MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
January [__], 2001
Morgan Stanley & Co. International Limited
Bank Morgan Stanley AG
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
England
Dear Sirs:
Morgan Stanley Dean Witter & Co., a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale from time to
time by the Company primarily outside the United States of up to $[ ] (or the
equivalent thereof in one or more foreign currencies) aggregate initial public
offering price of its Global Medium-Term Notes, Series D and Series E, each due
more than 9 months from the date of issue (the "Notes") and its Global Units,
Series D and Series E (the "Units" and together with the Notes, "Program
Securities"), in each case subject to reduction as a result of the sale of the
Company's (i) Global Medium-Term Notes, Series C, to be sold primarily inside
the United States, (ii) Global Units, Series C, to be sold primarily inside the
United States, and (iii) the sale of certain of the Company's other debt
securities, warrants, preferred stock, purchase contracts and units. The Series
D Notes are intended to be admitted to listing on the Official List of the
Financial Services Authority (the "UK Listing Authority") in its capacity as
competent authority for the purposes of Part IV of the Financial Services Act
1986 (the "Act"), and to trading on the London Stock Exchange plc (the "London
Stock Exchange") or admitted to listing, trading and/or quotation by any other
listing authority, stock exchange and/or quotation system, if so required by
Section 3(i) hereof.
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Application may, in certain circumstances described in the Prospectus
Supplement (as defined below), be made to list Series D Units on the London
Stock Exchange. The Series E Notes and the Series E Units will not be listed on
any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior Notes") or as
subordinated indebtedness (the "Subordinated Notes") of the Company. The Senior
Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture, dated as of May 1,
1999, between the Company and The Chase Manhattan Bank, as trustee (the "Senior
Debt Trustee") (as may be supplemented or amended from time to time, the
"Senior Debt Indenture"). The Subordinated Notes will be issued pursuant to the
provisions of an amended and restated subordinated indenture, dated as of dated
as of May 1, 1999 between the Company and 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 Paying Agent under the Indenture referred to therein, and
as Warrant Agent under the Warrant Agreement referred to therein and the
holders from time to time of the Units described therein (as may be amended
from time to time, the "Unit Agreement") or, if the Units do not include
Purchase Contracts (other than Pre-paid Purchase Contracts), pursuant to a Unit
Agreement between the Company and The Chase Manhattan Bank, as Unit Agent, as
Trustee and Paying Agent under the Indenture referred to therein, and as
Warrant Agent under the Warrant Agreement referred to therein in the form of
such agreement filed as an exhibit to the Registration Statement referred to
below (each such agreement, a "Unit Agreement Without Holders' Obligations").
Units may include one or more (i) Senior Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies
or (c) commodities, (iii) Purchase Contracts, including Pre-paid Purchase
Contracts, requiring the holders thereof to purchase or sell (a) securities of
an entity
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unaffiliated with the Company, a basket of such securities, an index or indices
of such securities or any combination of the above, (b) currencies or (c)
commodities or (iv) any combination thereof. The applicable prospectus
supplement will specify whether Notes, Universal Warrants and Purchase
Contracts comprised by a Unit may or may not be separated from any series of
Units. Universal Warrants issued as part of a Unit will be issued pursuant to
the Universal Warrant Agreement dated as of May 6, 1999 (as may be amended from
time to time, the "Universal Warrant Agreement") between the Company and The
Chase Manhattan Bank, as Warrant Agent. Purchase Contracts, other than Pre-paid
Purchase Contracts ("Non-pre-paid Purchase Contracts") entered into by the
Company and the holders thereof will be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants will have the exercise prices, exercise dates, expiration
dates and other terms as set forth in supplements to the Basic Prospectus. The
Purchase Contracts will have the closing dates, purchase or sale prices and
other terms as set forth in supplements to the Basic Prospectus. The Company
has initially appointed The Chase Manhattan Bank, London Branch, at its
principal office in London, as principal paying agent (the "Principal Paying
Agent") for the Notes.
The Notes will be issued in bearer form or in definitive registered form
without coupons (the "Registered Notes"), the Units will be issued in bearer
form or in definitive registered form (the "Registered Units") and the
securities included in a Unit will be in the form of such Unit. The Program
Securities issued in bearer form will be represented initially by, in the case
of the Notes, a temporary global Note and, in the case of the Units, a
temporary global Unit, each of which will be delivered to a common depositary
outside the United States for the operator of the Euroclear System (the
"Euroclear Operator"), Clearstream Banking, societe anonyme ("Clearstream") or
any other relevant clearing system. Beneficial interests in a temporary global
Note or a temporary global Unit will be exchangeable for beneficial interests
in, in the case of a temporary global Note, a permanent global Note and, in the
case of a temporary global Unit, a permanent global Unit. Beneficial interests
in a permanent global Note will be exchangeable in whole, but not in part, for
definitive Notes in bearer form, with interest coupons attached upon receipt of
the Principal Paying Agent of an initial request to so exchange by any holder
of a beneficial interest in such permanent global Note (such temporary global
Note, permanent global Note and definitive Notes in bearer form are
collectively referred to as the "Bearer Notes"), or, if the applicable Pricing
Supplement so specifies, for Registered Notes. Beneficial interests in a
permanent global Unit (including an interest in the securities included in such
Unit) will be exchangeable in whole, but not in part, for
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definitive Units in bearer form upon receipt of the Unit Agent of an initial
request to so exchange by any holder of a beneficial interest in such permanent
global Unit (such temporary global Unit, permanent global Unit and definitive
Units in bearer form are collectively referred to as the "Bearer Units") or, if
the applicable Pricing Supplement so specifies, for Registered Units. As used
in this Agreement, the term "Note" includes any temporary global Note or
permanent global Note issued pursuant to the Indentures and the term "Unit"
includes any temporary global Unit or permanent global Unit issued pursuant to
the Unit Agreement.
The Company hereby appoints you as its exclusive agents for the purpose of
soliciting and receiving offers to purchase Program Securities from the Company
by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to use reasonable efforts to solicit and receive offers to purchase Program
Securities upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, you may
also purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof. Program Securities denominated,
payable in or indexed to Swiss Francs may only be offered and sold by the
Company through Bank Morgan Stanley AG on an agency or principal basis, and
Bank Morgan Stanley AG agrees to notify the Swiss National Bank prior to the
issuance of any such Program Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits
thereto, as amended at the Commencement Date (as hereinafter defined), is
hereinafter referred to as the "Registration Statement." The Company proposes
to file with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Program Securities. The prospectus in the form in which it appears
in the Registration Statement is hereinafter referred to as the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement or supplements (each a "Prospectus Supplement")
specifically relating to the Program Securities, as filed with, or transmitted
for filing to, the Commission pursuant to Rule 424. As used herein, the terms
"Basic Prospectus" and "Prospectus" shall include in each case the documents,
if any, incorporated by reference therein. The terms "supplement," "amendment"
and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the
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Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). If the Company has filed an abbreviated
registration statement to register additional Program Securities pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants to
and agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issues and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in
this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to you
furnished to the Company in writing by you expressly for use therein or (B) to
those parts of the Registration
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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
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 Pre-paid Purchase Contracts, the Units (including any Purchase Contracts or
Universal Warrants included therein), the Indentures, the Unit Agreement, any
Unit Agreement Without Holders' Obligations, the Universal Warrant Agreement
and any applicable Notes Terms Agreement or Units Terms Agreement will not
contravene any provision of applicable law or the certificate of incorporation
or by-laws of the Company or any agreement or other instrument binding upon the
Company or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Pre-paid Purchase Contracts, the Units (including any Purchase Contracts or
Universal Warrants included therein), the Indentures, the Unit Agreement, any
Unit Agreement Without Holders' Obligations, the Universal Warrant Agreement
and any applicable Notes Terms Agreement or Units Terms Agreement, except such
as may be required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Program Securities; provided,
however, that no representation is made or warranty given as to whether the
purchase of the Program Securities constitutes a "prohibited transaction" under
Section 406 of
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the Employee Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended.
