MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
January [ ], 2001
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 $[ ] (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 nine 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
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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 Bank One
Trust Company, N.A. (as successor to 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 as 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 as 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 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
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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 of the Securities Act. 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
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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
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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.
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(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.
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(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
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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 required to register as, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
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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(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) (except as to due authorization of the
Units and 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.
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.
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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) Notes Terms Agreement shall specify the principal amount of Notes to be
purchased by you pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such Notes and
(ii) Units
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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
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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
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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.
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(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
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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
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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 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
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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 following effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the State of Delaware, has the corporate power and authority
to own its property and to conduct its business as described
in the Prospectus, as amended or supplemented, and 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
17
<PAGE>
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;
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(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;
19
<PAGE>
(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
20
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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 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
21
<PAGE>
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;
(M) the Company is not, and after giving effect to the
offering and sale of the Program Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be required to register as, an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended; and
(N) such counsel (1) believes 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 and other
financial and statistical data 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 and other financial and statistical data 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 and other financial and statistical data 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) believes that the Registration Statement and
Prospectus, as then amended or supplemented, if applicable
(except as to financial statements and schedules and other
financial and statistical data included therein as to which
such counsel need not express any opinion), complied 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 as to financial
statements and schedules and other financial and statistical
data as to which such
22
<PAGE>
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.
23
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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.
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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,
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<PAGE>
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.
26
<PAGE>
(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 were to 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.
27
<PAGE>
(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
28
<PAGE>
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. Offering Restrictions. If any Program Securities are to be offered
outside the United States, you will not offer or sell any such 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.
Subject to the obligations of the Company set forth in Section 3 of this
Agreement, the Company shall have no responsibility for, and you will obtain,
any consent, approval or permission required by you for the subscription, offer,
sale or delivery by you of Program Securities, or the distribution of any
offering materials, under the laws and regulations in force in any jurisdiction
to which you are subject or in or from which you make any subscription, offer,
sale or delivery.
29
<PAGE>
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 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, 10, 11 and 13 shall survive; provided that if at the
time of termination an offer to purchase Program Securities has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Program Securities has not occurred, the provisions of Sections 1, 2(b), 2(c),
3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, 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 1221 Avenue of the Americas, New York,
New York 10020, Attention: Treasurer; Facsimile No.: 212-762-7337.
11. Successors. This Agreement and any Notes Terms Agreement or Units
Terms Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
30
<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: Alexander C. Frank
Title: Treasurer
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:
31
<PAGE>
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
_______________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated January [ ],
2001 (the "U.S. Distribution Agreement")
-----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes,
Series C, having the following terms:
<TABLE>
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 Spread:
any):
Original Issue Date: Indexed Currency or Initial Interest Rate:
Currencies (if any):
A-1
<PAGE>
All Notes Fixed Rate Notes Floating Rate Notes
------------------------------- -------------------------- -----------------------------
Interest Accrual Date: Payment Currency (if any): Initial Interest Reset Date:
Maturity Date: Exchange Rate Agent (if Interest Reset Dates:
any):
Optional Repayment Date(s): Reference Dealers: Interest Reset Period:
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), 3 through 6, 8 and 10
through 14 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.
A-2
<PAGE>
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, 10, 11, and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required:
----------------.
DEAN WITTER REYNOLDS INC.
By:_______________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
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 C
UNITS TERMS AGREEMENT
_______________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated January [ ], 2001
(the "U.S. Distribution Agreement")
----------------------------------------------------
The undersigned agrees to purchase your Global Units, Series C,
[specified designation] having the following terms:
<TABLE>
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:
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:
--------------------------- ------------------------------ ------------------------------
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:
--------
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>
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:
--------------------------- ------------------------------ ------------------------------
Specified Currency: Denominated Currency (if Alternate Rate Event Spread:
any):
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 Date(s): Aggregate Fixed Amount of Interest Payment 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), 3 through 6, 8 and 10
through 14 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.
A-1-3
<PAGE>
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, 10, 11 and 13 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the U.S. Distribution Agreement will be
required:
-----------.
DEAN WITTER REYNOLDS INC.
By:________________________________
Name
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:________________________________
Name:
Title:
Accepted:
MORGAN STANLEY DEAN
WITTER & CO.
By:_______________________
Name:
Title:
A-1-4
<PAGE>
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
January [ ], 2001 (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 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 may be supplemented or
amended from time to time, the "Subordinated Debt Indenture"), between the
Company and Bank One Trust Company, N.A. (as successor to 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.
B-1
<PAGE>
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 between 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 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.
B-2
<PAGE>
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
may 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.
B-3
<PAGE>
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 January
[ ], 2001, for medium-term notes (the "MTN Letter of Representations"), (ii) a
letter of representations from the Company and Chase to DTC, dated as of January
[ ], 2001, 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 January [ ], 2001, 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 January [ ], 2001, for global units consisting of
medium-term notes and universal warrants (the "Optionally Exchangeable Unit
Letter of Representation") and (v) a Letter of Representations from the Company
and Chase to DTC, dated as of January [ ] 2001, for global units consisting of
medium-term notes and purchase contracts (the "Mandatorily Exchangeable Unit
Letter of Representation" and, collectively, the "Letters of Representations"),
its obligations under 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. $400,000,000
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. $400,000,000 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
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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
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<PAGE>
not in excess of U.S.$400,000,000 and, in
the case of Global Units, face amounts not
in excess of U.S. $400,000,000. If one or
more Book-Entry Notes having an aggregate
principal amount in excess of U.S.
$400,000,000, or one or more Book-Entry
Units having an aggregate face amount, in
excess of $400,000,000 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. $400,000,000
principal amount of such Book-Entry Note or
Notes and one Global Unit will be issued to
represent each U.S.$400,000,000 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.
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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,
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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
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<PAGE>
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;
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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);
n. Whether the Company or the
holder is the writer of the
Universal Warrant; and
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;
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<PAGE>
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.
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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
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<PAGE>
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.
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<PAGE>
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
ProcedureTime
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
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<PAGE>
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
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<PAGE>
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
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<PAGE>
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
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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
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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.
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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.
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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;
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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);
n. Whether the Company or the
holder is the writer of the
warrant; and
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.
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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
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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
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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.
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