time Outstanding and, at such
time, there are Outstanding Securities of any series which are denominated in a
coin or currency other than Dollars, then the principal amount of Securities of
such series which shall be deemed to be Outstanding for the purpose of taking
such action shall be that amount of Dollars that could be obtained for such
amount at the Market Exchange Rate. For purposes of this Section 11.11, Market
Exchange Rate shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency published by the Federal Reserve Bank of New York. If
such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York as of the most
recent available date, or quotations from one or more major banks in The City of
New York or in the country of issue of the currency in question, or such other
quotations as the Trustee shall deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect
of Securities of a series denominated in a currency other than Dollars in
connection with any action taken
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by Holders of Securities pursuant to the terms of this Indenture, including,
without limitation, any determination contemplated in Sections 5.01(f) or
5.01(g).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12. Judgment Currency. The Issuer 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 principal of or interest on the Securities 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 Trustee 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, then, 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 Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which a final unappealable judgment is entered, and (b) its obligations
under this Indenture 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 subsection (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 the amount, if any, by which such
actual receipt shall fall short of the full amount of 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 Indenture. 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.
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ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 12.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, to such Holders
of Securities of such series at their last addresses as they shall appear upon
the registry books at least 30 days and not more than 60 days prior to the date
fixed for redemption, or within such other redemption notice period as has been
designated for any Securities of such series pursuant to Section 2.03 or 2.04
(the "Redemption Notice Period"). Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee within two years preceding such
notice of redemption, shall be given by mailing notice of such redemption, by
first class mail, postage prepaid, at least 30 and not more than 60 days prior
to the date fixed for redemption or within any applicable Redemption Notice
Period to such Holders at such addresses as were so furnished to the Trustee
(and, in the case of any such notice given by the Issuer, the Trustee shall make
such information available to the Issuer for such purpose). Notice of redemption
to all other Holders of Unregistered Securities shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London (and, if required by Section 3.06, in an
Authorized Newspaper in Luxembourg), in each case, once in each of three
successive calendar weeks, the first publication to be not less than 30 nor more
than 60 days prior to the date fixed for redemption or within any applicable
Redemption Notice Period; provided that notice to Holders of Unregistered
Securities held only in global form and issued after March 1, 1998 may be made,
at the option of the Issuer, through the customary notice provisions of the
clearing system or systems through which beneficial interests in such
Unregistered Securities are owned. Any notice which is mailed 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 Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
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The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price (or if not then
ascertainable, the manner of calculation thereof), the place or places of
payment, that payment will be made upon presentation and surrender of such
Securities and, in the case of Securities with Coupons attached thereto, of all
Coupons appertaining thereto maturing after the date fixed for redemption, that
such redemption is pursuant to the mandatory or optional sinking fund, or both,
if such be the case, that interest accrued to the date fixed for redemption will
be paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.04) an
amount of money or other property sufficient to redeem on the redemption date
all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. The Issuer will deliver to the Trustee at least 70 days prior to the
date fixed for redemption or at least 10 days prior to the first day of any
applicable Redemption Notice Period an Officer's Certificate stating the
aggregate principal amount of Securities to be redeemed. In case of a redemption
at the election of the Issuer prior to the expiration of any restriction on such
redemption, the Issuer shall deliver to the Trustee, prior to the giving of any
notice of redemption to Holders pursuant to this Section, an Officer's
Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount
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thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 12.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities 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, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Issuer shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void,
and, except as provided in Sections 6.05 and 10.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
together with all Coupons, if any, appertaining thereto maturing after the date
fixed for redemption, said Securities or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to the
Holders of the Coupons for such interest upon surrender thereof, and in the case
of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.03 and 2.07 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
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Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer or (b) an entity specifically identified in such written statement as
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer.
SECTION 12.05. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
or the 30th day next preceding the last day of any applicable Redemption Notice
Period relating to a sinking fund payment date for any series, the Issuer will
deliver to the Trustee an Officer's Certificate (which need not contain the
statements required by Section 11.05) (a) specifying the portion of the
mandatory
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sinking fund payment to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series and the basis for such credit,
(b) stating that none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or
cured) and are continuing and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such Officer's Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officer's Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Issuer, on or before
any such 60th day or 30th day, if applicable, to deliver such Officer's
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000 (or the equivalent thereof in any Foreign Currency) or a lesser sum in
Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall
so request with respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency) or less and
the Issuer makes no such request then it shall be carried over until a sum in
excess of $50,000 (or the equivalent thereof in any Foreign Currency) is
available. The Trustee shall select, in the manner provided in Section 12.02,
for redemption on such sinking fund payment date a sufficient principal amount
of Securities of such series to absorb said cash, as nearly as may be, and shall
(if requested in writing by the Issuer) inform the Issuer of the serial numbers
of the Securities of such series (or portions thereof) so selected. Securities
shall be excluded from
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eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officer's Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date or at least 30
days prior to the last day of any applicable Redemption Notice Period relating
to a sinking fund payment date as being owned of record and beneficially by, and
not pledged or hypothecated by either (a) the Issuer or (b) an entity
specifically identified in such Officer's Certificate as directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer. The Trustee, in the name and at the expense of the Issuer (or the
Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 12.02 (and with the effect provided in Section 12.03)
for the redemption of Securities of such series in part at the option of the
Issuer. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such series shall be added to the next cash
sinking fund payment for such series and, together with such payment, shall be
applied in accordance with the provisions of this Section. Any and all sinking
fund moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 5 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.10 or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys
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shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE 13
SUBORDINATION
SECTION 13.01. Securities and Coupons Subordinated to Senior
Indebtedness. The Issuer covenants and agrees, and each Holder of a Security or
Coupon, by his acceptance thereof, likewise covenants and agrees, that the
indebtedness represented by the Securities and any Coupons and the payment of
the principal of and interest on each and all of the Securities and of any
Coupons is hereby expressly subordinated, to the extent and in the manner
hereinafter set forth, in right of payment to the prior payment in full of
Senior Indebtedness.
In the event (a) of any insolvency or bankruptcy proceedings or any
receivership, liquidation, reorganization or other similar proceedings in
respect of the Issuer or a substantial part of its property, or of any
proceedings for liquidation, dissolution or other winding up of the Issuer,
whether or not involving insolvency or bankruptcy, or (b) subject to the
provisions of Section 13.02 that (i) a default shall have occurred with respect
to the payment of principal of or 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 or interest or
other monetary amounts due and payable) in respect of 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, in the
cases of subclauses (i) and (ii) of this clause (b), 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 Securities of any
series shall have been declared due and payable pursuant to Section 5.01 and
such declaration shall not have been rescinded and annulled as provided in
Section 5.01 then:
(i) the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or
provision shall be made for such payment in money or money's worth,
before the Holders of any of the Securities or Coupons are entitled to
receive a payment on account of the principal of or interest on the
indebtedness evidenced by the Securities or of the Coupons, including,
without limitation, any payments made pursuant to Article 12;
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(ii) any payment by, or distribution of assets of, the Issuer of
any kind or character, whether in cash, property or securities, to
which the Holders of any of the Securities or Coupons or the Trustee
would be entitled except for the provisions of this Article shall be
paid or delivered by the Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of
all Senior Indebtedness remaining unpaid after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness, before any payment or distribution
is made to the holders of the indebtedness evidenced by the Securities
or Coupons or to the Trustee under this instrument; and
(iii) in the event that, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Issuer of any kind or
character, whether in cash, property or securities, in respect of
principal of or interest on the Securities or in connection with any
repurchase by the Issuer of the Securities, shall be received by the
Trustee or the Holders of any of the Securities or Coupons before all
Senior Indebtedness is paid in full, or provision made for such payment
in money or money's worth, such payment or distribution in respect of
principal of or interest on the Securities or in connection with any
repurchase by the Issuer of the Securities shall be paid over to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to the payment of
all Senior Indebtedness remaining unpaid until all such Senior
Indebtedness shall have been paid in full, after giving effect to any
concurrent payment or distribution (or provision therefor) to the
holders of such Senior Indebtedness.
Notwithstanding the foregoing, at any time after the 91st day following
the date of deposit of cash or, in the case of Securities payable only in
Dollars, U.S. Government Obligations pursuant to Section 10.01(b) or 10.01(c)
(provided all other conditions set out in such Section shall have been
satisfied) the funds so deposited and any interest thereon will not be subject
to any rights of holders of
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Senior Indebtedness including, without limitation, those arising under this
Article 13.
SECTION 13.02. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Issuer to make any payment on or perform any other obligation
under Senior Indebtedness, other than any indebtedness incurred by the Issuer or
assumed or guaranteed, directly or indirectly, by the Issuer for money borrowed
(or any deferral, renewal, extension or refunding thereof) or any indebtedness
or obligation as to which the provisions of this Section shall have been waived
by the Issuer in the instrument or instruments by which the Issuer incurred,
assumed, guaranteed or otherwise created such indebtedness or obligation, shall
not be deemed a default or event of default under Section 13.01(b) if (a) the
Issuer shall be disputing its obligation to make such payment or perform such
obligation and (b) either (i) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and effect and is not
subject to further review, including a judgment that has become final by reason
of the expiration of the time within which a party may seek further appeal or
review, and (ii) in the event of a judgment that is subject to further review or
appeal has been issued, the Issuer shall in good faith be prosecuting an appeal
or other proceeding for review and a stay of execution shall have been obtained
pending such appeal or review.
SECTION 13.03. Subrogation. Subject to the payment in full of all
Senior Indebtedness, the Holders of the Securities and any Coupons shall be
subrogated (equally and ratably with the holders of all obligations of the
Issuer which by their express terms are subordinated to Senior Indebtedness of
the Issuer to the same extent as the Securities are subordinated and which are
entitled to like rights of subrogation) to the rights of the holders of Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Issuer applicable to the Senior Indebtedness until all amounts
owing on the Securities and any Coupons shall be paid in full, and as between
the Issuer, its creditors other than holders of such Senior Indebtedness and the
Holders, no such payment or distribution made to the holders of Senior
Indebtedness by virtue of this Article that otherwise would have been made to
the Holders shall be deemed to be a payment by the Issuer on account of such
Senior Indebtedness, it being understood that the provisions of this Article are
and are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of Senior Indebtedness, on the other
hand.
SECTION 13.04. Obligation of Issuer Unconditional. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities or any Coupons
is intended to or shall impair, as among the Issuer, its creditors other than
the holders of Senior Indebtedness and the Holders, the obligation of the
Issuer, which is absolute and unconditional, to pay to the Holders the principal
of and
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interest on the Securities and the amounts owed pursuant to any Coupons as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Issuer other than the holders of Senior Indebtedness, nor shall anything
herein or therein prevent the Trustee or any Holder from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
in respect of cash, property or securities of the Issuer received upon the
exercise of any such remedy.
Upon payment or distribution of assets of the Issuer referred to in
this Article, the Trustee and the Holders shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which any such
dissolution, winding up, liquidation or reorganization proceeding affecting the
affairs of the Issuer is pending or upon a certificate of the trustee in
bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee
or agent or other Person making any payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Issuer, the amount thereof or payable
thereon, the amount paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 13.05. Payments on Securities and Coupons Permitted. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities or
Coupons shall affect the obligations of the Issuer to make, or prevent the
Issuer from making, payment of the principal of or interest on the Securities
and of any Coupons in accordance with the provisions hereof and thereof, except
as otherwise provided in this Article.
SECTION 13.06. Effectuation of Subordination by Trustee. Each holder of
Securities or Coupons, by his acceptance thereof, authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
SECTION 13.07. Knowledge of Trustee. Notwithstanding the provisions of
this Article or any other provisions of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of moneys to or by the Trustee, or the taking of any other
action by the Trustee, unless and until the Trustee shall have received written
notice thereof mailed or delivered to the Trustee at its Corporate Trust Office
from the Issuer, any Holder, any paying agent or the holder or representative of
any class of Senior Indebtedness; provided that if at least three Business Days
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prior to the date upon which by the terms hereof any such moneys may become
payable for any purpose (including, without limitation, the payment of the
principal or interest on any Security or interest on any Coupon) the Trustee
shall not have received with respect to such moneys the notice provided for in
this Section, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such moneys and to
apply the same to the purpose for which they were received and shall not be
affected by any notice to the contrary that may be received by it within three
Business Days prior to or on or after such date.
SECTION 13.08. Trustee May Hold Senior Indebtedness. The Trustee shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness at the time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Section 6.03 or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.
SECTION 13.09. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness to enforce
the subordination herein shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the Issuer or by any
noncompliance by the Issuer with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
With respect to the holders of Senior Indebtedness, (a) the duties and
obligations of the Trustee shall be determined solely by the express provisions
of this Indenture, (b) the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in this
Indenture, (c) no implied covenants or obligations shall be read into this
Indenture against the Trustee and (d) the Trustee shall not be deemed to be a
fiduciary as to such holders.
SECTION 13.10. Article Applicable to Paying Agents. In case at any time
any paying agent other than the Trustee shall have been appointed by the Issuer
and be then acting hereunder, the term "Trustee" as used in this Article shall
in such case (unless the context shall require otherwise) be construed as
extending to and including such paying agent within its meaning as fully for all
intents and purposes as if such paying agent were named in this Article in
addition to or in place of the Trustee, provided, however, that Sections 13.07
and 13.08 shall not apply to the Issuer if it acts as its own paying agent.
SECTION 13.11. Trustee; Compensation Not Prejudiced. Nothing in this
Article shall apply to claims of, or payments to, the Trustee pursuant to
Section 6.06.
80
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of May 1, 1999.
MORGAN STANLEY DEAN WITTER
& CO.
[CORPORATE SEAL]
By:_____________________________
Name:
Title:
Attest:
By:_________________________
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, TRUSTEE
[CORPORATE SEAL]
By:_____________________________
Name:
Title: Vice President
Attest:
By:_______________________
Title:
81
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On this ____ of ________, 1999 before me personally came
___________________ , to me personally known, who, being by me duly sworn, did
depose and say that he resides at ____________________________ that he is the
________________ of Morgan Stanley Dean Witter & Co., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
- -----------------------------
Notary Public
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On this ____ of _________, 1999 before me personally came
__________________ , to me personally known, who, being by me duly sworn, did
depose and say that he resides at ___________________________________________
that he is a Vice President of The First National Bank of Chicago, one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
- ----------------------
Notary Public
<PAGE>
CROSS REFERENCE SHEET1
---------
Between
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of April 15, 1989 between MORGAN STANLEY GROUP INC. and THE FIRST NATIONAL BANK
OF CHICAGO, Trustee:
Section of the Act Section of the Indenture
- ------------------ ------------------------
310(a)(1) and (2)..................... 6.09
310(a)(3) and (4)..................... Inapplicable
310(b)................................ 6.08 and 6.10(a), (b) and (d)
310(c)................................ Inapplicable
311(a)................................ [6.13(a) and (c)(1) and (2)]
311(b)................................ [6.13(b)]
312(a)................................ 4.01 and [4.2(a)]
312(b)................................ [4.2(a) and (b)(i) and (ii)]
312(c)................................ [4.2(c)]
313(a)................................ [4.4(a)(i), (ii), (iii), (iv), (v), (vi)]
313(b)(1)............................. Inapplicable
313(b)(2)............................. 4.04
313(c)................................ 4.04
313(d)................................ 4.04
314(a)................................ 4.03
314(b)................................ Inapplicable
314(c)(1) and (2)..................... 11.5
314(c)(3)............................. Inapplicable
314(d)................................ Inapplicable
314(e)................................ 11.05
314(f)................................ Inapplicable
315(a), (c) and (d)................... 6.01
315(b)................................ 5.11
315(e)................................ 5.12
316(a)(1)............................. 5.09
- ---------
1This Cross Reference Sheet is not part of the Indenture.
EXHIBIT 4-g
[FORM OF FACE OF SECURITY]
Floating Rate Senior Note
REGISTERED [PRINCIPAL AMOUNT]
No. FLR 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.(1)
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
<TABLE>
<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:
SPREAD MULTIPLIER: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
REPORTING SERVICE: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
INDEX CURRENCY: MINIMUM INTEREST RATE: CALCULATION AGENT:
EXCHANGE RATE AGENT: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
INITIAL REDEMPTION IF SPECIFIED CURRENCY
PERCENTAGE: OTHER THAN U.S.
DOLLARS, OPTION TO
ELECT PAYMENT IN U.S.
DOLLARS: [YES]<F2>
ANNUAL REDEMPTION DESIGNATED CMT
PERCENTAGE REDUCTION: TELERATE PAGE:
OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
OTHER PROVISIONS: REDEMPTION NOTICE PERIOD:3
_______________
1 Applies only if this Note is a Registered Global Security.
2 Applies if this is a Registered Global Security, unless new arrangements are
made with DTC outside of existing Letters of Representations.
3 Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
</TABLE>
Morgan Stanley Dean Witter & 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 ](4) [amount
specified in Schedule A hereto](5) on the Maturity Date specified above
(except to the extent redeemed or repaid prior to the maturity) 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 (4)Applies if this Note is not issued as part of, or in
relation to, a Unit. (5)Applies if this Note is issued as part of, or in
relation to, a Unit. 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
weekly, 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 or
EURIBOR and such next Business Day falls in the next calendar month, such
Interest Payment Date shall be the immediately preceding day that is a
Business Day; and provided, further, that if the Maturity Date or
redemption or repayment date would fall on a day that is not a Business
Day, such payment shall be made on the following day that is a Business Day
and no interest shall accrue for the period from and after such Maturity
Date or redemption or repayment date.
Interest on this Note will accrue from and including the most
recent date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from and including the Interest
Accrual Date, until but excluding the date the principal hereof has been paid
or duly made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, subject to
certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or
not a Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the at maturity (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 maturity (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 a 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 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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, 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 (as defined on the reverse hereof) 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.
- ---------------
(6)Applies for a Registered Note that is not in global form.
(7)Applies only for a Registered Global Security.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, 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 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 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 hereof, 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 or within the Redemption Notice Period specified on the face
hereof, 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.
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. 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 or EURIBOR and such Business Day is in
the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor
a day on which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (z) if this Note is denominated in Australian dollars,
in Sydney and (b) if this Note is denominated in euro, that is also a day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer
System ("TARGET") is operating (a "TARGET Settlement 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 EURIBOR or LIBOR Notes denominated or
payable in euros shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to
LIBOR, other than LIBOR Notes denominated or payable in euros, 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," for any Interest Determination Date, the CD
Rate with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate
cannot be determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00
a.m., New York City time, on the Calculation Date, the CD Rate shall be the
rate on that Interest Determination Date set forth in the daily update of
H.15(519), available through the world wide website of the Board of
Governors of the Federal Reserve System at http://www.bog.frb.fed.us/releases/
h15/update, or any successor site or publication ("H.15 Daily Update") for
the Interest Determination Date for certificates of deposit having the
Index Maturity specified on the face hereof, under the caption "CDs
(Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519)
or the H.15 Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, the Calculation Agent shall determine the CD Rate to be
the arithmetic mean of the secondary market offered rates as of 10:00 a.m.,
New York City time, on that Interest Determination Date of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The
City of New York selected by the Calculation Agent (after consultation with
the Issuer) 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 with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is
representative for a single transaction in that market at that time.
(iii) If the dealers selected by the Calculation Agent are not
quoting as described in (ii) above, the CD Rate shall remain the CD Rate
for the immediately preceding Interest Reset Period, or, if there was no
Interest Reset Period, the rate of interest payable 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," for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be the Money Market Yield (as defined herein), calculated as described below,
of the rate on that date for commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial
Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, then the Commercial Paper Rate shall be
the Money Market Yield of the rate on that Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as
published in the H.15 Daily Update under the heading "Commercial Paper --
Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation
Date the rate is not yet published in either H.15(519) or the H.15 Daily
Update, then the Calculation Agent shall determine the Commercial Paper
Rate to be the Money Market Yield of the arithmetic mean of the offered
rates as of 11:00 a.m., New York City time, on that Interest Determination
Date of three leading dealers of commercial paper in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) 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 statistical rating agency.
(iii) If the dealers selected by the Calculation Agent are not
quoting as mentioned above, the Commercial Paper Rate for that Interest
Determination Date shall remain the Commercial Paper Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable shall be the Initial Interest
Rate.
The "Money Market Yield" shall be a yield calculated in
accordance with the following formula:
D x 360
Money Market Yield = --------- x 100
360-(DxM)
where "D" refers to the applicable per year 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 EURIBOR Notes. If the Base Rate specified on
the face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR
with respect to this Note shall be the rate for deposits in euros as
sponsored, calculated and published jointly by the European Banking Federation
and ACI - The Financial Market Association, or any company established by the
joint sponsors for purposes of compiling and publishing those rates, for the
Index Maturity specified on the face hereof as that rate appears on the
display on Bridge Telerate, Inc., or any successor service, on page 248 or any
other page as may replace page 248 on that service ("Telerate Page 248") as of
11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot
be determined as described above:
(i) If the above rate does not appear, the Calculation Agent
shall request the principal Euro-zone office of each of four major banks in
the Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its
offered rate for deposits in euros, at approximately 11:00 a.m. (Brussels
time) on the Interest Determination Date, to prime banks in the Euro-zone
interbank market for the Index Maturity specified on the face hereof
commencing on the applicable Interest Reset Date, and in a principal amount
not less than the equivalent of U.S.$1 million in euro that is
representative of a single transaction in euro, in that market at that
time. If at least two quotations are provided, EURIBOR shall be the
arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall
be the arithmetic mean of the rates quoted by four major banks in the Euro-
zone, as selected by the Calculation Agent (after consultation with the
Issuer) at approximately 11:00 a.m. (Brussels time), on the applicable
Interest Reset Date for loans in euro to leading European banks for a
period of time equivalent to the Index Maturity specified on the face
hereof commencing on that Interest Reset Date in a principal amount not
less than the equivalent of U.S.$1 million in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate
specified on the face hereof is the "Federal Funds Rate," for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall be
the rate on that date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace page 120
on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, the Federal Funds Rate shall be the
rate on that Interest Determination Date as published in the H.15 Daily
Update under the heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or
the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation
Date, the Calculation Agent shall determine the Federal Funds Rate to be
the arithmetic mean of the rates for the last transaction in overnight
federal funds by each of three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) prior to 9:00 a.m., New York City
time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not
quoting as mentioned above, the Federal Funds Rate relating to that
Interest Determination Date shall remain the Federal Funds Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable 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 based on London
interbank offered rate. The Calculation Agent shall determine "LIBOR" for each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be
either (a) if "LIBOR Reuters" is specified as the Reporting Service on the
face hereof, the arithmetic mean of the offered rates for deposits in the
Index Currency having the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following that
Interest Determination Date, that appear on the Designated LIBOR Page, as
defined below, as of 11:00 a.m., London time, on that Interest
Determination Date, if at least two offered rates appear on the Designated
LIBOR Page; except that if the specified Designated LIBOR Page, by its
terms provides only for a single rate, that single rate shall be used; or
(b) if "LIBOR Telerate" is specified as the Reporting Service on the face
hereof, the rate for deposits in the Index Currency having the Index
Maturity designated on the face hereof, commencing on the second London
Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest
Determination Date, that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR
Reuters is specified on the face hereof, or (b) no rate appears and the
face hereof specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and
the Designated LIBOR Page by its terms provides only for a single rate,
then the Calculation Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling is the
Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London
time, on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that
market at that time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be
determined for the applicable Interest Reset Date as the arithmetic mean of
the rates quoted at approximately 11:00 a.m., London time, or some other
time specified on the face hereof, in the applicable principal financial
center for the country of the Index Currency on that Interest Reset Date,
by three major banks in that principal financial center selected by the
Calculation Agent (after consultation with the Issuer) for loans in the
Index Currency to leading European banks, having the Index Maturity
specified on the face hereof and in a principal amount that is
representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not
quoting as described in (iii) above, LIBOR in effect for the applicable
period shall be the same as LIBOR for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Index Currency" means the currency specified on the face
hereof as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the
face hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency,
as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is "Prime Rate," for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate
cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York
City time, on the Calculation Date, then the Prime Rate shall be the rate
on that Interest Determination Date as published in H.15 Daily Update under
the heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York
City time, on the Calculation Date in either H.15(519) or the H.15 Daily
Update, then the Calculation Agent shall determine the Prime Rate to be the
arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME 1 Page, as defined below, as
that bank's Prime Rate or base lending rate as in effect for that Interest
Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen
USPRIME 1 Page for that Interest Determination Date, the Calculation Agent
shall determine the Prime Rate to 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 that Interest Determination Date by at least
three major banks in The City of New York selected by the Calculation Agent
(after consultation with the Issuer).
(iv) If the banks selected are not quoting as described in
(iii) above, the Prime Rate shall remain the Prime Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as
page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is "Treasury Rate," the Treasury Rate with respect to this
Note shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not
published by 3:00 p.m., New York City time, on the Calculation Date, the Bond
Equivalent Yield of the rate for the applicable Treasury Bills as published in
the H.15 Daily Update, or other recognized electronic source used for the
purpose of displaying the applicable rate, under the caption "U.S. Government
Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by
3:00 p.m., New York City time, on the related Calculation Date, the Bond
Equivalent Yield of the Auction rate of the applicable Treasury Bills,
announced by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the
Auction is not held, the Bond Equivalent Yield of the rate on the
applicable Interest Determination Date of Treasury Bills having the Index
Maturity specified on the face hereof published in H.15(519) under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on
the applicable Interest Determination Date of the applicable Treasury Bills
as published in H.15 Daily Update, or other recognized electronic source
used for the purpose of displaying the applicable rate, under the caption
"U.S. Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on
the applicable Interest Determination Date calculated by the Calculation
Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 p.m., New York City time, on the
applicable Interest Determination Date, of three primary United States
government securities dealers, which may include the agent or its
affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not
quoting as described in (vi), the Treasury Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in
accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = ------------
360 - (D M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the "CMT Rate," for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the
Designated CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate
cannot be determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity
rate for the Designated CMT Maturity Index as published in the relevant
H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity Rate for
the Designated CMT Maturity Index or other United States Treasury rate for
the Designated CMT Maturity Index on the Interest Determination 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).
(iii) If the information described in (ii) is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to 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 ("Reference
Dealers") in The City of New York, which may include an agent or other
affiliates of the Issuer, selected by the Calculation Agent as described in
the following sentence. The Calculation Agent shall select five reference
dealers (after consultation with the Issuer) and shall eliminate 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 a remaining term to maturity of not
less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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
shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury
Notes quotations as described in (iii) above, the Calculation Agent shall
determine the CMT Rate to 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, selected using the same method
described in (iii) above, for Treasury Notes with an original maturity
equal to the number of years closest to but not less than 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.
(v) If three or four (and not five) of the reference dealers
are quoting as described in (iv) above, then the CMT Rate shall be based on
the arithmetic mean of the offer prices obtained and neither the highest
nor the lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate
shall be the CMT Rate for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable
shall be the Initial Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc., or any successor service, on the page designated on the face
hereof or any other page as may replace that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10,
20 or 30 years, specified in an applicable pricing supplement for which the
CMT Rate shall be calculated. If no 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 (i) by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR
(except if the Index Currency is pounds sterling); (ii) by 365 if the Base
Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by the
actual number of days in the year if the Base Rate is the Treasury Rate or the
CMT Rate. 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 The
City of New York 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.
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, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the EC, as amended by the Treaty. Any payment
made under such circumstances in U.S. dollars or euro where the required
payment is in an unavailable Specified Currency will not constitute an Event
of Default. If such Market Exchange Rate is not then available to the Issuer
or is not published for a particular Specified Currency, the Market Exchange
Rate will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 a.m., New York City
time, on the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase
by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid
quotations are not available, the Exchange Rate Agent shall determine the
market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 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 ___________________
(Minor) (Cust)
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](8)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _________ __,1999 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:](9) [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:](10)
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Reduced
Principal Principal Increased
Amount Amount of Principal
Principal Outstanding Attached Unit Amount of this
Principal Amount Following Such Note Exchanged Note Outstanding Notation Made
Date of Exchange Amount Exchanged for Exchange or for Interest in Following Such by or on Behalf
or Cancellation Cancelled Separated Note(9) Cancellation this Note(10) Exchange(10) of Paying Agent
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- --------------- --------- ------------------ -------------- ---------------- ---------------- ---------------
- ---------------
(8) Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
(9) Applies only if this Note remains part of a Unit.
(10)Applies only if this Note has been separated from a Unit.
</TABLE>
EXHIBIT 4-h
[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.(1)
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate)
<TABLE>
<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):
SPECIFIED CURRENCY: ANNUAL REDEMPTION INTEREST PAYMENT APPLICABILITY OF
PERCENTAGE PERIOD: MODIFIED
REDUCTION: PAYMENT UPON
ACCELERATION:
IF SPECIFIED REDEMPTION NOTICE APPLICABILITY OF If yes, state Issue Price:
CURRENCY PERIOD:<F3> ANNUAL INTEREST
OTHER THAN U.S. PAYMENTS:
DOLLARS, OPTION
TO ELECT
PAYMENT IN U.S.
DOLLARS: [YES]2
EXCHANGE RATE ORIGINAL YIELD TO
AGENT: MATURITY:
OTHER PROVISIONS:
- ---------------
(1) Applies only if this Note is a Registered Global Security.
(2) Applies if this is a Registered Global Security, unless new arrangements
are made with DTC outside of existing Letters of Representations.
(3) Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
</TABLE>
Morgan Stanley Dean Witter & 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 ](4) [ amount
specified in Schedule A hereto](5), on the Maturity Date specified above
(4)Applies if this Note is not issued as part of, or in relation to, a Unit.
(5)Applies if this Note is issued as part of, or in relation to, a Unit.
(except to the extent redeemed or repaid prior to maturity) and to pay
interest thereon at the Interest Rate per annum specified above, from and
including the Interest Accrual Date specified above until the principal hereof
is paid or duly made available for payment weekly, 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 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 (as defined below)) (each such date a "Record Date");
provided, however, that interest payable at maturity (or 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, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close
(x) in The City of New York or (y) if this Note is denominated in a Specified
Currency other than U.S. dollars, Australian dollars or euro, in the principal
financial center of the country of the Specified Currency, or (z) if this Note
is denominated in Australian dollars, in Sydney and (b) if this Note is
denominated in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a
"TARGET Settlement Day").
Payment of the principal of this Note, any premium and the
interest due at maturity (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 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 the equivalent in a 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 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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, as the case may be.
If the holder elects to receive all or a portion of payments of
principal of an d 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 (as defined on the reverse hereof) 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.
- ---------------
(6) Applies for a Registered Note that is not in global form.
(7) Applies only for a Registered Global Security.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, 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 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 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 hereof, 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 or within the Redemption Notice Period specified on the face
hereof, 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.
For this Note to be repaid at the option of the holder hereof, the Paying
Agent must receive at its corporate trust office in the Borough of Manhattan,
The City of New York, at least 15 but not more than 30 days prior to the date
of repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States setting forth the name of the holder of this
Note, the principal amount hereof, the certificate number of this Note or a
description of this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, together with the form entitled
"Option to Elect Repayment" duly completed, will be received by the Paying
Agent not later than the fifth Business Day after the date of such telegram,
telex, facsimile transmission or letter; provided, that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and form
duly completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be irrevocable.
In the event of repayment of this Note in part only, a new Note or Notes for
the amount of the unpaid portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued to
but excluding the 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 The
City of New York 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.
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, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified 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 euro where the required payment is
in an unavailable Specified Currency will not constitute an Event of Default.
If such Market Exchange Rate is not then available to the Issuer or is not
published for a particular Specified Currency, the Market Exchange Rate will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid
quotations are not available, the Exchange Rate Agent shall determine the
market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 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________________
(Minor) (Cust)
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](8)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _____________ ___, 1999 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:](9) [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:](10)
<TABLE>
<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 Canceled Note(8) Cancellation Note(9) Exchange(9) Paying Agent
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ------------ -------- ------------- ------------------ -------------------- ------------------- ---------------
- ---------------
(8) Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
(9) Applies only if this Note remains part of a Unit.
(10) Applies only if this Note has been separated from a Unit.
</TABLE>
EXHIBIT 4-i
[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.(1)
MORGAN STANLEY DEAN WITTER & CO.
SENIOR VARIABLE RATE RENEWABLE
MEDIUM-TERM NOTE, SERIES C
<TABLE>
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: INITIAL MATURITY DATE:
FINAL MATURITY DATE:
MATURITY EXTENSION
DATE(S):
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD MULTIPLIER: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
REPORTING SERVICE: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
MINIMUM INTEREST RATE: CALCULATION AGENT:
INDEX CURRENCY: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EXCHANGE RATE AGENT: INITIAL REDEMPTION IF SPECIFIED CURRENCY
PERCENTAGE: OTHER THAN U.S. DOLLARS,
OPTION TO ELECT PAYMENT
IN U.S. DOLLARS: [YES]2
INCREMENTAL SPREAD ANNUAL REDEMPTION DESIGNATED CMT TELERATE
COMMENCEMENT DATE: PERCENTAGE REDUCTION: PAGE:
ELECTION DATES:
INCREMENTAL SPREAD (PLUS
OR MINUS):
REDEMPTION DATES:
REDEMPTION PERCENTAGE:
SPECIFIED CURRENCY: OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
OTHER PROVISIONS: REDEMPTION NOTICE PERIOD:<F3>
</TABLE>
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(1) Applies only if this Note is a Registered Global Security.
(2) Applies if this is a Registered Global Security, unless new arrangements are
made with DTC outside of existing Letters of Representations.
(3) Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
Morgan Stanley Dean Witter & 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 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 weekly, 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 or EURIBOR 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 and including 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 at maturity (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 at least 15 days but not 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 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 maturity (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 the equivalent in a 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, will
be entitled to receive payments of interest, other than interest due at
maturity or on 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](4), [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](5); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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,
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 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, for payments of interest, or at least
ten days prior to the Maturity Date or any redemption date, for payments of
principal, 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 (as defined on the reverse hereof) 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
- ---------------
(4) Applies for a Registered Note that is not in global form.
(5) Applies only for a Registered Global Security.
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 & 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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, 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 indicated 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 hereof, 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 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 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 or EURIBOR
and such Business Day is in the next succeeding calendar month, such Interest
Reset Date shall be the immediately preceding Business Day. As used herein,
"Business Day" means any day, other than a Saturday or Sunday, (a) that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close (x) in The City of New York or (y)
if this Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the country
of the Specified Currency, or (z) if this Note is denominated in Australian
dollars, in Sydney and (b) if this Note is denominated in euro, that is also a
day on which the Trans-European Automated Real-time Gross Settlement
Express Transfer System ("TARGET") is operating (a "TARGET Settlement
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 EURIBOR (or to LIBOR when the Index
Currency is euros) shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to
LIBOR, other than for LIBOR Notes for which the Index Currency is euros, 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," for any Interest Determination Date, the CD
Rate with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate
cannot be determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00
a.m., New York City time, on the Calculation Date, the CD Rate shall be the
rate on that Interest Determination Date set forth in the daily update of
H.15(519), available through the world wide website of the Board of
Governors of the Federal Reserve System at http://www.bog.frb.fed.us/
releases/h15/update, or any successor site or publication ("H.15 Daily
Update") for the Interest Determination Date for certificates of deposit
having the Index Maturity specified on the face hereof, under the caption "CDs
(Secondary Market)."