(l) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or threatened
to which the Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and
are not so described or any statutes, regulations, contracts or other documents
that are required to be described in the Registration Statement or the
Prospectus or to be filed or incorporated by reference as exhibits to the
Registration Statement that are not described, filed or incorporated as
required.
(n) Each of the Company and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and
has made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and
to conduct its business in the manner described in the Prospectus, except to
the extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(o) Dean Witter Reynolds Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(p) Morgan Stanley & Co. Incorporated is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(q) The Company is not, and after giving effect to the offering and sale
of the Program Securities and the application of the proceeds thereof as
described in the Prospectus, will not be 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) Note Terms Agreement shall specify the principal amount of Notes to be
purchased by you pursuant thereto, the maturity date of such Notes, the price
to be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such Notes and
(ii) Unit
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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 D and Series E and the Global Units, Series D
and Series E, Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The Administrative
Procedures may be amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of this
Agreement as a condition precedent to your obligation to begin soliciting
offers to purchase Program Securities as 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
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the earlier of (i) the date on which you begin soliciting offers to purchase
Program Securities and (ii) the first date on which the Company accepts any
offer by you to purchase Program Securities as principal. The date of delivery
of such documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program Securities
pursuant to this Agreement or any Notes Terms Agreement or Units Terms
Agreement, the Company will not file any Prospectus Supplement relating to the
Program Securities or any amendment to the Registration Statement unless the
Company has previously furnished to you a copy thereof for your review and will
not file any such proposed supplement or amendment to which you reasonably
object; provided, however, that the foregoing requirement shall not apply to
any of the Company's periodic filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act,
copies of which filings the Company will cause to be delivered to you promptly
after being transmitted for filing with the Commission. Subject to the
foregoing sentence, the Company will promptly cause each Prospectus Supplement
to be filed with or transmitted for filing to the Commission in accordance with
Rule 424(b) under the Securities Act. The Company will promptly advise you (i)
of the filing of any amendment or supplement to the Basic Prospectus, (ii) of
the filing and effectiveness of any amendment to the Registration Statement,
(iii) of any request by the Commission for any amendment to the Registration
Statement or any amendment or supplement to the Basic Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose, (v) of the
receipt by the Company of any notification with respect to the suspension of
the qualification of the Program Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose and (vi) of the
issuance by any non-United States regulatory authority of any request for
information relating to the Program Securities or suspension of the listing,
trading and/or quotation of any Program Securities then admitted to listing,
trading and/or quotation by any listing authority, stock exchange and/or
quotation system. The Company will use its best efforts to prevent the issuance
of any such stop order or notice of suspension of qualification or listing and,
if issued, to obtain as soon as possible the withdrawal thereof. If the Basic
Prospectus is amended or supplemented as a result of the filing under the
Exchange Act of any document incorporated by reference in the Prospectus, you
shall not be obligated to solicit offers to purchase Program Securities so long
as you are not reasonably satisfied with such document.
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(b) If, at any time when a prospectus relating to the Program Securities
is required to be delivered under the Securities Act or made available to
purchasers of the Program Securities, any event occurs or condition exists as a
result of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
when the Prospectus, as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in your opinion or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified by
the Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended
or supplemented, it shall so advise you promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement or
omission or effect such compliance and will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably request. If any
documents, certificates, opinions and letters furnished to you pursuant to
paragraph (e) below and Sections 5(a), 5(b) and 5(c) in connection with the
preparation and filing of such amendment or supplement are satisfactory in all
respects to you, upon the filing with the Commission of such amendment or
supplement to the Prospectus or upon the effectiveness of an amendment to the
Registration Statement, you will resume the solicitation of offers to purchase
Program Securities hereunder. Notwithstanding any other provision of this
Section 3(b), until the distribution of any Program Securities you may own as
principal has been completed, if any event described above in this paragraph
(b) occurs, the Company will, at its own expense, forthwith prepare and cause
to be filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably request and shall
furnish to you pursuant to paragraph (e) below and Sections 5(a), 5(b) and 5(c)
such documents, certificates, opinions and letters as you may request in
connection with the preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security holders and
to you as soon as practicable earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case,
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not later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Program Securities. If such
fiscal quarter is the first fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after the
close of the period covered thereby and in all other cases shall be made
available not later than 45 days after the close of the period covered thereby.
(d) The Company will furnish in The City of New York, without charge, (i)
to each Agent, a signed copy of the Registration Statement, including exhibits
and all amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and (ii) to each Agent that purchases Program
Securities pursuant to a Terms Agreement or solicits an offer to purchase
Program Securities that is accepted by the Company, prior to 10:00 a.m. New
York City time on the business day next succeeding the date of such Terms
Agreement or the acceptance of such offer, as many copies of the Prospectus, as
then amended or supplemented (including the Prospectus Supplement relating to
the Program Securities to be purchased pursuant to such Terms Agreement or
accepted offer), as such Agent may reasonably request.
(e) During the term of this Agreement, the Company shall furnish to you
such relevant documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or supplements thereto, the
Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Warrant Agreement, the Notes, the Units, the Universal
Warrants, the Purchase Contracts, this Agreement, the Administrative
Procedures, any Notes Terms Agreement or Units Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder as you
may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any downgrading,
or of its receipt of any notice of any intended or potential downgrading or of
any review for possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program Securities is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: (i) the preparation and filing of the Registration Statement
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and the Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Program Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, of the Trustees and
their counsel, of the Unit Agent and its counsel, of the Warrant Agent and its
counsel and of the Principal Paying Agent and its counsel and any paying agents
for the Program Securities appointed by the Company, (iv) the fees and expenses
incurred with respect to the admission of the Series D Notes to listing on the
Official List by the UK Listing Authority and to trading on the London Stock
Exchange or to listing, trading and/or quotation by any other listing
authority, stock exchange and/or quotation system if so required by Section
3(j), (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 and the Universal Warrant Agreement,
(vii) any fees charged by rating agencies for the rating of the Program
Securities, (viii) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (ix) the fees
and disbursements of your counsel incurred in connection with the offering and
sale of the Program Securities, including any opinions to be rendered by such
counsel hereunder, and (x) any out-of-pocket expenses incurred by you; provided
that any advertising expenses incurred by you shall have been approved by the
Company.
(h) During the period beginning on the date of any Notes Terms Agreement
or Units Terms Agreement relating to either Notes or Units, as the case may be,
and continuing to and including the Settlement Date with respect to such Notes
Terms Agreement or Units Terms Agreement, the Company will not, without your
prior consent, offer, sell, contract to sell or otherwise dispose of (i) in the
case of Notes, any debt securities of the Company substantially similar to the
Notes set forth in such Notes Terms Agreement (other than (A) the Notes that
are to be sold pursuant to such Notes Terms Agreement, (B) Notes previously
agreed to be sold by the Company and (C) commercial paper issued in the
ordinary course of business) or (ii) in the case of Units, any securities
substantially similar to such Units (other than (A) the Units that are sold
pursuant to such Units Terms Agreement or (B) Units previously agreed to be
sold by the Company), in each case, except as may otherwise be provided in the
applicable Notes Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest and
penalties, on the issue of the Program Securities in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement, any Written
Notes Terms Agreement or Written Units Terms Agreement and on the exchange
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of any temporary global Notes for definitive Notes or permanent global Notes,
of any temporary global Units for definitive Units or permanent global Units,
of any permanent global bearer Notes for definitive bearer Notes or of any
permanent global bearer Units for definitive bearer Units, that are or may be
required to be paid under the laws of the United Kingdom, the United States or
any political subdivision or taxing authority thereof or therein.