(ii) If the above rate is not yet published in either
H.15(519) or the H.15 Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, the Calculation Agent shall determine the CD Rate to be
the arithmetic mean of the secondary market offered rates as of 10:00 a.m.,
New York City time, on that Interest Determination Date of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The
City of New York selected by the Calculation Agent (after consultation with
the Issuer) 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 with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is
representative for a single transaction in that market at that time.
(iii) If the dealers selected by the Calculation Agent are
not quoting as described in (ii) above, the CD Rate shall remain the CD
Rate for the immediately preceding Interest Reset Period, or, if there was
no Interest Reset Period, the rate of interest payable 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," for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be the Money Market Yield (as defined herein), calculated as described below,
of the rate on that date for commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial
Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New
York City time, on the Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield of the rate on that Interest Determination
Date for commercial paper of the Index Maturity specified on the face
hereof as published in the H.15 Daily Update under the heading "Commercial
Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that
Calculation Date the rate is not yet published in either H.15(519) or the
H.15 Daily Update, then the Calculation Agent shall determine the
Commercial Paper Rate to be the Money Market Yield of the arithmetic mean
of the offered rates as of 11:00 a.m., New York City time, on that Interest
Determination Date of three leading dealers of commercial paper in The City
of New York selected by the Calculation Agent (after consultation with the
Issuer) 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 statistical rating agency.
(iii) If the dealers selected by the Calculation Agent are
not quoting as mentioned above, the Commercial Paper Rate for that Interest
Determination Date shall remain the Commercial Paper Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable shall be the Initial Interest
Rate.
The "Money Market Yield" shall be a 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 year 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 EURIBOR Notes. If the Base Rate specified on
the face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR
with respect to this Note shall be the rate for deposits in euros as
sponsored, calculated and published jointly by the European Banking Federation
and ACI - The Financial Market Association, or any company established by the
joint sponsors for purposes of compiling and publishing those rates, for the
Index Maturity specified on the face hereof as that rate appears on the
display on Bridge Telerate, Inc., or any successor service, on page 248 or any
other page as may replace page 248 on that service ("Telerate Page 248") as of
11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot
be determined as described above:
(i) If the above rate does not appear, the Calculation
Agent shall request the principal Euro-zone office of each of four major
banks in the Euro-zone interbank market, as selected by the Calculation
Agent (after consultation with the Issuer) to provide the Calculation Agent
with its offered rate for deposits in euros, at approximately 11:00 a.m.
(Brussels time) on the Interest Determination Date, to prime banks in the
Euro-zone interbank market for the Index Maturity specified on the face
hereof commencing on the applicable Interest Reset Date, and in a principal
amount not less than the equivalent of U.S.$1 million in euro that is
representative of a single transaction in euro, in that market at that
time. If at least two quotations are provided, EURIBOR shall be the
arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR
shall be the arithmetic mean of the rates quoted by four major banks in the
Euro-zone, as selected by the Calculation Agent (after consultation with
the Issuer) at approximately 11:00 a.m. (Brussels time), on the applicable
Interest Reset Date for loans in euro to leading European banks for a
period of time equivalent to the Index Maturity specified on the face
hereof commencing on that Interest Reset Date in a principal amount not
less than the equivalent of U.S.$1 million in euro.
(iii) If the banks so selected by the Calculation Agent are
not quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate
specified on the face hereof is the "Federal Funds Rate," for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall be
the rate on that date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace page 120
on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New
York City time, on the Calculation Date, the Federal Funds Rate shall be
the rate on that Interest Determination Date as published in the H.15 Daily
Update under the heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519)
or the H.15 Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, the Calculation Agent shall determine the Federal Funds
Rate to be the arithmetic mean of the rates for the last transaction in
overnight federal funds by each of three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) prior to 9:00 a.m., New York City
time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are
not quoting as mentioned above, the Federal Funds Rate relating to that
Interest Determination Date shall remain the Federal Funds Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable 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 based on London
interbank offered rate. The Calculation Agent shall determine "LIBOR" for each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be
either: (a) if "LIBOR Reuters" is specified as the Reporting Service on the
face hereof, the arithmetic mean of the offered rates for deposits in the
Index Currency having the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following that
Interest Determination Date, that appear on the Designated LIBOR Page, as
defined below, as of 11:00 a.m., London time, on that Interest
Determination Date, if at least two offered rates appear on the Designated
LIBOR Page; except that if the specified Designated LIBOR Page, by its
terms provides only for a single rate, that single rate shall be used; or
(b) if "LIBOR Telerate" is specified as the Reporting Service on the face
hereof, the rate for deposits in the Index Currency having the Index
Maturity designated on the face hereof, commencing on the second London
Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest
Determination Date, that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR
Reuters is specified on the face hereof, or (b) no rate appears and the
face hereof specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and
the Designated LIBOR Page by its terms provides only for a single rate,
then the Calculation Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling is the
Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London
time, on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that
market at that time.
(iii) If at least two quotations are provided, LIBOR
determined on that Interest Determination Date shall be the arithmetic mean
of those quotations. If fewer than two quotations are provided, LIBOR
shall be determined for the applicable Interest Reset Date as the
arithmetic mean of the rates quoted at approximately 11:00 a.m., London
time, or some other time specified on the face hereof, in the applicable
principal financial center for the country of the Index Currency on that
Interest Reset Date, by three major banks in that principal financial
center selected by the Calculation Agent (after consultation with the
Issuer) for loans in the Index Currency to leading European banks, having
the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in
that market at that time.
(iv) If the banks so selected by the Calculation Agent are
not quoting as described in (iii) above, LIBOR in effect for the applicable
period shall be the same as LIBOR for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Index Currency" means the currency specified on the face
hereof as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the
face hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency,
as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is "Prime Rate," for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate
cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New
York City time, on the Calculation Date, then the Prime Rate shall be the
rate on that Interest Determination Date as published in H.15 Daily Update
under the heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New
York City time, on the Calculation Date in either H.15(519) or the H.15
Daily Update, then the Calculation Agent shall determine the Prime Rate to
be the arithmetic mean of the rates of interest publicly announced by each
bank that appears on the Reuters Screen USPRIME 1 Page, as defined below,
as that bank's Prime Rate or base lending rate as in effect for that
Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen
USPRIME 1 Page for that Interest Determination Date, the Calculation Agent
shall determine the Prime Rate to 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 that Interest Determination Date by at least
three major banks in The City of New York selected by the Calculation Agent
(after consultation with the Issuer).
(iv) If the banks selected are not quoting as described in
(iii) above, the Prime Rate shall remain the Prime Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as
page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is "Treasury Rate," the Treasury Rate with respect to this
Note shall be:
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by
3:00 p.m., New York City time, on the Calculation Date, the Bond Equivalent
Yield of the rate for the applicable Treasury Bills as published in the
H.15 Daily Update, or other recognized electronic source used for the
purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by
3:00 p.m., New York City time, on the related Calculation Date, the Bond
Equivalent Yield of the Auction rate of the applicable Treasury Bills,
announced by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is
not announced by the United States Department of the Treasury, or if the
Auction is not held, the Bond Equivalent Yield of the rate on the
applicable Interest Determination Date of Treasury Bills having the Index
Maturity specified on the face hereof published in H.15(519) under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published
by 3:00 p.m., New York City time, on the related Calculation Date, the rate
on the applicable Interest Determination Date of the applicable Treasury
Bills as published in H.15 Daily Update, or other recognized electronic
source used for the purpose of displaying the applicable rate, under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published
by 3:00 p.m., New York City time, on the related Calculation Date, the rate
on the applicable Interest Determination Date calculated by the Calculation
Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 p.m., New York City time, on the
applicable Interest Determination Date, of three primary United States
government securities dealers, which may include the agent or its
affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not
quoting as described in (vi), the Treasury Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in
accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the "CMT Rate," for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the
Designated CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate
cannot be determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity
rate for the Designated CMT Maturity Index as published in the relevant
H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity
Rate for the Designated CMT Maturity Index or other United States Treasury
rate for the Designated CMT Maturity Index on the Interest Determination
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).
(iii) If the information described in (ii) is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to 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 ("Reference
Dealers") in The City of New York, which may include an agent or other
affiliates of the Issuer, selected by the Calculation Agent as described in
the following sentence. The Calculation Agent shall select five reference
dealers (after consultation with the Issuer) and shall eliminate 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 a remaining term to maturity of not
less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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
shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury
Notes quotations as described in (iii) above, the Calculation Agent shall
determine the CMT Rate to 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, selected using the same method
described in (iii) above, for Treasury Notes with an original maturity
equal to the number of years closest to but not less than 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.
(v) If three or four (and not five) of the reference
dealers are quoting as described in (iv) above, then the CMT Rate shall be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate
shall be the CMT Rate for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable
shall be the Initial Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc., or any successor service, on the page designated on the face
hereof or any other page as may replace that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10,
20 or 30 years, specified in an applicable pricing supplement for which the
CMT Rate shall be calculated. If no 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 (i) by 360 if the Base Rate is CD Rate, Commercial Paper Rate,
EURIBOR, Federal Funds Rate, Prime Rate or LIBOR (except if the Index Currency
is pounds sterling); (ii) by 365 if the Base Rate is LIBOR and the Index
Currency is pounds sterling; or (iii) by the actual number of days in the year
if the Base Rate is the Treasury Rate or the CMT Rate. 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 The City of New York 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.
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 be redeemed for a period of fifteen calendar days preceding
the mailing of the relevant notice of redemption`. 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 registrations, 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, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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 modify or
amend the provisions for conversion of any currency into any other currency,
or modify or amend the provisions for conversion or exchange of the debt
security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the EC, as amended by the treaty. Any payment
made under such circumstances in U.S. dollars or euro where the required
payment is in an unavailable Specified Currency will not constitute an Event
of Default. If such Market Exchange Rate is not then available to the Issuer
or is not published for a particular Specified Currency, the Market Exchange
Rate will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 a.m., New York City
time, on the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase
by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid (as
defined below) quotations are not available, the Exchange Rate Agent shall
determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 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 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-_________________
(Minor) (Cust)
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>
<S> <C> <C> <C> <C> <C>
Reduced Principal Increased Principal
Amount Principal Amount Amount
Principal Amount Outstanding of Short-Term Note 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
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</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.
MORGAN STANLEY DEAN WITTER & CO.
SENIOR VARIABLE RATE RENEWABLE
MEDIUM-TERM NOTE, SERIES C
<TABLE>
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
REPORTING SERVICE: INITIAL INTEREST RESET: INTEREST PAYMENT DATE(S):
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: INTEREST ACCRUAL DATE:
SPECIFIED CURRENCY: INTEREST RESET PERIOD:
INCREMENTAL SPREAD (PLUS EXCHANGE RATE AGENT: INTEREST RESET DATE(S):
OR MINUS):
INCREMENTAL SPREAD REDEMPTION NOTICE PERIOD<F1> CALCULATION AGENT:
COMMENCEMENT DATE:
OTHER PROVISIONS: INDEX CURRENCY:
IF SPECIFIED CURRENCY
OTHER THAN U.S. DOLLARS.
OPTION TO ELECT PAYMENT
IN U.S. DOLLARS: [YES]2
DESIGNATED CMT TELERATE
PAGE:
DESIGNATED CMT MATURITY
INDEX:
</TABLE>
- ---------------
(1) Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
(2) Applies if this is a Registered Global Security, unless new arrangements
are made with DTC outside of existing Letters of Representations.
Morgan Stanley Dean Witter & 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 weekly, 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 or
EURIBOR 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 and including the Interest
Accrual Date, until, but excluding the date the (a) 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 at maturity 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 maturity (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 the equivalent in a Specified
Currency) or more in aggregate principal amount of Notes having the same
Interest Payment Date, the interest on which is paid in U.S. dollars, shall 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](3) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
- ---------------
(3) Applies for Registered Note that is not in global form.
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](4); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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 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, for payments of interest, or at least
ten days prior to the Maturity Date or any redemption date, for payments of
principal, 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 (as defined on the reverse hereof) 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;
- ---------------
(4) Applies only for a Registered Global Security.
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 & 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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, 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 indicated 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 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 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 or
EURIBOR and such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day. As used
herein, "Business Day" means any day, other than a Saturday or Sunday, (a)
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close (x) in The City of New
York or (y) if this Note is denominated in a Specified Currency other than
U.S. dollars, Australian dollars or euro, in the principal financial center of
the country of the Specified Currency, or (z) if this Note is denominated in
Australian dollars, in Sydney and (b) if this Note is denominated in euro,
that is also a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement 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 EURIBOR (or to LIBOR when the Index
Currency is euros) shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to LIBOR, other
than for LIBOR Notes for which the Index Currency is euros, 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," for any Interest Determination Date, the CD
Rate with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate
cannot be determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00
a.m., New York City time, on the Calculation Date, the CD Rate shall be the
rate on that Interest Determination Date set forth in the daily update of
H.15(519), available through the world wide website of the Board of
Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication ("H.15 Daily Update") for the Interest Determination Date for
certificates of deposit having the Index Maturity specified on the face
hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either
H.15(519) or the H.15 Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, the Calculation Agent shall determine the CD Rate to be
the arithmetic mean of the secondary market offered rates as of 10:00 a.m.,
New York City time, on that Interest Determination Date of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The
City of New York selected by the Calculation Agent (after consultation with
the Issuer) 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 with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is
representative for a single transaction in that market at that time.
(iii) If the dealers selected by the Calculation Agent are
not quoting as described in (ii) above, the CD Rate shall remain the CD
Rate for the immediately preceding Interest Reset Period, or, if there was
no Interest Reset Period, the rate of interest payable 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," for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be the Money Market Yield (as defined herein), calculated as described below,
of the rate on that date for commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial
Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New
York City time, on the Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield of the rate on that Interest Determination
Date for commercial paper of the Index Maturity specified on the face
hereof as published in the H.15 Daily Update under the heading "Commercial
Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that
Calculation Date the rate is not yet published in either H.15(519) or the
H.15 Daily Update, then the Calculation Agent shall determine the
Commercial Paper Rate to be the Money Market Yield of the arithmetic mean
of the offered rates as of 11:00 a.m., New York City time, on that Interest
Determination Date of three leading dealers of commercial paper in The City
of New York selected by the Calculation Agent (after consultation with the
Issuer) 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 statistical rating agency.
(iii) If the dealers selected by the Calculation Agent are
not quoting as mentioned above, the Commercial Paper Rate for that Interest
Determination Date shall remain the Commercial Paper Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable shall be the Initial Interest
Rate.
The "Money Market Yield" shall be a 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 year 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 EURIBOR Notes. If the Base Rate specified on
the face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR
with respect to this Note shall be the rate for deposits in euros as
sponsored, calculated and published jointly by the European Banking Federation
and ACI - The Financial Market Association, or any company established by the
joint sponsors for purposes of compiling and publishing those rates, for the
Index Maturity specified on the face hereof as that rate appears on the
display on Bridge Telerate, Inc., or any successor service, on page 248 or any
other page as may replace page 248 on that service ("Telerate Page 248") as of
11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot
be determined as described above:
(i) If the above rate does not appear, the Calculation
Agent shall request the principal Euro-zone office of each of four major
banks in the Euro-zone interbank market, as selected by the Calculation
Agent (after consultation with the Issuer) to provide the Calculation Agent
with its offered rate for deposits in euros, at approximately 11:00 a.m.
(Brussels time) on the Interest Determination Date, to prime banks in the
Euro-zone interbank market for the Index Maturity specified on the face
hereof commencing on the applicable Interest Reset Date, and in a principal
amount not less than the equivalent of U.S.$1 million in euro that is
representative of a single transaction in euro, in that market at that
time. If at least two quotations are provided, EURIBOR shall be the
arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR
shall be the arithmetic mean of the rates quoted by four major banks in the
Euro-zone, as selected by the Calculation Agent (after consultation with
the Issuer) at approximately 11:00 a.m. (Brussels time), on the applicable
Interest Reset Date for loans in euro to leading European banks for a
period of time equivalent to the Index Maturity specified on the face
hereof commencing on that Interest Reset Date in a principal amount not
less than the equivalent of U.S.$1 million in euro.
(iii) If the banks so selected by the Calculation Agent are
not quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate
specified on the face hereof is the "Federal Funds Rate," for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall be
the rate on that date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace page 120
on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New
York City time, on the Calculation Date, the Federal Funds Rate shall be
the rate on that Interest Determination Date as published in the H.15 Daily
Update under the heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519)
or the H.15 Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, the Calculation Agent shall determine the Federal Funds
Rate to be the arithmetic mean of the rates for the last transaction in
overnight federal funds by each of three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) prior to 9:00 a.m., New York City
time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are
not quoting as mentioned above, the Federal Funds Rate relating to that
Interest Determination Date shall remain the Federal Funds Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable 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 based on London
interbank offered rate. The Calculation Agent shall determine "LIBOR" for each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be
either: (a) if "LIBOR Reuters" is specified as the Reporting Service on the
face hereof, the arithmetic mean of the offered rates for deposits in the
Index Currency having the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following that
Interest Determination Date, that appear on the Designated LIBOR Page, as
defined below, as of 11:00 a.m., London time, on that Interest
Determination Date, if at least two offered rates appear on the Designated
LIBOR Page; except that if the specified Designated LIBOR Page, by its
terms provides only for a single rate, that single rate shall be used; or
(b) if "LIBOR Telerate" is specified as the Reporting Service on the face
hereof, the rate for deposits in the Index Currency having the Index
Maturity designated on the face hereof, commencing on the second London
Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest
Determination Date, that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR
Reuters is specified on the face hereof, or (b) no rate appears and the
face hereof specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and
the Designated LIBOR Page by its terms provides only for a single rate,
then the Calculation Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling is the
Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London
time, on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that
market at that time.
(iii) If at least two quotations are provided, LIBOR
determined on that Interest Determination Date shall be the arithmetic mean
of those quotations. If fewer than two quotations are provided, LIBOR
shall be determined for the applicable Interest Reset Date as the
arithmetic mean of the rates quoted at approximately 11:00 a.m., London
time, or some other time specified on the face hereof, in the applicable
principal financial center for the country of the Index Currency on that
Interest Reset Date, by three major banks in that principal financial
center selected by the Calculation Agent (after consultation with the
Issuer) for loans in the Index Currency to leading European banks, having
the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in
that market at that time.
(iv) If the banks so selected by the Calculation Agent are
not quoting as described in (iii) above, LIBOR in effect for the applicable
period shall be the same as LIBOR for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Index Currency" means the currency specified on the face
hereof as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the
face hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency,
as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is "Prime Rate," for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate
cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New
York City time, on the Calculation Date, then the Prime Rate shall be the
rate on that Interest Determination Date as published in H.15 Daily Update
under the heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New
York City time, on the Calculation Date in either H.15(519) or the H.15
Daily Update, then the Calculation Agent shall determine the Prime Rate to
be the arithmetic mean of the rates of interest publicly announced by each
bank that appears on the Reuters Screen USPRIME 1 Page, as defined below,
as that bank's Prime Rate or base lending rate as in effect for that
Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen
USPRIME 1 Page for that Interest Determination Date, the Calculation Agent
shall determine the Prime Rate to 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 that Interest Determination Date by at least
three major banks in The City of New York selected by the Calculation Agent
(after consultation with the Issuer).
(iv) If the banks selected are not quoting as described in
(iii) above, the Prime Rate shall remain the Prime Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as
page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is "Treasury Rate," the Treasury Rate with respect to this
Note shall be:
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by
3:00 p.m., New York City time, on the Calculation Date, the Bond Equivalent
Yield of the rate for the applicable Treasury Bills as published in the
H.15 Daily Update, or other recognized electronic source used for the
purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by
3:00 p.m., New York City time, on the related Calculation Date, the Bond
Equivalent Yield of the Auction rate of the applicable Treasury Bills,
announced by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is
not announced by the United States Department of the Treasury, or if the
Auction is not held, the Bond Equivalent Yield of the rate on the
applicable Interest Determination Date of Treasury Bills having the Index
Maturity specified on the face hereof published in H.15(519) under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published
by 3:00 p.m., New York City time, on the related Calculation Date, the rate
on the applicable Interest Determination Date of the applicable Treasury
Bills as published in H.15 Daily Update, or other recognized electronic
source used for the purpose of displaying the applicable rate, under the
caption "U.S. Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published
by 3:00 p.m., New York City time, on the related Calculation Date, the rate
on the applicable Interest Determination Date calculated by the Calculation
Agent as the Bond Equivalent Yield of the arithmetic mean of the secondary
market bid rates, as of approximately 3:30 p.m., New York City time, on the
applicable Interest Determination Date, of three primary United States
government securities dealers, which may include the agent or its
affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are
not quoting as described in (vi), the Treasury Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in
accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the "CMT Rate," for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the
Designated CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate
cannot be determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity
rate for the Designated CMT Maturity Index as published in the relevant
H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity
Rate for the Designated CMT Maturity Index or other United States Treasury
rate for the Designated CMT Maturity Index on the Interest Determination
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).
(iii) If the information described in (ii) is not
provided by 3:00 p.m., New York City time, on the related Calculation Date,
then the Calculation Agent shall determine the CMT Rate to 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 ("Reference
Dealers") in The City of New York, which may include an agent or other
affiliates of the Issuer, selected by the Calculation Agent as described in
the following sentence. The Calculation Agent shall select five reference
dealers (after consultation with the Issuer) and shall eliminate 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 a remaining term to maturity of not less than that
Designated CMT Maturity Index minus one year. If two Treasury Notes with an
original maturity as described above have remaining terms to maturity equally
close to the Designated CMT Maturity Index, the quote for the Treasury Note
with the shorter remaining term to maturity shallbe used.
(iv) If the Calculation Agent cannot obtain three Treasury
Notes quotations as described in (iii) above, the Calculation Agent shall
determine the CMT Rate to 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, selected using the same method
described in (iii) above, for Treasury Notes with an original maturity
equal to the number of years closest to but not less than 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.
(v) If three or four (and not five) of the reference
dealers are quoting as described in (iv) above, then the CMT Rate shall be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate
shall be the CMT Rate for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable
shall be the Initial Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc., or any successor service, on the page designated on the face
hereof or any other page as may replace that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10,
20 or 30 years, specified in an applicable pricing supplement for which the
CMT Rate shall be calculated. If no 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 (i) by 360 if
the Base Rate is CD Rate, Commercial Paper Rate, EURIBOR Federal Funds Rate,
Prime Rate or LIBOR (except if the Index Currency is pounds sterling); (ii) by
365 if the Base Rate is LIBOR and the Index Currency is pounds sterling; or
(iii) by the actual number of days in the year if the Base Rate is the
Treasury Rate or the CMT Rate. 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 The City of New York 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.
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 be redeemed for a period of fifteen calendar days preceding
the mailing of the relevant redemption notice. 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
registrations, 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, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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 modify or
amend the provisions for conversion of any currency into any other currency,
or modify or amend the provisions for conversion or exchange of the debt
security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on any Note denominated
in such currency in euro 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, euro) where the required payment is in a Specified Currency other
than U.S. dollars will not constitute an Event of Default. If such Market
Exchange Rate is not then available to the Issuer or is not published for a
particular Specified Currency, the Market Exchange Rate will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 a.m., New York City time, on the second Business
Day preceding the date of such payment from three recognized foreign exchange
dealers (the "Exchange Dealers") for the purchase by the quoting Exchange
Dealer of the Specified Currency for U.S. dollars for settlement on the
payment date, in the aggregate amount of the Specified Currency payable to
those holders or beneficial owners of Notes and at which the applicable
Exchange Dealer commits to execute a contract. One of the Exchange Dealers
providing quotations may be the Exchange Rate Agent (as defined below) unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations
are not available, the Exchange Rate Agent shall determine the market exchange
rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 the holders of these 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 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_______________
(Minor) (Cust)
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 Trustee
- -------------- ---------------- ----------------------- --------------------
[N/A] [N/A] [N/A] [N/A]
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</TABLE>
EXHIBIT 4-j
[FORM OF FACE OF SECURITY]
Floating Rate Subordinated Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.(1)
MORGAN STANLEY DEAN WITTER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
<TABLE>
<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:
SPREAD MULTIPLIER: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
REPORTING SERVICE: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
INDEX CURRENCY: MINIMUM INTEREST RATE: CALCULATION AGENT:
EXCHANGE RATE AGENT: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
INITIAL REDEMPTION IF SPECIFIED CURRENCY
PERCENTAGE: OTHER THAN U.S. DOLLARS,
OPTION TO ELECT PAYMENT
IN U.S. DOLLARS: [YES](2)
ANNUAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE REDUCTION: PAGE:
OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
OTHER PROVISIONS: REDEMPTION NOTICE PERIOD:(3)
</TABLE>
- ----------
(1) Applies only if this Note is a Registered Global Security.
(2) Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of Representations.
(3) Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
Morgan Stanley Dean Witter & 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 ](4) [amount specified in Schedule A
hereto](5) on the Maturity Date specified above (except to the extent redeemed
- ----------
(4) Applies if this Note is not issued as part of, or in relation to, a
Unit.
(5) Applies if this Note is issued as part of, or in relation to, a Unit.
or repaid prior to maturity) 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 weekly, 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 or EURIBOR
and such next Business Day falls in the next calendar month, such Interest
Payment Date shall be the immediately preceding day that is a Business Day;
and provided, further, that if the Maturity Date or redemption or repayment
date would fall on a day that is not a Business Day, such payment shall be
made on the following day that is a Business Day and no interest shall accrue
for the period from and after such Maturity Date or redemption or repayment
date.
Interest on this Note will accrue from and including the most
recent date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from and including the Interest
Accrual Date, until but excluding the date the principal hereof has been paid
or duly made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, subject to
certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or
not a Business Day) (each such date a "Record Date"); provided, however, that
interest payable at maturity (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 maturity (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 a 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 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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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 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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, 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 (as defined on the reverse hereof) 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
(6)Applies for a Registered Note that is not in global form.
(7)Applies only for a Registered Global Security.
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 & 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 an Amended and Restated Subordinated Indenture, dated as of May 1, 1999,
between the Issuer and The First National Bank of Chicago, as Trustee (the
"Trustee," which term includes any successor trustee under the Subordinated
Indenture) (as may be amended or supplemented from time to time, 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 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 indicated 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 hereof, 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 or within the Redemption Notice Period specified on the face
hereof, 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. 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. 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 immediately succeeding day that is a Business Day, except that if the Base
Rate specified on the face hereof is LIBOR or EURIBOR and such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor
a day on which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (2) if this Note is denominated in Australian dollars,
in Sydney and (b) if this Note is denominated in euro, that is also a day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer
System ("TARGET") is operating (a "TARGET Settlement 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 EURIBOR or LIBOR Notes denominated or
payable in euros shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to
LIBOR, other than LIBOR Notes denominated or payable in euros, 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," for any Interest Determination Date, the CD
Rate with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate cannot
be determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate shall be the rate on
that Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519)
or the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation
Date, the Calculation Agent shall determine the CD Rate to be the arithmetic
mean of the secondary market offered rates as of 10:00 a.m., New York City time,
on that Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent (after consultation with the Issuer) 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 with a
remaining maturity closest to the Index Maturity specified on the face hereof in
an amount that is representative for a single transaction in that market at that
time.
(iii) If the dealers selected by the Calculation Agent are not
quoting as described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable 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," for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be the Money Market Yield (as defined herein), calculated as described below,
of the rate on that date for commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial
Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on that Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as published
in the H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation
Date the rate is not yet published in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Commercial Paper Rate to be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m.,
New York City time, on that Interest Determination Date of three leading dealers
of commercial paper in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) 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 statistical rating
agency.
(iii) If the dealers selected by the Calculation Agent are not
quoting as mentioned above, the Commercial Paper Rate for that Interest
Determination Date shall remain the Commercial Paper Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a 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 year 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 EURIBOR Notes. If the Base Rate specified on
the face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR
with respect to this Note shall be the rate for deposits in euros as
sponsored, calculated and published jointly by the European Banking Federation
and ACI - The Financial Market Association, or any company established by the
joint sponsors for purposes of compiling and publishing those rates, for the
Index Maturity specified on the face hereof as that rate appears on the
display on Bridge Telerate, Inc., or any successor service, on page 248 or any
other page as may replace page 248 on that service ("Telerate Page 248") as of
11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot
be determined as described above:
(i) If the above rate does not appear, the Calculation Agent
shall request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the applicable
Interest Reset Date, and in a principal amount not less than the equivalent of
U.S.$1 million in euro that is representative of a single transaction in euro,
in that market at that time. If at least two quotations are provided, EURIBOR
shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be
the arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate
specified on the face hereof is the "Federal Funds Rate," for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall be
the rate on that date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace page 120
on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, the Federal Funds Rate shall be the rate on
that Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight federal funds by each of
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) prior to
9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not
quoting as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable 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 based on London
interbank offered rate. The Calculation Agent shall determine "LIBOR" for each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either
(a) if "LIBOR Reuters" is specified as the Reporting Service on the face hereof,
the arithmetic mean of the offered rates for deposits in the Index Currency
having the Index Maturity designated on the face hereof, commencing on the
second London Banking Day immediately following that Interest Determination
Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00
a.m., London time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the specified
Designated LIBOR Page, by its terms provides only for a single rate, that single
rate shall be used; or (b) if "LIBOR Telerate" is specified as the Reporting
Service on the face hereof, the rate for deposits in the Index Currency having
the Index Maturity designated on the face hereof, commencing on the second
London Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest Determination
Date, that appears on the Designated LIBOR Page at approximately 11:00 a.m.,
London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters
is specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be determined
for the applicable Interest Reset Date as the arithmetic mean of the rates
quoted at approximately 11:00 a.m., London time, or some other time specified on
the face hereof, in the applicable principal financial center for the country of
the Index Currency on that Interest Reset Date, by three major banks in that
principal financial center selected by the Calculation Agent (after consultation
with the Issuer) for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not
quoting as described in (iii) above, LIBOR in effect for the applicable period
shall be the same as LIBOR for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable shall be
the Initial Interest Rate.
The "Index Currency" means the currency specified on the face
hereof as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the
face hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency,
as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is "Prime Rate," for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate
cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York
City time, on the Calculation Date, then the Prime Rate shall be the rate on
that Interest Determination Date as published in H.15 Daily Update under the
heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York
City time, on the Calculation Date in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Prime Rate to be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate
or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen
USPRIME 1 Page for that Interest Determination Date, the Calculation Agent shall
determine the Prime Rate to 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 that Interest Determination Date by at least three major
banks in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as
page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is "Treasury Rate," the Treasury Rate with respect to this
Note shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00
p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of
the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the purpose of displaying
the applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by
3:00 p.m., New York City time, on the related Calculation Date, the Bond
Equivalent Yield of the Auction rate of the applicable Treasury Bills, announced
by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not
quoting as described in (vi), the Treasury Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in
accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -----------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the "CMT Rate," for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the
Designated CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate
cannot be determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination 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).
(iii) If the information described in (ii) is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to 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 ("Reference Dealers") in The City of New
York, which may include an agent or other affiliates of the Issuer, selected by
the Calculation Agent as described in the following sentence. The Calculation
Agent shall select five reference dealers (after consultation with the Issuer)
and shall eliminate 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 a remaining term to maturity
of not less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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 shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to 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, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than 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.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate shall be
the CMT Rate for the immediately preceding Interest Reset Period, or, if there
was no Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc., or any successor service, on the page designated on the face
hereof or any other page as may replace that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10,
20 or 30 years, specified in an applicable pricing supplement for which the
CMT Rate shall be calculated. If no 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 (i) by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR
(except if the Index Currency is pounds sterling); (ii) by 365 if the Base
Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by the
actual number of days in the year if the Base Rate is the Treasury Rate or the
CMT Rate. 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 The
City of New York 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.
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, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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 modify or amend the provisions for conversion of any currency into
any other currency, or modify or amend the provisions for conversion or
exchange of the debt security for securities of the Issuer or other entities
(other than as provided in the antidilution provisions or other similar
adjustment provisions of the debt securities or otherwise in accordance with
the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the EC, as amended by the Treaty. Any payment
made under such circumstances in U.S. dollars or euro where the required
payment is in an unavailable Specified Currency will not constitute an Event
of Default. If such Market Exchange Rate is not then available to the Issuer
or is not published for a particular Specified Currency, the Market Exchange
Rate will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 a.m., New York City
time, on the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase
by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid
quotations are not available, the Exchange Rate Agent shall determine the
market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 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 ________________
(Minor) (Cust)
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] (8)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _________ __,1999 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:](9) [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:](10)
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Reduced
Principal Principal Increased
Amount Amount of Principal
Principal Outstanding Attached Unit Amount of this
Principal Amount Following Such Note Exchanged Note Outstanding Notation Made
Date of Exchange Amount Exchanged for Exchange or for Interest in Following Such by or on Behalf
or Cancellation Cancelled Separated Note(9) Cancellation this Note(10) Exchange(10) of Paying Agent
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
<FN>
<F1>
(8)Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
<F2>
(9)Applies only if this Note remains part of a Unit.
<F3>
(10)Applies only if this Note has been separated from a Unit.
</FN>
</TABLE>
EXHIBIT 4-k
[FORM OF FACE OF SECURITY]
Fixed Rate Subordinated Note
REGISTERED REGISTERED
No. FXR [PRINCIPAL AMOUNT]
CUSIP:
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.(1)
MORGAN STANLEY DEAN WITTER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate)
<TABLE>
<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):
SPECIFIED CURRENCY: ANNUAL REDEMPTION INTEREST PAYMENT APPLICABILITY OF
PERCENTAGE PERIOD: MODIFIED
REDUCTION: PAYMENT UPON
ACCELERATION:
IF SPECIFIED REDEMPTION NOTICE APPLICABILITY OF If yes, state Issue Price:
CURRENCY PERIOD:<F3> ANNUAL INTEREST
OTHER THAN U.S. PAYMENTS:
DOLLARS, OPTION
TO ELECT
PAYMENT IN U.S.
DOLLARS: [YES]<F2>
EXCHANGE RATE ORIGINAL YIELD TO
AGENT: MATURITY:
OTHER PROVISIONS:
<FN>
<F1>
(1)Applies only if this Note is a Registered Global Security.
<F2>
Applies if this is a Registered Global Security, unless new arrangements are
made with DTC outside of existing Letters of Representations.
<F3>
Applicable if other than 30-60 days. If this is a Registered Global Security,
minimum notice period is [20] days.
</FN>
</TABLE>
Morgan Stanley Dean Witter & 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 ________________](4) [amount specified in Schedule A
hereto](5) on the Maturity Date specified above (except to the extent redeemed
or repaid prior to maturity) and to pay interest thereon at the Interest Rate
per annum specified above, from and including the Interest Accrual Date
specified above until the principal hereof is paid or duly made available for
payment weekly, 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 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 (as defined below)) (each such date a "Record Date");
provided, however, that interest payable at maturity (or 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, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close
(x) in The City of New York or (y) if this Note is denominated in a Specified
Currency other than U.S. dollars, Australian dollars or euro, in the principal
financial center of the country of the Specified Currency, or (z) if this Note
is denominated in Australian dollars, in Sydney and (b) if this Note is
denominated in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a
"TARGET Settlement Day").
Payment of the principal of this Note, any premium and the
interest due at maturity (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 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 the equivalent in a 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
(4)Applies if this Note is not issued as part of, or in relation to, a Unit.
(5)Applies if this Note is issued as part of, or in relation to, a Unit.
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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided further, 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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, 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 (as defined on the reverse hereof) 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.
(6)Applies for a Registered Note that is not in global form.
(7)Applies only for a Registered Global Security.
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 & 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 an Amended and Restated Subordinated Indenture, dated as of May 1, 1999,
the Issuer and The First National Bank of Chicago, as Trustee (the "Trustee,"
which term includes any successor trustee under the Subordinated Indenture)
(as may be amended or supplemented from time to time, 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, 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 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 indicated 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 hereof, 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 or within the Redemption Notice Period specified on the face
hereof, 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. For
this Note to be repaid at the option of the holder hereof, the Paying Agent
must receive at its corporate trust office in the Borough of Manhattan, The
City of New York, at least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States setting forth the name of the holder of this
Note, the principal amount hereof, the certificate number of this Note or a
description of this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, together with the form entitled
"Option to Elect Repayment" duly completed, will be received by the Paying
Agent not later than the fifth Business Day after the date of such telegram,
telex, facsimile transmission or letter; provided, that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and form
duly completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be irrevocable.
In the event of repayment of this Note in part only, a new Note or Notes for
the amount of the unpaid portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued to
but excluding the 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 The
City of New York 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.
The Chase Manhattan 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 Trustee, the Issuer in its discretion may execute a new
Note of like tenor 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 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 or insolvency 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 modify or amend the provisions for conversion of any currency into
any other currency, or modify or amend the provisions for conversion or
exchange of the debt security for securities of the Issuer or other entities
(other than as provided in the antidilution provisions or other similar
adjustment provisions of the debt securities or otherwise in accordance with
the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified 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 euro where the required payment is
in an unavailable Specified Currency will not constitute an Event of Default.
If such Market Exchange Rate is not then available to the Issuer or is not
published for a particular Specified Currency, the Market Exchange Rate will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent (as
defined below) unless the Exchange Rate Agent is an affiliate of the Issuer.
If those bid quotations are not available, the Exchange Rate Agent shall
determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 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 ________________
(Minor) (Cust)
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] (8)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _____________ ___, 1999 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:](9) [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:](10)
<TABLE>
<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 Canceled Note(8) Cancellation Note(9) Exchange(9) Paying Agent
_______________ _____________ _______________ _______________ _____________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
_______________ _____________ _______________ _______________ _______________ _______________ _______________
<FN>
<F1>
(8)Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
<F2>
(9)Applies only if this Note remains part of a Unit.
<F3>
(10)Applies only if this Note has been separated from a Unit.
</FN>
</TABLE>
EXHIBIT 4-l
[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.(1)
MORGAN STANLEY DEAN WITTER & CO.
SUBORDINATED VARIABLE RATE RENEWABLE
GLOBAL MEDIUM-TERM NOTE, SERIES C
<TABLE>
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: INITIAL MATURITY DATE:
INDEX MATURITY: INTEREST ACCRUAL DATE: FINAL MATURITY DATE:
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT DATE(S):
INITIAL INTEREST RESET INTEREST PAYMENT PERIOD:
DATE:
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: INTEREST RESET PERIOD:
APPLICABILITY OF ISSUER'S MINIMUM INTEREST RATE: INTEREST RESET DATE(S):
OPTION TO RESET SPREAD
OR SPREAD MULTIPLIER:
INDEX CURRENCY: REDEMPTION DATE(S): CALCULATION AGENT:
EXCHANGE RATE AGENT: REDEMPTION PERCENTAGE: SPECIFIED CURRENCY
ANNUAL REDEMPTION IF SPECIFIED CURRENCY
PERCENTAGE REDUCTION: OTHER THAN U.S.
DOLLARS, OPTION TO
ELECT PAYMENT IN U.S.
DOLLARS: [YES(2)
DESIGNATED CMT TELERATE
PAGE:
OTHER PROVISIONS: REDEMPTION NOTICE PERIOD:(3) DESIGNATED CMT MATURITY
INDEX:
</TABLE>
- ---------------
(1) Applies only if this Note is a Registered Global Security.
(2) Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of Representations.
(3) Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
Morgan Stanley Dean Witter & 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 ](4) [amount specified in Schedule A hereto](5)
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 weekly, 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 or EURIBOR 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 and including the Interest
Accrual Date, until, but excluding the date the (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 at maturity (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),
(4)Applies if this Note is not issued as part of, or in relation to, a Unit.
(5)Applies if this Note is issued as part of, or in relation to, a Unit.
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 15 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, 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 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 the equivalent in a 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 on 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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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 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 , for payments of interest, or any redemption date, for payments
of principal, 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 (as defined on the reverse) 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
(6)Applies for a Registered Note that is not in global form.
(7)Applies only for a Registered Global Security.
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 & 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 an Amended and Restated Subordinated Indenture, dated as of May 1, 1999,
between the Issuer and The First National Bank of Chicago, as Trustee (the
"Trustee," which term includes any successor trustee under the Subordinated
Indenture) (as may be amended or supplemented from time to time, 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, 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 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 indicated 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 hereof, this Note may be redeemed
in whole or in part at the option of the Issuer on or after 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
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 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
immediately preceding Business Day. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor
a day on which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (z) if this Note is denominated in Australian dollars,
in Sydney and (b) if this Note is denominated in euro, that is also a day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer
System ("TARGET") is operating (a "TARGET Settlement Day").
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 EURIBOR (or to LIBOR when the Index Currency
is euros) shall be the second TARGET Settlement Day preceding such Interest
Reset Date. The Interest Determination Date pertaining to an Interest Reset
Date for Notes bearing interest calculated by reference to LIBOR, other than
for LIBOR Notes for which the Index Currency is euros, 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," for any Interest Determination Date, the CD
Rate with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate
cannot be determined as described above:
(i) If the above rate is not published in
H.15(519) by 9:00 a.m., New York City time, on the Calculation Date, the CD
Rate shall be the rate on that Interest Determination Date set forth in the
daily update of H.15(519), available through the world wide website of the
Board of Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication ("H.15 Daily Update") for the Interest Determination Date for
certificates of deposit having the Index Maturity specified on the face
hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in
either H.15(519) or the H.15 Daily Update by 3:00 p.m., New York City time, on
the Calculation Date, the Calculation Agent shall determine the CD Rate to be
the arithmetic mean of the secondary market offered rates as of 10:00 a.m.,
New York City time, on that Interest Determination Date of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The City
of New York selected by the Calculation Agent (after consultation with the
Issuer) 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 with a remaining maturity closest to the Index
Maturity specified on the face hereof in an amount that is representative for
a single transaction in that market at that time.
(iii) If the dealers selected by the Calculation
Agent are not quoting as described in (ii) above, the CD Rate shall remain the
CD Rate for the immediately preceding Interest Reset Period, or, if there was
no Interest Reset Period, the rate of interest payable 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," for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be the Money Market Yield (as defined herein), calculated as described below,
of the rate on that date for commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial
Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00
a.m., New York City time, on the Calculation Date, then the Commercial Paper
Rate shall be the Money Market Yield of the rate on that Interest
Determination Date for commercial paper of the Index Maturity specified on the
face hereof as published in the H.15 Daily Update under the heading
"Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that
Calculation Date the rate is not yet published in either H.15(519) or the H.15
Daily Update, then the Calculation Agent shall determine the Commercial Paper
Rate to be the Money Market Yield of the arithmetic mean of the offered rates
as of 11:00 a.m., New York City time, on that Interest Determination Date of
three leading dealers of commercial paper in The City of New York selected by
the Calculation Agent (after consultation with the Issuer) 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 statistical rating agency.
(iii) If the dealers selected by the Calculation
Agent are not quoting as mentioned above, the Commercial Paper Rate for that
Interest Determination Date shall remain the Commercial Paper Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a 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 year 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 EURIBOR Notes. If the Base Rate specified on
the face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR
with respect to this Note shall be the rate for deposits in euros as
sponsored, calculated and published jointly by the European Banking Federation
and ACI - The Financial Market Association, or any company established by the
joint sponsors for purposes of compiling and publishing those rates, for the
Index Maturity specified on the face hereof as that rate appears on the
display on Bridge Telerate, Inc., or any successor service, on page 248 or any
other page as may replace page 248 on that service ("Telerate Page 248") as of
11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot
be determined as described above:
(i) If the above rate does not appear, the Calculation Agent
shall request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the applicable
Interest Reset Date, and in a principal amount not less than the equivalent of
U.S.$1 million in euro that is representative of a single transaction in euro,
in that market at that time. If at least two quotations are provided, EURIBOR
shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be
the arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate
specified on the face hereof is the "Federal Funds Rate," for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall be
the rate on that date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace page 120
on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, the Federal Funds Rate shall be the rate on
that Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight federal funds by each of
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) prior to
9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not
quoting as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable 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 based on London
interbank offered rate. The Calculation Agent shall determine "LIBOR" for each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either:
(a) if "LIBOR Reuters" is specified as the Reporting Service on the face hereof,
the arithmetic mean of the offered rates for deposits in the Index Currency
having the Index Maturity designated on the face hereof, commencing on the
second London Banking Day immediately following that Interest Determination
Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00
a.m., London time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the specified
Designated LIBOR Page, by its terms provides only for a single rate, that single
rate shall be used; or (b) if "LIBOR Telerate" is specified as the Reporting
Service on the face hereof, the rate for deposits in the Index Currency having
the Index Maturity designated on the face hereof, commencing on the second
London Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest Determination
Date, that appears on the Designated LIBOR Page at approximately 11:00 a.m.,
London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters
is specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be determined
for the applicable Interest Reset Date as the arithmetic mean of the rates
quoted at approximately 11:00 a.m., London time, or some other time specified on
the face hereof, in the applicable principal financial center for the country of
the Index Currency on that Interest Reset Date, by three major banks in that
principal financial center selected by the Calculation Agent (after consultation
with the Issuer) for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not
quoting as described in (iii) above, LIBOR in effect for the applicable period
shall be the same as LIBOR for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable shall be
the Initial Interest Rate.
The "Index Currency" means the currency specified on the face
hereof as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the
face hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency,
as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is "Prime Rate," for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate
cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York
City time, on the Calculation Date, then the Prime Rate shall be the rate on
that Interest Determination Date as published in H.15 Daily Update under the
heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York
City time, on the Calculation Date in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Prime Rate to be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate
or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen
USPRIME 1 Page for that Interest Determination Date, the Calculation Agent shall
determine the Prime Rate to 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 that Interest Determination Date by at least three major
banks in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as
page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is "Treasury Rate," the Treasury Rate with respect to this
Note shall be:
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00
p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of
the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the purpose of displaying
the applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by
3:00 p.m., New York City time, on the related Calculation Date, the Bond
Equivalent Yield of the Auction rate of the applicable Treasury Bills, announced
by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not
quoting as described in (vi), the Treasury Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in
accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the "CMT Rate," for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the
Designated CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate
cannot be determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination 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).
(iii) If the information described in (ii) is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to 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 ("Reference Dealers") in The City of New
York, which may include an agent or other affiliates of the Issuer, selected by
the Calculation Agent as described in the following sentence. The Calculation
Agent shall select five reference dealers (after consultation with the Issuer)
and shall eliminate 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 a remaining term to maturity
of not less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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 shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to 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, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than 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.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate shall be
the CMT Rate for the immediately preceding Interest Reset Period, or, if there
was no Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc., or any successor service, on the page designated on the face
hereof or any other page as may replace that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10,
20 or 30 years, specified in an applicable pricing supplement for which the
CMT Rate shall be calculated. If no 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 (i) by 360 if the Base Rate is CD
Rate, Commercial Paper Rate, EURIBOR Federal Funds Rate, Prime Rate or LIBOR
(except if the Index Currency is pounds sterling); (ii) by 365 if the Base
Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by the
actual number of days in the year if the Base Rate is the Treasury Rate or the
CMT Rate. 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 The City of New York 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.
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 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 be redeemed for a period of fifteen calendar days preceding
the mailing of the relevant notice of redemption. 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
registrations, 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 Trustee, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the EC, as amended by the Treaty. Any payment
made under such circumstances in U.S. dollars or euro where the required
payment is in an unavailable Specified Currency will not constitute an Event
of Default. If such Market Exchange Rate is not then available to the Issuer
or is not published for a particular Specified Currency, the Market Exchange
Rate will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 a.m., New York City
time, on the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase
by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent (as
defined below) unless the Exchange Rate Agent is an affiliate of the Issuer.
If those bid quotations are not available, the Exchange Rate Agent shall
determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 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 _______________
(Minor) (Cust)
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>
<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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SUBORDINATED VARIABLE RATE RENEWABLE
GLOBAL MEDIUM-TERM NOTE, SERIES C
<TABLE>
<S> <C> <C>
BASE RATE: ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE:
INDEX MATURITY: INITIAL INTEREST RESET MATURITY DATE:
DATE:
SPREAD (PLUS OR MINUS): MAXIMUM INTEREST RATE: INTEREST PAYMENT DATE(S)
:
SPREAD MULTIPLIER: MINIMUM INTEREST RATE: INTEREST RESET PERIOD:
REPORTING SERVICE: INDEX CURRENCY: INTEREST RESET DATE(S):
SPECIFIED CURRENCY: CALCULATION AGENT:
EXCHANGE RATE AGENT: DESIGNATED CMT
TELERATE PAGE:
REDEMPTION NOTICE PERIOD(1) DESIGNATED CMT
MATURITY INDEX:
IF SPECIFIED CURRENCY
OTHER THAN U.S.
DOLLARS, OPTION TO
ELECT PAYMENT IN U.S.
DOLLARS: [YES](2)
</TABLE>
(1) Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
(2) Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of Representations.
Morgan Stanley Dean Witter & 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 (a) 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 weekly, 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 or
EURIBOR 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 and including 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 at maturity 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 maturity (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 the equivalent in a Specified Currency) or more in aggregate
principal amount of Notes having the same Interest Payment Date, the interest
on which is paid in U.S. dollars, shall 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](10) [,
with respect to payments of interest, on or prior to the fifth Business Day
(10)Applies for Registered Note that is not in global form.
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](11); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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 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, for payments of interest, or any redemption date, for payments
of principal, 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
(11)Applies only for a Registered Global Security.
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 & 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 an Amended and Restated Subordinated Indenture, dated as of May 1, 1999,
between the Issuer and The First National Bank of Chicago, as Trustee (the
"Trustee," which term includes any successor trustee under the Subordinated
Indenture) (as may be amended or supplemented and as further supplemented from
time to time, 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 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 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 indicated 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.
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 immediately
preceding Business Day. As used herein, "Business Day" means any day, other
than a Saturday or Sunday, (a) that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or regulation to
close (x) in The City of New York or (y) if this Note is denominated in a
Specified Currency other than U.S. dollars, Australian dollars or euro, in the
principal financial center of the country of the Specified Currency, or (z) if
this Note is denominated in Australian dollars, in Sydney and (b) if this Note
is denominated in euro, that is also a day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day").
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 EURIBOR (or to LIBOR when the Index
Currency is euros) shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to LIBOR (other
than for LIBOR Notes for which the Index Currency is euros) 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," for any Interest Determination Date, the CD
Rate with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate
cannot be determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate shall be the rate on
that Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519)
or the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation
Date, the Calculation Agent shall determine the CD Rate to be the arithmetic
mean of the secondary market offered rates as of 10:00 a.m., New York City time,
on that Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent (after consultation with the Issuer) 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 with a
remaining maturity closest to the Index Maturity specified on the face hereof in
an amount that is representative for a single transaction in that market at that
time.
(iii) If the dealers selected by the Calculation Agent are not
quoting as described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable 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," for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be the Money Market Yield (as defined herein), calculated as described below,
of the rate on that date for commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial
Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on that Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as published
in the H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation
Date the rate is not yet published in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Commercial Paper Rate to be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m.,
New York City time, on that Interest Determination Date of three leading dealers
of commercial paper in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) 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 statistical rating
agency.
(iii) If the dealers selected by the Calculation Agent are not
quoting as mentioned above, the Commercial Paper Rate for that Interest
Determination Date shall remain the Commercial Paper Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a 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 year 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 EURIBOR Notes. If the Base Rate specified on
the face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR
with respect to this Note shall be the rate for deposits in euros as
sponsored, calculated and published jointly by the European Banking Federation
and ACI - The Financial Market Association, or any company established by the
joint sponsors for purposes of compiling and publishing those rates, for the
Index Maturity specified on the face hereof as that rate appears on the
display on Bridge Telerate, Inc., or any successor service, on page 248 or any
other page as may replace page 248 on that service ("Telerate Page 248") as of
11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot
be determined as described above:
(i) If the above rate does not appear, the Calculation Agent
shall request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the applicable
Interest Reset Date, and in a principal amount not less than the equivalent of
U.S.$1 million in euro that is representative of a single transaction in euro,
in that market at that time. If at least two quotations are provided, EURIBOR
shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be
the arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate
specified on the face hereof is the "Federal Funds Rate," for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall be
the rate on that date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace page 120
on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, the Federal Funds Rate shall be the rate on
that Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight federal funds by each of
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) prior to
9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not
quoting as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable 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 based on London
interbank offered rate. The Calculation Agent shall determine "LIBOR" for each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either:
(a) if "LIBOR Reuters" is specified as the Reporting Service on the face hereof,
the arithmetic mean of the offered rates for deposits in the Index Currency
having the Index Maturity designated on the face hereof, commencing on the
second London Banking Day immediately following that Interest Determination
Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00
a.m., London time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the specified
Designated LIBOR Page, by its terms provides only for a single rate, that single
rate shall be used; or (b) if "LIBOR Telerate" is specified as the Reporting
Service on the face hereof, the rate for deposits in the Index Currency having
the Index Maturity designated on the face hereof, commencing on the second
London Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest Determination
Date, that appears on the Designated LIBOR Page at approximately 11:00 a.m.,
London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters
is specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be determined
for the applicable Interest Reset Date as the arithmetic mean of the rates
quoted at approximately 11:00 a.m., London time, or some other time specified on
the face hereof, in the applicable principal financial center for the country of
the Index Currency on that Interest Reset Date, by three major banks in that
principal financial center selected by the Calculation Agent (after consultation
with the Issuer) for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not
quoting as described in (iii) above, LIBOR in effect for the applicable period
shall be the same as LIBOR for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable shall be
the Initial Interest Rate.
The "Index Currency" means the currency specified on the face
hereof as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the
face hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency,
as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is "Prime Rate," for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate
cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York
City time, on the Calculation Date, then the Prime Rate shall be the rate on
that Interest Determination Date as published in H.15 Daily Update under the
heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York
City time, on the Calculation Date in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Prime Rate to be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate
or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen
USPRIME 1 Page for that Interest Determination Date, the Calculation Agent shall
determine the Prime Rate to 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 that Interest Determination Date by at least three major
banks in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as
page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is "Treasury Rate," the Treasury Rate with respect to this
Note shall be:
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00
p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of
the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the purpose of displaying
the applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by
3:00 p.m., New York City time, on the related Calculation Date, the Bond
Equivalent Yield of the Auction rate of the applicable Treasury Bills, announced
by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not
quoting as described in (vi), the Treasury Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in
accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = ------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the "CMT Rate," for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the
Designated CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate
cannot be determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination 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).
(iii) If the information described in (ii) is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to 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 ("Reference Dealers") in The City of New
York, which may include an agent or other affiliates of the Issuer, selected by
the Calculation Agent as described in the following sentence. The Calculation
Agent shall select five reference dealers (after consultation with the Issuer)
and shall eliminate 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 a remaining term to maturity
of not less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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 shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to 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, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than 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.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate shall be
the CMT Rate for the immediately preceding Interest Reset Period, or, if there
was no Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc., or any successor service, on the page designated on the face
hereof or any other page as may replace that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10,
20 or 30 years, specified in an applicable pricing supplement for which the
CMT Rate shall be calculated. If no 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 (i) by 360 if the Base Rate is CD Rate, Commercial
Paper Rate, EURIBOR Federal Funds Rate, Prime Rate or LIBOR (except if the
Index Currency is pounds sterling); (ii) by 365 if the Base Rate is LIBOR and
the Index Currency is pounds sterling; or (iii) by the actual number of days in
the year if the Base Rate is the Treasury Rate or the CMT Rate. 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 The City of New York 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.
The Chase Manhattan 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 be
redeemed for a period of fifteen calendar days preceding the mailing of the
relevant notice of redempiton. 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 registrations, 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, the Issuer in its discretion may execute 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 or insolvency 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on any Note denominated
in such currency in euro in conformity with legally applicable measures taken
pursuant to, or by virtue of, the treaty establishing the EC, as amended by
the Treaty. Any payment made under such circumstances in U.S. dollars (or, if
applicable, euro) where the required payment is in a Specified Currency other
than U.S. dollars will not constitute an Event of Default. If such Market
Exchange Rate is not then available to the Issuer or is not published for a
particular Specified Currency, the Market Exchange Rate will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent at approximately 11:00 a.m., New York City time, on the second Business
Day preceding the date of such payment from three recognized foreign exchange
dealers (the "Exchange Dealers") for the purchase by the quoting Exchange
Dealer of the Specified Currency for U.S. dollars for settlement on the
payment date, in the aggregate amount of the Specified Currency payable to
those holders or beneficial owners of Notes and at which the applicable
Exchange Dealer commits to execute a contract. One of the Exchange Dealers
providing quotations may be the Exchange Rate Agent (as defined below) unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations
are not available, the Exchange Rate Agent shall determine the market exchange
rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 Notes 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 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 _______________
(Minor) (Cust)
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-m
[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
[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 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.
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
- --------
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.
<PAGE>
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.
-2-
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Floating Rate)
- --------------------------------------------------------------------------------
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
- --------------------------------------------------------------------------------
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
- --------------------------------------------------------------------------------
BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
- --------------------------------------------------------------------------------
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
- --------------------------------------------------------------------------------
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
- --------------------------------------------------------------------------------
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
- --------------------------------------------------------------------------------
EUROCLEAR NO: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
- --------------------------------------------------------------------------------
CEDELBANK NO: ANNUAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE REDUCTION: PAGE:
- --------------------------------------------------------------------------------
COMMON CODE: OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
- --------------------------------------------------------------------------------
ISIN: REDEMPTION NOTICE PERIOD:3 MINIMUM DENOMINATIONS:
- --------------------------------------------------------------------------------
REPORTING SERVICE: EXCHANGE FOR REGISTERED
NOTES: [NO]4
- --------------------------------------------------------------------------------
OTHER PROVISIONS:
- --------------------------------------------------------------------------------
Morgan Stanley Dean Witter & 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
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank if
a shorter redemption is requested. A minimum of 10 days may be possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has been to
exclude this option.
-3-
<PAGE>
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 or EURIBOR
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") Cedelbank
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, Cedelbank 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") of the Issuer. The notes are issuable under
an Amended and Restated Senior Indenture, dated as of May 1, 1999,
-4-
<PAGE>
between the Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee,"
which term includes a successor trustee under the Senior Indenture) (as may be
amended or supplemented from time to time, 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, 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,
Cedelbank 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, Cedelbank 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, Cedelbank
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) As used herein, "Business Day" means any day, other than a
Saturday or Sunday, (a) that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (z) if
-5-
<PAGE>
this Note is denominated in Australian dollars, in Sydney and (b) if
this Note is denominated in euro, that is also a day on which the
Trans-European Automated Real-time Gross Settlement Express Transfer
System ("TARGET") is operating (a "TARGET Settlement Day").
(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 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 with respect to such interest shall be the day after the
date such interest is sold by Morgan Stanley & Co. International Limited
or such other manager, all as determined and notified to the Trustee by
Morgan Stanley & Co. International Limited, or if Morgan Stanley & Co.
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.
-6-
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
-7-
<PAGE>
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>
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>
<PAGE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
--------------------
Morgan Stanley Dean Witter & 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, an estate the income of which is subject to United States Federal
income taxation regardless of its source or a trust if both (a) a court within
the United States is able to exercise primary supervision over the
administration of the trust and (b) one or more United States persons have the
authority to control all substantial decisions of the trust ("United States
persons"), (ii) is owned by United States persons that are (a) foreign branches
of United States financial institutions (as defined in the applicable U.S.
Treasury Regulations Section) ("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.
-1-
<PAGE>
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.
-2-
<PAGE>
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]
[CEDELBANK]
[OTHER]
By:
----------------------------------------
Name:
Title:
-3-
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
--------------------
Morgan Stanley Dean Witter & 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, an estate the income of
which is subject to United States Federal income taxation regardless of its
source or a trust if both (a) a court within the United States is able to
exercise primary supervision over the administration of the trust and (b) one
or more United States persons have the authority to control all substantial
decisions of the trust ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in the applicable U.S. Treasury Regulations section)
("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 the applicable U.S. Treasury Regulations
Section), 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.
<PAGE>
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.
-2-
<PAGE>
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:
(
-3-
<PAGE>
EXHIBIT 4-n
[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
[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 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.
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
- -----------
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.
1
<PAGE>
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 & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
- ------------------------------------------------------------------------------------------
INTEREST ACCRUAL INITIAL REDEMPTION INTEREST PAYMENT OPTIONAL REPAYMENT
DATE: PERCENTAGE: DATE(S): DATE(S):
- ------------------------------------------------------------------------------------------
SPECIFIED CURRENCY: ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA
PERCENTAGE TIONS:
REDUCTION:
- ------------------------------------------------------------------------------------------
EXCHANGE RATE REDEMPTION NOTICE CEDELBANK NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON
ACCELERATION OR
REDEMPTION
- ------------------------------------------------------------------------------------------
EXCHANGE FOR COMMON CODE: If yes, state issue
REGISTERED NOTES: Price:
[NO]4
- ------------------------------------------------------------------------------------------
OTHER PROVISIONS: ORIGINAL YIELD TO ISIN: ORIGINAL YIELD TO
MATURITY: MATURITY:
- ------------------------------------------------------------------------------------------
</TABLE>
Morgan Stanley Dean Witter & 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, weekly, monthly, quarterly, semi-annually or annually in
arrears on the Interest Payment Dates 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
-----------
3 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank
if a shorter redemption is requested. A minimum of 10 days may be possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has been
to exclude this option.
2
<PAGE>
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"),
Cedelbank 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, Cedelbank 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 an Amended and Restated Senior
Indenture, dated as of May 1, 1999, between the Issuer and The Chase Manhattan
Bank, as Trustee (the "Trustee," which term includes any successor trustee under
the Senior Indenture) (as may be amended or supplemented from time to time, 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,
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
3
<PAGE>
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,
Cedelbank 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, Cedelbank 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, Cedelbank
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 represented by
this Note is held by Morgan Stanley & Co. 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 with respect to such interest shall be the day after the
date such interest is sold by Morgan Stanley & Co. International Limited
or such other manager, all as determined and notified to the Trustee by
Morgan Stanley & Co. International Limited or if Morgan Stanley & Co.
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.
4
<PAGE>
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.
5
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
6
<PAGE>
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>
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>
<PAGE>
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
--------------------
Morgan Stanley Dean Witter & 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 the applicable U.S.
Treasury Regulations Section) ("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.
1
<PAGE>
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.
2
<PAGE>
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]
[CEDELBANK]
[OTHER]
By:
-------------------------------
Name:
Title:
3
<PAGE>
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR, CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
--------------------
Morgan Stanley Dean Witter & 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, an estate the income of
which is subject to United States Federal income taxation regardless of its
source or a trust if both (a) a court within the United States is able to
exercise primary supervision over the administration of the trust and (b) one
or more United States persons have the authority to control all substantial
decisions of the trust ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in the applicable U.S. Treasury Regulations Section)
("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 the applicable U.S. Treasury Regulations
section), 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
<PAGE>
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.
2
<PAGE>
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:
3
<PAGE>
EXHIBIT 4-o
[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
[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 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.
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
- ----------
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.
<PAGE>
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER RELEVANT
LAWS AND REGULATIONS OF JAPAN.
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Floating Rate)
- --------------------------------------------------------------------------------
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
- --------------------------------------------------------------------------------
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
- --------------------------------------------------------------------------------
BASE RATE: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
- --------------------------------------------------------------------------------
INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
- --------------------------------------------------------------------------------
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
- --------------------------------------------------------------------------------
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
- --------------------------------------------------------------------------------
EUROCLEAR NO: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
- --------------------------------------------------------------------------------
CEDELBANK NO: ANNUAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE REDUCTION: PAGE:
- --------------------------------------------------------------------------------
COMMON CODE: OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
- --------------------------------------------------------------------------------
ISIN: REDEMPTION NOTICE PERIOD:3 MINIMUM DENOMINATIONS:
- --------------------------------------------------------------------------------
REPORTING SERVICE: EXCHANGE FOR REGISTERED
NOTES: [NO]4
- --------------------------------------------------------------------------------
OTHER PROVISIONS:
- --------------------------------------------------------------------------------
Morgan Stanley Dean Witter & 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]5 [Schedule A-1 hereto]6, on the Maturity Date specified
above (except to the extent previously redeemed or repaid) and to pay interest
thereon,
- -----------
3 Applicable if other than 30-60 days. Consult with Euroclear or
Cedelbank if a shorter redemption is requested. A minimum of 10 days may
be possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has been
to exclude this option.
5 Applies if this Note is not issued as part of, or in relation to, a Unit.
6 Applies if this Note is issued as part of, or in relation to, a Unit.
2
<PAGE>
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 or EURIBOR and such
next Business Day falls in the next calendar month, such Interest Payment Date
shall be the immediately preceding day that is a Business Day; and provided,
further, that if the Maturity Date or redemption or repayment date would fall on
a day that is not a Business Day, the payment of principal, premium, if any, and
interest shall be made on the next succeeding Business Day and no interest shall
accrue for the period from and after such Maturity Date or redemption or
repayment date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, or,
if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the reverse
of this Note) or at the office or agency of such other paying agents outside the
United States as the Issuer may determine for that purpose (each, a "Paying
Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest due
at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note at the office or agency of the Principal
Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as provided
on the reverse hereof. If this Note is denominated in U.S. dollars, any payment
of the principal of, premium, if any, and interest on this Note will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Such payments on this
Note will be made either by a check mailed to an address outside the United
States furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with
3
<PAGE>
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.
4
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
5
<PAGE>
[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 an Amended and
Restated Senior Indenture, dated as of May 1, 1999, between the Issuer and The
Chase Manhattan Bank, as Trustee (the "Trustee," which term includes any
successor trustee under the Senior Indenture) (as may be amended or supplemented
from time to time, 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, 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 indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated 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 hereof, 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
indicated 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 or within the Redemption Notice
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Period specified on the face hereof, subject to all the conditions and
provisions of the Senior Indenture. Notice of redemption to all other holders of
Notes shall be given in the manner set forth in "Notices" as defined below, and,
if by publication, shall be given 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 or within the Redemption Notice Period specified
on the face hereof. 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, or 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 trust
company in the United States, Western Europe or Japan setting forth the
principal amount of the Note, the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of this Note, a
statement that the Option to Elect Repayment is being exercised and a guarantee
that this Note to be repaid, together with the duly completed form entitled
Option to Elect Repayment, will be received by the principal paying agent not
later than the fifth Business Day after the date of that telegram, telex,
facsimile transmission or letter. However, the telegram, telex, facsimile
transmission or letter shall only be effective if this Note and an Option to
Elect Repayment form duly completed are received by the Paying Agent by the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter. 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 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
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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 (as defined below), 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 or EURIBOR and such
Business Day is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately 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 EURIBOR (or LIBOR when the Index Currency is euros) shall be the
second TARGET Settlement Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR (other than LIBOR Notes for which
the Index Currency is euros) 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," for any Interest Determination Date, the CD Rate with respect
to this Note shall be the rate on that 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)."
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The following procedures shall be followed if the CD Rate cannot be
determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m., New
York City time, on the Calculation Date, the CD Rate shall be the rate on that
Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the CD Rate to be the arithmetic mean of the
secondary market offered rates as of 10:00 a.m., New York City time, on that
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent (after consultation with the Issuer) 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 with a
remaining maturity closest to the Index Maturity specified on the face hereof in
an amount that is representative for a single transaction in that market at that
time.
(iii) If the dealers selected by the Calculation Agent are not quoting as
described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable 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," for any Interest Determination
Date, the Commercial Paper Rate with respect to this Note shall be the Money
Market Yield (as defined herein), calculated as described below, of the rate on
that date for commercial paper having the Index Maturity specified on the face
hereof, as that rate is published in H.15(519), under the heading "Commercial
Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial Paper Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate shall be the Money
Market Yield of the rate on that Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in the
H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation Date the
rate is not yet published in either H.15(519) or the H.15 Daily Update, then the
Calculation Agent shall determine the Commercial Paper Rate to be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on that Interest Determination Date of three leading dealers
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of commercial paper in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) 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 statistical rating
agency.
(iii) If the dealers selected by the Calculation Agent are not quoting as
mentioned above, the Commercial Paper Rate for that Interest Determination Date
shall remain the Commercial Paper Rate for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of interest
payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a 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 year 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 EURIBOR Notes. If the Base Rate specified on the face
hereof is "EURIBOR," for any Interest Determination Date, EURIBOR with respect
to this Note shall be the rate for deposits in euros as sponsored, calculated
and published jointly by the European Banking Federation and ACI - The Financial
Market Association, or any company established by the joint sponsors for
purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Bridge
Telerate, Inc., or any successor service, on page 248 or any other page as may
replace page 248 on that service ("Telerate Page 248") as of 11:00 a.m.
(Brussels time).
The following procedures shall be followed if the rate cannot be
determined as described above:
(i) If the above rate does not appear, the Calculation Agent shall
request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the applicable
Interest Reset Date, and in a principal amount not less than the equivalent of
U.S.$1 million in euro that is representative of a single transaction in euro,
in that market at that time. If at least two quotations are provided, EURIBOR
shall be the arithmetic mean of those quotations.
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(ii) If fewer than two quotations are provided, EURIBOR shall be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii) If the banks so selected by the Calculation Agent are not quoting
as described in (ii) above, the EURIBOR rate in effect for the applicable period
shall be the same as EURIBOR for the immediately preceding Interest Reset
Period, or, if there was no Interest Reset Period, the rate of interest payable
shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the European
Union that adopt the single currency in accordance with the treaty establishing
the European Community (the "EC"), as amended by the treaty on European Union
(as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate specified on
the face hereof is the "Federal Funds Rate," for any Interest Determination
Date, the Federal Funds Rate with respect to this Note shall be the rate on that
date for federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" as displayed on Bridge Telerate, Inc., or any successor
service, on page 120 or any other page as may replace page 120 on that service
("Telerate Page 120").