(j) In connection with any application to admit the Series D Notes and
Series D Units to listing on the Official List by the UK Listing Authority and
to trading on the London Stock Exchange, the Company will furnish from time to
time any and all documents, instruments, information and undertakings and
publish all advertisements or other material that may be necessary in order to
effect such listing and trading and will maintain such listing and trading
until, (i) in the case of the Notes, none of the Series D Notes is outstanding,
either as part of a Unit or otherwise, or until such time as payment of
principal, premium, if any, and interest in respect of all the Series D Notes,
whether issued alone or as part of a Unit, has been duly provided for,
whichever is earlier and (ii) in the case of the Units, none of the Series D
Units is outstanding; provided, however, that if the Company can no longer
reasonably maintain such listing and trading, it will use its best efforts to
obtain and maintain the quotation for, or listing and trading of, the Series D
Notes and Series D Units by such other listing authority, stock exchange and/or
quotation system as you shall reasonably request. In addition, for so long as
the Series D Notes and Series D Units are admitted to listing, trading and/or
quotation by a listing authority, stock exchange and/or quotation system, and
such listing authority, stock exchange and/or quotation system so requires, the
Company will maintain in London, or in such other place as the Series D Notes
and Series D Units are listed (if the Series D Notes and Series D Units are no
longer listed on the London Stock Exchange), a paying agent in respect of the
Series D Notes or Series D Units, as required.
4. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Program Securities as agents of the Company, your obligation
to purchase Program Securities as principals pursuant to any Notes Terms
Agreement or Units Terms Agreement and the obligation of any other purchaser to
purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to
solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Program Securities, at the time the Company accepts the offer to
purchase such Program Securities and at
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the time of issuance and delivery) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to market the
Program Securities on the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented;
(ii) there shall not have occurred such a change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely to
prejudice materially the success of the offering and distribution of the
Program Securities or dealings in the Program Securities in the secondary
market; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to you in writing by the Company prior to such solicitation or, in
the case of a purchase of Program Securities, before the offer to purchase such
Program Securities was made or (B) unless in each case described in (ii) above,
the relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(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:
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(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., Discover Bank, Morgan
Stanley & Co. Incorporated and Morgan Stanley International
Incorporated (each a "Material Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus, as amended or supplemented,
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as
amended or supplemented, except to the extent that the failure to
obtain or file would not have a material adverse effect on the
Company and its consolidated subsidiaries, taken as a whole;
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(D) each of this Agreement and any applicable Written Notes
Terms Agreement or Written Units Terms Agreement has been duly
authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust
Indenture Act and each of the Senior Indenture, the Subordinated
Indenture, the Unit Agreement and the Universal Warrant Agreement has
been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance
with its terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(F) the Unit Agreement Without Holders' Obligations has been
duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance with
its terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(G) the forms of Notes (including the form of Pre-paid Purchase
Contracts), whether issued alone or as part of a Unit, have been duly
authorized and established in conformity with the provisions of the
relevant Indenture and, if the Notes and the Pre- paid Purchase
Contracts had been executed by the Company and authenticated by the
relevant Trustee or its duly appointed agent in accordance with the
provisions of the relevant Indenture and delivered to and duly paid
for by the purchasers thereof on the date of such opinion, the Notes
and the Pre-paid Purchase Contracts would be entitled to the benefits
of such Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms except
as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
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(H) the forms of Units under the Unit Agreement, including the
forms of Universal Warrants and Non-pre-paid Purchase Contracts, have
been duly authorized and established in conformity with the
provisions of (i) in the case of Units under the Unit Agreement and
Non-pre-paid Purchase Contracts, the Unit Agreement and (ii) in the
case of the Universal Warrants, the Universal Warrant Agreement. If
such Units (including the Universal Warrants and the Non-pre-paid
Purchase Contracts) had been delivered to and duly paid for by the
purchasers thereof (and any Purchase Contracts included therein had
been executed by the Company and countersigned by the Unit Agent and
any Universal Warrants included therein had been executed by the
Company and countersigned by the Warrant Agent) on the date of such
opinion, the Units (including the Non-pre-paid Purchase Contracts and
the Universal Warrants contained therein) would be entitled to the
benefits of the Unit Agreement and in the case of the Universal
Warrants, the Universal Warrant Agreement, and would be valid and
binding obligations of the Company, enforceable in accordance with
their respective terms except as the enforceability thereof (i) may
be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(I) the Units under the Unit Agreement Without Holders'
Obligations have been duly authorized (and the forms of any Universal
Warrants included therein have been duly authorized and established
in conformity with the provisions of the Universal Warrant
Agreement), and if such Units (including the Universal Warrants) had
been delivered to and duly paid for by the purchasers thereof (and
any Universal Warrants included therein had been executed by the
Company and countersigned by the Warrant Agent) on the date of such
opinion, the Units (including the Universal Warrants contained
therein) would be entitled to the benefits of the Unit Agreement
Without Holders' Obligations and in the case of the Universal
Warrants, the Universal Warrant Agreement, and would be valid and
binding obligations of the Company, enforceable in accordance with
their respective terms except as the enforceability thereof (i) may
be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii)
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is subject to general principles of equity, regardless of whether
such enforceability is considered at a proceeding in equity or at
law;
(J) the execution and delivery by the Company of the Notes and
Pre-paid Purchase Contracts (whether issued alone or as part of a
Unit), the Units (including any Purchase Contract or Universal
Warrant included therein), the Indentures, the Unit Agreement, any
Unit Agreement Without Holders' Obligations, the Universal Warrant
Agreement and any applicable Written Notes Terms Agreement or Written
Units Terms Agreement and the performance by the Company of its
obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Universal Warrant Agreement and any applicable Notes
Terms Agreement or Units Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or any of
its consolidated subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any U.S.
governmental body, agency or court having jurisdiction over the
Company or any of its consolidated subsidiaries, and no consent,
approval, authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the
Pre-paid Purchase Contracts, the Units (including any Purchase
Contracts or Universal Warrants included therein), the Indentures,
the Unit Agreement, any Unit Agreement Without Holders' Obligations,
the Universal Warrant Agreement and any applicable Notes Terms
Agreement or Units Terms Agreement; provided, however, that no
opinion is expressed on whether the purchase of the Program
Securities constitutes a "prohibited transaction" under Section 406
of the Employee Retirement Income Security Act of 1974, as amended,
or Section 4975 of the Internal Revenue Code of 1986, as amended;
(K) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the
Basic Prospectus), "Description of Units" (in the Prospectus
Supplement and in the Basic Prospectus), "Plan of Distribution"
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(in the Prospectus Supplement and in the Basic Prospectus),
"Description of Purchase Contracts" (in the Basic Prospectus) and
"Description of Warrants" (in the Basic Prospectus), (2) in the
Registration Statement, as then amended or supplemented, under Item
15, (3) in "Item 3 - Legal Proceedings" of the most recent annual
reports on Form 10-K incorporated by reference in the Prospectus and
(4) in "Item 1 - Legal Proceedings" of Part II of the quarterly
reports on Form 10-Q, if any, filed since such annual reports and
incorporated by reference in the Prospectus, in each case insofar as
such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(L) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the
Company or any of its consolidated subsidiaries is a party or to
which any of the properties of the Company or any of its consolidated
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, and are not so described or of any U.S. federal or
state statutes, regulations, contracts or other documents governed by
U.S. federal or state law that are required to be described in the
Registration Statement or the Prospectus, as then amended or
supplemented, or to be filed or incorporated by reference as exhibits
to such Registration Statement that are not described, filed or
incorporated by reference as required;
(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
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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 for 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 for financial statements and schedules and other
financial and statistical data as to which such counsel need not
express any belief), as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided that in the case of an opinion delivered on the
Commencement Date or pursuant to Section 5(b), the opinion and belief
set forth in clauses (3) and (4) above shall be deemed not to cover
information concerning an offering of particular Notes or Units to
the extent such information will be set forth in a supplement to the
Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk & Wardwell,
your special counsel, covering the matters in subparagraphs (D), (E), (F),
(G), (H), (I) and (K) (with respect to statements in the Prospectus, as
then amended or supplemented, under the captions "Description of Notes"
(in the Prospectus Supplement), "Description of Debt Securities" (in the
Basic Prospectus), "Description of Units" (in the Prospectus Supplement
and the Basic Prospectus), "Plan of Distribution" (in the Prospectus
Supplement and in the Basic Prospectus), "Description of Purchase
Contracts" (in the Basic Prospectus) and "Description of
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Warrants" (in the Basic Prospectus)) and clauses (2), (3) and (4) of
subparagraph (N) in paragraph (b)(i) above.
The opinions described in subparagraphs (F) and (I) need only be contained
in an opinion delivered on a Settlement Date related to an offering of Units
under a Unit Agreement Without Holders' Obligations to be executed on or prior
to such Settlement Date.
Notwithstanding the foregoing, the opinions described in subparagraphs (G)
(except as to due authorization of the Notes and Pre-paid Purchase Contracts),
(H) (except as to due authorization of the Units, Universal Warrants and
Non-pre- paid Purchase Contracts), (I) (except as to due authorization of the
Units and Universal Warrants), (J), (K)(1) and (N)(3) and (4) of paragraph
(b)(i) above, when contained in an opinion delivered on the Commencement Date
or pursuant to Section 5(b), shall be deemed not to address the application of
the Commodity Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission to Program
Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities unaffiliated
with the Company, baskets of such securities, equity indices or other factors.
With respect to subparagraph (N) of paragraph (b)(i) above, if such
opinion is given by counsel who is also an officer of the Company, such counsel
may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and documents incorporated therein by reference and
review and discussion of the contents thereof, but are without independent
check or verification, except as specified. With respect to subparagraph (N) of
paragraph (b)(i) above, Davis Polk & Wardwell and, if Brown & Wood LLP is
giving such opinion, Brown & Wood LLP may state that their opinion and belief
are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and
discussion of the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
(iii) The opinion, dated as of such date, of Brown & Wood LLP,
special counsel to the Company, to the effect that the statements set
forth under the caption "United States Federal Taxation" in the Prospectus
Supplement and under the caption "Forms of Securities -- Limitations on
Issuance of Bearer Securities and Bearer Debt Warrants" in the
25
<PAGE>
Basic Prospectus, insofar as such statements relate to statements of
law or legal conclusions under the laws of the United States or
matters of United States law, fairly present the information called
for and fairly summarize the matters referred to therein.
The opinion of Brown & Wood LLP described in paragraph (b)(iii) above and
in paragraph (b)(i) above, if such opinion is given by Brown & Wood LLP, shall
be rendered to you at the request of the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the
effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or letters,
dated as of the Commencement Date or such Settlement Date, as the case may be,
in form and substance satisfactory to you containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented; provided that each letter so furnished shall use
a "cut-off date" no more than three business days prior to the date of such
letter.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to you such appropriate further information, certificates
and documents as you may reasonably request.
(f) On the Commencement Date, application to admit the Series D Notes and
Series D Units to listing on the Official List of the UK Listing Authority and
to trading on the London Stock Exchange shall have been made and, prior to the
issuance of the first Series D Note or Series D Unit offered pursuant to this
Agreement, such admission to listing and to trading shall have been granted,
subject to official notice of issuance.
26
<PAGE>
5. Additional Agreements of the Company. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for (i) in the case of Notes, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes issued alone or as part of a Unit, (ii) in the case of
Units, (x) a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or (y) a change in the settlement
date or purchase or sale price of an underlying Purchase Contract or (iii) a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be, in
form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to Section 5(a)
(other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Current Report on Form 8-K unless you
shall reasonably request based on disclosure included or omitted from such
Report), the Company will furnish or cause to be furnished forthwith to you a
written opinion of counsel for the Company. Any such opinion shall be dated the
date of such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred to
in Section 4(b), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to you may
furnish to you a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent auditors forthwith to
furnish you with a letter, dated the date of such amendment or supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of such
letter; provided that each letter so furnished shall use a "cut-off date" no
more than three business days prior to the date of such letter.
27
<PAGE>
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof or the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to you furnished to the Company in writing by you
expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to you, but only with reference to information
relating to you furnished to the Company in writing by you expressly for use in
the Registration Statement or the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in
28
<PAGE>
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.
(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
29
<PAGE>
Program Securities shall be deemed to be in the same respective proportions as
the total net proceeds from the offering of such Program Securities (before
deducting expenses) received by the Company bear to the total discounts and
commissions received by you in respect thereof. The relative fault of the
Company on the one hand and of you on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by you and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 6, you shall not be required to contribute any amount in excess of the
amount by which the total price at which the Program Securities referred to in
paragraph (d) above that were offered and sold to the public through you
exceeds the amount of any damages that you have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6
and the representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain operative and in full
force and effect regardless of (i) any termination of this Agreement or any
such Notes Terms Agreement or Units Terms Agreement, (ii) any investigation
made by or on behalf of you or any person controlling you or by or on behalf of
the Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company and agree
with respect to the Program Securities that:
30
<PAGE>
(a) (i) you have not (A) offered or sold and will not offer or sell
during the Restricted Period (as defined below) Bearer Notes (whether
offered alone or as part of a Unit) (including any Note that is
exchangeable for Bearer Notes) directly or indirectly in the United States
(as defined below) or to or for the account of any United States person
(as defined below), other than to a Qualifying Foreign Branch (as defined
below) or to certain other persons as provided under United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and
(B) delivered and will not deliver within the United States definitive
Bearer Notes that are sold during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have, in
effect procedures reasonably designed to ensure that your employees or
agents who are directly engaged in selling Bearer Notes (whether offered
alone or as part of a Unit) are aware that such Bearer Notes may not be
offered or sold during the Restricted Period to a person who is within the
United States or to a United States person, except as permitted by Section
7(a)(i)(A) above;
(iii) if you are a United States person, you are acquiring the Bearer
Notes (whether offered alone or as part of a Unit) for purposes of resale
in connection with their original issuance and if you retain Bearer Notes
for your own account, you will only do so in accordance with the
requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether offered
alone or as part of a Unit) for the purpose of offering or selling such
Bearer Notes during the Restricted Period, you will either (A) obtain from
such affiliate for the benefit of the Company the representations and
agreements contained in clauses (i), (ii) and (iii) above or (B) repeat
and confirm the representations and agreements contained in clauses (i),
(ii) and (iii) above on such affiliate's behalf and obtain from such
affiliate the authority to so obligate it; and
(v) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii) and
(iv) above from any person other than your affiliate with whom you enter
into a written contract, within the meaning of United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(4), for the offer or sale during
the Restricted Period of Bearer Notes (whether offered alone or as part of
a Unit).
31
<PAGE>
For purposes of this Section 7(a), an offer or sale will be considered to be
made in the United States if the offeror or seller of such Notes (whether
offered alone or as part of a Unit) has an address within the United States for
the offeree or purchaser of such Notes with respect to the offer or sale. As
used in this Section 7(a), "United States person" means a citizen or resident
of the United States, a corporation or partnership (including an entity treated
as a corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, or an estate the income of which is
subject to United States federal income taxation regardless of its source or a
trust if both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust, "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch" means a branch of a
United States financial institution, as defined in the applicable United States
Treasury Regulations, located outside the United States that is purchasing for
its own account or for resale and that has agreed, as a condition to purchase,
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder; and "Restricted Period" with respect to each issuance
means the period which begins on the earlier of the date on which the Company
receives the proceeds of the sale of Notes with respect to such issuance or the
first date on which the Notes are offered to persons other than you, and which
ends 40 days after the date on which the Company receives the proceeds of the
sale of such Notes; provided that with respect to a Note held as part of an
unsold allotment or subscription, any offer or sale of such Note by the Company
or you shall be deemed to be during the Restricted Period.