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate shall be the rate on that
Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the H.15
Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight federal funds by each of
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) prior to
9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not quoting as
mentioned above, the Federal Funds Rate relating to that Interest Determination
Date shall remain the Federal Funds Rate for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of interest
payable shall be the Initial Interest Rate.
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Determination of LIBOR. If the Base Rate specified on the face hereof is
"LIBOR," LIBOR with respect to this Note shall be based on London interbank
offered rate. The Calculation Agent shall determine "LIBOR" for each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either: (a)
if "LIBOR Reuters" is specified as the Reporting Service on the face hereof,
the arithmetic mean of the offered rates for deposits in the Index Currency
having the Index Maturity designated on the face hereof, commencing on the
second London Banking Day immediately following that Interest Determination
Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00
a.m., London time, on that Interest Determination Date, if at least two
offered rates appear on the Designated LIBOR Page; except that if the
specified Designated LIBOR Page, by its terms provides only for a single rate,
that single rate shall be used; or (b) if "LIBOR Telerate" is specified as the
Reporting Service on the face hereof, the rate for deposits in the Index
Currency having the Index Maturity designated on the face hereof, commencing
on the second London Banking Day immediately following that Interest
Determination Date or, if pounds sterling is the Index Currency, commencing on
that Interest Determination Date, that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is
specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined on that
Interest Determination Date shall be the arithmetic mean of those quotations. If
fewer than two quotations are provided, LIBOR shall be determined for the
applicable Interest Reset Date as the arithmetic mean of the rates quoted at
approximately 11:00 a.m., London time, or some other time specified on the face
hereof, in the applicable principal financial center for the country of the
Index Currency on that Interest Reset Date, by three major banks in that
principal financial center selected by the Calculation Agent (after consultation
with the Issuer) for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not quoting
as described in (iii) above, LIBOR in effect for the applicable period shall be
the same as LIBOR for the immediately
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preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
The "Index Currency" means the currency specified on the face hereof as
the currency for which LIBOR shall be calculated, or, if the euro is substituted
for that currency, the Index Currency shall be the euro. If that currency is not
specified 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 its designated successor, or
(b) if LIBOR Telerate is designated as the Reporting Service on the face hereof,
the display on Bridge Telerate Inc., or any successor service, on the page
specified on the face hereof, or any other page as may replace that page on that
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 on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR
Telerate were specified, and, if the U.S. dollar is the Index Currency, as if
Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is "Prime Rate," for any Interest Determination Date, the Prime Rate with
respect to this Note shall be the rate on that date as published in H.15(519)
under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be
determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate shall be the rate on that
Interest Determination Date as published in H.15 Daily Update under the heading
"Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York City
time, on the Calculation Date in either H.15(519) or the H.15 Daily Update, then
the Calculation Agent shall determine the Prime Rate to be the arithmetic mean
of the rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate or
base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen USPRIME 1
Page for that Interest Determination Date, the Calculation Agent shall determine
the Prime Rate to 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 that Interest Determination Date by at least three major banks in
The City of New York selected by the Calculation Agent (after consultation with
the Issuer).
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(iv) If the banks selected are not quoting as described in (iii) above,
the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as page
"USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service for
the purpose of displaying prime rates or base lending rates of major United
States banks.
Determination of Treasury Rate. If the Base Rate specified on the face
hereof is "Treasury Rate," the Treasury Rate with respect to this Note shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00 p.m.,
New York City time, on the Calculation Date, the Bond Equivalent Yield of the
rate for the applicable Treasury Bills as published in the H.15 Daily Update, or
other recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by 3:00 p.m.,
New York City time, on the related Calculation Date, the Bond Equivalent Yield
of the Auction rate of the applicable Treasury Bills, announced by the United
States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market
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bid rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not quoting as
described in (vi), the Treasury Rate for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of interest
payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in accordance with
the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the "CMT Rate," for any Interest Determination Date, the CMT Rate with
respect to this Note shall be the rate displayed on the Designated CMT Telerate
Page (as defined below) under the caption "... Treasury Constant Maturities ...
Federal Reserve Board Release H.15... Mondays Approximately 3:45 p.m.," under
the column for the Designated CMT Maturity Index, as defined below, for:
(1) the rate on that Interest Determination Date, if the Designated CMT
Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately preceding
the week in which the related Interest Determination Date occurs, if the
Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate cannot be
determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the
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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).
(iii) If the information described in (ii) is not provided by 3:00 p.m.,
New York City time, on the related Calculation Date, then the Calculation Agent
shall determine the CMT Rate to 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 ("Reference Dealers") in The City of New York,
which may include an agent or other affiliates of the Issuer, selected by the
Calculation Agent as described in the following sentence. The Calculation Agent
shall select five reference dealers (after consultation with the Issuer) and
shall eliminate 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 a remaining term to maturity
of not less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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 shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to 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, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than 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.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the Calculation
Agent are quoting as described in (iv) above, the CMT Rate shall be the CMT Rate
for the immediately preceding Interest Reset Period, or, if there was no
Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc., or any successor service, on the page designated on the face hereof or any
other page as may replace that page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
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"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10, 20 or 30 years,
specified in an applicable pricing supplement for which the CMT Rate shall be
calculated. If no 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 (i) by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR (except
if the Index Currency is pounds sterling); (ii) by 365 if the Base Rate is LIBOR
and the Index Currency is pounds sterling; or (iii) by the actual number of days
in the year if the Base Rate is the Treasury Rate or the CMT Rate. 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
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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 Cedelbank 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, 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 or
other transmission, if applicable, 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, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or Cedelbank 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
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intention to cease business permanently or in fact does so. In the event of any
exchange of interests in this Note for a Definitive Bearer Note, 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"), Cedelbank and/or
any other relevant clearing system (including Societe Interprofessionelle pour
la Compensation des Valeurs Mobilieres ("SICOVAM")) shall instruct 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, Cedelbank 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, the Issuer in its discretion may execute a new Note of
like tenor 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.
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
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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 or within the Redemption Notice
Period specified on the face hereof, 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 (or transmit, as
applicable) 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 or
at least 30 days prior to the last day of the Redemption Notice Period specified
on the face hereof. 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 or at least 30 days prior to the last day of the Redemption
Notice Period specified on the face hereof. 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 or prior to the last day of
the Redemption Notice Period specified on the face hereof, that subsequent
payments would not be subject to any such certification, identification or other
information reporting requirement, in which case the Issuer shall publish (or
transmit, as applicable) 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.
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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 and its possessions, 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;
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(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 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
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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
or insolvency 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 modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue of,
the treaty establishing the EC, as amended by the Treaty. Any payment made under
such
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circumstances in U.S. dollars or euro where the required payment is in an
unavailable Specified Currency will not constitute an Event of Default. If such
Market Exchange Rate is not then available to the Issuer or is not published for
a particular Specified Currency, the Market Exchange Rate will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent (as defined below) at approximately 11:00 a.m., The City of New York time,
on the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase by
the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which the
applicable Exchange Dealer commits to execute a contract. One of the Exchange
Dealers providing quotations may be the Exchange Rate Agent unless the Exchange
Rate Agent is an affiliate of the Issuer. If those bid quotations are not
available, the Exchange Rate Agent shall determine the market exchange rate at
its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated 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 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. 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
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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) As used herein, "Business Day" means any day, other than a
Saturday or Sunday, (a) that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (z) if this Note is denominated in Australian
dollars, in Sydney and (b) if this Note is denominated in euro, that is
also a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement Day") and (c) if this Note bears interest calculated by
reference to LIBOR (other than LIBOR notes denominated or payable in
euros), that is also a London Banking Day.
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the Specified
Currency indicated on the face hereof published 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; provided that notice may be made at the option of the
Issuer through the customary notice provisions of the clearing system or
systems through which beneficial interests in this Note are owned. Such
Notices will be deemed to have been given on the date of such
publication (or other transmission, as applicable) or, if published in
such newspapers on different dates, on the date of the first such
publication;
25
<PAGE>
(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.
26
<PAGE>
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:
--------------------------------- ------------------------------------
27
<PAGE>
[SCHEDULE A7]
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>
Remaining Principal
Principal Principal Principal Principal Principal Amount Outstanding
Amount Amount Amount Amount Amount Following Such
Date of Exchange, Exchanged Exchanged For Exchanged for Redeemed at the Repaid at the Exchange, Notation Made by or
Redemption or From Temporary Definitive Definitive Option of the Option of the Redemption or on Behalf of
Payment Global Notes Bearer Notes Registered Notes Issuer Holder Repayment Paying Agent
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <S> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- -----------
7 Applies if this Note is not issued as part of, or in relation to, a Unit.
<PAGE>
[SCHEDULE A-1]8
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")]9, (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")]10 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 Principal
Amount Amount [Principal Principal Amount
Date of Exchange, Exchanged Exchanged Amount Amount Exchanged
Cancellation From from an Exchanged Exchanged For Definitive
Redemption, or Temporary Attached for Separated For Definitive Registered
Repayment Global Notes Unit Note]10 Note]9 Bearer Notes Notes
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
<CAPTION>
Remaining
Principal
Amount
Outstanding
Principal Principal Following such
Date of Exchange, Amount Amount Exchange, Notation
Cancellation Redeemed at Repaid at the Principal Cancellation Made by or
Redemption, or the option of option of the Amount Redemption or on behalf of
Repayment the Issuer Holder Cancelled Repayment Paying Agent
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
- -----------
8 This Schedule A-1 needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note is attached to a Unit.
10 Applies only if this Note has been separated from a Unit.
<PAGE>
EXHIBIT 4-p
[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
[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 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.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY
RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT
IN JAPAN INCLUDING ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER
THE LAWS OF JAPAN) OR TO OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY
OR INDIRECTLY, IN JAPAN OR TO A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER
RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<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):
ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CEDELBANK NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERA-
TION OR
REDEMPTION
EXCHANGE FOR COMMON CODE: If yes, state issue Price:
REGISTERED NOTES:
[NO]4
OTHER PROVISIONS: ISIN: ORIGINAL YIELD TO
MATURITY:
</TABLE>
Morgan Stanley Dean Witter & 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]5 [Schedule A-1 hereto]6, 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)
weekly, monthly, quarterly, semi-annually or annually in arrears on the Interest
Payment Dates 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 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank if a
shorter redemption is requested. A minimum of 10 days may be possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has been to
exclude this option.
5 Applies if this Note is not issued as part of, or in relation to, a Unit.
6 Applies if this Note is issued as part of, or in relation to, a Unit.
2
<PAGE>
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.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
4
<PAGE>
[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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended or
supplemented from time to time, 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, 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 indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated 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 hereof, 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
indicated 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 or within the Redemption Notice
5
<PAGE>
Period specified on the face hereof, subject to all the conditions and
provisions of the Senior Indenture. Notice of redemption to all others holders
of Notes shall be given in the manner set forth in "Notices" as defined below,
and, if by publication, shall be given 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 or within the Redemption Notice Period
specified on the face hereof. 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, or 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 trust
company in the United States, Western Europe or Japan setting forth the
principal amount of the Note, the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of this Note, a
statement that the Option to Elect Repayment is being exercised and a guarantee
that this Note to be repaid, together with the duly completed form entitled
Option to Elect Repayment, will be received by the principal paying agent not
later than the fifth Business Day (as defined below) after the date of that
telegram, telex, facsimile transmission or letter. However, the telegram, telex,
facsimile transmission or letter shall only be effective if this Note and an
Option to Elect Repayment form duly completed are received by the Paying Agent
by the fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter. 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
6
<PAGE>
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 Cedelbank
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, 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 or other transmission, if
applicable, 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
7
<PAGE>
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, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or Cedelbank 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. In the event of any
exchange of interests in this Note for a Definitive Bearer Note, 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"), Cedelbank, and/or
any other relevant clearing system (including Societe Interprofessionelle pour
la Compensation des Valeurs Mobilieres ("SICOVAM")) shall instruct 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, Cedelbank 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, the Issuer in its discretion may execute a new Note of
like tenor 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
8
<PAGE>
delivery of a new Note shall be borne by the owner of the Note mutilated,
defaced, destroyed, lost or stolen.
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.
9
<PAGE>
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on face hereof, 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 (or
transmit, as applicable) 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 or within the Redemption Notice Period specified on the face hereof.
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 or
within the Redemption Notice Period specified on the face hereof. 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 or prior to the last day of the Redemption Notice Period specified on
the face hereof, that subsequent payments would not be subject to any such
certification, identification or other information reporting requirement, in
which case the Issuer shall publish (or transmit, if applicable) 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
10
<PAGE>
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 and its possessions, 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;
11
<PAGE>
(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 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
12
<PAGE>
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 or insolvency 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 modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms 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 the euro has been substituted for such Specified
Currency, the Issuer may at its option (or shall, if so required by applicable
law) without the consent of the holder of this Note effect the payment of
principal of,
13
<PAGE>
premium, if any, or interest on, any Note denominated in such Specified Currency
in euro in lieu of such Specified 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 euro where the required payment is in an unavailable Specified
Currency will not constitute an Event of Default. If such Market Exchange Rate
is not then available to the Issuer or is not published for a particular
Specified Currency, the Market Exchange Rate will be based on the highest bid
quotation in The City of New York received by the Exchange Rate Agent (as
defined below) at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the date of such payment from three recognized foreign
exchange dealers (the "Exchange Dealers") for the purchase by the quoting
Exchange Dealer of the Specified Currency for U.S. dollars for settlement on the
payment date, in the aggregate amount of the Specified Currency payable to those
holders or beneficial owners of Notes and at which the applicable Exchange
Dealer commits to execute a contract. One of the Exchange Dealers providing
quotations may be the Exchange Rate Agent unless the Exchange Rate Agent is an
affiliate of the Issuer. If those bid quotations are not available, the Exchange
Rate Agent shall determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated 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 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. 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.
14
<PAGE>
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, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close (x) in The City of New York or (y) if this Note is denominated in
a Specified Currency other than U.S. dollars, Australian dollars or
euro, in the principal financial center of the country of the Specified
Currency, or (z) if this Note is denominated in Australian dollars, in
Sydney and (b) if this Note is denominated in euro, that is also a day
on which the Trans-European Automated Real-time Gross Settlement
Express Transfer System ("TARGET") is operating (a "TARGET Settlement
Day").
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof published 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; provided that notice may be made, at the
option of the Issuer, through the customary notice provisions of the
clearing system or systems through which beneficial interests in this
Note are owned. Such Notices will be deemed to have been given on the
15
<PAGE>
date of such publication (or other transmission, as applicable) 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.
16
<PAGE>
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:_____________________ ____________________________________________
17
<PAGE>
[SCHEDULE A7]
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>
Remaining
Principal
Amount
Outstanding
Date of Principal Amount Principal Amount Principal Amount Principal Amount Principal Amount Following Notation Made
Exchange, Exchanged Exchanged For Exchanged for Redeemed at the Repaid at the Such Exchange, by or on
Redemption or From Temporary Definitive Definitive Option of the Option of the Redemption or Behalf of
Payment Global Notes Bearer Notes Registered Notes Issuer Holder Repayment Paying Agent
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------
7 Applies if this Note is not issued as part of, or in relation to, a Unit.
1
<PAGE>
[SCHEDULE A-1]8
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")]9, (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")]10 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>
Remaining
Principal
Principal Principal Principal Amount
Date of Amount [Principal [Principal Amount Amount Principal Principal Outstanding Notation
Exchange, Exchanged Amount Amount Exchanged Exchanged Amount Amount Following Made by
Cancellation From Exchanged Exchanged For For Redeemed Repaid such Exchange, or on
Redemption, Temporary from an for Definitive Definitive at the at the Principal Cancellation behalf
or Global Attached Separated Bearer Registered option of option of Amount Redemption of Paying
Repayment Notes Unit Note]10 Note]9 Notes Notes the Issuer the Holder Cancelled or Repayment Agent
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
- --------
8 This Schedule A-1 needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note is attached to a Unit.
10 Applies only if this Note has been separated from a Unit.
2
EXHIBIT 4-q
[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 INTERNAL REVENUE CODE.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and matures not
more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR MEDIUM-TERM NOTE, SERIES [D/E] (Fixed Rate)
<TABLE>
<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):
ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CEDELBANK NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERATION
OR REDEMPTION
EXCHANGE FOR COMMON CODE: If yes, state issue Price:
REGISTERED NOTES:
[NO]4
OTHER PROVISIONS: ORIGINAL YIELD TO ISIN: ORIGINAL YIELD TO
MATURITY: MATURITY:
</TABLE>
Morgan Stanley Dean Witter & 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 amount is paid or
duly made available for payment (except as provided below) weekly, monthly,
quarterly, semi-annually or annually in arrears on the Interest Payment Dates
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
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank
if a shorter redemption is requested. A minimum of 10 days may be possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has been to
exclude this option.
2
<PAGE>
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 or 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.
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<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
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<PAGE>
[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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended or
supplemented from time to time, 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, 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 indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated 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 hereof, 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
indicated 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
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<PAGE>
30 nor more than 60 days prior to the date fixed for redemption or within the
Redemption Notice Period specified on the face hereof, subject to all the
conditions and provisions of the Senior Indenture. Notice of redemption to
holders of Notes shall be published in the manner set forth in "Notices" as
defined below, and, if by publication shall be given 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 or within the Redemption
Notice Period specified on the face hereof. 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, this Note with the form entitled "Option
to Elect Repayment" below duly completed, or 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 trust
company in the United States, Western Europe or Japan setting forth the
principal amount of the Note, the principal amount of the Note to be repaid, the
certificate number or a description of the tenor and terms of this Note, a
statement that the Option to Elect Repayment is being exercised and a guarantee
that this Note to be repaid, together with the duly completed form entitled
Option to Elect Repayment, will be received by the principal paying agent not
later than the fifth Business Day (as defined below) after the date of that
telegram, telex, facsimile transmission or letter. However, the telegram, telex,
facsimile transmission or letter shall only be effective if this Note and an
Option to Elect Repayment form duly completed are received by the Paying Agent
by the fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter. 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. 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.
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<PAGE>
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 Issuer will not be required (i) to exchange any Bearer Note to be
redeemed for a period of fifteen calendar days preceding the first publication
or other transmission, if applicable, 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.
7
<PAGE>
In case this Note 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, the Issuer in its discretion may execute 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, 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.
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
8
<PAGE>
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 or within the Redemption Notice
Period specified on the face hereof, 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
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<PAGE>
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 (or
transmit, as applicable) 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 or within the Redemption Notice Period specified on the
face hereof. 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 or within the Redemption Notice Period specified on the face hereof.
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 or
prior to the last day of the Redemption Note Period specified on the face
hereof, that subsequent payments would not be subject to any such
certification, identification or other information reporting requirement, in
which case the Issuer shall publish (or transmit, as applicable) 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
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<PAGE>
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 and its possessions, 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;
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<PAGE>
(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 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 or
insolvency 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
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<PAGE>
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 modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms 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 the euro has been substituted for
such Specified Currency, the Issuer may at its option (or shall, if so required
by applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified 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 euro where the required payment is in an
unavailable Specified Currency will not constitute an Event of Default. If such
Market Exchange Rate is not then available to the Issuer or is not published for
a particular Specified Currency, the Market Exchange Rate will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent (as defined below) at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency
13
<PAGE>
payable to those holders or beneficial owners of Notes and at which the
applicable Exchange Dealer commits to execute a contract. One of the Exchange
Dealers providing quotations may be the Exchange Rate Agent unless the Exchange
Rate Agent is an affiliate of the Issuer. If those bid quotations are not
available, the Exchange Rate Agent shall determine the market exchange rate at
its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated 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 Notes and coupons.
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.
14
<PAGE>
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, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close (x) in The City of New York or (y) if this Note is denominated in
a Specified Currency other than U.S. dollars, Australian dollars or
euro, in the principal financial center of the country of the Specified
Currency, or (z) if this Note is denominated in Australian dollars, in
Sydney and (b) if this Note is denominated in euro, that is also a day
on which the Trans-European Automated Real-time Gross Settlement
Express Transfer System ("TARGET") is operating (a "TARGET Settlement
Day").
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof published 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; provided that
notice may be made, at the option of the Issuer, through the customary
notice provisions of the clearing system or systems through which
beneficial interests in this Note are owned. 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
15
<PAGE>
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.
16
<PAGE>
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:__________________ _____________________________________
17
<PAGE>
[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 & CO.
SENIOR MEDIUM-TERM NOTE, SERIES [D/E]
Coupon Number ______5
[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 & 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 & CO.
By:_________________________________
Title:
- --------
5 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.
18
<PAGE>
[REVERSE OF COUPON]
PRINCIPAL PAYING AGENT AND TRANSFER AGENT
The Chase Manhattan Bank
The Chase Manhattan Bank House
180 Strand
London WC2R 1EX
England
19
EXHIBIT 4-r
[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
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO
OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO
A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
1
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<TABLE>
<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):
SPECIFIED CURRENCY: ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA-
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CEDELBANK NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERA-
TION OR
REDEMPTION
COMMON CODE: If yes, state issue Price:
OTHER PROVISIONS: ISIN: ORIGINAL YIELD TO
MATURITY:
</TABLE>
Morgan Stanley Dean Witter & 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 amount is paid or
duly made available for payment (except as provided below) weekly, monthly,
quarterly, semi-annually or annually in arrears on the Interest Payment Dates
specified above in each year commencing on the Interest Payment Date next
succeeding the Interest Accrual Date specified above, and at maturity (or on
any redemption or repayment date); provided, however, that if the Interest
Accrual Date occurs between a Record Date, as defined below, and the next
succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date succeeding the Interest Accrual Date to the
registered holder of this Note on the Record Date with respect to such second
Interest Payment Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for,
or, if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank
if a shorter redemption is requested. A minimum of 10 days may be possible.
2
<PAGE>
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 (as defined on the
reverse)) (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.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
4
<PAGE>
[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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, 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 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,
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 indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated 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 hereof, 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 indicated 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
5
<PAGE>
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 or within the Redemption Notice Period
specified on the face hereof, 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. Unless indicated otherwise
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
6
<PAGE>
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 be redeemed for a period of fifteen calendar days preceding the
mailing of the relevant notice of redemption. 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
registrations, 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 this 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, the Issuer in its discretion may execute a new Note
of like tenor 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
7
<PAGE>
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.
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.
8
<PAGE>
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, 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 and its possessions, 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
9
<PAGE>
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 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 or insolvency 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
10
<PAGE>
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 modify or amend the
provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms 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 the euro has been substituted for
such Specified Currency, the Issuer may at its option (or shall, if so
required by applicable law) without the consent of the holder of this Note
effect the payment of principal of, premium, if any, or interest on, any Note
denominated in such Specified Currency in euro in lieu of such Specified
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 euro where the
required payment is in an unavailable Specified Currency will not constitute
an Event of Default. If such Market Exchange Rate is not then available to the
Issuer or is not published for a particular Specified Currency, the Market
Exchange Rate will be based on the highest bid quotation in The City of New
York received by the Exchange Rate Agent (as defined below) at approximately
11:00 a.m., New York City time, on the second Business Day preceding the date
of such payment from three recognized foreign exchange dealers (the "Exchange
Dealers") for the purchase by the quoting Exchange Dealer of the Specified
Currency for U.S. dollars for settlement on the payment date, in the aggregate
amount of the Specified Currency payable to those holders or beneficial owners
of Notes and at which the applicable Exchange Dealer commits to execute a
contract. One of the Exchange Dealers providing quotations may be the Exchange
Rate Agent (as defined below) unless the Exchange Rate Agent is an affiliate
of the Issuer. If those bid quotations are not available, the Exchange Rate
Agent shall determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
11
<PAGE>
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. 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 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.
12
<PAGE>
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, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated
in Australian dollars, in Sydney and (b) if this Note is denominated
in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day");
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof published by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices 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; provided that notice may be made, at the option of
the Issuer, through the customary notice provisions of the clearing
system or systems through which beneficial interests in this Note are
owned. Such Notices will be deemed to have been given on the date of
such publication (or other transmission, as applicable), 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.
13
<PAGE>
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 ____________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act ____________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
-----------------------
14
<PAGE>
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.
15
<PAGE>
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.
16
EXHIBIT 4-s
[FORM OF FACE OF SECURITY]
Floating/Fixed Rate Senior Note
REGISTERED REGISTERED
No. FLR/FX [PRINCIPAL AMOUNT]
CUSIP:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.1
- --------
1 Applies only if this Note is a Registered Global Security.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating/Fixed Rate)
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
SPREAD (PLUS OR MINUS): INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD MULTIPLIER: INITIAL INTEREST RESET INTEREST RESET PERIOD:
DATE:
REPORTING SERVICE: MAXIMUM INTEREST RATE: INTEREST RESET DATE(S):
INDEX CURRENCY: MINIMUM INTEREST RATE: CALCULATION AGENT:
FIXED RATE COMMENCEMENT INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
DATE:
FIXED INTEREST RATE: INITIAL REDEMPTION IF SPECIFIED CURRENCY
PERCENTAGE: OTHER THAN U.S. DOLLARS,
OPTION TO ELECT PAYMENT
IN U.S. DOLLARS: [YES]2
EXCHANGE RATE AGENT: ANNUAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE REDUCTION: PAGE:
OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
OTHER PROVISIONS: REDEMPTION NOTICE
PERIOD:3
Morgan Stanley Dean Witter & 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 _____ ]4 [amount specified in Schedule A hereto]5 on the
Maturity Date specified above (except to the extent redeemed or repaid prior to
the maturity) 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
- --------
2 Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of
Representations.
3 Applicable if other than 30-60 days. If this is a Registered
Global Security, minimum notice period is [20] days.
4 Applies if this Note is not issued as part of, or in relation
to, a Unit. 5Applies if this Note is issued as part of, or in relation
to, a Unit.
2
<PAGE>
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 weekly, 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 Day, except that if
the Base Rate specified above is LIBOR or EURIBOR 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 on the following day that is a
Business Day and no interest shall accrue for the period from and after such
Maturity Date or redemption or repayment date; and provided, further, that if,
during any period on or after the Fixed Rate Commencement Date, an Interest
Payment Date or the Maturity Date or redemption or repayment date would fall on
a day that is not a Business Day, payment of interest, premium, if any, or
principal otherwise payable on such date need not be made on such date, but may
be made on the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date or on the Maturity Date or redemption or
repayment date, and no interest on such payment shall accrue for the period from
and after the Interest Payment Date or the Maturity Date or redemption or
repayment date to such next succeeding Business Day.
Interest on this Note will accrue from and including the most recent
date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from and including the Interest Accrual
Date, until but excluding the date the principal hereof has been paid or duly
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Interest Payment Date (whether or not a Business Day
(as defined on the reverse)) (each such date a "Record Date"); provided,
however, that interest payable at maturity (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 maturity (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
3
<PAGE>
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 a
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,
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 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]6 [, with respect to payments
of interest, on or prior to the fifth Business Day after the applicable Record
Date and, with respect to payments of principal or any premium, at least ten
Business Days prior to the Maturity Date or any redemption or repayment date, as
the case may be]7; provided that, if payment of interest, principal or any
premium with regard to this Note is payable in euro, the account must be a euro
account in a country for which the euro is the lawful currency, provided,
further, 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, for payments of interest, or at
least ten days prior to the Maturity Date or any redemption or repayment date,
for payments of principal, 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.
- --------
6 Applies for a Registered Note that is not in global form.
7 Applies only for a Registered Global Security.
4
<PAGE>
dollars, the Exchange Rate Agent (as defined on the reverse hereof) 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.
5
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
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[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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended or
supplemented from time to time, 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 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 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 three paragraphs, will not be
redeemable or subject to repayment at the option of the holder prior to
maturity.
If so indicated on the face hereof, 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 or within the
Redemption Notice Period specified on the face hereof, 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
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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 or EURIBOR
and such Business Day is in the next succeeding calendar month, such Interest
Reset Date shall be the immediately preceding Business Day. As used herein,
"Business Day" means any day, other than a Saturday or Sunday, (a) that is
neither a legal holiday nor a day on which banking institutions are authorized
or required by law or regulation to close (x) in The City of New York or (y) if
this Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the country of
the Specified Currency, or (z) if this Note is denominated in Australian
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dollars, in Sydney and (b) if this Note is denominated in euro, that is also a
day on which the Trans-European Automated Real-time Gross Settlement Express
Transfer System ("TARGET") is operating (a "TARGET Settlement 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 EURIBOR or LIBOR Notes denominated or payable in euros shall be
the second TARGET Settlement Day preceding such Interest Reset Date. The
Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to LIBOR, other than LIBOR Notes
denominated or payable in euros, 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," for any Interest Determination Date, the CD Rate
with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate cannot be
determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m., New
York City time, on the Calculation Date, the CD Rate shall be the rate on that
Interest Determination Date set forth in
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the daily update of H.15(519), available through the world wide website of the
Board of Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication ("H.15 Daily Update") for the Interest Determination Date for
certificates of deposit having the Index Maturity specified on the face hereof,
under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the CD Rate to be the arithmetic mean of the
secondary market offered rates as of 10:00 a.m., New York City time, on that
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent (after consultation with the Issuer) 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 with a
remaining maturity closest to the Index Maturity specified on the face hereof in
an amount that is representative for a single transaction in that market at that
time.
(iii) If the dealers selected by the Calculation Agent are not quoting
as described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable 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," for any Interest Determination
Date, the Commercial Paper Rate with respect to this Note shall be the Money
Market Yield (as defined herein), calculated as described below, of the rate on
that date for commercial paper having the Index Maturity specified on the face
hereof, as that rate is published in H.15(519), under the heading "Commercial
Paper --Nonfinancial."
The following procedures shall be followed if the Commercial Paper Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate shall be the Money
Market Yield of the rate on that Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in the
H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation Date the
rate is not yet published in either H.15(519) or the H.15 Daily Update, then the
Calculation Agent shall determine the Commercial Paper Rate to be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on that Interest Determination Date of three leading dealers of
commercial paper in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) 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 statistical rating
agency.
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(iii) If the dealers selected by the Calculation Agent are not quoting
as mentioned above, the Commercial Paper Rate for that Interest Determination
Date shall remain the Commercial Paper Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a 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 year 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 EURIBOR Notes. If the Base Rate specified on the face
hereof is "EURIBOR," for any Interest Determination Date, EURIBOR with respect
to this Note shall be the rate for deposits in euros as sponsored, calculated
and published jointly by the European Banking Federation and ACI - The Financial
Market Association, or any company established by the joint sponsors for
purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Bridge
Telerate, Inc., or any successor service, on page 248 or any other page as may
replace page 248 on that service ("Telerate Page 248") as of 11:00 a.m.
(Brussels time).
The following procedures shall be followed if the rate cannot be
determined as described above:
(i) If the above rate does not appear, the Calculation Agent shall
request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the
applicable Interest Reset Date, and in a principal amount not less than the
equivalent of U.S.$1 million in euro that is representative of a single
transaction in euro, in that market at that time. If at least two quotations
are provided, EURIBOR shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index
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Maturity specified on the face hereof commencing on that Interest Reset
Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the European
Union that adopt the single currency in accordance with the treaty establishing
the European Community (the "EC"), as amended by the treaty on European Union
(as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate specified on
the face hereof is the "Federal Funds Rate," for any Interest Determination
Date, the Federal Funds Rate with respect to this Note shall be the rate on that
date for federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" as displayed on Bridge Telerate, Inc., or any successor
service, on page 120 or any other page as may replace page 120 on that service
("Telerate Page 120").
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate shall be the rate on that
Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the H.15
Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight federal funds by each of
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) prior to
9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not quoting
as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable 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 based on London interbank
offered rate. The Calculation Agent shall determine "LIBOR" for each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either (a)
if "LIBOR Reuters" is specified as the Reporting Service on the face hereof, the
arithmetic mean of the offered rates for
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deposits in the Index Currency having the Index Maturity designated on the face
hereof, commencing on the second London Banking Day immediately following that
Interest Determination Date, that appear on the Designated LIBOR Page, as
defined below, as of 11:00 a.m., London time, on that Interest Determination
Date, if at least two offered rates appear on the Designated LIBOR Page; except
that if the specified Designated LIBOR Page, by its terms provides only for a
single rate, that single rate shall be used; or (b) if "LIBOR Telerate" is
specified as the Reporting Service on the face hereof, the rate for deposits in
the Index Currency having the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following that Interest
Determination Date or, if pounds sterling is the Index Currency, commencing on
that Interest Determination Date, that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is
specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined on that
Interest Determination Date shall be the arithmetic mean of those quotations. If
fewer than two quotations are provided, LIBOR shall be determined for the
applicable Interest Reset Date as the arithmetic mean of the rates quoted at
approximately 11:00 a.m., London time, or some other time specified on the face
hereof, in the applicable principal financial center for the country of the
Index Currency on that Interest Reset Date, by three major banks in that
principal financial center selected by the Calculation Agent (after consultation
with the Issuer) for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not quoting
as described in (iii) above, LIBOR in effect for the applicable period shall be
the same as LIBOR for the immediately preceding Interest Reset Period, or, if
there was no Interest Reset Period, the rate of interest payable shall be the
Initial Interest Rate.
The "Index Currency" means the currency specified on the face hereof as
the currency for which LIBOR shall be calculated, or, if the euro is substituted
for that currency, the Index Currency
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shall be the euro. If that currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR
Telerate were specified, and, if the U.S.
dollar is the Index Currency, as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is "Prime Rate," for any Interest Determination Date, the Prime Rate with
respect to this Note shall be the rate on that date as published in H.15(519)
under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be
determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate shall be the rate on that
Interest Determination Date as published in H.15 Daily Update under the heading
"Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York City
time, on the Calculation Date in either H.15(519) or the H.15 Daily Update, then
the Calculation Agent shall determine the Prime Rate to be the arithmetic mean
of the rates of interest publicly announced by each bank that appears on the
Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate or
base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen USPRIME 1
Page for that Interest Determination Date, the Calculation Agent shall determine
the Prime Rate to 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 that Interest Determination Date by at least three major banks in
The City of New York selected by the Calculation Agent (after consultation with
the Issuer).
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
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"Reuters Screen USPRIME 1 Page" means the display designated as page
"USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service for
the purpose of displaying prime rates or base lending rates of major United
States banks.
Determination of Treasury Rate. If the Base Rate specified on the face
hereof is "Treasury
Rate," the Treasury Rate with respect to this Note shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00
p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of
the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S. Government
Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by 3:00
p.m., New York City time, on the related Calculation Date, the Bond Equivalent
Yield of the Auction rate of the applicable Treasury Bills, announced by the
United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may
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include the agent or its affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not quoting
as described in (vi), the Treasury Rate for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of interest
payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in accordance with
the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = --------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest is
being calculated.
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the "CMT Rate," for any Interest Determination Date, the CMT Rate with
respect to this Note shall be the rate displayed on the Designated CMT Telerate
Page (as defined below) under the caption "... Treasury Constant Maturities ...