(b) (i) In relation to Program Securities which have a maturity of one
year or more and which are to be admitted to listing on the Official List by
the UK Listing Authority, you have not offered or sold and will not offer or
sell any Program Securities to persons in the United Kingdom prior to admission
of such Program Securities to listing in accordance with Part IV of the
Financial Services Act 1986 (the "Act"), except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 or the Act; (ii) in relation to Program
Securities which have a maturity of one year or more and which are not to be
admitted to listing on the Official List by the UK Listing Authority, you have
not offered or sold and, prior to the expiry of the period of six
32
<PAGE>
months from the date of issue of such Program Securities, will not offer or
sell any such Program Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (iii) you have complied with
and will comply with all applicable provisions of the Act with respect to
anything done by you in relation to the Program Securities in, from or
otherwise involving the United Kingdom; and (iv) you have only issued or passed
on and will only issue or pass on in the United Kingdom any document received
by you in connection with the issue of the Program Securities, other than in
relation to Program Securities to be admitted to the Official List of the UK
Listing Authority, any document which consists of or any part of listing
particulars, supplementary listing particulars or any other document required
or permitted to be published by the listing rules under Part IV of the Act, to
a person who is of a kind described in Article 11(3) of the Financial Services
Act 1986 (Investment Advertisements) (Exemptions) Order 1996 (as amended by the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order
1997) or is a person to whom such document may otherwise lawfully be issued or
passed on.
(c) You will not offer or sell any Program Securities in any jurisdiction
if such offer or sale would not be in compliance with any applicable law or
regulation or if any consent, approval or permission is needed for such offer
or sale by you or for or on behalf of the Company unless such consent, approval
or permission has been previously obtained. Without prejudice to the provisions
of this Section 7 above and subject to the obligations of the Company set forth
in Section 3 of this Agreement, the Company shall have no responsibility for,
and you will obtain, any consent, approval or permission required by you for
the subscription, offer, sale or delivery by you of Program Securities, 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.
(d) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan including any
corporation or other entity organized under the laws of Japan) or to others for
the re-offering or re-sale, directly or indirectly, in Japan or to a resident
of Japan except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with, the Securities and Exchange Law of Japan and
other relevant laws and regulations of Japan.
33
<PAGE>
(e) You will not offer and sell any Program Securities denominated or
payable in or indexed to Swiss Francs with a maturity of more than 1 year other
than in compliance with Swiss law and the regulations of the Swiss National
Bank in effect from time to time.
(f) Each of the Agents and the Company represents and agrees that Program
Securities will be issued outside the Republic of France, that it will not
offer or sell any Program Securities in the Republic of France, in connection
with their initial distribution, and will not distribute or cause to be
distributed in the Republic of France the Prospectus or any other offering
material relating to Program Securities, except to (i) qualified investors
(investisseurs qualifies) and/or (ii) within a restricted circle of investors
(cercle restreint d'investisseurs), all as defined in and in accordance with
Article 6 of Ordinance no 67-833 dated 28th September, 1967 (as amended) and
Decree no 98-880 dated 1st October, 1998.
8. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust
with any purchaser of Program Securities. You shall make reasonable efforts to
assist the Company in obtaining performance by each purchaser whose offer to
purchase Program Securities has been solicited by you and accepted by the
Company, but you shall not have any liability to the Company in the event any
such purchase is not consummated for any reason. If the Company shall default
in its obligations to deliver Program Securities to a purchaser whose offer it
has accepted, the Company shall hold you harmless against any loss, claim,
damage or liability arising from or as a result of such default and shall, in
particular, pay to you the commission you would have received had such sale
been consummated.
9. Termination. This Agreement may be terminated at any time either by the
Company or by you upon the giving of written notice of such termination to the
other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(g), 3(i), 3(j), 6, 7, 8, 11 and 13 shall survive; provided
that if at the time of termination an offer to purchase Program Securities has
been accepted by the
34
<PAGE>
Company but the time of delivery to the purchaser or its agent of such Program
Securities has not occurred, the provisions of Sections 1, 2(b), 2(c), 3(a),
3(d), 3(e), 3(f), 3(h), 4 and 5 shall also survive until such delivery has been
made.
10. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to Morgan Stanley & Co. International Limited,
will be mailed, delivered or telefaxed and confirmed to (a) Morgan Stanley &
Co. International Limited at 25 Cabot Square, Canary Wharf, London E14 4QA,
England, to the attention of Capital Markets - Debt Syndicate (Telephone No.:
011-44-207-425-7750; Telecopy No.: 011-44-207-425-7999) or (b) Bank Morgan
Stanley AG, Bahnhofstrasse 92-3rd Floor, Ch-8023, Zurich, Switzerland, to the
attention of Hermann Schwalm (Telephone No. 011-41-1-220-9111; Telecopy No.
011-41-1-220-9800) or, with a copy to John Webley (Telephone No.:
011-44-207-677-4131; Facsimile No.: 011-44-207-677- 4241) 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.
35
<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.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
BANK MORGAN STANLEY AG
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
36
<PAGE>
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated January [ ], 2001
(the "Euro Distribution Agreement")
----------------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series
D/E, having the following terms:
<TABLE>
<CAPTION>
All Notes Fixed Rate Notes Floating Rate Notes
------------------------------- ------------------------------ ---------------------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event Spread:
Interest Payments:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
A-1
<PAGE>
All Notes Fixed Rate Notes Floating Rate Notes
------------------------------- ------------------------------ ---------------------------------
<S> <C> <C>
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Optional Repayment Face Amount (if any): Minimum Interest Rate:
Date(s):
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Aggregate Fixed Amount of Calculation Agent:
each Indexed Currency (if
any):
Initial Redemption Reporting Service:
Percentage:
Annual Redemption Index Currency:
Percentage Reduction:
Ranking: Designated CMT Telerate
Page:
Series: Designated CMT Maturity
Index:
Minimum Denominations:
Other Terms:
</TABLE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through
14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of
Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution Agreement shall
survive for the purposes of this Agreement.
A-2
<PAGE>
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Euro Distribution Agreement will be required:
____________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
BANK MORGAN STANLEY AG
By:________________________________
Name:
Title:
By:________________________________
Name:
Title:
Accepted:
MORGAN STANLEY DEAN WITTER & CO.
By:________________________________
Name:
Title:
A-3
<PAGE>
EXHIBIT A-1
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 200_
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated January [ ], 2001
(the "Euro Distribution Agreement")
-----------------------------------------------------
The undersigned agrees to purchase your Global Units, Series D/E,
[specified designation] having the following terms:
<TABLE>
<CAPTION>
Universal Warrants Issued Purchase Contracts Issued
All Units: as Part of a Unit: as Part of a Unit:
------------------------------- ------------------------------ ---------------------------------
<S> <C> <C>
Settlement Date and Time: Designation of the Series of Designation of the Series of
Warrants: [Call] [Put] Purchase Contracts:
Warrants [Purchase][Sale] Purchase
Contracts
Number (Face Amount): Warrant Property: Aggregate Number of
Purchase Contracts:
Severability: Aggregate Number of Purchase Contract Property:
Warrants:
Other Terms: Date(s) upon which Quantity per Purchase
Warrants may be exercised: Contract:
Currency in which exercise Purchase Price:
payments shall be made:
Exchange Rate (or method Settlement Date:
of calculation:
A-1-1
<PAGE>
Universal Warrants Issued Purchase Contracts Issued
All Units: as Part of a Unit: as Part of a Unit:
------------------------------- ------------------------------ ---------------------------------
<S> <C> <C>
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:
__________________
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
</TABLE>
<TABLE>
<CAPTION>
All Notes Issued as Part of Fixed Rate Notes Issued as Floating Rate Notes Issued
a Unit: Part of a Unit: as Part of a Unit:
------------------------------- ------------------------------ ---------------------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event Spread:
Interest Payments:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
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:
------------------------------- ------------------------------ ---------------------------------
<S> <C> <C>
Original Issue Date: Indexed Currency or Initial Interest Reset Date:
Currencies (if any):
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Optional Repayment Face Amount (if any): Minimum Interest Rate:
Date(s):
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Aggregate Fixed Amount of Calculation Agent:
each Indexed Currency (if
any):
Initial Redemption Reporting Service:
Percentage:
Annual Redemption Index Currency:
Percentage Reduction:
Ranking: Designated CMT Telerate
Page:
Series: Designated CMT Maturity
Index:
Minimum Denominations:
Other Terms:
</TABLE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through
14 of the Euro Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(g), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the Euro Distribution Agreement will be required:
___________.
A-1-3
<PAGE>
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
BANK MORGAN STANLEY AG
By:________________________________
Name:
Title:
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 D AND SERIES E
GLOBAL UNITS, SERIES D AND SERIES E
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific terms of
the offering of (i) Global Medium-Term Notes, Series D (the "Series D Notes"),
(ii) Global Medium-Term Notes, Series E (the "Series E Notes" and together with
the Series D Notes, the "Notes"), (iii) Global Units, Series D (the "Series D
Units") and (iv) Global Units, Series E (the "Series E Units" and together with
the Series D Units, the "Units", and the Units together with the Notes, the
"Program Securities"), on a continuous basis by Morgan Stanley Dean Witter &
Co. (the "Company") pursuant to the Euro Distribution Agreement dated January [
], 2001 (as may be amended from time to time, the "Distribution Agreement")
among the Company, Morgan Stanley & Co. International Limited and Bank Morgan
Stanley AG (collectively or individually the "Agent" as the context requires).
The Notes may be issued, either alone or as part of a Unit, in registered form
without coupons ("Registered Notes"), in bearer form with or without coupons
("Bearer Notes") or in any combination of Registered Notes and Bearer Notes.
The Units may be issued in registered form ("Registered Units"), in bearer form
("Bearer Units") or in any combination of Registered Units and Bearer Units.
The securities comprised by a Unit will be issued in the same form as such
Unit. Bearer Notes and Bearer Units initially will be represented by, in the
case of Bearer Notes, a Temporary Global Note and, in the case of Bearer Units,
a Temporary Global Unit. Such Temporary Global Note and Temporary Global Unit
will subsequently be represented by, in the case of the Temporary Global Note,
a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Interests in a Permanent Global Note may be exchanged,
in whole, for individual definitive Bearer Notes. Definitive Bearer Notes may
be exchanged, if the applicable Pricing Supplement so specifies, in whole or in
part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive Bearer
Units may be exchanged, if the applicable Pricing Supplement so specifies, in
whole or in part, for Registered Units.
B-1
<PAGE>
The Notes may be issued, either alone or as part of a Unit, as senior
indebtedness (the "Senior Notes") or subordinated indebtedness (the
"Subordinated Notes") of the Company, and as used herein the term "Notes"
includes the Senior Notes and the Subordinated Notes. The Senior Notes will be
issued, either alone or as part of a Unit, pursuant to the provisions of an
amended and restated senior indenture, dated May 1, 1999 (as may be
supplemented or amended from time to time, the "Senior Debt Indenture"),
between the Company and The Chase Manhattan Bank as trustee (the "Senior Debt
Trustee"). The Subordinated Notes will be issued pursuant to the provisions of
an amended and restated subordinated indenture, dated as of May 1, 1999 (as it
may be supplemented or amended from time to time, the "Subordinated Debt
Indenture"), between the Company and 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.
Unless otherwise specified in the applicable Pricing Supplement, the Units
will be issued (1) pursuant to the Unit Agreement dated as of May 6, 1999,
among the Company, The Chase Manhattan Bank, as Unit Agent, as Collateral
Agent, as Trustee under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein and the holders from time to
time of the Units described therein (as may be amended from time to time, the
"Unit Agreement") or (ii) if Units do not include Purchase Contracts (other
than Pre- paid Purchase Contracts), pursuant to a unit agreement among the
Company, The Chase Manhattan Bank, as Unit Agent, as Trustee under the
Indenture referred to therein, and as Warrant Agent under the Warrant Agreement
referred to therein in the form of such agreement filed as an exhibit to the
Registration Statement (each such agreement, a "Unit Agreement Without Holders'
Obligations"). Units may include one or more (i) Series D & E Notes, (ii)
warrants ("Universal Warrants") entitling the holders thereof to purchase or
sell (a) securities of an entity unaffiliated with the Company, a basket of
such securities, an index or indices of such securities or any combination of
the above, (b) currencies or (c) commodities, (iii) purchase contracts
("Purchase Contracts"), including Pre-paid Purchase Contracts, requiring the
holders thereof to purchase or sell (a) securities of an entity unaffiliated
with the Company, a basket of such securities, an index or indices of such
securities or any combination of the above, (b) currencies or (c) commodities
or (iv) any combination thereof. The applicable Pricing Supplement will specify
whether or not any Notes, Universal Warrants and Purchase Contracts comprised
by a Unit may or may not be separated from the Unit. Universal Warrants issued
as part of a Unit will be issued pursuant to the Universal Warrant
B-2
<PAGE>
Agreement dated as of May 6, 1999, between the Company and The Chase Manhattan
Bank, as Warrant Agent (as may be amended from time to time, the "Universal
Warrant Agreement"). Purchase Contracts, other than Pre-paid Purchase
Contracts, entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes or Units for its own account, and if
requested by the Agent, the Company and the Agent will enter into a terms
agreement (in the case of Notes, a "Notes Terms Agreement" and, in the case of
Units, a "Units Terms Agreement"), as contemplated by the Distribution
Agreement. The administrative procedures explained below will govern the
issuance and settlement of any Notes or Units purchased by the Agent, as
principal, unless otherwise specified in the applicable Notes Terms Agreement
or Units Terms Agreement.
Chase has initially been appointed the (i) Calculation Agent,
Authenticating Agent and Principal Paying Agent for the Notes, (ii) the Unit
Agent for the Units, (iii) the Warrant Agent for the Universal Warrants and
(iv) the Registrar for the Registered Notes, and will perform the duties
specified herein. As used herein, the term "Principal Paying Agent" shall mean
Chase acting through its London office in connection with the authentication
and delivery of the Notes, whether issued alone or as part of a Unit, pursuant
to the terms of the Indentures and the term "Unit Agent" shall mean Chase
acting through its London office in connection with the completion and delivery
of the Units (including, as applicable, countersigning and delivering any
Universal Warrants, as Warrant Agent, and countersigning, executing and
delivering any Purchase Contracts, as Unit Agent, includable in such Unit),
pursuant to the terms of the Unit Agreements. "Warrant Agent" shall mean Chase
acting through its London office. The Series D Notes and the Series D Units are
intended to be admitted to listing on the Official List of the Financial
Services Authority (the "UK Listing Authority") in its capacity as competent
authority for the purposes of Part IV of the Financial Services Act 1986 (the
"Act"), and to trading on The London Stock Exchange plc (the "London Stock
Exchange"). Series E Notes and the Series E Units will not be listed on any
stock exchange. The Company has appointed Morgan Stanley & Co. International
Limited as the listing agent for purposes of admitting the Series D Notes and
the Series D Units to listing on the Official List by the UK Listing Authority
and to trading on the London Stock Exchange.
B-3
<PAGE>
Each Bearer Note and each Bearer Unit (including each security comprised by
such Bearer Unit) initially will be represented by, in the case of a Bearer
Note, a Temporary Global Note and, in the case of a Bearer Unit, a Temporary
Global Unit, each of which will be delivered to a common depositary located
outside the United States (the "Depositary") for Euroclear Bank, societe
anonyme, as operator of the Euroclear System (the "Euroclear Operator"),
Clearstream, Luxembourg and/or any other relevant clearing system (including
Societe Interprofessionalle pour la Compensation des Valeures Mobilieres
("SICOVAM")). Such Temporary Global Note and Temporary Global Unit will
subsequently be represented by, in the case of the Temporary Global Note, a
Permanent Global Note and, in the case of the Temporary Global Unit, a Permanent
Global Unit. Upon the first request by any beneficial owner to exchange any
interest in a Permanent Global Note to a definitive Bearer Note, or if any Note
represented by such Permanent Global Note is accelerated following an event of
default with respect to such Note or if either Euroclear, Clearstream or any
other relevant clearing system is closed for business for a continuous period of
fourteen days (other than by reason of public holidays) or announces an
intention to cease business permanently or in fact does so, then all (and not
less than all) interests in such Permanent Global Note shall be exchanged for
definitive Bearer Notes; provided that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the further exchange of definitive
Bearer Notes for Registered Notes. Upon the first request by any beneficial
owner to exchange any interest in a Permanent Global Unit to a definitive Bearer
Unit, or if any Note comprised by such Permanent Global Note is accelerated
following an event of default with respect to such Note or if either Euroclear,
Clearstream or any other relevant clearing system is closed for business for a
continuous period of fourteen days (other than by reason of public holidays) or
announces an intention to cease business permanently or in fact does so, then
all (and not less than all) interests in such Permanent Global Unit shall be
exchanged for definitive Bearer Units; provided that, if the applicable Pricing
Supplement so specifies, nothing herein shall prevent the further exchange of
definitive Bearer Units for Registered Units.