Federal Reserve Board Release H.15... Mondays Approximately 3:45 p.m.," under
the column for the Designated CMT Maturity Index, as defined below, for:
(1) the rate on that Interest Determination Date, if the Designated
CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate cannot be
determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination Date as may then be
published by either the Board of Governors of the Federal Reserve System or the
United States Department of the
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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).
(iii) If the information described in (ii) is not provided by 3:00
p.m., New York City time, on the related Calculation Date, then the Calculation
Agent shall determine the CMT Rate to 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 ("Reference Dealers") in The City of New
York, which may include an agent or other affiliates of the Issuer, selected by
the Calculation Agent as described in the following sentence. The Calculation
Agent shall select five reference dealers (after consultation with the Issuer)
and shall eliminate 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 a remaining term to maturity
of not less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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 shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to 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, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than 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.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the Calculation
Agent are quoting as described in (iv) above, the CMT Rate shall be the CMT Rate
for the immediately preceding Interest Reset Period, or, if there was no
Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc., or any successor service, on the page designated on the face hereof or any
other page as may replace that page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
17
<PAGE>
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10, 20 or 30
years, specified in an applicable pricing supplement for which the CMT Rate
shall be calculated. If no 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 (i) by
360 if the Base Rate is CD Rate, Commercial Paper Rate, EURIBOR, Federal Funds
Rate, Prime Rate or LIBOR (except if the Index Currency is pounds sterling);
(ii) by 365 if the Base Rate is LIBOR and the Index Currency is pounds sterling;
or (iii) by the actual number of days in the year if the Base Rate is the
Treasury Rate or the CMT Rate. 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.
18
<PAGE>
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 The City of New
York 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.
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, the Issuer in its discretion may execute a new Note of
like tenor 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
19
<PAGE>
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 or
insolvency 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 modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms 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
20
<PAGE>
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 the euro has been substituted for such Specified Currency, the
Issuer may at its option (or shall, if so required by applicable law) without
the consent of the holder of this Note effect the payment of principal of,
premium, if any, or interest on, any Note denominated in such Specified Currency
in euro in lieu of such Specified Currency in conformity with legally applicable
measures taken pursuant to, or by virtue of, the treaty establishing the EC, as
amended by the Treaty. Any payment made under such circumstances in U.S. dollars
or euro where the required payment is in an unavailable Specified Currency will
not constitute an Event of Default. If such Market Exchange Rate is not then
available to the Issuer or is not published for a particular Specified Currency,
the Market Exchange Rate will be based on the highest bid quotation in The City
of New York received by the Exchange Rate Agent at approximately 11:00 a.m., New
York City time, on the second Business Day preceding the date of such payment
from three recognized foreign exchange dealers (the "Exchange Dealers") for the
purchase by the quoting Exchange Dealer of the Specified Currency for U.S.
dollars for settlement on the payment date, in the aggregate amount of the
Specified Currency payable to those holders or beneficial owners of Notes and at
which the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless the
Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations are
not available, the Exchange Rate Agent shall determine the market exchange rate
at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. Incorporated,
unless otherwise indicated 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 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
21
<PAGE>
(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.
22
<PAGE>
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___________________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act_______________________________
(State)
Additional abbreviations may also be used though not in the above list.
-----------------------
23
<PAGE>
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.
24
<PAGE>
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.
25
<PAGE>
[SCHEDULE A]8
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _________ __,1999 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:]9 [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:]10
<TABLE>
Reduced
Principal Principal Increased
Amount Amount of Principal
Principal Outstanding Attached Unit Amount of this
Principal Amount Following Such Note Exchanged Note Outstanding Notation Made
Date of Exchange Amount Exchanged for Exchange or for Interest in Following Such by or on Behalf
or Cancellation Cancelled Separated Note(9) Cancellation this Note(10) Exchange(10) of Paying Agent
<S> <C> <C> <C> <C> <C> <C>
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
</TABLE>
- --------
8 Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note remains part of a Unit.
10 Applies only if this Note has been separated from a Unit.
26
EXHIBIT 4-t
[FORM OF FACE OF SECURITY]
Senior Dollarized Bull Note
REGISTERED REGISTERED
No. DYC(B) [PRINCIPAL AMOUNT]
CUSIP:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.1
- --------
1 Applies only if this Note is a Registered Global Security.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Bull Note)
SET RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
REFERENCE RATE INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
CURRENCIES:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
REFERENCE RATE MAXIMUM INTEREST RATE: INTEREST RESET PERIOD:
MULTIPLIER:
REFERENCE RATE LOCATION: MINIMUM INTEREST RATE: INTEREST RESET DATE(S):
EXCHANGE RATE AGENT: INITIAL REDEMPTION DATE: CALCULATION AGENT:
INITIAL REDEMPTION SPECIFIED CURRENCY:
PERCENTAGE:
ANNUAL REDEMPTION IF SPECIFIED CURRENCY
PERCENTAGE REDUCTION: OTHER THAN U.S. DOLLARS,
OPTION TO ELECT PAYMENT
IN U.S. DOLLARS: [YES]2
OPTIONAL REPAYMENT
DATE(S):
OTHER PROVISIONS: REDEMPTION NOTICE PERIOD:3
Morgan Stanley Dean Witter & 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 _____________ ]4 [ amount specified in Schedule A hereto]5 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
- --------
2 Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of
Representations.
3 Applicable if other than 30-60 days. If this is a Registered
Global Security, minimum notice period is [20] days.
4 Applies if this Note is not issued as part of, or in relation to, a
Unit.
5 Applies if this Note is issued as part of, or in relation to, a
Unit.
2
<PAGE>
hereof until the principal hereof is paid or duly made available for payment.
The Issuer will pay interest in arrears weekly, monthly, quarterly, semiannually
or annually as specified above as the Interest Payment Period on each Interest
Payment Date (as specified above), commencing with the first Interest Payment
Date next succeeding the Interest Accrual Date specified above, and on the
Maturity Date (or any redemption or repayment date); provided, however, that if
the Interest Accrual Date occurs between a Record Date, as defined below, and
the next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date succeeding the Interest Accrual Date to the
registered holder of this Note on the Record Date with respect to such second
Interest Payment Date; and provided, further, that if an Interest Payment Date
(other than the Maturity Date or redemption or repayment date) would fall on a
day that is not a Business Day, as defined on the reverse hereof, such Interest
Payment Date shall be the following day that is a Business Day; and provided,
further, that if the Maturity Date or redemption or repayment date would fall on
a day that is not a Business Day, such Maturity Date or redemption or repayment
date shall be on the following day that is a Business Day and no interest shall
accrue from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most recent
date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from and including the Interest Accrual
Date, until but excluding the date the principal hereof has been paid or duly
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Interest Payment Date (whether or not a Business
Day) (each such date a "Record Date"); provided, however, that interest payable
at maturity (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 maturity (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. 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 a 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 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.
3
<PAGE>
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 date6 [, with respect to payments
of interest, on or prior to the fifth Business Day after the applicable Record
Date and, with respect to payments of principal or any premium, at least ten
Business Days prior to the Maturity Date or any redemption or repayment date, as
the case may be]7; provided that, if payment of interest, principal or any
premium with regard to this Note is payable in euro, the account must be a euro
account in a country for which the euro is the lawful currency; provided,
further, 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, for payments of interest, or at
least ten days prior to the Maturity Date or any redemption or repayment date,
for payments of principal, 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 (as defined on the reverse hereof) 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
- --------
6 Applies for Registered Note that is not in global form.
7 Applies only for a Registered Global Security.
4
<PAGE>
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.
5
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
6
<PAGE>
[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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999 between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented from time to time, the "Senior Indenture"), to which Senior
Indenture 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
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 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 hereof, 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 or within the
Redemption Notice Period specified on the face hereof, 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
7
<PAGE>
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, (a) that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close (x) in The
City of New York or (y) if this Note is denominated in a Specified Currency
other than U.S. dollars, Australian dollars or euro, in the principal financial
center of the country of the Specified Currency or (z) if this Note is
denominated in Australian dollars, in Sydney and (b) if this Note is denominated
in euro, that is also a day on which the Trans-European Automated Real-time
Gross Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement Day").
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.
8
<PAGE>
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
9
<PAGE>
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,
10
<PAGE>
as determined by reference to the noon dollar buying rate in The City of New
York 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.
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, the Issuer in its discretion may execute a new Note of
like tenor 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
11
<PAGE>
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 or insolvency 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 modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms 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 the euro has been substituted for such Specified Currency, the
Issuer may at its option (or shall, if so required by applicable law) without
the consent of the holder of this Note effect the payment of principal of,
premium, if any, or interest
12
<PAGE>
on, any Note denominated in such Specified Currency in euro in lieu of such
Specified 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 euro where the required
payment is in an unavailable Specified Currency will not constitute an Event of
Default. If such Market Exchange Rate is not then available to the Issuer or is
not published for a particular Specified Currency, the Market Exchange Rate will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which the
applicable Exchange Dealer commits to execute a contract. One of the Exchange
Dealers providing quotations may be the Exchange Rate Agent unless the Exchange
Rate Agent is an affiliate of the Issuer. If those bid quotations are not
available, the Exchange Rate Agent shall determine the market exchange rate at
its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. Incorporated,
unless otherwise indicated 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 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.
13
<PAGE>
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.
14
<PAGE>
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___________________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act_______________________________
(State)
Additional abbreviations may also be used though not in the above list.
-----------------------
15
<PAGE>
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.
16
<PAGE>
[SCHEDULE A]8
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _________ __,1999 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:]9 [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:]10
<TABLE>
Reduced
Principal Principal Increased
Amount Amount of Principal
Principal Outstanding Attached Unit Amount of this
Principal Amount Following Such Note Exchanged Note Outstanding Notation Made
Date of Exchange Amount Exchanged for Exchange or for Interest in Following Such by or on Behalf
or Cancellation Cancelled Separated Note(9) Cancellation this Note(10) Exchange(10) of Paying Agent
<S> <C> <C> <C> <C> <C> <C>
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
- --------------- ---------------- ---------------- ---------------- --------------- ---------------- ----------------
</TABLE>
- --------
8 Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note remains part of a Unit.
10 Applies only if this Note has been separated from a Unit.
17
EXHIBIT 4-u
[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.1
- --------
1 Applies only if this Note is a Registered Global Security.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(S&P Indexed (Bull) Note)
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
interestequal to the greater of (i) zero
and (ii)
Principal x Leverage x (Final Value - Initial 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 Incorporated
if such date is not a
Business Day.
REGISTRATION STATEMENT NUMBER: DEPOSITORY: The Depository Trust Company
or its successors
PRICING SUPPLEMENT NUMBER:
OTHER PROVISIONS:
Morgan Stanley Dean Witter & 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.
2
<PAGE>
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.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
4
<PAGE>
[FORM OF 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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended or
supplemented from time to time, the "Senior Indenture") to which Senior
Indenture 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 at its corporate
trust office in The City of New York as the paying agent (the "Paying Agent,"
which term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Notes.
The Issuer has appointed Morgan Stanley & Co. Incorporated as the
Calculation Agent (the "Calculation Agent," which term includes any additional
or successor Calculation Agent appointed by the Issuer) with respect to the
Notes. The terms of individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or otherwise, all as
provided in the Senior Indenture. To the extent not inconsistent herewith, the
terms of the Senior Indenture are hereby incorporated by reference herein.
2. Repayment Amount. The Holder of this Note will be entitled to
receive an amount (the "Repayment Amount") at the Maturity Date equal to the
Principal Amount plus interest, if any (the "Interest Payment"), calculated in
accordance with the following sentence. The Interest Payment will be equal to
the greater of (i) zero and (ii)
Principal x Leverage Factor x (Final Value - Initial Value)
Amount (if any) ----------------------------
Initial Value
where Initial Value and Leverage Factor are specified on the face hereof and
Final Value is the closing value of the Standard & Poor's 500 Composite Stock
Price Index ("S&P 500 Index") (such value as calculated by Standard & Poor's
("S&P") and published in the Wall Street Journal) at the market close on the
Determination Date specified on the face hereof. If the Final Value is equal to
5
<PAGE>
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.
6
<PAGE>
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," and, together with the New York Stock Exchange, Inc., the
American Stock Exchange, Inc. and other nationally recognized stock
exchanges, 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 Issuer'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
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<PAGE>
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 The City of New York 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
8
<PAGE>
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,
9
<PAGE>
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, the Issuer in its discretion may execute a new Note of
like tenor 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,
10
<PAGE>
including this Note, or due to certain events of bankruptcy or insolvency 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 modify or amend
the provisions for conversion or exchange of the debt security for securities of
the Issuer or other entities (other than as provided in the antidilution
provisions or other similar adjustment provisions of the debt securities or
otherwise in accordance with the terms 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
11
<PAGE>
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.
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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___________________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act_______________________________
(State)
Additional abbreviations may also be used though not in the above list.
-----------------------
13
<PAGE>
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.
14
EXHIBIT 4-v
[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.1
- --------
1 Applies only if this Note is a Registered Global Security.
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(S&P Indexed (Bear) Note)
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
preceding Business Day if such date & Co. Incorporated]
is not a Business Day.
REGISTRATION STATEMENT NUMBER: DEPOSITORY: The Depository Trust
Company or its successors
PRICING SUPPLEMENT NUMBER:
OTHER PROVISIONS:
Morgan Stanley Dean Witter & 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.
2
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
3
<PAGE>
[FORM OF 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 an Amended and Restated Senior Indenture, dated as of May 1,
1999, between the Issuer and The Chase Manhattan Bank, as Trustee (the
"Trustee," which term includes any successor trustee under the Senior Indenture)
(as may be amended and supplemented from time to time, the "Senior Indenture"),
to which Senior Indenture 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
maturity 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 at its corporate
trust office in The City of New York as the paying agent (the "Paying Agent,"
which term includes any additional or successor Paying Agent appointed by the
Issuer) with respect to the Notes.
The Issuer has appointed Morgan Stanley & Co. Incorporated as the
Calculation Agent (the "Calculation Agent," which term includes any additional
or successor Calculation Agent appointed by the Issuer) with respect to the
Notes. The terms of individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or otherwise, all as
provided in the Senior Indenture. To the extent not inconsistent herewith, the
terms of the Senior Indenture are hereby incorporated by reference herein.
2. Repayment Amount. The Holder of this Note will be entitled to
receive an amount (the "Repayment Amount") at the Maturity Date equal to the
Principal Amount plus interest, if any (the "Interest Payment"), calculated in
accordance with the following sentence. The Interest Payment will be equal to
the greater of (i) zero and (ii)
Principal x Leverage Factor x (Initial Value - Final Value)
Amount (if any) ---------------------------
Initial Value
where Initial Value and Leverage Factor are specified on the face hereof and
Final Value is the closing value of the Standard & Poor's 500 Composite Stock
Price Index ("S&P 500 Index") (such value as calculated by Standard & Poor's
("S&P") and published in the Wall Street Journal) at the market close on the
Determination Date specified on the face hereof. If the Final Value is equal to
or greater than the Initial Value, a Holder of this Note will be repaid 100% of
the Principal Amount of this Note, but the Holder will not receive any Interest
Payment.
4
<PAGE>
"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.
5
<PAGE>
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," and, together with the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and other nationally recognized stock
exchanges, 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 Issuer'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.
6
<PAGE>
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 the City of New York 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).
7
<PAGE>
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,
8
<PAGE>
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; 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, the Issuer in its discretion may execute a new Note of
like tenor in exchange for this Note, but, if this Note was destroyed, lost or
stolen, only upon receipt of evidence satisfactory to the Trustee and 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 or
insolvency 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
9
<PAGE>
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 modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt security for
securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms 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
10
<PAGE>
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.
11
<PAGE>
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___________________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act_______________________________
(State)
Additional abbreviations may also be used though not in the above list.
-----------------------
12
<PAGE>
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.
13
EXHIBIT 4-w
[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
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO
OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO
A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and matures
not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
<PAGE>
<TABLE>
MORGAN STANLEY DEAN WITTER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
<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):
SPECIFIED CURRENCY: ANNUAL REDEMPTION EUROCLEAR NO.: MINIMUM DENOMINA-
PERCENTAGE TIONS:
REDUCTION:
EXCHANGE RATE REDEMPTION NOTICE CEDELBANK NO.: APPLICABILITY OF
AGENT: PERIOD:3 MODIFIED PAYMENT
UPON ACCELERA-
TION OR
REDEMPTION
COMMON CODE: If yes, state issue Price:
OTHER PROVISIONS: ISIN: ORIGINAL YIELD TO
MATURITY:
</TABLE>
Morgan Stanley Dean Witter & 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 ____________________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 hereof is paid or duly made available for payment (except as
provided below) weekly, monthly, quarterly, semi-annually or annually in
arrears on the Interest Payment Dates specified above in each commencing on
the Interest Payment Date next succeeding the Interest Accrual Date specified
above, and at maturity (or on any redemption or repayment date); provided,
however, that if the Interest Accrual Date occurs between a Record Date, as
defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date to the registered holder of this Note on the Record Date
with respect to such second Interest Payment Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for,
or, if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the principal hereof has
been paid or duly made available for payment (except as provided below). The
interest so
- --------
3 Applicable if other than 30-60 days, if shorter period is cleared with
Euroclear & Cedelbank.
4 Applies if this Note is issued as part of, or in relation to, a Unit.
2
<PAGE>
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 (as defined on the
reverse)) (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.
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.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
4
<PAGE>
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Subordinated Indenture, dated as of May 1, 1999, between
the Issuer and The First National Bank of Chicago, as Trustee (the "Trustee,"
which term includes any successor trustee under the Subordinated Indenture)
(as may be amended or supplemented from time to time, 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 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, 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, 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 indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated 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 hereof, 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 indicated 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
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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 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
or within the Redemption Notice Period specified on the face hereof, 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 trust company in the United
States, Western Europe or Japan setting forth the principal amount of the
Note, the principal amount of the Note to be repaid, the certificate number or
a description of the tenor and terms of this Note, a statement that the Option
to Elect Repayment is being exercised and a guarantee that this Note to be
repaid, together with the duly completed form entitled Option to Elect
Repayment, will be received by the principal paying agent not later than the
fifth Business Day after the date of that telegram, telex, facsimile
transmission or letter. However, the telegram, telex, facsimile transmission
or letter shall only be effective if this Note and an Option to Elect
Repayment form duly completed are received by the Paying Agent by the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
letter.
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
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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 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 be redeemed for a period of fifteen calendar days preceding
the mailing of the relevant notice of redemption. 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
registrations, 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.
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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, the Issuer in its discretion will execute a new
Note of like tenor 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
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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)(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 or within the Redemption Notice
Period specified on the face hereof, 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,
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if such holder is an estate, a trust, a partnership or a corporation)
and the United States and its possessions, 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
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been entitled to the Additional Amounts had such beneficiary, settlor, member
or beneficial owner been the holder of this Note.
The Subordinated 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 or insolvency 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 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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.
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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 the euro has been substituted for
such Specified Currency, the Issuer may at its option (or shall, if so
required by applicable law) without the consent of the holder of this Note
effect the payment of principal of, premium, if any, or interest on, any Note
denominated in such Specified Currency in euro in lieu of such Specified
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 euro where the
required payment is in an unavailable Specified Currency will not constitute
an Event of Default. If such Market Exchange Rate is not then available to the
Issuer or is not published for a particular Specified Currency, the Market
Exchange Rate will be based on the highest bid quotation in The City of New
York received by the Exchange Rate Agent (as defined below) at approximately
11:00 a.m., New York City time, on the second Business Day preceding the date
of such payment from three recognized foreign exchange dealers (the "Exchange
Dealers") for the purchase by the quoting Exchange Dealer of the Specified
Currency for U.S. dollars for settlement on the payment date, in the aggregate
amount of the Specified Currency payable to those holders or beneficial owners
of Notes and at which the applicable Exchange Dealer commits to execute a
contract. One of the Exchange Dealers providing quotations may be the Exchange
Rate Agent (as defined below) unless the Exchange Rate Agent is an affiliate
of the Issuer. If those bid quotations are not available, the Exchange Rate
Agent shall determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated 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 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. 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,
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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, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated
in Australian dollars, in Sydney and (b) if this Note is denominated
in euro, that
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is also a day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer System ("TARGET") is operating (a "TARGET
Settlement Day").
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof published by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices 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; provided that notice may be made, at the option of
the Issuer, through the customary notice provisions of the clearing
system or systems through which beneficial interests in this Note are
owned. Such Notices will be deemed to have been given on the date of
such publication (or other transmission, as applicable) 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.
14
<PAGE>
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 _______________
(Minor) (Cust)
Under Uniform Gifts to Minors Act_____________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
-----------------------
15
<PAGE>
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.
16
<PAGE>
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.
17
EXHIBIT 4-x
[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.1
- --------
1 Applies only if this Note is a Registered Global Security.
<PAGE>
<TABLE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate Amortizing)
<S> <C> <C> <C>
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
INTEREST ACCRUAL INITIAL REDEMPTION INSTALLMENT OPTIONAL
DATE: PERCENTAGE: PAYMENT DATE(S): REPAYMENT
DATE(S):
SPECIFIED CURRENCY: ANNUAL REDEMPTION INTEREST PAYMENT APPLICABILITY OF
PERCENTAGE PERIOD: MODIFIED
REDUCTION: PAYMENT UPON
ACCELERATION:
IF SPECIFIED REDEMPTION NOTICE APPLICABILITY OF If yes, state Issue Price:
CURRENCY PERIOD:3 ANNUAL
OTHER THAN U.S. INSTALLMENT
DOLLARS, OPTION PAYMENTS:
TO ELECT
PAYMENT IN U.S.
DOLLARS: [YES]2
EXCHANGE RATE NUMBER OF ORIGINAL YIELD TO
AGENT: INSTALLMENTS: MATURITY:
OTHER PROVISIONS:
</TABLE>
Morgan Stanley Dean Witter & 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 ]4 [ amount
specified in Schedule A hereto]5, 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 redeemed or repaid prior to the maturity)
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.
- --------
2 Applies if this is a Registered Global Security, unless new arrangements
are made with DTC outside of existing Letters of Representations.
3 Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
4 Applies if this Note is not issued as part of, or in relation to, a Unit.
5 Applies if this Note is issued as part of, or in relation to, a Unit.
2
<PAGE>
dollars, for each 1,000 units of such Specified Currency, principal amount as
set forth on Schedule I hereto, on each Installment Payment Date specified
above, commencing with the Installment Payment Date immediately following the
Original Issue Date shown above, and at maturity (or on any redemption or
optional repayment date); provided, however, that, notwithstanding the
provisions of Schedule I, if the Interest Accrual Date occurs between a Record
Date, as defined below, and the next succeeding Installment Payment Date,
payments of principal and interest will commence on the second Installment
Payment Date succeeding the Interest Accrual Date and interest accrued from
the Interest Accrual Date to such second Installment Payment Date plus any
principal scheduled to be paid on a prior Installment Payment Date will be
paid to the registered holder of this Note on the Record Date with respect to
such second Installment Payment Date. Each Installment shall constitute both a
payment of interest and a partial repayment of principal, allocated as set
forth in Schedule I hereto. Installments will be applied first to interest due
and payable hereon and then to the reduction of the unpaid principal amount
hereof.
Interest on this Note will accrue from and including the most recent
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 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 (as defined below)) (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. As used herein, "Business Day" means any day, other than a Saturday
or Sunday, (a) that is neither a legal holiday nor a day on which banking
institutions are authorized or required by law or regulation to close (x) in
The City of New York or (y) if this Note is denominated in a Specified
Currency other than U.S. dollars, Australian dollars or euro, in the principal
financial center of the country of the Specified Currency, or (z) if this Note
is denominated in Australian dollars, in Sydney and (b) if this Note is
denominated in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a
"TARGET Settlement Day").
Payment of the principal of this Note, any premium and the interest
due at maturity (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 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
3
<PAGE>
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 the equivalent in a Specified
Currency) 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]6 [, with
respect to payments of interest, on or prior to the fifth Business Day after
the applicable Record Date and, with respect to payments of principal or any
premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be]7; provided that, if payment
of interest, principal or any premium with regard to this Note is payable in
euro, the account must be a euro account in a country for which the euro is
the lawful currency, provided further, 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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, as the case may be.
- --------
6 Applies for a Registered Note that is not in global form.
7 Applies only for a Registered Global Security.
4
<PAGE>
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 (as defined on the reverse hereof) 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.
5
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
6
<PAGE>
[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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or further supplemented from time to time, 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 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 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 hereof, 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 or within the Redemption Notice Period specified on the face
hereof, 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
7
<PAGE>
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.
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 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
Installment 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 Installment 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
8
<PAGE>
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 The City of New York 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.
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, the Issuer in its discretion may execute a new Note
of like tenor 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
9
<PAGE>
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 or insolvency 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
10
<PAGE>
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified 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 euro where the required payment is
in an unavailable Specified Currency will not constitute an Event of Default.
If such Market Exchange Rate is not then available to the Issuer or is not
published for a particular Specified Currency, the Market Exchange Rate will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid quotations
are not available, the Exchange Rate Agent shall determine the market exchange
rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. Incorporated,
unless otherwise indicated 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 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
11
<PAGE>
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.
12
<PAGE>
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__________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act_____________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
-----------------------
13
<PAGE>
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.
14
<PAGE>
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.
15
<PAGE>
[SCHEDULE A]8
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _____, 1999 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:]9 [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:]10
<TABLE>
<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(8) Cancellation Note(9) Exchange(9) Paying Agent
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
- ------------ ----------- ------------ ------------------ ------------------- ------------------ ----------------
</TABLE>
- ---------------
(8) Schedule A needed only if this Note is issued as part of, or in relation
to, a Unit.
(9) Applies only if this Note is part of a Unit.
(10) Applies only if this Note has been separated from a Unit.
16
EXHIBIT 4-y
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.(1)
- ----------
1 Applies only if this Note is a Registered Global Security.
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Yield Curve (Bond Basis))
<TABLE>
<S> <C> <C>
SET RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
INDEX MATURITY: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
REFERENCE RATE CURRENCY: INITIAL INTEREST RATE: INTEREST RESET DATE(S):
REFERENCE RATE INITIAL INTEREST RESET CALCULATION AGENT:
MULTIPLIER: DATE:
REFERENCE RATE LOCATION: MAXIMUM INTEREST RATE: SPECIFIED CURRENCY:
CONVERSION FACTOR MINIMUM INTEREST RATE: IF SPECIFIED CURRENCY
REFERENCE PERIOD: OTHER THAN U.S.
DOLLARS, OPTION TO
ELECT PAYMENT IN U.S.
DOLLARS: [YES](2)
EXCHANGE RATE AGENT: INITIAL REDEMPTION DATE: DESIGNATED CMT
TELERATE PAGE:
INITIAL REDEMPTION DESIGNATED CMT
PERCENTAGE: MATURITY INDEX:
ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT
DATE(S):
OTHER PROVISIONS: REDEMPTION NOTICE PERIOD:(3)
</TABLE>
- ----------------
2 Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of Representations.
3 Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
Morgan Stanley Dean Witter & 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 ](4) [ amount specified in Schedule A hereto](5) 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 weekly, 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 payment shall be made on 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.
- ---------------
4 Applies if this Note is not issued as part of, or in relation to, a Unit.
5 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 at maturity (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 maturity (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 on 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 the equivalent in a 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 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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency; provided, further, 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
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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, 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 (as defined on the reverse hereof) 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.
- ---------------
6 Applies for a Registered Note that is not in global form.
7 Applies only for a Registered Global Security.
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 & 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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, 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 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 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 hereof, 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 or within the Redemption Notice Period specified on the face
hereof, 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. 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 (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.
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, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close
(x) in The City of New York or (y) if this Note is denominated in a Specified
Currency other than U.S. dollars, Australian dollars or euro, in the principal
financial center of the country of the Specified Currency, or (z) if this Note
is denominated in Australian dollars, in Sydney and (b) if this Note is
denominated in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is operating (a
"TARGET Settlement Day").
The Interest Determination Date pertaining to an Interest Reset
Date for Notes bearing interest calculated by reference to LIBOR (other
than LIBOR notes denominated or payable in euros) 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 The
City of New York 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.
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, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified 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 euro where the required payment is
in an unavailable Specified Currency will not constitute an Event of Default.
If such Market Exchange Rate is not then available to the Issuer or is not
published for a particular Specified Currency, the Market Exchange Rate will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid
quotations are not available, the Exchange Rate Agent shall determine the
market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 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 ___________________
(Minor) (Cust)
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](8)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _________ __,1999 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:](9) [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:](10)
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Reduced
Principal Principal Increased
Amount Amount of Principal
Principal Outstanding Attached Unit Amount of this
Principal Amount Following Such Note Exchanged Note Outstanding Notation Made
Date of Exchange Amount Exchanged for Exchange or for Interest in Following Such by or on Behalf
or Cancellation Cancelled Separated Note(9) Cancellation this Note(10) Exchange(10) of Paying Agent
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
________________ ___________ __________________ ______________ _______________ ________________ ________________
</TABLE>
- ---------------
8 Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note remains part of a Unit.
10 Applies only if this Note has been separated from a Unit.
EXHIBIT 4-z
[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.(1)
- ---------------
1 Applies only if this Note is a Registered Global Security.
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Dollarized Yield Curve (Money Market Basis))
<TABLE>
<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 DATE(S):
INDEX MATURITY: INITIAL INTEREST RESET CALCULATION AGENT:
DATE:
REFERENCE RATE MAXIMUM INTEREST RATE: SPECIFIED CURRENCY:
MULTIPLIER:
REFERENCE RATE LOCATION: MINIMUM INTEREST RATE: EXCHANGE RATE AGENT:
INITIAL REDEMPTION DATE: IF SPECIFIED CURRENCY
OTHER THAN U.S. DOLLARS,
OPTION TO ELECT PAYMENT
IN U.S. DOLLARS: [YES]2
INITIAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE: PAGE:
ANNUAL REDEMPTION DESIGNATED CMT MATURITY
PERCENTAGE REDUCTION: INDEX:
OPTIONAL REPAYMENT
DATE(S):
OTHER PROVISIONS: REDEMPTION NOTICE PERIOD:3
</TABLE>
- ---------------
2 Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of Representations.
3 Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
Morgan Stanley Dean Witter & 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 ](4) [
amount specified in Schedule A hereto](5) 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 weekly, 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 payment shall be made on the following day that is a
Business Day, except that if such next Business Day falls in the next calendar
month, the Interest Payment Date, Maturity Date or redemption or repayment
date shall be the immediately preceding day that is a Business Day.
Interest on this Note will accrue from and including the most
recent date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from and including the Interest
Accrual Date, until the principal hereof has been paid or duly made available
for payment. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or
more predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Interest Payment Date (whether or not a Business
Day) (each such date a "Record Date"); provided, however, that interest
payable at maturity (or any redemption or repayment date) will be payable to
the person to whom the principal hereof shall be payable.
- ---------------
4 Applies if this Note is not issued as part of, or in relation to,
a Unit.
5 Applies if this Note is issued as part of, or in relation to, a Unit.
Payment of the principal of this Note, any premium and the
interest due at maturity (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 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 the equivalent in a 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 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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, as the case may be.
- ---------------
6 Applies for a Registered Note that is not in global form.
7 Applies only for a Registered Global Security.
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 (as defined on the reverse hereof) 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 & 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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999 between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, 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 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 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 hereof, 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 or within the Redemption Notice Period specified on the face
hereof, 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. For
this Note to be repaid at the option of the holder hereof, the Paying Agent
must receive at its corporate trust office in the Borough of Manhattan, The
City of New York, at least 15 but not more than 30 days prior to the date of
repayment, (i) this Note with the form entitled "Option to Elect Repayment"
below duly completed or (ii) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States setting forth the name of the holder of this
Note, the principal amount hereof, the certificate number of this Note or a
description of this Note's tenor and terms, the principal amount hereof to be
repaid, a statement that the option to elect repayment is being exercised
thereby and a guarantee that this Note, together with the form entitled
"Option to Elect Repayment" duly completed, will be received by the Paying
Agent not later than the fifth Business Day after the date of such telegram,
telex, facsimile transmission or letter; provided, that such telegram, telex,
facsimile transmission or letter shall only be effective if this Note and form
duly completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be irrevocable.
In the event of repayment of this Note in part only, a new Note or Notes for
the amount of the unpaid portion hereof shall be issued in the name of the
holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the following formula:
I = SR - (RR x RRM)
where "I" is the interest rate for the Interest Reset Period, "SR" is the Set
Rate shown on the face hereof, "RR" is the Reference Rate determined in the
manner set forth below and "RRM" is the Reference Rate Multiplier shown on the
face hereof.
Commencing with the Initial Interest Reset Date specified on
the face hereof, the rate at which interest on this Note is payable shall be
reset as of each Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The Interest Reset Dates
will be the Interest Reset Dates specified on the face hereof; provided,
however, that (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 ten calendar days immediately prior to maturity, redemption or
repayment will be that rate 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
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, (a) that is neither a
legal holiday nor a day on which banking institutions are authorized or
required by law or regulation to close (x) in The City of New York or (y) if
this Note is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the country
of the Specified Currency, or (z) if this Note is denominated in Australian
dollars, in Sydney and (b) if this Note is denominated in euro, that is also a
day on which the Trans-European Automated Real-time Gross Settlement Express
Transfer System ("TARGET") is operating (a "TARGET Settlement Day").
The Interest Determination Date pertaining to an Interest Reset
Date for Notes bearing interest calculated by reference to LIBOR (other
than LIBOR notes denominated or payable in euros) 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 The
City of New York 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.
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, the Issuer in its discretion may execute a new
Note of like tenor in exchange for this Note, but, if this Note so 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 or insolvency 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified 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 euro where the required payment is
in an unavailable Specified Currency will not constitute an Event of Default.
If such Market Exchange Rate is not then available to the Issuer or is not
published for a particular Specified Currency, the Market Exchange Rate will
be based on the highest bid quotation in The City of New York received by the
Exchange Rate Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the date of such payment from three recognized
foreign exchange dealers (the "Exchange Dealers") for the purchase by the
quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid
quotations are not available, the Exchange Rate Agent shall determine the
market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated 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 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 ______________________
(Minor) (Cust)
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](8)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _________ __,1999 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:](9) [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:](10)
<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Reduced
Principal Principal Increased
Amount Amount of Principal
Principal Outstanding Attached Unit Amount of this
Principal Amount Following Such Note Exchanged Note Outstanding Notation Made
Date of Exchange Amount Exchanged for Exchange or for Interest in Following Such by or on Behalf
or Cancellation Cancelled Separated Note(8) Cancellation this Note(9) Exchange(9) of Paying Agent
________________ _________ _________________ _______________ _______________ ________________ _______________
________________ _________ _________________ _______________ _______________ ________________ _______________
________________ _________ _________________ _______________ _______________ ________________ _______________
________________ _________ _________________ _______________ _______________ ________________ _______________
________________ _________ _________________ _______________ _______________ ________________ _______________
________________ _________ _________________ _______________ _______________ ________________ _______________
________________ _________ _________________ _______________ _______________ ________________ _______________
________________ _________ _________________ _______________ _______________ ________________ _______________
</TABLE>
- ---------------
8 Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note remains part of a Unit.