Unless otherwise defined herein, terms defined in the Indentures, the Unit
Agreement, the Unit Agreement Without Holders' Obligations, the Universal
Warrant Agreement, the Notes, the Units, the Universal Warrants, the Purchase
Contracts or any Prospectus Supplement relating to the Notes and Units shall be
used herein as therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase
Notes and Units, and the related settlement details.
B-4
<PAGE>
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether issued
alone or as part of a Unit, will be dated as of
its Original Issue Date. Each Bearer Note will
bear an Original Issue Date, which will be (i)
with respect to a Temporary Global Note (or any
portion thereof), the date of its original issue
as specified in such Temporary Global Note or
(ii) with respect to any Permanent Global Note or
any definitive Bearer Note (or any portion
thereof) issued subsequently upon transfer or
exchange of a Bearer Note or in lieu of a
destroyed, lost or stolen Bearer Note (a
"Replacement Bearer Note"), the Original Issue
Date of the predecessor Bearer Note, regardless
of the date of authentication of such
subsequently issued Bearer Note.
Registered Notes. Each Registered Note, whether
issued alone or as part of a Unit, will be dated
as of the date of its authentication by Chase.
Each Registered Note will also bear an Original
Issue Date, which will be (i) with respect to an
original Registered Note (an "Original Registered
Note") (or any portion thereof), its original
issuance date (which will be the settlement date)
and (ii) with respect to any Registered Note (or
portion thereof) issued subsequently upon
transfer or exchange of a Registered Note or in
lieu of a destroyed, lost or stolen Registered
Note (a "Replacement Registered Note"), the
original issuance date of the predecessor
Registered Note, regardless of the date of
authentication of such subsequently issued
Registered Note.
B-5
<PAGE>
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form) will be
deemed to be dated as of the Original Issue Date
of the Bearer Note comprised by such Unit or, if
there is no such underlying Bearer Note, the date
of the other securities comprised thereby in
accordance with the procedures described above.
Registered Units. Each Registered Unit will be
deemed to be dated as of the Original Issue Date
of the Registered Note comprised by such Unit or,
if there is no such underlying Registered Note,
as of the date of the other securities comprised
thereby in accordance with the procedures
described above.
Denominations: Bearer Notes. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Notes,
whether issued alone or as part of a Unit, will
be issued only in denominations of $1,000 (or, in
the case of Bearer Notes not denominated in U.S.
dollars, the equivalent thereof in the Specified
Currency, rounded to the nearest 1,000 units of
the Specified Currency) or any amount in excess
thereof which is an integral multiple of $1,000
(or, in the case of Bearer Notes not denominated
in U.S. dollars, 1,000 units of the Specified
Currency).
Registered Notes. Unless otherwise specified in
the applicable Pricing Supplement, Registered
Notes will be issued, either alone or as part of
a Unit, only in denominations of $1,000 (or, in
the case of Registered Notes not denominated in
U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest 1,000
units of the Specified Currency) or any amount in
excess thereof which is an integral multiple of
$1,000 (or, in the case of
B-6
<PAGE>
Registered Notes not denominated in U.S. dollars,
1,000 units of the Specified Currency).
Bearer Units. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Units will
be issued only in denominations of a single Unit
and any integral multiple thereof, with face
amounts in denominations as indicated in the
applicable Pricing Supplement, generally
corresponding to the denominations of any Notes
or other securities comprised by such Units.
Registered Units. Unless otherwise specified in
the applicable Pricing Supplement, Registered
Units will be issued only in denominations of a
single Unit and any integral multiple thereof,
with face amounts in denominations as indicated
in the applicable Pricing Supplement, generally
corresponding to the denominations of any Notes
or other securities comprised by such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined below) with
respect to an issuance of Bearer Notes has
occurred, such Notes, together with all other
Bearer Notes that have the same terms (other than
their respective principal amounts) (all such
Notes herein referred to collectively as a "Note
Tranche"), will be represented by a single
Temporary Global Note in bearer form without
interest coupons. The Company shall execute, and
upon Company instructions the Principal Paying
Agent shall complete and authenticate, such
Temporary Global Note upon the same conditions
and in substantially the same manner, and with
the same effect, as an individual definitive
B-7
<PAGE>
Bearer Note. On or prior to the settlement date
(which will normally be the Original Issue Date)
with respect to such Notes, the Principal Paying
Agent shall deposit the Temporary Global Note
with the Depositary in the manner specified below
under "Settlement Procedures; Bearer Notes and
Bearer Units". The interest of each beneficial
owner of Notes represented by such Temporary
Global Note will be credited to the appropriate
account with Clearstream, the Euroclear Operator
or any other relevant clearing system.
On or after the date (the "Exchange Date") that
is the 40th day following the date on which the
Company receives the proceeds of the sale of a
Temporary Global Note (the "Closing Date"), or if
such Note is held by the Agent as part of an
unsold allotment or subscription more than 40
days after the Closing Date for such Note, on or
after the day after the date such Note is sold by
the Agent, all as notified by the Agent in
writing to Chase, the interest of the beneficial
owners of the Notes represented by the Temporary
Global Note shall be canceled and such interests
shall thereafter be represented by a Permanent
Global Note in bearer form without interest
coupons held in London by the Depositary;
provided that Final Certification (as described
below) has occurred. The interest of each
beneficial owner of Notes represented by such
Permanent Global Note will be credited to the
appropriate account with Clearstream, the
Euroclear Operator or any other relevant clearing
system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any time, upon
30 days' written notice to the Principal Paying
Agent given by such
B-8
<PAGE>
beneficial owner through either Clearstream, the
Euroclear Operator or any other relevant clearing
system, as the case may be, or if any Note
represented by such Permanent Global Note is
accelerated following an event of default with
respect to such Note or if either Euroclear,
Clearstream or any other relevant clearing system
is closed for business for a continuous period of
fourteen days (other than by reason of public
holidays) or announces an intention to cease
business permanently or in fact does so, such
Permanent Global Note shall be exchanged for one
or more definitive Bearer Notes with coupons
attached, if appropriate, or, if the applicable
Pricing Supplement so specifies, one or more
Registered Notes in authorized denominations
equal in aggregate principal amount to such
beneficial interest; provided that any such
exchange of an interest in a Permanent Global
Note for a definitive Bearer Note shall result in
the exchange of all (and not less than all)
interests in such Permanent Global Note for
definitive Bearer Notes; provided further, that,
if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the
further exchange of definitive Bearer Notes for
Registered Notes. To effect such exchange, the
interest of such beneficial owner in such
Permanent Global Note shall be canceled and one
or more definitive Bearer Notes or Registered
Notes, as the case may be, shall be issued to
such beneficial owner, through the Euroclear
Operator or Clearstream or any other relevant
clearing system, as the case may be.
In all events, Bearer Notes and coupons will be
delivered by the Principal Paying Agent only
outside the United States.