10 Applies only if this Note has been separated from a Unit.
EXHIBIT 4-aa
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL SENIOR BULL NOTE
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]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 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.
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
- --------
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.
<PAGE>
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.
2
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Bull Note)
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
MATURITY DATE: INTEREST RATE: INTEREST PAYMENT PERIOD:
EUROCLEAR NO.: INITIAL REDEMPTION DATE: CALCULATION AGENT:
CEDELBANK NO.: INITIAL REDEMPTION SPECIFIED CURRENCY:
PERCENTAGE:
COMMON CODE: ANNUAL REDEMPTION INDEX CURRENCY:
PERCENTAGE REDUCTION:
ISIN: OPTIONAL REPAYMENT EXCHANGE RATE AGENT:
DATES(S):
REPORTING SERVICE: REDEMPTION PRICE: INDEX MATURITY:
PRINCIPAL AMOUNT: FINAL REDEMPTION PRICE: EXCHANGE FOR REGISTERED
NOTES [NO]3:
MINIMUM DENOMINATIONS: APPLICABILITY OF MODIFIED
PAYMENT UPON ACCELERATION OR
REDEMPTION
OTHER PROVISIONS: REDEMPTION NOTICE
PERIOD:4 IF YES STATE ISSUE PRICE:
Morgan Stanley Dean Witter & 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
based on the principal amount as specified in [Schedule A hereto]5 [Schedule
A-1 hereto]6, 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) weekly,
monthly, quarterly, semi-annually or annually 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
- --------
3 Unless explicitly stated otherwise in term sheet, MSDW practice has been
to exclude this option.
4 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank
if a shorter redemption notice is requested, to a minimum of ten days.
5 Applies if this Note is not issued as part of, or in relation to, a Unit.
6 Applies if this Note is issued as part of, or in relation to, a Unit.
3
<PAGE>
after the Interest Accrual Date, interest payments will commence on the second
Interest Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for,
or, if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the Final Redemption Price
is paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the
reverse of this Note) or at the office or agency of such other paying agents
outside the United States as the Issuer may determine for that purpose (each,
a "Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest
due at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as
provided on the reverse hereof. If this Note is denominated in U.S. dollars,
any payment of the principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Such payments on this Note will be made either by a check mailed to an address
outside the United States furnished by the payee or, at the option of the
payee and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States if
appropriate wire transfer instructions have been received by the Paying Agent
not less than 15 calendar days prior to the applicable payment date.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents would
be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the United States, if such paying agency, under applicable law and
regulations, would be able to make such payment. If this Note is denominated
in a Specified Currency other than U.S. dollars, then, except as provided on
the reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the payee
and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
<PAGE>
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.
5
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & 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
6
<PAGE>
[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 an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, 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, 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 indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated 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 hereof, 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 indicated 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 or within the Redemption Notice
7
<PAGE>
Period specified on the face hereof, subject to all the conditions and
provisions of the Senior Indenture. Notice of redemption to all other holders
of Notes shall be given in the manner set forth in "Notices" as defined below,
and, if by publication, shall be given 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 or within the Redemption Notice
Period specified on the face hereof. 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 or 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 trust company in the United
States, Western Europe or Japan setting forth the principal amount of the
Note, the principal amount of the Note to be repaid, the certificate number or
a description of the tenor and terms of this Note, a statement that the Option
to Elect Repayment is being exercised and a guarantee that this Note to be
repaid, together with the duly completed form entitled Option to Elect
Repayment, will be received by the principal paying agent not later than the
fifth Business Day (as defined below) after the date of that telegram, telex,
facsimile transmission or letter. However, the telegram, telex, facsimile
transmission or letter shall only be effective if this Note and an Option to
Elect Repayment form duly completed are received by the Paying Agent by the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter. 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
8
<PAGE>
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
Cedelbank 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, 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 or other
transmission, if applicable, 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
9
<PAGE>
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, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or Cedelbank 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. In the event of
any exchange of interests in this Note for a Definitive Bearer Note, 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"), Cedelbank and/or
any other relevant clearing system (including "Societe Interprofessionelle
pour la Compensation des Valeurs Mobilieres ("SICOVAM")) shall instruct 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, Cedelbank 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, the Issuer in its discretion may execute 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 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
10
<PAGE>
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
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 or within the Redemption Notice
Period specified on the face hereof, 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 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
11
<PAGE>
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 (or transmit, as
applicable) 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 or at least 30 days prior to the last day of the
Redemption Notice Period specified on the face hereof. 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 or within the
Redemption Notice Period as specified on the face hereof. 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 or
prior to the last day of the Redemption Notice Period specified on the face
hereof, that subsequent payments would not be subject to any such
certification, identification or other information reporting requirement, in
which case the Issuer shall publish (or transmit, as applicable) 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
12
<PAGE>
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 and its possessions, 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;
13
<PAGE>
(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 "Interest 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 Interest Determination Date, LIBOR shall be either:
(a) if "LIBOR Reuters" is specified as the Reporting Service on the
face hereof, the arithmetic mean of the offered rates for deposits in
the Index Currency having the Index Maturity designated on the face
hereof, commencing on the second London Banking Day immediately
following that Interest Determination Date, that appear on the
Designated LIBOR Page, as defined below, as of 11:00 a.m., London
time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the
specified Designated LIBOR Page, by its terms provides only for a
single rate, that single rate shall be used; or (b) if "LIBOR
Telerate" is specified as the Reporting Service on the face hereof,
the rate for deposits in the Index Currency having the Index Maturity
designated on the face hereof, commencing on the second London
Banking Day immediately following that Interest Determination Date
or, if pounds sterling is the Index Currency, commencing on that
Interest Determination Date, that appears on the Designated LIBOR
Page at approximately 11:00 a.m., London time, on that Interest
Determination Date.
14
<PAGE>
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters
is specified on the face hereof, or (b) no rate appears and the face
hereof specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and
the Designated LIBOR Page by its terms provides only for a single
rate, then the Calculation Agent shall 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
quotation 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 the Interest Determination
Date or, if pounds sterling is the Index Currency, commencing on that
Interest Determination Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on that Interest
Determination Date and in a principal amount that is representative
of a single transaction in that Index Currency in that market at that
time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of
those quotations. If fewer than two quotations are provided, LIBOR
shall be determined the arithmetic mean of the rates quoted at
approximately 11:00 a.m., London time, or some other time specified
on the face hereof, in the applicable principal financial center for
the country of the Index Currency on that Interest Reset Date, by
three major banks in that principal financial center selected by the
Calculation Agent (after consultation with the Issuer) for loans in
the Index Currency to leading European banks, having the Index
Maturity specified on the face hereof and in a principal amount that
is representative of a single transaction in that Index Currency in
that market at that time.
The "Index Currency" means the currency specified on the face hereof
as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S.
dollar is the Index Currency, as if Page 3750, had been specified.
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
15
<PAGE>
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 or insolvency 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
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms 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 the euro has been
16
<PAGE>
substituted for such Specified Currency, the Issuer may at its option (or
shall, if so required by applicable law) without the consent of the holder of
this Note effect the payment of principal of, premium, if any, or interest on,
any Note denominated in such Specified Currency in euro in lieu of such
Specified 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 euro
where the required payment is in an unavailable Specified Currency will not
constitute an Event of Default. If such Market Exchange Rate is not then
available to the Issuer or is not published for a particular Specified
Currency, the Market Exchange Rate will be based on the highest bid quotation
in The City of New York received by the Exchange Rate Agent (as defined below)
at approximately 11:00 a.m., New York City time, on the second Business Day
preceding the date of such payment from three recognized foreign exchange
dealers (the "Exchange Dealers") for the purchase by the quoting Exchange
Dealer of the Specified Currency for U.S. dollars for settlement on the
payment date, in the aggregate amount of the Specified Currency payable to
those holders or beneficial owners of Notes and at which the applicable
Exchange Dealer commits to execute a contract. One of the Exchange Dealers
providing quotations may be the Exchange Rate Agent unless the Exchange Rate
Agent is an affiliate of the Issuer. If those bid quotations are not
available, the Exchange Rate Agent shall determine the market exchange rate at
its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated 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 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. 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
17
<PAGE>
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, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated
in Australian dollars, in Sydney and (b) if this Note is denominated
in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day").
( 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 cable transfers of the
Specified Currency indicated on the face hereof as published 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
18
<PAGE>
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; provided that
notice may be made, at the option of the Issuer, through the
customary notice provisions of the clearing system or systems through
which beneficial interests in this Note are owned. Such Notices will
be deemed to have been given on the date of such publication (or
other transmission, as applicable) 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.
19
<PAGE>
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:
------------------------------------- ----------------------------------
20
<PAGE>
[SCHEDULE A7]
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>
Remaining
Principal
Amount
Outstanding
Principal Principal Principal Principal Princial Following
Amount Amount Amount Amount Amount Such Notation
Date of Exchange, Exchanged Exchanged For Exchanged for Redeemed at the Repaid at the Exchange, Made by or
Redemption or From Temporary Definitive Definitive Option of the Option of the Redemption or on Behalf of
Payment Global Notes Bearer Notes Registered Notes Issuer Holder Repayment Paying Agent
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
- --------
7 Applies if this Note is not issued as part of, or in relation to, a Unit.
</TABLE>
<PAGE>
[SCHEDULE A-1]8
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")]9, (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")]10 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>
Principal
Principal [Principal Amount
Amount Amount Principal Principal Exchanged
Date of Exchange, Exchanged Exchanged Amount Amount For
Cancellation From from an Exchanged Exchanged Definitive
Redemption, or Temporary Attached or Separated For Definitive Registered
Repayment Global Notes Unit Note]3 Notes]2 Bearer Notes Notes
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------
Principal
Amount
Outstanding
Principal Following
Principal Amount such
Date of Exchange, Amount Repaid Exchange, Notation
Cancellation Redeemed at at the Principal Cancellation Made by or
Redemption, or the option of option of Amount Redemption or on behalf of
Repayment the Issuer the Holder Cancelled or Repayment Paying Agent
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------
</TABLE>
- --------
8 This Schedule A-1 needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note is attached to a Unit.
10 Applies only if this Note has been separated from a Unit.
2
EXHIBIT 4-bb
[FORM OF FACE OF SECURITY]
Definitive Floating Rate Senior Bearer Note
BEARER BEARER No. PGFL ____
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[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 INTERNAL REVENUE CODE.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO
OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO
A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
- --------
1 Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
(
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
SENIOR DEFINITIVE MEDIUM-TERM NOTE, SERIES [D/E] (Floating Rate)
Floating Rate Senior Note
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 DATE(S):
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EUROCLEAR NO: INITIAL REDEMPTION INDEX CURRENCY:
PERCENTAGE:
CEDELBANK NO: ANNUAL REDEMPTION DESIGNATED CMT TELERATE
PERCENTAGE REDUCTION: PAGE:
COMMON CODE: OPTIONAL REPAYMENT DESIGNATED CMT MATURITY
DATE(S): INDEX:
ISIN: REDEMPTION NOTICE PERIOD:3 MINIMUM DENOMINATIONS:
REPORTING SERVICE: EXCHANGE FOR REGISTERED
NOTES: [NO]4
OTHER PROVISIONS:
Morgan Stanley Dean Witter & 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]5 [Schedule A-1 hereto]6, 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 but
excluding the Initial Interest Reset Date specified above, and on and after at
a rate per annum
- --------
3 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank if a
shorter redemption is requested. A minimum of 10 days may be possible.
4 Unless explicitly stated otherwise in term sheet, MSDW practice has been to
exclude this option.
5 Applies if this Note is not issued as part of, or in relation to, a Unit.
6 Applies if this Note is issued as part of, or in relation to, a Unit.
2
<PAGE>
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 or EURIBOR 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
3
<PAGE>
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.
4
<PAGE>
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 & 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
5
<PAGE>
[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 an Amended and
Restated Senior Indenture, dated as of May 1, 1999, between the Issuer and The
Chase Manhattan Bank, as Trustee (the "Trustee," which term includes any
successor trustee under the Senior Indenture) (as may be amended or
supplemented from time to time, 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, 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 indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated 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 hereof, 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 indicated 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 to 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
( 6
<PAGE>
publication to be not less than 30 nor more than 60 days prior to the date set
for redemption or within the Redemption Notice Period specified on the face
hereof. 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,
this Note, together with all unmatured coupons appertaining thereto, with the
form entitled "Option to Elect Repayment" below duly completed, or 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 trust company in the United States,
Western Europe or Japan setting forth the principal amount of the Note, the
principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of this Note, a statement that the Option
to Elect Repayment is being exercised and a guarantee that this Note to be
repaid, together with the duly completed form entitled Option to Elect
Repayment, will be received by the principal paying agent not later than the
fifth Business Day after the date of that telegram, telex, facsimile
transmission or letter. However, the telegram, telex, facsimile transmission
or letter shall only be effective if this Note and an Option to Elect
Repayment form duly completed are received by the Paying Agent by the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
letter. 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
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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 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 (as defined below), 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 or EURIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the immediately 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 EURIBOR (or to LIBOR when the Index
Currency is euros) shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to LIBOR (other
than for LIBOR Notes denominated or payable in euros) 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," for any Interest Determination Date, the CD Rate with
respect to this Note shall be the rate on that 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
8
<PAGE>
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)."
The following procedures shall be followed if the CD Rate cannot be
determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate shall be the rate on
that Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or
any successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519) or
the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation
Date, the Calculation Agent shall determine the CD Rate to be the arithmetic
mean of the secondary market offered rates as of 10:00 a.m., New York City
time, on that Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) 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 with a remaining maturity closest to the Index Maturity specified on
the face hereof in an amount that is representative for a single transaction
in that market at that time.
(iii) If the dealers selected by the Calculation Agent are not
quoting as described in (ii) above, the CD Rate shall remain the CD Rate for
the immediately preceding Interest Reset Period, or, if there was no Interest
Reset Period, the rate of interest payable 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," for any Interest Determination
Date, the Commercial Paper Rate with respect to this Note shall be the Money
Market Yield (as defined herein), calculated as described below, of the rate
on that date for commercial paper having the Index Maturity specified on the
face hereof, as that rate is published in H.15(519), under the heading
"Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial Paper
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on that Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as
published in the H.15 Daily Update under the heading "Commercial Paper --
Nonfinancial."
9
<PAGE>
(ii) If by 3:00 p.m., New York City time, on that Calculation Date
the rate is not yet published in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Commercial Paper Rate to be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00
a.m., New York City time, on that Interest Determination Date of three leading
dealers of commercial paper in The City of New York selected by the
Calculation Agent (after consultation with the Issuer) 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 statistical rating agency.
(iii) If the dealers selected by the Calculation Agent are not quoting
as mentioned above, the Commercial Paper Rate for that Interest Determination
Date shall remain the Commercial Paper Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a 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 year 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 EURIBOR Notes. If the Base Rate specified on the
face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR with
respect to this Note shall be the rate for deposits in euros as sponsored,
calculated and published jointly by the European Banking Federation and ACI -
The Financial Market Association, or any company established by the joint
sponsors for purposes of compiling and publishing those rates, for the Index
Maturity specified on the face hereof as that rate appears on the display on
Bridge Telerate, Inc., or any successor service, on page 248 or any other page
as may replace page 248 on that service ("Telerate Page 248") as of 11:00 a.m.
(Brussels time).
The following procedures shall be followed if the rate cannot be
determined as described above:
(i) If the above rate does not appear, the Calculation Agent shall
request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its
offered rate for deposits in euros, at approximately 11:00 a.m. (Brussels
time) on the Interest Determination Date, to prime banks in the Euro-zone
interbank market for the Index Maturity specified on the face hereof
commencing on the applicable Interest Reset Date, and in a principal amount
not less than the equivalent of U.S.$1 million in euro that is representative
of a single
10
<PAGE>
transaction in euro, in that market at that time. If at least two quotations
are provided, EURIBOR shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset
Date for loans in euro to leading European banks for a period of time
equivalent to the Index Maturity specified on the face hereof commencing on
that Interest Reset Date in a principal amount not less than the equivalent of
U.S.$1 million in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate specified
on the face hereof is the "Federal Funds Rate," for any Interest Determination
Date, the Federal Funds Rate with respect to this Note shall be the rate on
that date for federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or any
successor service, on page 120 or any other page as may replace page 120 on
that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate shall be the rate on
that Interest Determination Date as published in the H.15 Daily Update under
the heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date,
the Calculation Agent shall determine the Federal Funds Rate to be the
arithmetic mean of the rates for the last transaction in overnight federal
funds by each of three leading brokers of federal funds transactions in The
City of New York selected by the Calculation Agent (after consultation with
the Issuer) prior to 9:00 a.m., New York City time, on that Interest
Determination Date.
(iii) If the brokers selected by the Calculation Agent are not
quoting as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
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<PAGE>
Determination of LIBOR. If the Base Rate specified on the face hereof
is "LIBOR," LIBOR with respect to this Note shall be based on London interbank
offered rate. The Calculation Agent shall determine "LIBOR" for each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either:
(a) if "LIBOR Reuters" is specified as the Reporting Service on the face
hereof, the arithmetic mean of the offered rates for deposits in the Index
Currency having the Index Maturity designated on the face hereof, commencing
on the second London Banking Day immediately following that Interest
Determination Date, that appear on the Designated LIBOR Page, as defined
below, as of 11:00 a.m., London time, on that Interest Determination Date, if
at least two offered rates appear on the Designated LIBOR Page; except that if
the specified Designated LIBOR Page, by its terms provides only for a single
rate, that single rate shall be used; or (b) if "LIBOR Telerate" is specified
as the Reporting Service on the face hereof, the rate for deposits in the
Index Currency having the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following that
Interest Determination Date or, if pounds sterling is the Index Currency,
commencing on that Interest Determination Date, that appears on the Designated
LIBOR Page at approximately 11:00 a.m., London time, on that Interest
Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is
specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall 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 quotation 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 the Interest Determination Date or,
if pounds sterling is the Index Currency, commencing on that Interest
Determination Date, to prime banks in the London interbank market at
approximately 11:00 a.m., London time, on that Interest Determination Date and
in a principal amount that is representative of a single transaction in that
Index Currency in that market at that time.
(iii) If at least two quotations are provided, LIBOR determined on
that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be
determined for the applicable Interest Reset Date as the arithmetic mean of
the rates quoted at approximately 11:00 a.m., London time, or some other time
specified on the face hereof, in the applicable principal financial center for
the country of the Index Currency on that Interest Reset Date, by three major
banks in that principal financial center selected by the Calculation Agent
(after consultation with the Issuer) for loans in the Index Currency to
leading European banks, having the Index Maturity specified on the face hereof
and in a principal amount that is representative of a single transaction in
that Index Currency in that market at that time.
(iv) If the banks so selected by the Calculation Agent are not
quoting as described in (iii) above, LIBOR in effect for the applicable period
shall be the same as LIBOR for the immediately
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<PAGE>
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
The "Index Currency" means the currency specified on the face hereof
as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S.
dollar is the Index Currency, as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is "Prime Rate," for any Interest Determination Date, the Prime Rate
with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot
be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate shall be the rate on that
Interest Determination Date as published in H.15 Daily Update under the
heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York City
time, on the Calculation Date in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Prime Rate to be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate
or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen USPRIME 1
Page for that Interest Determination Date, the Calculation Agent shall
determine the Prime Rate to 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 that Interest Determination Date by at least three major
banks in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
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<PAGE>
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period,
the rate of interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as page
"USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on the
face hereof is "Treasury Rate," the Treasury Rate with respect to this Note
shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00
p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield
of the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S. Government
Securities/Treasury Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by 3:00
p.m., New York City time, on the related Calculation Date, the Bond Equivalent
Yield of the Auction rate of the applicable Treasury Bills, announced by the
United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction
is not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on
the face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market
14
<PAGE>
bid rates, as of approximately 3:30 p.m., New York City time, on the
applicable Interest Determination Date, of three primary United States
government securities dealers, which may include the agent or its affiliates,
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;
or
(vii) if the dealers selected by the Calculation Agent are not
quoting as described in (vi), the Treasury Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in accordance
with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the "CMT Rate," for any Interest Determination Date, the CMT Rate
with respect to this Note shall be the rate displayed on the Designated CMT
Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the Designated
CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately preceding
the week in which the related Interest Determination Date occurs, if the
Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate cannot be
determined as described above:
(i) If that 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 shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) 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 shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination Date as may then
be published by either the Board of Governors of the Federal Reserve System or
the United States Department of the
( 15
<PAGE>
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).
(iii) If the information described in (ii) is not provided by 3:00
p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to 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 ("Reference
Dealers") in The City of New York, which may include an agent or other
affiliates of the Issuer, selected by the Calculation Agent as described in
the following sentence. The Calculation Agent shall select five reference
dealers (after consultation with the Issuer) and shall eliminate 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 a remaining term to maturity of not less than that
Designated CMT Maturity Index minus one year. If two Treasury Notes with an
original maturity as described above 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 shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to 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, selected using the same method described in (iii) above,
for Treasury Notes with an original maturity equal to the number of years
closest to but not less than 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.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate shall
be the CMT Rate for the immediately preceding Interest Reset Period, or, if
there was no Interest Reset Period, the rate of interest payable shall be the
Initial Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc., or any successor service, on the page designated on the face hereof or
any other page as may replace that page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no page
is specified on the face hereof, the Designated CMT Telerate Page shall be
7052, for the most recent week.
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<PAGE>
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10, 20 or 30
years, specified in an applicable pricing supplement for which the CMT Rate
shall be calculated. If no 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, EURIBOR, Federal Funds Rate, Prime Rate or
LIBOR, except if the Base Rate is LIBOR and this Note is denominated in pounds
sterling, as specified on the face hereof; (i) by 360 if the Base Rate is CD
Rate, Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR
(except if the Index Currency is pounds sterling); (ii) by 365 if the Base
Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by the
actual number of days in the year if the Base Rate is the Treasury Rate or the
CMT Rate. 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.
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<PAGE>
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 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, the Issuer in
its discretion may execute a new Note of like tenor in exchange for the Note,
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, if this Note or coupon is destroyed, lost or
stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this 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.
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<PAGE>
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 or within the Redemption Notice
Period specified on the face hereof, 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 (or transmit, as applicable) 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
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Determination Notice, as the Issuer shall elect by notice to the Trustee at
least 60 days prior to the date fixed for redemption or at least 30 days prior
to the last day of the Redemption Notice Period specified on the face hereof.
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 or within the Redemption Notice Period specified on the face
hereof. 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 or prior to the last day of the Redemption Notice Period
specified on the face hereof, that subsequent payments would not be subject to
any such certification, identification or other information reporting
requirement, in which case the Issuer shall publish (or transmit, as
applicable) 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
20
<PAGE>
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 and its possessions, 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;
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<PAGE>
(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.
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 or insolvency 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
modify or amend the provisions for conversion of any currency into
22
<PAGE>
any other currency, or modify or amend the provisions for conversion or
exchange of the debt security for securities of the Issuer or other entities
(other than as provided in the antidilution provisions or other similar
adjustment provisions of the debt securities or otherwise in accordance with
the terms 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 the euro has been substituted for
such Specified Currency, the Issuer may at its option (or shall, if so
required by applicable law) without the consent of the holder of this Note
effect the payment of principal of, premium, if any, or interest on, any Note
denominated in such Specified Currency in euro in lieu of such Specified
Currency in conformity with legally applicable measures taken pursuant to, or
by virtue of, the treaty establishing the EC, as amended by the Treaty. Any
payment made under such circumstances in U.S. dollars or euro where the
required payment is in an unavailable Specified Currency will not constitute
an Event of Default. If such Market Exchange Rate is not then available to the
Issuer or is not published for a particular Specified Currency, the Market
Exchange Rate will be based on the highest bid quotation in The City of New
York received by the Exchange Rate Agent (as defined below) at approximately
11:00 a.m., New York City time, on the second Business Day preceding the date
of such payment from three recognized foreign exchange dealers (the "Exchange
Dealers") for the purchase by the quoting Exchange Dealer of the Specified
Currency for U.S. dollars for settlement on the payment date, in the aggregate
amount of the Specified Currency payable to those holders or beneficial owners
of Notes and at which the applicable Exchange Dealer commits to execute a
contract. One of the Exchange Dealers providing quotations may be the Exchange
Rate Agent unless the Exchange Rate Agent is an affiliate of the Issuer. If
those bid quotations are not available, the Exchange Rate Agent shall
determine the market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated 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 Notes and coupons.
23
<PAGE>
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 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:
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(a) As used herein, "Business Day" means any day, other than a
Saturday or Sunday, (a) that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or (y) if this Note
is denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated
in Australian dollars, in Sydney and (b) if this Note is denominated
in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day").
(b) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof published 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
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.
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<PAGE>
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:
---------------------------------- ------------------------------------
26
Exhibit 4-cc
FORM OF DEBT WARRANT AGREEMENT
FOR WARRANTS SOLD ATTACHED
TO DEBT SECURITIES
MORGAN STANLEY DEAN WITTER & CO.
and
---------------------,
as Warrant Agent
--------------------------
DEBT WARRANT AGREEMENT
Dated as of ________________
----------------------------
Warrants to Purchase ________
--------------------
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
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 2
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 3
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 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer....................................... 11
SECTION 4.02. Treatment of Holders of Warrant Certificates................ 13
SECTION 4.03. Cancellation of Warrant Certificates........................ 13
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1 The Table of Contents is not a part of the Agreement.
<PAGE>
PAGE
ARTICLE 5
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.................... 16
ARTICLE 6
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
Euroclear Operator or Cedelbank]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to Purchasers of Warrant
Securities in Bearer Form]
ii
<PAGE>
DEBT WARRANT AGREEMENT2
THIS AGREEMENT dated as of between MORGAN STANLEY DEAN WITTER & 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"),
W I T N E S S E T H :
WHEREAS, the Company has entered into an Amended and Restated Senior
Indenture dated as of May 1, 1999 (the "Senior Indenture") between the Company
and The Chase Manhattan Bank, as Trustee (the "Trustee") and an Amended and
Restated Subordinated Indenture dated as of May 1, 1999 (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;
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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.
<PAGE>
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE 1
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
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<PAGE>
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
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<PAGE>
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 Euroclear
System (the "Euroclear Operator"), and for Cedelbank ("Cedelbank") for credit
to the accounts of persons appearing from time to time on the records of the
Euroclear Operator or of Cedelbank 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
4
<PAGE>
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 2
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,
5
<PAGE>
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 Cedelbank 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
6
<PAGE>
Euroclear Operator and Cedelbank), (ii) a duly executed certification
from the Euroclear Operator or Cedelbank, 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 Euroclear Operator or Cedelbank 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 Euroclear Operator or
Cedelbank 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 Euroclear Operator or Cedelbank, 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
7
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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 Euroclear Operator or Cedelbank] 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 Euroclear
Operator or Cedelbank, 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
8
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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 Euroclear Operator or Cedelbank, as the case may be, to
or upon order of the Euroclear Operator or Cedelbank, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euroclear Operator or Cedelbank, 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 3
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
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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
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Warrant evidenced by the Global Warrant Certificate unless such person
is so certified as such a beneficial owner by the Euroclear Operator or
Cedelbank.]
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 4
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
11
<PAGE>
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
12
<PAGE>
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,
13
<PAGE>
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 5
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
14
<PAGE>
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
15
<PAGE>
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
16
<PAGE>
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.
17
<PAGE>
(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 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) 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.
(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 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 Warrants of any series,
reduces the amount receivable upon exercise, cancellation or expiration of the
Warrants other than in accordance with the antidilution provisions or other
similar adjustment provisions included in the terms of the Warrants, shortens
the period of time during which the 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
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 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
18
<PAGE>
Global Warrant Certificate. Such certification may be provided by
participants of the Depositary acting on behalf of such beneficial owners of
Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Warrant holdings of such
participants.
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 & Co., 1585 Broadway, New York, New York 10036, 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
19
<PAGE>
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].
20
<PAGE>
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 & CO.
[SEAL] By:
------------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
[WARRANT AGENT]
[SEAL] By:
------------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
21
Exhibit 4-dd
[Form of Debt Warrant Agreement for Warrants Sold Alone]
MORGAN STANLEY DEAN WITTER & CO.
and
---------------------,
as Warrant Agent
-------------------------,
DEBT WARRANT AGREEMENT
Dated as of ___________
------------------------
Warrants to Purchase ________
---------------------
<PAGE>
TABLE OF CONTENTS
PAGE
ARTICLE 1
ISSUANCE OF WARRANTS 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 .................................... 4
ARTICLE 2
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 ......................................... 5
ARTICLE 3
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 ... 9
SECTION 3.03. Enforcement of Rights ........................................ 9
SECTION 3.04. Merger, Consolidation, Conveyance or Transfer ................ 10
ARTICLE 4
EXCHANGE AND TRANSFER
SECTION 4.01. Exchange and Transfer ........................................ 11
SECTION 4.02. Treatment of Holders of Warrant Certificates ................. 12
SECTION 4.03. Cancellation of Warrant Certificates ......................... 12
- ----------
1 The Table of Contents is not a part of the Agreement.
<PAGE>
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent ................................................ 13
SECTION 5.02. Conditions of Warrant Agent's Obligations .................... 13
SECTION 5.03. Resignation and Appointment of Successor ..................... 15
ARTICLE 5
MISCELLANEOUS
SECTION 6.01. Amendment .................................................... 17
SECTION 6.02. Notices and Demands to the Company and Warrant Agent ......... 17
SECTION 6.03. Addresses .................................................... 17
SECTION 6.04. Applicable Law ............................................... 18
SECTION 6.05. Delivery of Prospectus ....................................... 18
SECTION 6.06. Obtaining of Governmental Approval ........................... 18
SECTION 6.07. Persons Having Rights under Warrant Agreement ................ 18
SECTION 6.08. Headings ..................................................... 18
SECTION 6.09. Counterparts ................................................. 19
SECTION 6.10. Inspection of Agreement ...................................... 19
SECTION 6.11. Notices to Holders of Warrants ............................... 19
TESTIMONIUM ................................................................. 20
SIGNATURES .................................................................. 20
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 Euroclear Operator or Cedelbank]
[EXHIBIT D - Form of Warrant Exercise Notice]
[EXHIBIT E - Form of Confirmation to be Delivered to Purchasers
of Warrant Securities in Bearer Form]
ii
<PAGE>
DEBT WARRANT AGREEMENT2
THIS AGREEMENT dated as of ____________ between MORGAN STANLEY DEAN
WITTER & 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"),
W I T N E S S E T H :
WHEREAS, the Company has entered into an Amended and Restated Senior
Indenture dated as of May 1, 1999 (the "Senior Indenture") between the Company
and The Chase Manhattan Bank, as Trustee (the "Senior Trustee"), and an Amended
and Restated Subordinated Indenture dated as of May 1, 1999 (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:
- ----------
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.
<PAGE>
ARTICLE 1
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.
2
<PAGE>
[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 Euroclear System (the "Euroclear Operator"), and for Cedelbank
for credit to the accounts of persons appearing from time to time on the records
of the Euroclear Operator or of Cedelbank 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
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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.]
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ARTICLE 2
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
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(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 Euroclear
Operator and Cedelbank and will be duly endorsed to reflect the exercise of
Warrants by the Euroclear Operator and Cedelbank), (ii) a duly executed
certification from the Euroclear Operator or Cedelbank, 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 Euroclear Operator of Cedelbank 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.]
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[The delivery to the Warrant Agent by the Euroclear Operator or
Cedelbank 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 Euroclear Operator or Cedelbank, 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 Euroclear Operator or Cedelbank] 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 Euroclear Operator or Cedelbank, as
the case
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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 Euroclear Operator or Cedelbank, as the case may be, to
or upon order of the Euroclear Operator or Cedelbank, as the case may be, or
(ii) in bearer form to the Common Depositary to be held for the account of the
Euroclear Operator or Cedelbank, 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.
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ARTICLE 3
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
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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 Euroclear
Operator or Cedelbank.]
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.
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ARTICLE 4
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.
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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.
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ARTICLE 5
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
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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
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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
15
<PAGE>
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.
16
<PAGE>
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment. (a) 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.
(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 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 Warrants of any series, reduces the amount
receivable upon exercise, cancellation or expiration of the Warrants other than
in accordance with the antidilution provisions or other similar adjustment
provisions included in the terms of the Warrants, shortens the period of time
during which the 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 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 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 Warrants, provided that any such certification is accompanied by a
certification from the Depositary as to the Warrant holdings of such
participants.
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 ,
17
<PAGE>
Attention: __________ , and any communication from the Warrant Agent to the
Company with respect to this Agreement shall be addressed to Morgan Stanley Dean
Witter & Co., 1585 Broadway, New York, New York 10036, 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.
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<PAGE>
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].
19
<PAGE>
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 & CO.
[SEAL] By:_____________________________
Name:
Title:
Attest:
By:_________________________
Name:
Title:
[WARRANT AGENT]
[SEAL] By:______________________________
Name:
Title:
Attest:
By:______________________
Name:
Title:
20
Exhibit 4-ee
- -------------------------------------------------------------------------------
MORGAN STANLEY DEAN WITTER & CO.
and
THE CHASE MANHATTAN BANK, Warrant Agent
------------------------------------
UNIVERSAL WARRANT AGREEMENT
dated as of May 6, 1999
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
UNIVERSAL WARRANTS
SECTION 1.01. Ranking................................................. 1
SECTION 1.02. Form, Execution and Delivery of Warrant
Certificates........................................ 1
SECTION 1.03. Number Unlimited; Issuable in Series.................... 3
SECTION 1.04. Countersignature and Delivery of Warrant
Certificates........................................ 5
SECTION 1.05. Place of Exercise; Registration of Transfers and
Exchanges........................................... 9
SECTION 1.06. Mutilated or Missing Warrant Certificates............... 13
SECTION 1.07. Registered Holders...................................... 14
SECTION 1.08. Cancellation............................................ 15
SECTION 1.09. Additional Warrant Agents............................... 15
SECTION 1.10. Appointment of Calculation Agents....................... 16
ARTICLE 2
DURATION AND EXERCISE OF UNIVERSAL WARRANTS
SECTION 2.01. Duration and Exercise of Universal Warrants............. 16
SECTION 2.02. Return of Money Held Unclaimed for Two Years............ 16
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF WARRANTHOLDERS
SECTION 3.01. Warrantholder May Enforce Rights........................ 17
SECTION 3.02. No Rights as Holder of Warrant Property
Conferred by Universal Warrants or Warrant
Certificates........................................ 17
SECTION 3.03. Merger, Consolidation, Conveyance or Transfer........... 17
ARTICLE 4
UNIVERSAL WARRANTS ACQUIRED BY THE COMPANY; PAYMENT OF TAXES
SECTION 4.01. Universal Warrants Acquired by the Company.............. 18
SECTION 4.02. Payment of Taxes........................................ 19
<PAGE>
PAGE
ARTICLE 5
CONCERNING THE WARRANT AGENT
SECTION 5.01. Warrant Agent............................................ 19
SECTION 5.02. Condition of Warrant Agent's Obligations................. 19
SECTION 5.03. Resignation and Appointment of Successor................. 21
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Amendment................................................ 24
SECTION 6.02. Notices and Demands to the Company and the
Warrant Agent........................................ 25
SECTION 6.03. Addresses for Notices.................................... 25
SECTION 6.04. Notices to Warrantholders................................ 26
SECTION 6.05. Obtaining of Approvals................................... 26
SECTION 6.06. Persons Having Rights under this Agreement............... 26
SECTION 6.07. Inspection of Agreement.................................. 26
SECTION 6.08. Officer's Certificates and Opinions of Counsel;
Statements to be Contained Therein................... 27
SECTION 6.09. Payments Due on Saturdays, Sundays and
Holidays............................................. 28
SECTION 6.10. Judgment Currency........................................ 28
SECTION 6.11. Headings................................................. 29
SECTION 6.12. Counterparts............................................. 29
SECTION 6.13. Applicable Law........................................... 29
TESTIMONIUM............................................................. 30
SIGNATURES.............................................................. 30
Exhibit I - Form of Registered Call Warrant Certificate
Exhibit II - Form of Registered Put Warrant Certificate
<PAGE>
WARRANT AGREEMENT
THIS AGREEMENT, dated as of May 6, 1999, between MORGAN STANLEY DEAN
WITTER & 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
(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 1.01. 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 1.02. Form, Execution and Delivery of Warrant Certificates.
(a) Certificates ("Warrant Certificates") evidencing the Universal Warrants 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
<PAGE>
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 chairman of
the board, the president, the chief financial officer, the chief strategic and
administrative officer, the chief legal officer, the treasurer, any assistant
treasurer or such other person authorized by the Board of Directors to execute
any such certificate and delivered it 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.
2
<PAGE>
(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 1.03. 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
3
<PAGE>
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
4
<PAGE>
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 1.04. 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
5
<PAGE>
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 1.04(a)(ii),
1.04(a)(iii) and 1.04(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 1.02 and
1.03 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;
6
<PAGE>
(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 chairman of the board, the president, the
chief financial officer, the chief strategic and administrative officer, the
chief legal officer, the treasurer, any assistant treasurer or such other
person specifically
7
<PAGE>
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 1.03 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
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1.03 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 1.05. Place of Exercise; Registration of Transfers and
Exchanges. (a) Except as otherwise established pursuant to Section 1.03 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 1.03.
(b) Except as otherwise provided herein or as established pursuant to
Section 1.03 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
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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 1.03, 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 1.08 hereof,
or at the address of any successor Warrant Agent (as provided in Section
5.03)), 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 1.03, 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 1.03, 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.
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(e) Except as provided in Section 1.06, 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 1.03 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.
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(j) If established pursuant to Section 1.03 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 1.05(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.
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(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 1.06. 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
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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 1.06(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 1.07. 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
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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 1.08. 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 1.09. 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
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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
1.03 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 2.01. Duration and Exercise of Universal Warrants. All terms
with respect to duration and exercise of Universal Warrants will be established
pursuant to Section 1.03 for each series of Universal Warrants.
SECTION 2.02. 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
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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 6.04, 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 3.01. 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 Cedelbank, 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 1.03.
SECTION 3.02. 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 3.03. 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
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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 4.01. 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
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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 4.02. 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 5.01. 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 5.02. 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
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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.
20
<PAGE>
(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 6.02, 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
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 2.02, whichever occurs earlier.
21
<PAGE>
(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 5.02(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
22
<PAGE>
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.
23
<PAGE>
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. 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 1.02 and 1.03, (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 5.03, 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, reduces the amount receivable upon exercise, cancellation or expiration
of the Warrants other than in accordance with the antidilution provisions or
other similar adjustment provisions included in the terms of the Warrants,
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
24
<PAGE>
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 6.02. 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 6.03. 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 & Co., 1585 Broadway, New York, New York 10036, Attention:
Treasurer (or in each case to such other address as shall be given in writing
to the other party hereto).
25
<PAGE>
SECTION 6.04. 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 6.05. 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 6.06. 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 6.07. 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
26
<PAGE>
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 6.08. 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.
27
<PAGE>
SECTION 6.09. 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 1.03
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
28
<PAGE>
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.
29
<PAGE>
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 & CO.
By:
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
------------------------------------
Name:
Title:
<PAGE>
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.]1
MORGAN STANLEY DEAN WITTER & CO.
[Designation of Universal Warrants]
NUMBER OF WARRANTS EVIDENCED BY THIS CERTIFICATE: [UP TO _____]1
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:
- --------
1 Applies to global warrant certificates.
I-1
<PAGE>
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]2[specified on Schedule A hereto]3.
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 & 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.
- --------
2 Applies to definitive warrant certificates
3 Applies to global warrant certificates
I-2
<PAGE>
IN WITNESS WHEREOF, Morgan Stanley Dean Witter & Co. has caused this
instrument to be duly executed.
Dated:_____________________
MORGAN STANLEY DEAN WITTER & CO.
By:
------------------------------------
Name:
Title:
Attest:
By:
-------------------------------
Secretary
Countersigned as of the date above
written:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By:
-------------------------------
Authorized Officer
I-3
<PAGE>
[FORM OF REVERSE OF REGISTERED CALL WARRANT CERTIFICATE]
MORGAN STANLEY DEAN WITTER & 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 May 6, 1999 (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.
I-4
<PAGE>
[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:
I-5
<PAGE>
[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 May 6, 1999 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>
[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 of
Exchange or Universal Following Such by this Separated Such Warrants Following Warrant
Exercise Warrants]1 Exchange]1 Universal Warrant]2 Exchange]2 Exercised Such Exercise Agent
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
</TABLE>
- --------
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.
I-6
<PAGE>
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.]1
MORGAN STANLEY DEAN WITTER & 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:]2
[PUT PRICE FOR SUCH SPECIFIED AMOUNT OF WARRANT PROPERTY
PER WARRANT:]2
[METHOD OF DELIVERY OF ANY WARRANT PROPERTY TO BE
DELIVERED FOR SALE UPON EXERCISE OF WARRANTS:]2
- --------
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.
II-1
<PAGE>
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]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 & Co.
(the "Company") the [Cash Settlement Value][Put Price]3 per Warrant specified
above.
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.
- --------
1 Applies to definitive 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.
II-2
<PAGE>
IN WITNESS WHEREOF, Morgan Stanley Dean Witter & Co. has caused this
instrument to be duly executed.
Dated:________________________
MORGAN STANLEY DEAN WITTER & CO.
By:____________________________________
Name:
Title:
Attest:
By:_______________________
Secretary
Countersigned as of the date above
written:
THE CHASE MANHATTAN BANK,
as Warrant Agent
By:_______________________
Authorized Officer
II-3
<PAGE>
[FORM OF REVERSE OF REGISTERED PUT WARRANT CERTIFICATE]
MORGAN STANLEY DEAN WITTER & 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 May 6, 1999 (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.
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
Cash Settlement Value per Warrant set forth on the face hereof.
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.
II-4
<PAGE>
[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:
- --------
1Only if terms of the Warrants contemplate that the holder may deliver
Warrant Property to exercise the Warrants.
II-5
<PAGE>
[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 May 6, 1999 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>
[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 of
Exchange or Universal Following Such by this Separated Such Warrants Following Warrant
Exercise Warrants]1 Exchange]1 Universal Warrant]2 Exchange]2 Exercised Such Exercise Agent
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
- ----------- ------------- --------------- -------------------- ----------- --------- ------------- ------------
</TABLE>
- --------
1Applies only if this Global Universal Warrant is part of a Unit.
2Applies only if this Global Universal Warrant has been separated from
a Unit.
II-6
EXHIBIT 4-ff
- -------------------------------------------------------------------------------
MORGAN STANLEY DEAN WITTER & 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 May 6, 1999
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions....................................................2
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally...............................................11
SECTION 2.02. Form of Certificate of Authentication and
Countersignature..........................................12
SECTION 2.03. Amount Unlimited; Issuable in Series..........................12
SECTION 2.04. Denominations.................................................13
SECTION 2.05. Rights and Obligations Evidenced by the Units.................13
SECTION 2.06. Execution, Authentication, Delivery and Dating................14
SECTION 2.07. Temporary Unit Certificates...................................14
SECTION 2.08. Registration of Transfer and Exchange; Global
Units.....................................................15
SECTION 2.09. Mutilated, Destroyed, Lost and Stolen Unit
Certificates..............................................18
SECTION 2.10. Persons Deemed Owners.........................................20
SECTION 2.11. Cancellation..................................................21
SECTION 2.12. Exchange of Global Units and Definitive Units.................21
ARTICLE 3
THE PURCHASE CONTRACTS; SETTLEMENT OF WARRANTS
SECTION 3.01. Form and Execution of Purchase Contracts;
Temporary Purchase Contracts..............................22
SECTION 3.02. Number Unlimited Issuable in Series...........................24
SECTION 3.03. Countersignature, Execution on Behalf of Holder
and Delivery of Purchase Contracts........................26
SECTION 3.04. Further Provisions Relating to Issuance of
Purchase Contracts........................................29
SECTION 3.05. Purchase of Purchase Contract Property;
Optional Acceleration of Purchase Obligations;
Authorization of Agent by Holder; Transferees
Bound.....................................................29
SECTION 3.06. Payment of Purchase Price.....................................31
i
<PAGE>
PAGE
SECTION 3.07. Delivery of Purchase Contract Property or Other
Amounts...................................................34
SECTION 3.08. Charges and Taxes.............................................35
ARTICLE 4
REMEDIES
SECTION 4.01. Acceleration of Obligations...................................35
SECTION 4.02. Unconditional Rights under Purchase Contracts;
Limitation on Proceedings by Holders......................36
SECTION 4.03. Restoration of Rights and Remedies............................37
SECTION 4.04. Rights and Remedies Cumulative................................37
SECTION 4.05. Delay or Omission Not Waiver..................................37
SECTION 4.06. Waiver of Past Defaults.......................................37
SECTION 4.07. Undertaking for Costs.........................................38
SECTION 4.08. Waiver of Stay or Extension Laws..............................38
SECTION 4.09. Agent May File Proofs of Claims...............................38
SECTION 4.10. Suits for Enforcement.........................................39
SECTION 4.11. Control by Holders............................................40
ARTICLE 5
SECURITY INTERESTS AND COLLATERAL AGENT
SECTION 5.01. Granting of Security Interests; Rights and
Remedies of Collateral Agent; Perfection..................40
SECTION 5.02. Distribution of Principal and Interest; Release of
Collateral................................................41
SECTION 5.03. Certain Duties and Responsibilities of the
Collateral Agent ........................................42
SECTION 5.04. Knowledge of the Collateral Agent.............................43
SECTION 5.05. Certain Rights of Collateral Agent............................44
SECTION 5.06. Compensation and Reimbursements...............................44
SECTION 5.07. Corporate Collateral Agent Required Eligibility...............45
SECTION 5.08. Resignation and Removal; Appointment of
Successor.................................................46
SECTION 5.09. Acceptance of Appointment by Successor........................47
SECTION 5.10. Merger, Conversion, Consolidation or Succession
to Business...............................................48
SECTION 5.11. Money Held in Trust...........................................48
ii
<PAGE>
ARTICLE 6
THE AGENT
SECTION 6.01. Certain Duties and Responsibilities...........................48
SECTION 6.02. Notice of Default.............................................49
SECTION 6.03. Certain Rights of Agent.......................................50
SECTION 6.04. Not Responsible for Recitals or Issuance of Units.............51
SECTION 6.05. May Hold Units................................................51
SECTION 6.06. Money Held in Trust...........................................51
SECTION 6.07. Compensation and Reimbursement................................52
SECTION 6.08. Corporate Agent Required: Eligibility.........................52
SECTION 6.09. Resignation and Removal: Appointment of
Successor.................................................53
SECTION 6.10. Acceptance of Appointment by Successor........................54
SECTION 6.11. Merger, Conversion, Consolidation or Succession
to Business...............................................55
SECTION 6.12. Appointment of Authenticating Agent...........................55
SECTION 6.13. Corporation to Furnish Agent Names and
Addresses of Holders......................................57
SECTION 6.14. Preservation of Information; Communications to
Holders...................................................58
SECTION 6.15. No Obligation of Holder.......................................59
SECTION 6.16. Tax Compliance................................................59
ARTICLE 7
SUPPLEMENTAL AGREEMENTS
SECTION 7.01. Supplemental Agreements Without Consent of
Holders...................................................60
SECTION 7.02. Supplemental Agreements with Consent of Holders...............61
SECTION 7.03. Execution of Supplemental Agreements..........................62
SECTION 7.04. Effect of Supplemental Agreements.............................62
SECTION 7.05. Reference to Supplemental Agreements..........................63
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions...........63
SECTION 8.02. Rights and Duties of Successor Corporation....................63
SECTION 8.03. Opinion of Counsel to Agent...................................64
iii
<PAGE>
ARTICLE 9
COVENANTS
SECTION 9.01. Performance under Purchase Contracts.........................64
SECTION 9.02. Maintenance of Office or Agency..............................65
SECTION 9.03. Money for Payments to Be Held in Trust.......................66
SECTION 9.04. Statements of Officers of the Corporation as to
Default..................................................67
SECTION 9.05. Negative Pledge..............................................67
SECTION 9.06. Luxembourg Publications......................................68
ARTICLE 10
REDEMPTIONS
SECTION 10.01. Optional Redemption of Purchase Contracts;
Redemption Upon Redemption of Debt Securities............68
SECTION 10.02. Notice of Redemption; Partial Redemptions...................68
SECTION 10.03. Payment of Purchase Contracts Called for
Redemption...............................................69
SECTION 10.04. Exclusion of Certain Purchase Contracts from
Eligibility for Selection for Redemption.................70
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from
Liability................................................71
SECTION 11.02. Compliance Certificates and Opinions........................71
SECTION 11.03. Form of Documents Delivered to Agent or
Collateral Agent.........................................72
SECTION 11.04. Acts of Holders.............................................73
SECTION 11.05. Notices, Etc................................................74
SECTION 11.06. Notices to Holders; Waiver..................................74
SECTION 11.07. Effect of Headings and Table of Contents....................75
SECTION 11.08. Successors and Assigns......................................75
SECTION 11.09. Separability Clause.........................................75
SECTION 11.10. Benefits of Agreement.......................................75
SECTION 11.11. Governing Law...............................................75
SECTION 11.12. Legal Holidays..............................................75
iv
<PAGE>
SECTION 11.13. Counterparts................................................76
SECTION 11.14. Appointment of Certain Agents...............................76
SECTION 11.15. Inspection of Agreement.....................................76
v
<PAGE>
UNIT AGREEMENT, dated as of May 6, 1999, by and among MORGAN STANLEY
DEAN WITTER & 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, the Corporation has entered into an Amended and Restated
Senior Indenture dated as of May 1, 1999 with the Trustee (as further
supplemented or amended from time to time, 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 May 1, 1999 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 (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") requiring the holder
thereof to purchase or sell (i) securities of an entity unaffiliated with the
Corpor ation, a basket of such securities, an index or indices of such
securities or any combination of the above, (ii) 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");
<PAGE>
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 1.01. 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 3.02.
"Acceleration Notice", has the meaning specified in Section 3.05(b).
"Act", with respect to any Holder, has the meaning specified in Section
11.04.
<PAGE>
"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.
<PAGE>
"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 3.06(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 5.01(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
3.06(a)(ii).
"Default" means an Event of Default under the Indenture or a Purchase
Contract Default.
"Definitive Securities" means any Security in definitive form.
<PAGE>
"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
<PAGE>
a part of such Unit is registered on the Security Register specified pursuant
to Section 2.03.
"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 3.02 on which such Purchase Contracts or Prepaid
Purchase Contracts may be accelerated pursuant to Section 3.05 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 Chairman of the Board, the
President, the Chief Financial Officer, the Chief Strategic and Administrative
Officer, the Chief Legal Officer, the Treasurer, 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 3.02 that may be
subject to acceleration pursuant to Section 3.05.
"Minimum Remaining Amount" means the minimum number of Purchase
Contracts of any series as specified pursuant to Section 3.02 that must remain
Outstanding immediately following any acceleration pursuant to Section 3.05.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, 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.
<PAGE>
"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
<PAGE>
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 3.02.
"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.
<PAGE>
"Purchase Contract Property" with respect to a Purchase Contract of
any series has the meaning specified pursuant to Section 3.02.
"Purchase Contract Register" and "Purchase Contract Registrar" have
the respective meanings specified in Section 2.08.
"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 3.02.
"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 2.03.
"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.
<PAGE>
"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 3.02.
"Settlement Date" means the Stated Settlement Date and any Accelerated
Settlement Date.
"SRO" has the meaning specified in Section 2.01.
"Stated Settlement Date" of any Purchase Contract of any series has
the meaning specified pursuant to Section 3.02.
"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 2.03.
"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.
<PAGE>
"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 2.01. 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 2.02. 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.
<PAGE>
SECTION 2.03. 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 2.07, 2.08, 2.09 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
3.02;
(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
2.08, 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
<PAGE>
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 2.04. Denominations. Units of any series shall be issuable
only in denominations of a single Unit and any integral multiple thereof.
SECTION 2.05. Rights and Obligations Evidenced by the Units. Units of
any series shall evidence the ownership by the Holder thereof of (a) 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,
(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 (d) 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 2.06. 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
<PAGE>
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 3.01.
SECTION 2.07. 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 2.03. Upon surrender for
cancellation of any one or more temporary Unit Certificates, the Corporation
shall execute and deliver to the
<PAGE>
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
2.03.
SECTION 2.08. 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 2.03, 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
2.03, 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 2.03,
and upon payment, if the Corporation shall so require, of the charges
hereinafter provided. Unless otherwise specified pursuant to Section 2.03,
Registered Units of any series may not be exchanged for Unregistered Units of
<PAGE>
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 2.03 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
<PAGE>
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 2.09 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
<PAGE>
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 2.03.
SECTION 2.09. 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 2.03, 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
<PAGE>
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 2.03.
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
<PAGE>
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 3.07, 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
<PAGE>
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 2.03, 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.
Whenever Global Units are exchanged for Definitive Units, the Agent
shall cause Schedule A of the Global Unit to be endorsed to reflect any
decrease in the Global Units as a result of such exchange, whereupon the
Global Unit Certificate or Certificates shall be canceled and disposed of in
accordance with Section 2.11.
If so specified pursuant to Section 2.03, 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
<PAGE>
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 2.08.
ARTICLE 3
THE PURCHASE CONTRACTS; SETTLEMENT OF WARRANTS
SECTION 3.01. 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.
<PAGE>
(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 3.02. 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:
<PAGE>
(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 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 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
<PAGE>
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 3.03. 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
<PAGE>
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
3.01 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
<PAGE>
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 3.02 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
<PAGE>
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 3.04. 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 3.05. Purchase of Purchase Contract Property; Optional
Acceleration of Purchase Obligations; Authorization of Agent by Holder;
Transferees Bound. (a) Unless otherwise specified pursuant to Section 3.02, the
Unsettled Purchase Contracts of any series will either (i) obligate the Holders
<PAGE>
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 3.02 (or a quantity
calculated by a method specified pursuant to Section 3.02) on the Stated
Settlement Date at the Purchase Price specified pursuant to Section 3.02.
(b) If this Section is specified as applicable pursuant to Section
3.02, 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 3.02) 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 11.05 and Section 11.06,
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 3.02 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 3.02) 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 11.05 and 11.06
(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
<PAGE>
hereof. If the provisions of Section 3.06 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 3.06, 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 3.06. Payment of Purchase Price. (a) Unless otherwise
specified pursuant to Section 3.02 (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,
<PAGE>
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 (whethe
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 3.06,
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 3.02 or the Warrant Agreement or the
applicable Warrants) against tender by the Agent of payment therefor.
(c) Unless otherwise specified pursuant to Section 3.02, 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
<PAGE>
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 3.06 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 3.06 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 3.02.
(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
<PAGE>
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
3.06(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 3.02, 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 3.07. Delivery of Purchase Contract Property or Other
Amounts. Unless otherwise specified pursuant to Section 3.02, (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.
<PAGE>
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 3.08. 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 4.01. Acceleration of Obligations. If at any time there shall
have occurred an Event of Default with respect to any 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 3.02 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
<PAGE>
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 4.02. 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
<PAGE>
Holder of a Unit and the Agent shall be entitled to such relief as can be
given either at law or in equity.
SECTION 4.03. 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 4.04. Rights and Remedies Cumulative. Subject to Section
4.02, 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 4.05. 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 4.06. 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 3.02 against tender of Purchase Contract Property or other amount
specified pursuant to Section 3.02 therefor or
<PAGE>
(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 4.07. 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 3.02) with respect
thereto.
SECTION 4.08. 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 4.09. 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
<PAGE>
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 4.02 or the
direction referred to in Section 4.11 and the security or indemnity referred
to in Section 6.03(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
<PAGE>
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 6.01) 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 6.01) 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 5.01. 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 2.03:
(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
<PAGE>
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 3.02; (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 3.02, 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 5.03(f)) may deem necessary or appropriate
to further perfect, or maintain the perfection of the security interests
granted hereby.
SECTION 5.02. Distribution of Principal and Interest; Release of
Collateral. Unless otherwise specified pursuant to Section 2.03:
(a) All payments of principal of, or interest on, any Pledged Items
received by the Collateral Agent pursuant to Section 3.06(f) shall be paid by
the Collateral Agent in same day funds no later than 2:00 p.m., New York City
time,
<PAGE>
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 5.03. 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
<PAGE>
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 5.04. 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 5.05. Certain Rights of Collateral Agent. Subject to the
provisions of Section 5.03:
(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,
<PAGE>
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 5.06. 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
<PAGE>
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 5.07. 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.
<PAGE>
SECTION 5.08. 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 5.09.
(b) The Collateral Agent may resign by giving written notice thereof
to the Corporation and the Holders, in accordance with Section 11.05 and
Section 11.06, 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 5.09 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 5.07, 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
5.09.
(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
<PAGE>
accordance with Section 11.06. Each notice shall include the name of the
successor Collateral Agent and the address of its Corporate Trust Office.
SECTION 5.09. 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 5.06, 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 5.06.
(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 11.06. 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 5.08. 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
<PAGE>
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 6.01. 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.
<PAGE>
(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 6.02. 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 11.06, notice of such Purchase
Contract Default hereunder, unless such Purchase Contract Default shall have
been cured or waived.
SECTION 6.03. Certain Rights of Agent. Subject to the provisions of
Section 6.01:
(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;
<PAGE>
(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.
<PAGE>
SECTION 6.04. 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 6.05. 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 6.06. 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 6.07. 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
<PAGE>
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 6.08. 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 6.09. Resignation and Removal: Appointment of Successor. (a)
No resignation or removal of the Agent and no appointment of a successor Agent
<PAGE>
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 11.05 and Section
11.06, 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 6.08, 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,
<PAGE>
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 11.06. 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 6.07,
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 6.07.
(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 11.06. 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 6.09. 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
<PAGE>
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 2.09 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
<PAGE>
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 11.06. 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, 6.04 and 6.05 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:
<PAGE>
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
<PAGE>
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.
<PAGE>
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 6.01(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 2.03, 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 2.03, 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 2.03, 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
<PAGE>
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 7.01. 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
<PAGE>
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 7.02. 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).
<PAGE>
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 7.03. 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 6.01
and 5.03, 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 7.04. 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 7.05. 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.
<PAGE>
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. 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 8.02. 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 & 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
<PAGE>
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 8.03. Opinion of Counsel to Agent. The Agent and the
Collateral Agent, subject to Sections 6.01 and 6.03 and Sections 5.03 and
5.05, 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 9.01. 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 9.02. 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
<PAGE>
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 9.03. 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
<PAGE>
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 any
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 9.04. 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 9.05. 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.
International 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
<PAGE>
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 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.
SECTION 9.06. 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 10.01. Optional Redemption of Purchase Contracts; Redemption
Upon Redemption of Debt Securities. If this Article is specified as applicable
pursuant to Section 3.02 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 3.02; provided that no redemption shall result in there
being more than zero but
<PAGE>
fewer than the minimum amount of Unsettled Purchase Contracts that may remain
Outstanding after such redemption, as specified pursuant to Section 3.02.
Unless otherwise specified pursuant to Section 2.03, 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 10.02. Notice of Redemption; Partial Redemptions. Unless
otherwise specified pursuant to Section 3.02, 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 11.06, 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
<PAGE>
Corporation has complied with the provisions of Section 10.01 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 10.03. 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 3.02, 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.
<PAGE>
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 10.04. 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 11.01. 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.
<PAGE>
SECTION 11.02. 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 11.03. 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
<PAGE>
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 11.04. 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 6.01) 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 2.03(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.
<PAGE>
(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 2.03, 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 11.05. 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: Treasurer,
or at any other address previously furnished in writing to the Agent and the
Collateral Agent by the Corporation.
SECTION 11.06. 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
<PAGE>
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
2.03 or 3.02) 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 11.07. 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 11.08. 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 11.09. 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
<PAGE>
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, the Unit
Certificates 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 3.02, 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
2.03 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 2.03, 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.
<PAGE>
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 & 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:
<PAGE>
THE CHASE MANHATTAN BANK,
as Warrant Agent under the Warrant
Agreement
By:____________________________________
Name:
Title:
<PAGE>
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 & 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.]
A-1
<PAGE>
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]
CUSIP No. __________
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 March 12, 1998 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
- --------
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
A-2
<PAGE>
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]
- -------------------------------------------------------------------------------
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.
- -------------------------------------------------------------------------------
- ----------
5 Insert in non-separable Units. 6 Insert in non-separable Registered
Units.
6 Insert in non-separable Registered Units.
A-3
<PAGE>
[FORM OF PURCHASE CONTRACT
CONTEMPLATING SALE BY MORGAN STANLEY
DEAN WITTER & CO.]
MORGAN STANLEY DEAN WITTER & CO.
[Insert Designation of Purchase Contracts]
PURCHASE CONTRACT(S)
Purchase Contracts between
Morgan Stanley Dean Witter & 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:
Aggregate Purchase Price:
A-4
<PAGE>
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 & 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 March 12, 1998 (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
A-5
<PAGE>
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
A-6
<PAGE>
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.
- --------
7 Insert in Registered Units consisting of Non-Separable Debt Securities and
Purchase Contracts.
A-7
<PAGE>
IN WITNESS WHEREOF, Morgan Stanley Dean Witter & Co. has
caused this instrument to be duly executed.
MORGAN STANLEY DEAN WITTER & 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
A-8
<PAGE>
[FORM OF PURCHASE CONTRACT
CONTEMPLATING PURCHASE BY MORGAN STANLEY
DEAN WITTER & CO.]
MORGAN STANLEY DEAN WITTER & CO.
PURCHASE CONTRACT(S)
Purchase Contracts between
Morgan Stanley Dean Witter & 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:
A-9
<PAGE>
Holders' Acceleration
Redemption Provisions:
Other Terms:
===============================================================================
Subject to the conditions hereinafter set forth, the Holder agrees to
sell and Morgan Stanley Dean Witter & 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 March 12, 1998 (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
A-10
<PAGE>
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.
A-11
<PAGE>
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.
- --------
8 Insert in Registered Units consisting of Debt Securities and Purchase
Contracts.
A-12
<PAGE>
IN WITNESS WHEREOF, Morgan Stanley Dean Witter & Co. has
caused this instrument to be duly executed.
MORGAN STANLEY DEAN WITTER & 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
A-13
<PAGE>
[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>
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 on
Exchange or Purchase Such Purchase Such Contracts Such Behalf of
Settlement Contract1 Exchange1 Contract2 Exchange2 Settled Settlement Agent
- ---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
- ---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
- ---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
- ---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
- ---------- ------------- ------------ -------------- ----------- ---------- ------------ -------------
=========== ============= =========== ============== ============ ========= =========== =============
</TABLE>
- --------
1 Applies only if this Purchase Contract is part of a Unit.
2 Applies only if this Purchase Contract has been separated from a Unit.
A-14
<PAGE>
[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 agemt
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.]
A-15
<PAGE>
[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>
Number Reduced by
Separation of the Number Reduced by Number Reduced by Number of Units Notation Made by or
Component Parts of Exercise of Settlement of Outstanding Following on Behalf of Paying
Date of Reduction this Unit Universal Warrants Purchase Contracts any such Reduction Agent
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
<S> <C> <C> <C> <C> <C>
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
- ----------------- ------------------ ------------------ ------------------ --------------------- -------------------
==============================================================================================================================
</TABLE>
A-16
<PAGE>
[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.]
A-17
Exhibit 4-ll
FORM OF PRE-PAID PURCHASE CONTRACT
REGISTERED REGISTERED
No. [ ] _________ Purchase Contracts
(each Purchase Contract
having an issue price of
$---------).
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.
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.]1
- ------------
1 Applies to global purchase contracts
<PAGE>
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL PRE-PAID PURCHASE CONTRACT SETTLING ________________
This Pre-paid Purchase Contract is one of the Pre-Paid Purchase
Contracts Settling ____________ (the "Purchase Contracts"), initially issued as
part of a [Separable] Unit Mandatorily Exchangeable for ______________ (a
"Unit") consisting of [(i) one Purchase Contract and (ii) one ________ Warrant
Settling ______________ (a "_______ Warrant")]. The Units are governed by a Unit
Agreement dated as of ____________ between the Issuer and The Chase Manhattan
Bank as Unit Agent under the Unit Agreement, Trustee and Paying Agent under the
Senior Indenture and Warrant Agent (the "Warrant Agent") under the Warrant
Agreement dated __________. [Prior to ___________ (the "[Automatic] Separation
Date"), the Purchase Contracts and the _______ Warrants may be purchased and
transferred only as Units. On the Automatic Separation Date, the Units will
automatically separate into their constituent Purchase Contracts and Put
Warrants (which will thereafter trade under separate CUSIP numbers), and the
Units will cease to exist.] Any holder of a Purchase Contract by his acceptance
thereof agrees to (in the absence of any applicable administrative ruling or
judicial determination to the contrary) treat the Purchase Contracts and
Warrants initially comprising Units as separate securities and to file all
United States federal, state and local tax returns consistent with the treatment
of such Units as constituted by separate securities.
Purchase Contract Property................
Amount of Purchase Contract Property
Deliverable Per Purchase Contract..........
Settlement.................................
Contract Settlement Date...................
[Determination Dates]......................
Calculation Agent.......................... Morgan Stanley & Co. Incorporated.
Other Provisions...........................
2
<PAGE>
Morgan Stanley Dean Witter & Co., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to ________ [CEDE & CO.]2, or registered assignees, the amount of
Purchase Contract Property, as determined in accordance with the provisions set
forth under "Settlement" above, due with respect to _________ PURCHASE CONTRACTS
on the Contract Settlement Date (including as a result of acceleration or
otherwise) specified above.
Reference is hereby made to the further provisions of this Purchase
Contract 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 Purchase
Contract shall not be entitled to any benefit under the Senior Indenture or be
valid or obligatory for any purpose.
- --------
2 Applies to global purchase contracts.
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this Purchase Contract to be
duly executed.
DATED: [ ] MORGAN STANLEY DEAN WITTER & 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
4
<PAGE>
FORM OF REVERSE OF SECURITY
This Pre-paid Purchase Contract is one of a duly authorized issue of
Prepaid Purchase Contracts known as the Pre-paid Purchase Contracts Settling
_____________ (the "Purchase Contracts") of the Issuer. The Purchase Contracts
are issuable under an Amended and Restated Senior Indenture, dated as of May 1,
1999, between Morgan Stanley Dean Witter & Co. and The Chase Manhattan Bank, as
Trustee (the "Trustee,") (as further supplemented or amended from time to time,
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 Purchase Contracts and the terms upon which the Purchase
Contracts 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 Purchase Contracts. The terms of individual
Purchase Contracts may vary, 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 Purchase Contract 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 Purchase Contract is not redeemable prior to maturity.]
This Purchase Contract, and any Purchase Contract or Purchase Contracts
issued upon transfer or exchange hereof, is issuable only in fully registered
form in minimum denominations of ______ Purchase Contracts and any integral
multiple of ______ Purchase Contracts in excess thereof.
The Trustee has been appointed registrar for the Purchase Contracts, and
the Trustee shall maintain at its office in The City of New York a register for
the registration and transfer of Purchase Contracts. This Purchase Contract may
be transferred at the aforesaid office of the Trustee by surrendering this
Purchase Contract 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 Purchase Contract or Purchase Contracts
having identical terms and provisions and having a like number of Purchase
Contracts in authorized denominations, subject to the terms and conditions set
forth herein. Purchase Contracts are exchangeable at said office for other
Purchase Contracts of other authorized denominations and having identical terms
and provisions. All such exchanges and transfers of Purchase Contracts shall 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 Purchase
Contracts surrendered for exchange
5
<PAGE>
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.
In case any Purchase Contract shall at any time become mutilated,
defaced or be destroyed, lost or stolen and such Purchase Contract 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, the Issuer in its discretion
may execute a new Purchase Contract of like tenor in exchange for the Purchase
Contract so mutilated or defaced, or in lieu of the Purchase Contract so
destroyed or lost or stolen, but, if this Purchase Contract is destroyed, lost
or stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this Purchase Contract 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 Purchase Contract
shall be borne by the owner of the Purchase Contract 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 a default in payment of the Purchase Contract
Property (as defined on the face of this instrument) or any other amount due
with respect to the series of Prepaid Purchase Contracts of which this Purchase
Contract 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 Purchase Contract, or due to certain events of
bankruptcy or insolvency 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.
For purposes of such default provisions and any other provisions of the
Senior Indenture that require a calculation of a percentage of the principal
amount of debt securities outstanding under the
6
<PAGE>
Senior Indenture, such Purchase Contract shall be deemed to represent a
principal amount outstanding equal to [the purchase price of the Units including
such Purchase Contract at issuance].3
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 modify or amend
the provisions for conversion of any currency into any other currency, or modify
or amend the provisions for conversion or exchange of the debt securities of the
Issuer or other entities (other than as provided in the antidilution provisions
or other similar adjustment provisions of the debt securities or otherwise in
accordance with the terms 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.
So long as this Purchase Contract shall be outstanding, the Issuer
shall cause to be maintained an office or agency for the payment of the Purchase
Contract Property or any other amount due with respect to this Purchase Contract
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 Purchase Contracts. 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 Purchase Contract Property paid by the Issuer and held
by the Trustee or any Paying Agent for payment of any Purchase Contract that
remains unclaimed at the end of two years after such Purchase Contract shall
have become due and payable (whether on the Contract Settlement Date (as defined
on the face of this instrument) or as a result of acceleration or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Purchase
Contracts that such Purchase Contract Property shall be repaid to the Issuer and
any person claiming such Purchase Contract Property shall thereafter look only
to the Issuer for payment thereof and (ii) such Purchase Contract Property shall
be so repaid to the Issuer. Upon such repayment all liability of the Trustee or
such Paying Agent with respect to such Purchase Contract Property shall
thereupon cease.
- -----------
3 Unless otherwise indicated in the Issuer Order.
7
<PAGE>
No provision of this Purchase Contract or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the Purchase Contract Property on this Purchase Contract
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
Purchase Contract.
Prior to due presentment of this Purchase Contract 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 Purchase Contract is registered as the owner
hereof for all purposes, whether or not this Purchase Contract 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 Purchase Contract
Property on this Purchase Contract, 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 Purchase Contract 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 Purchase Contract which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
8
<PAGE>
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 _________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act _______________________________
(State)
Additional abbreviations may also be used though not in the above list.
--------------------
9
<PAGE>
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 Purchase Contract and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such purchase
contract 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 Purchase Contract in every
particular without alteration or enlargement or any change
whatsoever.
10
EXHIBIT 4-mm
- -------------------------------------------------------------------------------
MORGAN STANLEY DEAN WITTER & CO.
AND
THE CHASE MANHATTAN BANK,
as Unit Agent, as Trustee and Paying
Agent under the Indenture referred to
herein, and as Warrant Agent under the
Warrant Agreement referred to herein
---------------------------
FORM OF UNIT AGREEMENT
(For Units Without Holders' Obligations)
---------------------------
Dated as of __________
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions....................................................2
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally................................................6
SECTION 2.02. Form of Certificate of Authentication and
Countersignature...........................................6
SECTION 2.03. Units..........................................................7
SECTION 2.04. Denominations..................................................7
SECTION 2.05. Rights and Obligations Evidenced by the Units..................7
SECTION 2.06. Execution, Authentication, Delivery and Dating.................7
SECTION 2.07. Registration of Transfer and Exchange..........................8
SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Unit
Certificates...............................................9
SECTION 2.09. Persons Deemed Owners.........................................10
SECTION 2.10. Cancellation..................................................10
SECTION 2.11. Exchange of Global Units and Definitive Units.................11
ARTICLE 3
[AUTOMATIC SEPARATION OF UNITS; TERMINATION OF UNIT AGREEMENT
SECTION 3.01. Automatic Separation of Units; Termination of
Unit Agreement............................................11
SECTION 3.02. Effect of Termination.........................................11
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF UNITS
SECTION 4.01. Holder May Enforce Rights......................................12
ARTICLE 5
THE AGENT
SECTION 5.01. Certain Duties and Responsibilities...........................12
SECTION 5.02. Certain Rights of Agent.......................................13
<PAGE>
SECTION 5.03. Not Responsible for Recitals or Issuance of Units.............14
SECTION 5.04. May Hold Units................................................14
SECTION 5.05. Compensation and Reimbursement................................14
SECTION 5.06. Corporate Agent Required; Eligibility.........................15
SECTION 5.07. Resignation and Removal; Appointment of
Successor.................................................16
SECTION 5.08. Acceptance of Appointment by Successor........................17
SECTION 5.09. Merger, Conversion, Consolidation or Succession
to Business...............................................18
SECTION 5.10. Tax Compliance................................................18
ARTICLE 6
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 6.01. Covenant Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions...........18
SECTION 6.02. Rights and Duties of Successor Corporation....................19
SECTION 6.03. Opinion of Counsel to Agent...................................19
ARTICLE 7
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendments....................................................19
SECTION 7.02. Incorporators, Stockholders, Officers and
Directors of the Corporation Immune from
Liability.................................................21
SECTION 7.03. Compliance Certificates and Opinions..........................21
SECTION 7.04. Form of Documents Delivered to Agent..........................22
SECTION 7.05. Maintenance of Office or Agency...............................22
SECTION 7.06. Notices, Etc..................................................23
SECTION 7.07. Notices to Holders; Waiver....................................23
SECTION 7.08. Effect of Headings and Table of Contents......................24
SECTION 7.09. Successors and Assigns........................................24
SECTION 7.10. Separability Clause...........................................24
SECTION 7.11. Benefits of Agreement.........................................24
SECTION 7.12. Governing Law.................................................24
SECTION 7.13. Counterparts..................................................24
SECTION 7.14. Inspection of Agreement.......................................24
<PAGE>
UNIT AGREEMENT, dated as of _____________, by and among MORGAN
STANLEY DEAN WITTER & CO., a Delaware corporation (the "Corporation") and THE
CHASE MANHATTAN BANK, a New York banking corporation ("Chase"), acting solely
as unit agent under this Agreement (in its capacity as unit agent, the
"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").
WHEREAS, the Corporation has entered into an Amended and Restated
Senior Indenture dated as of May 1, 1999 between the Corporation and The Chase
Manhattan Bank, as Trustee (the "Indenture");
WHEREAS, the Corporation has entered into a Warrant Agreement (the
"Warrant Agreement") dated as of ____________ between the Corporation and
Chase, as Warrant Agent;
WHEREAS, the Corporation has duly authorized the issuance, pursuant
to the Warrant Agreement, of _________ Warrants [Settling/Expiring] ________
(the "Warrants");
WHEREAS, the Corporation has duly authorized the issuance pursuant to
the Indenture, of [Pre-paid Purchase Contracts Settling __________] that
require holders to satisfy their obligations thereunder upon issuance of such
Pre-paid Purchase Contracts (the "Purchase Contracts")[Notes due _______(the
"Notes")] and
WHEREAS, the Corporation desires to provide for the issuance of the
[Separable] Units [Mandatorily] Exchangeable for ________________________
consisting of ___________________ (the "Units");
NOW, THEREFORE, in consideration of the premises and the purchases of
the Units by the holders thereof, the Corporation, the Agent, the Warrant
Agent and the Trustee and Paying Agent mutually covenant and agree as follows:
<PAGE>
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. 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.
"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.
["Automatic Separation Date" means _________________________.]
"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.
<PAGE>
"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.
"Corporate Trust Office" means the office of the Agent 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.
"Definitive Securities" means any Security in definitive form.
"Definitive Unit" means any Unit comprised of Definitive Securities.
"Depositary" means DTC, or any successor as the Holder of any Global
Units.
"DTC" means The Depository Trust Company or its nominee.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Note" means a global Note in registered form originally
issued as part of a Global Unit.
"Global Purchase Contract" means a global Purchase Contract in
registered form originally issued as part of a Global Unit.
"Global Securities" means the [Global Warrant and the Global Purchase
Contract] [Global Note].
"Global Unit" means any Unit that comprises the Global Securities and
is represented by a Global Unit Certificate.
"Global Unit Certificate" means a global Unit Certificate in registered
form.
"Global Warrant" means a global Warrant in registered form originally
issued as part of a Global Unit.
<PAGE>
"Holder" means in the case of any Security or Unit, the Person in
whose name such Security or the Securities constituting a part of such Unit
are registered on the relevant Security Register.
"Indenture" has the meaning specified in the first recital in this
Agreement.
"Issuer Request", means a written order or request signed in the name
of the Corporation by the Chairman of the Board, the President, the Chief
Financial Officer, the Chief Strategic and Administrative Officer, the Chief
Legal Officer, the Treasurer, any Assistant Treasurer or any other person
authorized by the Board of Directors and delivered to the Agent.
"Note" has the meaning stated in the fourth recital in this Agreement.
"Note Register" has the meaning specified in Section 2.07.
"Officer's Certificate" means a certificate signed by the Chairman of
the Board, the President, the Chief Financial Officer, the Chief Strategic and
Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant
Treasurer of the Corporation or any other person authorized by the Board of
Directors and delivered to the Agent.
"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.
"Paying Agent" means any Person authorized by the Corporation to pay
the Put Price or any other sums payable by the Corporation; 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.
"Purchase Contracts" has the meaning stated in the fourth recital in
this Agreement.
"Purchase Contract Register" has the meaning specified in Section
2.07.
<PAGE>
"Responsible Officer" with respect to the 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 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 either a [list constituent securities].
"Security Register" means either a [Note Register, Purchase Contract
Register or Warrant Register].
"Trustee", with respect to [Purchase Contracts] [Notes], 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 fifth recital to this Agreement.
"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.
"Unit Register" has the meaning specified in Section 2.07.
"Warrant Agreement" has the meaning stated in the second 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 means the security register of the Corporation maintained by the
Warrant Agent pursuant to the Warrant Agreement.
"Warrants" has the meaning stated in the third recital of this
Agreement.
<PAGE>
ARTICLE 2
UNITS
SECTION 2.01. Forms Generally. (a) The Units shall be substantially
in the form of Exhibit A. 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 on
which the Units may be listed or quoted or of any securities depository or to
conform to general usage.
(b) 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.
(c) The Units shall be issued initially as Global Units in fully
registered form. A beneficial interest in a Unit may not be exchanged for a
Definitive Unit, except as provided in Section 2.11. The Corporation shall
execute, and the Trustee and Warrant Agent shall, in accordance with Section
2.06, authenticate and countersign, respectively, and deliver one or more
global Unit Certificates (comprised of [list constituent Global Securities])
that (i) shall evidence all of the Units issued, shall be registered in the
name of the Depositary or its nominee, shall be delivered by the Agent to the
Depositary or pursuant to such Depositary's instructions and 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."
SECTION 2.02. Form of Certificate of Authentication and
Countersignature. The form of the Trustee's certificate of authentication of
the [Purchase Contracts] [Notes] and the form of the Warrant Agent's
countersignature of the Warrants, each constituting a part of the Units, shall
be substantially in such form as set forth in the Indenture or the Warrant
Agreement, as applicable.
<PAGE>
SECTION 2.03. Units. (a) Each Unit will consist of ______________.
(b) The aggregate number of Units that may be authenticated,
countersigned and delivered under this Agreement is ___________________
(except for Units authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Units pursuant to Section 2.07,
2.08 or 2.11);
(c) The [list constituent securities] may be purchased, transferred
and exchanged only as Units [until the Automatic Separation Date. On the
Automatic Separation Date, the Units shall automatically separate into their
constituent [list constituent securities], and the Units will cease to exist.
Each beneficial owner of a Unit on the Automatic Separation Date shall become
the owner of [list amount of constituent securities], which may thereafter be
transferred as separate Securities.]
SECTION 2.04. Denominations. Units shall be issuable only in
registered form and in denominations of ___________ Units,[[Purchase Contracts]
[Notes] and Warrants], respectively, and any integral multiple thereof.
SECTION 2.05. Rights and Obligations Evidenced by the Units. Units
shall evidence [(a) the number of Warrants specified on the face of the
Warrant Certificate attached to any Unit Certificate representing Definitive
Units or [on the face of] [Schedule A to] the Warrant Certificate representing
Global Warrants attached to the Unit Certificate representing Global Units and
(b) [the number of Purchase Contracts specified on the face of the Purchase
Contract attached to any Unit Certificate representing Definitive Units or [on
the face of ] [Schedule A to] the Global Purchase Contract attached to the
Unit Certificate representing Global Units] [the aggregate principal amount of
Notes specified on the face of the Note attached to any Unit Certificate
representing Definitive Units or on [the face of][Schedule A to] the Global
Note attached to the Unit Certificate representing Global Units].]
SECTION 2.06. Execution, Authentication, Delivery and Dating. Upon
the execution and delivery of this Agreement, and from time to time
thereafter, the Corporation may deliver, subject to the limitation on the
aggregate number of [list constituent securities] represented thereby set
forth in Section 2.03(b), Unit Certificates (including the Securities executed
by the Corporation constituting the Units evidenced by such Unit Certificates)
to the Trustee and Warrant Agent for authentication and countersignature, as
the case may be, of the Securities comprised by such Units, together with its
Issuer Requests for authentication and countersignature of such Securities,
and the Trustee in accordance with the Indenture and the Issuer Request of the
Corporation shall authenticate the [Purchase Contracts] [Notes] constituting a
part of the Units evidenced by such
<PAGE>
Unit Certificates and the Warrant Agent in accordance with the Warrant
Agreement shall countersign the Warrants constituting a part of the Units
evidenced by such Unit Certificates and each shall deliver such Unit
Certificates upon the order of the Corporation.
[Purchase Contracts] [Notes] constituting a part of the Units shall
be executed on behalf of the Corporation in accordance with the terms of the
Indenture. Warrants constituting a part of the Units shall be executed on
behalf of the Corporation in accordance with the terms of the Warrant
Agreement.
SECTION 2.07. Registration of Transfer and Exchange. A register (the
register being herein referred to as the ["Purchase Contract Register"] ["Note
Register"]) shall be maintained in accordance with the Indenture to provide
for the registration of [Purchase Contracts] [Notes] constituting a part of
the Units and of transfers of such [Purchase Contracts] [Notes].
At the option of the Holder thereof, Units may be transferred or
exchanged for a Unit or Units having authorized denominations evidencing the
number of Units transferred or exchanged, upon surrender of such 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. Whenever any Units are so surrendered for transfer or exchange, the
Corporation shall execute, and the Trustee and/or Warrant Agent, as
appropriate, shall authenticate and/or countersign, respectively, and the
Agent shall 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 canceled and disposed of in accordance with
Section 2.10.
All Unit Certificates delivered upon any registration of transfer or
exchange of a Unit Certificate shall evidence the ownership of [list
number/amount listed on the face of constituent securities] 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. Except as otherwise
provided herein with respect to the Units, the Agent shall register the
transfer or exchange of any
<PAGE>
outstanding Unit Certificate upon the records to be maintained by it for that
purpose (the "Unit Register") at its Corporate Trust Office.
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 2.08 not involving any transfer.
SECTION 2.08. 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 and the Warrant
Agent, as appropriate, and the Trustee and the Warrant Agent shall
authenticate, countersign and deliver, as appropriate, in exchange therefor
new Securities comprised by Units 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 and
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 and the Warrant Agent as appropriate, that
such Unit Certificate has been acquired by a bona fide purchaser, the
Corporation shall execute and deliver to the Trustee and the Warrant Agent
and/or the Agent, as appropriate, and the Trustee (in accordance with the
provisions of the Indenture) and the Warrant Agent (in accordance with the
provisions of the Warrant Agreement) shall authenticate and countersign and
the Agent shall deliver to the Holder, as appropriate, in lieu of any such
destroyed, lost or stolen Unit Certificate, new Securities comprised by Units
of like tenor and evidenced by a new Unit Certificate evidencing the same
number of Units and bearing a number not contemporaneously outstanding.
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, 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
<PAGE>
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 2.09. Persons Deemed Owners. Prior to due presentment of a
Unit Certificate for registration of transfer, the Corporation, the Trustee,
the Warrant Agent and the Agent, as appropriate, and any agent of the
Corporation, the Trustee, the Warrant Agent or the Agent, as appropriate, may
treat the Person in whose name any Security evidenced by such Unit Certificate
is registered 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 or any agent of the Corporation, the Trustee, the Warrant
Agent or the Agent shall be affected by notice to the contrary.
SECTION 2.10. Cancellation. All Unit Certificates surrendered for
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 canceled, [list constituent securities] evidenced by such Units
shall be promptly canceled 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 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 Request of the Corporation, be promptly canceled 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 canceled as provided in this Section, except as
permitted by this Agreement. All canceled 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 Request the Corporation shall direct that
canceled 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.
<PAGE>
SECTION 2.11. Exchange of Global Units and Definitive Units. Holders
of Global Units shall receive Definitive Units 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 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.
Definitive Units exchanged for interests in Global Units pursuant to
this Section 2.11 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.
Whenever Global Units are exchanged for Definitive Units the Agent
shall cause Schedule A of the Global Unit to be endorsed to reflect any
decrease in the Global Units as a result of such exchange, whereupon the
Global Unit Certificate or Certificates shall be canceled and disposed of in
accordance with Section 2.10.
ARTICLE 3
AUTOMATIC SEPARATION OF UNITS; TERMINATION OF UNIT AGREEMENT
SECTION 3.01. Automatic Separation of Units; Termination of Unit
Agreement. Prior to the Automatic Separation Date, the [list constituent
securities] shall be purchased and transferred only as Units. On the Automatic
Separation Date, the Units shall automatically separate into their constituent
[list constituent securities] and the Units will cease to exist. Each
beneficial owner of a Unit on the Automatic Separation Date shall become the
owner of [list number/amount of constituent securities], which may thereafter
be transferred as separate securities. Immediately upon the separation of the
Units into their constituent Securities, this Agreement shall terminate.
SECTION 3.02. Effect of Termination. If this Agreement is terminated
as provided in Section 3.01, such termination shall be without liability of
any party to any other party to this Agreement and the obligations of the
Corporation with respect to the Units shall automatically cease upon the
Automatic Separation Date and the Holders shall not have any claims with
respect to the Units; provided that the provisions of Section 5.05 shall
survive the termination hereof pursuant to Section 3.01 and provided, further,
that the provisions of this Section shall not limit the ability of a Holder to
enforce its rights in accordance with the proviso in Section 4.01.
<PAGE>
ARTICLE 4
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF UNITS
SECTION 4.01. Holder May Enforce Rights. Any Holder of a Unit may,
without the consent of the Agent, the Depositary, any participant of the
Depositary or any other Holder, in and for its own behalf, enforce, and may
institute and maintain, any suit, action or proceeding against the Corporation
suitable to enforce, or otherwise in respect of, its rights under this
Agreement; provided that a Holder of a Unit may only enforce its rights under
the Securities comprised by such Unit in accordance with the terms of the
Indenture and the Warrant Agreement, as applicable.
ARTICLE 5
THE AGENT
SECTION 5.01. 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.
<PAGE>
(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) 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.
(e) 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.
(f) 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 5.02. Certain Rights of Agent. Subject to the provisions of
Section 5.01:
(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 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 [constituent securities],
as the case may be, and, if the Agent
<PAGE>
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; and
(f) 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.
SECTION 5.03. 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 and Warrant Agent's certificates of
authentication or countersignature, shall be taken as the statements of the
Corporation, and none of the Trustee, Agent or the Warrant 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 or the Warrant 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 5.04. May Hold Units. The Agent, the Trustee, the Warrant
Agent, 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 such other agent, the Trustee, the Warrant Agent
or the Agent.
SECTION 5.05. 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,
<PAGE>
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. 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 5.06. 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 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.
<PAGE>
SECTION 5.07. 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 5.08.
(b) The Agent may resign by giving written notice thereof to the
Corporation and the Holders, in accordance with Section 7.06 and Section 7.07,
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 5.08 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 5.06, or
shall cease to be eligible 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 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 5.08. If no successor Agent shall have been so
appointed by the
<PAGE>
Corporation and accepted appointment in the manner required by Section 5.08,
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 7.07. Each notice shall include the name of the successor Agent and
the address of its Corporate Trust Office.
SECTION 5.08. 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 5.05,
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 5.05.
(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 7.07. 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 5.07. 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.
<PAGE>
SECTION 5.09. 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.
[SECTION 5.10. Tax Compliance. (a) The Company will allocate __%
of the issue price of the Units as premium for the Warrants, based on the
relative fair market values of the [Purchase Contracts][Notes] and the
Warrants at the time of the issuance of the Units, and will allocate __% of
the issue price of the Units to the [Purchase Contracts] [Notes].]
(b) 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 6
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 6.01. 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
executed and delivered to the Agent by such corporation, and (ii) neither the
Corporation nor such successor corporation immediately after such
<PAGE>
merger or consolidation, or such sale, conveyance or lease shall be in default
in the performance of any such covenant or condition.
SECTION 6.02. 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 & Co. any or all of the [list constituent
securities] 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 and deliver,
as applicable, any [list constituent securities] that previously shall have
been signed and delivered by the officers of the Corporation to the Trustee
and the Warrant Agent for authentication and countersignature, and any [list
constituent securities] evidencing Units which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee and the
Warrant Agent for such purpose.
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 thereafter to be issued as may be appropriate.
SECTION 6.03. Opinion of Counsel to Agent. The Agent subject to
Sections 5.01 and 5.02 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 7
MISCELLANEOUS PROVISIONS
SECTION 7.01. Amendments. (a) This Agreement and the terms of the
Units may be amended (by means of an agreement supplemental hereto or
otherwise) by the Corporation and the Agent, without the consent of the
Holders, (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 evidence and provide for the acceptance of appointment
hereunder by a
<PAGE>
successor Agent with respect to the Units or (iii) in any other manner which
the Corporation may deem necessary or desirable and which will not adversely
affect the interests of the affected Holders.
(b) The Corporation and the Agent may modify or amend this Agreement
(by means of an agreement supplemental hereto or otherwise) with the consent
of Holders holding not less than a majority in number of the then outstanding
Units for any purpose; provided, however, that no such modification or
amendment that materially and adversely affects the exercise rights of the
affected Holders or reduces the percentage of the number of outstanding Units,
the consent of the Holders of which is required for modification or amendment
of this Agreement, may be made without the consent of each Holder affected
thereby. In the case of Units evidenced by one or more Global Unit
Certificates, the Corporation and the 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 Unit Certificate. Such certification may be provided by
participants of the Depositary acting on behalf of such beneficial owners of
Units, provided that any such certification is accompanied by a certification
from the Depositary as to the Unit holdings of such participants.
(c) Upon the request of the Corporation, 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 Officer's
Certificate) authorizing the execution of any such amendment, and upon the
filing with the Agent of evidence of the consent of Holders as aforesaid, the
Agent shall join with the Corporation in the execution of such amendment
unless such amendment affects the Agent's own rights, duties or immunities
under this Agreement or otherwise, in which case the 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 Section, the 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 Holders, or the authority of
the Person executing the same, may be proved in any manner which the Agent
(with the approval of the Corporation) deems sufficient.
(d) It shall not be necessary for the consent of the Holders 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.
<PAGE>
(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. 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. The ownership of
Units shall be proved by the Unit Register.
SECTION 7.02. 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
Warrant Agreement or any [list constituent securities], 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 [list constituent securities] constituting a part of the
Units.
SECTION 7.03. Compliance Certificates and Opinions. Except as
otherwise expressly provided by this Agreement, upon any application or
request by the Corporation to the Agent to take any action under any provision
of this Agreement, the Corporation, as applicable, shall furnish to the 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;
<PAGE>
(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 7.04. Form of Documents Delivered to 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 7.05. Maintenance of Office or Agency. So long as Units 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 Units may be presented or surrendered
for
<PAGE>
delivery, where 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. 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 Units 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 7.06. 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, 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 to the Holders and the Corporation, or
(b) the Corporation by the 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: Treasurer, or at any
other address previously furnished in writing to the Agent by the Corporation.
SECTION 7.07. Notices to Holders; Waiver. The Corporation may cause
notice to be given to the Holders by providing the Agent with a form of notice
to be distributed by (a) in the case of Definitive Units, the Agent to the
Holders by
<PAGE>
first class mail, or (b) in the case of Global Units, the Depositary to its
participants in accordance with the custom and practices of the Depositary.
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.
SECTION 7.08. 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 7.09. Successors and Assigns. All covenants and agreements in
this Agreement, the Units and the Unit Certificates by the Corporation shall
bind its successors and assigns, whether so expressed or not.
SECTION 7.10. Separability Clause. In case any provision in this
Agreement or in the Units, Unit Certificates or [list constituent securities]
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 7.11. Benefits of Agreement. Nothing in this Agreement or in
the Units, Unit Certificates, the Indenture, the Warrant Agreement, [list
constituent securities], 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 bound by all of the terms and conditions hereof and
of the Indenture, the Units, the Warrant Agreement, [list constituent
securities] evidenced by the Units, by their acceptance of delivery of such
Units.
SECTION 7.12. Governing Law. This Agreement, the Units, the Unit
Certificate and [list constituent securities] shall be governed and construed in
accordance with the laws of the State of New York.
SECTION 7.13. 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 7.14. 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.
<PAGE>
IN WITNESS WHEREOF, the Corporation, the Agent, the Trustee and the
Warrant Agent have duly executed this Agreement as of the day and year first
above set forth.
MORGAN STANLEY DEAN WITTER & CO.
By: ______________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as 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:
<PAGE>
EXHIBIT A
[[FORM OF UNIT CERTIFICATE]
[FACE]
[IF THE UNIT CERTIFICATE IS TO BE A GLOBAL 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 & 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.]
A-1
<PAGE>
UNIT CERTIFICATE
(issuable in integral multiples of ________ Units)
Evidencing the Ownership of and Rights
of the Holder under [Separable] Units [Mandatorily] Exchangeable
for _____________________________ Consisting of
_____________________ and
------------------------
CUSIP No. _________
Certificate No. _____Number of Units _________
This Unit Certificate certifies that ______________________ (the
"Holder"), or registered assigns, is the registered owner of [ ( ) Units].
Each Unit represents ownership by the Holder of __________.
A-2
<PAGE>
[INSERT PURCHASE CONTRACT, NOTE AND WARRANT CERTIFICATE, AS APPLICABLE]
- -------------------------------------------------------------------------------
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.
- -------------------------------------------------------------------------------
A-3
<PAGE>
[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.]
A-4
EXHIBIT 5
BROWN & WOOD LLP
One World Trade Center
New York, NY 10048-0057
May 4, 1999
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, NY 10036
Ladies and Gentlemen:
We have acted as counsel to Morgan Stanley Dean Witter & Co., a
Delaware corporation (the "Company"), in connection with the preparation and
filing of a registration statement on Form S-3 (as it may be amended or
supplemented from time to time, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
$12,000,000,000 aggregate initial offering price of the following securities
(collectively, the "Securities"): (i) debt securities ("Debt Securities"), (ii)
warrants to purchase Debt Securities ("Debt Warrants") or 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 (c) commodities ("Universal Warrants," and together
with Debt Warrants, the "Warrants"), (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
(c) commodities, (iv) Debt Securities, Purchase Contracts and Warrants or any
combination thereof that may be offered in the form of Units ("Units"), (v)
shares of the Company's preferred stock, par value $0.01 per share ("Preferred
Stock"), to be issued from time to time in one or more series and (vi) an
indeterminate number of depositary shares representing fractional interests in
shares of the Preferred Stock (the "Depositary Shares").
The Debt Securities and certain Purchase Contracts that require the
holders thereof to satisfy their obligations thereunder when such Purchase
Contracts are issued ("Pre-paid Purchase Contracts"), if any, are to be issued
from time to time as either (a) senior indebtedness of the Company under an
amended and restated senior indenture dated as of May 1, 1999, between the
Company and The Chase Manhattan Bank, as trustee (the "Senior Debt Trustee")
(the "Senior Indenture") or (b) subordinated indebtedness of the Company under
an amended and restated subordinated indenture dated as of May 1, 1999, between
the Company and The First National Bank of Chicago, as trustee (the
"Subordinated Debt Trustee") (the "Subordinated Indenture" and, together with
the Senior Indenture, the "Indentures"). The Debt Warrants, if any, will be
issued under a debt warrant agreement to be entered into between the Company and
a debt warrant agent (the "Debt Warrant Agreement"). The Universal Warrants, if
any, will be issued under a Universal Warrant Agreement to be entered into
between the Company and The Chase Manhattan Bank, as warrant agent (the
"Universal Warrant Agreement"). The Purchase Contracts (other than Pre-paid
Purchase Contracts) and Units, if any, will be issued under one or more unit
agreements to be entered into among the Company, a bank or trust company, as
unit agent, and the holders from time to time of the Units (each such unit
agreement, a "Unit Agreement"). Units that include Purchase Contracts that are
all Pre-paid Purchase Contracts will be issued under one or more Unit Agreements
designed for Units where the holders do not have any further obligations under
the Purchase Contracts (such Unit Agreements are referred to as "Unit Agreements
Without Holder Obligations"). Depositary Shares representing fractional
interests in shares of Preferred Stock will be issued under a preferred stock
deposit agreement to be entered into among the Company, The Bank of New York, as
depositary, and the holders from time to time of depositary receipts issued
thereunder (the "Deposit Agreement"). The forms of the Indentures, the Debt
Warrant Agreement, the Universal Warrant Agreement, the Unit Agreement, the Unit
Agreement Without Holders' Obligations, the Deposit Agreement and the Securities
are filed or incorporated by reference as exhibits to the Registration
Statement.
In rendering this opinion, we have examined the originals or copies,
certified to our satisfaction, of such corporate records and other documents and
certificates as we deemed necessary. In such examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of all such
latter documents. In addition, in rendering this opinion, we have assumed the
due authorization, execution and delivery of the Indentures, the Debt Warrant
Agreement, the Universal Warrant Agreement, the Unit Agreement, the Unit
Agreement Without Holders' Obligations, and the Deposit Agreement by all parties
other than the Company. As to any facts material to this opinion, we have, when
relevant facts were not independently established by us, relied upon the
aforesaid records, certificates and documents.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
(i) the Indentures, the Debt Warrant Agreement, the Universal Warrant
Agreement, the Unit Agreement, the Unit Agreement Without Holders' Obligations,
the Deposit Agreement and the Securities have been duly authorized by the
Company;
(ii) when the Debt Warrant Agreement, the Universal Warrant Agreement
and the Unit Agreement and/or the Unit Agreement Without Holders' Obligations,
as applicable, have been duly executed and delivered by the Company and the Debt
Securities, the Debt Warrants, the Universal Warrants, the Purchase Contracts
and the Units have been duly executed and issued in accordance with the
provisions of the applicable Indenture, the Debt Warrant Agreement, the
Universal Warrant Agreement, the Unit Agreement, and/or the Unit Agreement
Without Holders' Obligations, as applicable, respectively, and duly paid for by
the purchasers thereof in the manner and on the terms described in the
Registration Statement (after it is declared effective), all required corporate
action will have been taken with respect to the issuance and sale of the Debt
Securities, the Debt Warrants, the Universal Warrants, the Purchase Contracts
and the Units and such Securities will have been validly issued and will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms;
(iii) when the shares of Preferred Stock have been duly issued and paid
for by the purchasers thereof in the manner and on the terms described in the
Registration Statement (after it is declared effective), such shares of
Preferred Stock will be duly and validly issued, fully paid and nonassessable;
and
(iv) when the Deposit Agreement has been duly executed and delivered by
the Company and, if applicable, when the Depositary Shares have been duly issued
and paid for by the purchasers thereof in the manner and on the terms described
in the Registration Statement (after it is declared effective), such Depositary
Shares, if applicable, will represent legal and valid interests in the
corresponding shares of Preferred Stock.
The opinions set forth herein are limited to matters of the laws of the
State of New York and the General Corporation Law of the State of Delaware. Any
opinion expressed herein as to enforceability is qualified in that such
enforceability may be limited by (i) bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors' rights
generally, (ii) general principles of equity, regardless of whether such
enforcement is considered at a proceeding in equity or at law, (iii)
requirements that a claim with respect to the Notes, which are denominated in a
foreign currency (or a foreign currency judgment in respect of such claim), be
converted into United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (iv) governmental authority to limit,
delay or prohibit making payments in foreign currency or currency units or
payments outside the United States. We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to our
firm appearing under the caption "Legal Matters" in the related Prospectus. In
giving such consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Brown & Wood LLP
Exhibit 12-a
MORGAN STANLEY DEAN WITTER & CO.
Ratio of Earnings to Fixed Charges
(Dollars in millions)
<TABLE>
(Unaudited)
Three Months Ended
-------------------------
February 28, February 28, Fiscal Year
1999 1998 1998 1997 1996
------------ ------------ -------- -------- --------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges
Earnings:
Income before income taxes(l) 1,672 1,132 $5,385 $4,274 $3,117
Add: Fixed charges, net 2,906 3,168 13,614 10,898 9,026
------ ------ ------- ------- -------
Income before income taxes and
fixed charges, net 4,578 4,300 $18,999 $15,172 $12,143
====== ====== ======= ======= =======
Fixed charges:
Total interest expense 2,877 3,145 $13,514 $10,806 $8,934
Interest factor in rents 29 23 100 92 92
------ ------ ------- ------- -------
Total fixed charges 2,906 3,168 $13,614 $10,898 $9,026
====== ====== ======= ======= =======
Ratio of earnings to fixed charges 1.6 1.4 1.4 1.4 1.3
(1) 1998 Income before income taxes does not include a cumulative effect of
accounting change.
</TABLE>
"Earnings" consist of income before income taxes and fixed charges. "Fixed
charges" consist of interest costs, including interest on deposits, and that
portion of rent expense estimated to be representative of the interest factor.
Exhibit 12-b
MORGAN STANLEY DEAN WITTER & CO.
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends
(Dollars in millions)
<TABLE>
(Unaudited)
Three Months Ended
---------------------------
February 28, February 28, Fiscal Year
1999 1998 1998 1997 1996
----------- ------------ -------- -------- --------
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends
Earnings:
Income before income taxes(l) 1,672 1,132 $5,385 $4,274 $3,117
Add: Fixed charges, net 2,906 3,168 13,614 10,898 9,026
------- ------- ------- ------- -------
Income before income taxes and
fixed charges, net 4,578 4,300 $18,999 $15,172 $12,143
======= ======= ======= ======= =======
Fixed charges:
Total interest expense 2,877 3,145 $13,514 $10,806 $8,934
Interest factor in rents 29 23 100 92 92
Preferred stock dividends 18 24 87 110 101
------- ------- ------- ------- -------
Total fixed charges and preferred
stock dividends 2,924 3,192 $13,701 $11,008 $9,127
======= ======= ======= ======= =======
Ratio of earnings to fixed charges and
preferred stock dividends 1.6 1.3 1.4 1.4 1.3
(1) 1998 Income before income taxes does not include a cumulative effect of
accounting change.
</TABLE>
"Earnings" consist of income before income taxes and fixed charges. "Fixed
charges" consist of interest costs, including interest on deposits, and that
portion of rent expense estimated to be representative of the interest factor.
The preferred stock dividend amounts represent pre-tax earnings required to
cover dividends on preferred stock.
EXHIBIT 15
To the Directors and Shareholders of Morgan Stanley Dean Witter & Co.:
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim condensed
consolidated financial information of Morgan Stanley Dean Witter & Co. and
subsidiaries as of February 28, 1999 and for the three month periods ended
February 28, 1999 and 1998, as indicated in our report dated April 14, 1999;
because we did not perform an audit, we expressed no opinion on that
information.
We are aware that our report, which is included in your Quarterly Report on Form
10-Q for the quarter ended February 28, 1999, is incorporated by reference in
this Amendment No. 1 to Registration Statement No. 333-75289.
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.
/s/ Deloitte & Touche LLP
New York, New York
May 4, 1999
EXHIBIT 23-a
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-75289 of Morgan Stanley Dean Witter & Co. (the
"Registrant") on Form S-3 of our reports dated January 22, 1999, appearing in
and incorporated by reference in the Annual Report on Form 10-K of the
Registrant for the fiscal year ended November 30, 1998 (which express an
unqualified opinion and which report on the consolidated financial statements
includes an explanatory paragraph for a change in the method of accounting for
certain offering costs of closed-end funds and make reference to the audit of
Morgan Stanley Group Inc. for the fiscal year ended November 30, 1996 by other
auditors), and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
New York, New York
May 4, 1999
EXHIBIT 23-b
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in this
Amendment No. 1 to the Registration Statement on Form S-3 and related Prospectus
of Morgan Stanley Dean Witter & Co. (the "Company") for the registration of
$16,256,130,907 of Debt Securities, Warrants, Preferred Stock, Purchase
Contracts, and Units of the Company and to the incorporation by reference
therein of our report with respect to the 1996 consolidated financial statements
and financial statement schedule of Morgan Stanley Group Inc. dated May 27, 1997
included in the Company's Form 10-K for the fiscal year ended November 30, 1998,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
New York, New York
May 4, 1999