B-9
<PAGE>
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined below) has
occurred with respect to an issuance of Bearer
Notes included in an issuance of Bearer Units,
such Units, together with all other Bearer Units
that include securities that have the same terms
(other than their respective number and face
amounts) (all such Units herein referred to
collectively as a "Unit Tranche"), will be
represented by a single Temporary Global Unit in
bearer form (which form shall include the
corresponding temporary global forms of each
security comprised by such Unit). The Company
shall execute, and upon Company instructions,
Chase, as Unit Agent, shall complete such
Temporary Global Unit (including, as applicable,
authenticating any Temporary Global Note, as
Principal Paying Agent, countersigning and
delivering any Universal Warrants, as Warrant
Agent, and countersigning, executing and
delivering any Purchase Contracts, as Unit Agent,
includable in such Unit) upon the same conditions
and in substantially the same manner, and with
the same effect, as an individual definitive
Bearer Unit. On or prior to the settlement date
(which will normally be the Original Issue Date
of the Note comprised by a Unit or, if there is
no such underlying Note, the date of the other
securities comprised thereby) with respect to
such Units, the Unit Agent shall deposit the
Temporary Global Unit (with the corresponding
temporary global forms of each security comprised
by such Unit) with the Depositary in the manner
specified below under "Settlement Procedures;
Bearer Notes and Bearer Units". The interest of
each beneficial owner of Units represented by
such Temporary Global Unit will be credited to
the appropriate account
B-10
<PAGE>
with Clearstream, the Euroclear Operator or any
other relevant clearing system.
On or after the Exchange Date of any Temporary
Global Note comprised by a Temporary Global Unit,
the interest of the beneficial owners of the
Units represented by the Temporary Global Unit
shall be canceled and such interests shall
thereafter be represented by a Permanent Global
Unit in bearer form (with the corresponding
temporary global forms of each security comprised
by such Unit) held in London by the Depositary;
provided that Final Certification (as described
below) of any Notes comprised by such Unit has
occurred. The interest of each beneficial owner
of Units represented by such Permanent Global
Unit will be credited to the appropriate account
with Clearstream, the Euroclear Operator or any
other relevant clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any time, upon
30 days' written notice to the Unit Agent given
by such beneficial owner through either
Clearstream, the Euroclear Operator or any other
relevant clearing system, as the case may be, or
if any Note comprised by such Permanent Global
Note is accelerated following an event of default
with respect to such Note or if either Euroclear,
Clearstream or any other relevant clearing system
is closed for business for a continuous period of
fourteen days (other than by reason of public
holidays) or announces an intention to cease
business permanently or in fact does so, such
Permanent Global Unit shall be exchanged for one
or more definitive Bearer Units or, if the
applicable Pricing Supplement so specifies, one
or more Registered Units in
B-11
<PAGE>
authorized denominations equal in aggregate
number and aggregate face amount to such
beneficial interest; provided that any such
exchange in any interest in a Permanent Global
Unit for a definitive Bearer Unit shall result in
the exchange of all (and not less than all)
interests in such Permanent Global Unit for
definitive Bearer Units; provided further, that,
if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the
further exchange of definitive Bearer Units for
Registered Units. To effect such exchange, the
interest of such beneficial owner in such
Permanent Global Unit shall be canceled and one
or more definitive Bearer Units or Registered
Units, as the case may be, shall be issued to
such beneficial owner, through the Euroclear
Operator or Clearstream or any other relevant
clearing system, as the case may be.
In all events, Bearer Units will be delivered by
the Unit Agent only outside the United States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part of a
Unit) purchased in connection with their original
issuance by or on behalf of a U.S. Person (as
defined in the Distribution Agreement) (other
than a branch of a United States financial
institution (as defined in the applicable United
States Treasury Regulation) located outside the
United States purchasing for its own account or
for resale (a "Qualifying Foreign Branch") or
other permitted U.S. purchasers as provided in
the Prospectus Supplement that satisfies the
conditions for receiving Bearer Notes as
described under "Final Certification" below) will
be issued only as Registered Notes and any Units
comprising such Notes will be issued only as
Registered Units.
B-12
<PAGE>
Final Certification: Final Certification with respect to a Temporary
Global Note (whether issued alone or as part of a
Unit) shall mean the delivery by the Euroclear
Operator, Clearstream or any other relevant
clearing system, as the case may be, to the
Principal Paying Agent of a signed certificate
(each a "Clearance System Certificate") in the
form set forth in Appendix 1 hereto with respect
to the Notes being exchanged, dated no earlier
than the Exchange Date for such Notes, to the
effect that the Euroclear Operator, Clearstream
or any other relevant clearing system, as the
case may be, has received certificates in
writing, by tested telex or by electronic
transmission from the account holders appearing
on its records as entitled to such Notes
("Ownership Certificates") in the form set forth
in Appendix 2 hereto with respect to each of such
Notes, which Ownership Certificates shall be
dated no earlier than ten days before the
Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Program Security, will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act and will, as soon as
possible and in any event not later than the date
on which such Pricing Supplement is filed with
the Commission, deliver the number of copies of
such Pricing Supplement to the Agent as the Agent
shall request. The Agent will cause such Pricing
B-13
<PAGE>
Supplement to be delivered to the purchaser of
the Program Security.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for (i) the delivery
of an authenticated Temporary Global Note or a
Temporary Global Unit (including each security
comprised by such Unit) to the Depositary in the
manner described in "Settlement Procedures;
Bearer Notes and Bearer Units" below or (ii) the
delivery of an authenticated Registered Note or a
Registered Unit (including each security
comprised by such Unit) to the Agent shall
constitute "settlement" with respect to such Note
or Unit. All offers accepted by the Company will
be settled on the fifth Business Day next
succeeding the date of acceptance pursuant to the
timetable for settlement set forth below, unless
the Company and the purchaser agree to settlement
on another day, which shall be no earlier than
the next Business Day.
Settlement Procedures;
Bearer Notes
and Bearer Units: Procedures with regard to each Bearer Note or
Bearer Unit sold by the Company to or through the
Agent (unless otherwise specified pursuant to a
Notes Terms Agreement or a Units Terms Agreement)
shall be as follows:
B-14
<PAGE>
A. In the case of a Bearer Note (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such
Note, is initially a Bearer Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate Bearer
Note, whether such Note is an
Amortizing Note, and, if so, the
amortization schedule, or, in the case
of a Floating Rate Bearer Note, the
Initial Interest Rate (if known at such
time), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest
Reset Period, Initial Interest Reset
Date, Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
5. Redemption or repayment provisions, if
any.
6. Ranking.
7. Settlement date and time (Original
Issue Date).
8. Interest Accrual Date.
B-15
<PAGE>
9. Price.
10. Agent's commission, if any, determined
as provided in the Distribution
Agreement.
11. Specified Currency.
12. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if
it is an OID Note, the applicability of
Modified Payment upon Acceleration
(and, if so, the Issue Price).
13. Agent's account number at Clearstream,
the Euroclear Operator or any other
relevant clearing system.
14. Whether such Note is a Series D Note or
a Series E Note.
15. Any other applicable provisions.
B. In the case of a Bearer Unit, the Agent will
advise the Company by telephone that such
Unit is initially a Bearer Unit, of the
information set forth in Settlement
Procedures; Bearer Notes and Bearer Units
"A" above with respect to Bearer Notes that
constitute a part of such Bearer Unit and of
the following information:
1. Settlement date and time.
2. Face Amount.
B-16
<PAGE>
3. Agent's commission, if any, determined
as provided in the Distribution
Agreement.
4. Designation of the Securities comprised
by such Units:
a. Notes (See "Settlement Procedures;
Bearer Notes and Bearer Units"
"A");
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will
be separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised
by such Unit).
7. If the Bearer Unit comprises Bearer
Universal Warrants:
a. Designation of the Series of
Universal Warrants: [Call] [Put]
Universal Warrants;
b. Warrant Property;
c. Aggregate Number of Universal
Warrants;
B-17
<PAGE>
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise
payments shall be made;
j. Minimum number of Universal
Warrants exercisable by any holder
on any day;
k. Maximum number of Universal
Warrants exercisable on any day:
[In the aggregate] [By any
beneficial owner];
l. Formula for determining Cash
Settlement Value;
m. Exchange Rate (or method of
calculation);
n. Whether the Company or the holder
is the writer of the Universal
Warrant; and
B-18
<PAGE>
o. Any other applicable provisions.
8. If the Bearer Unit comprises Bearer
Purchase Contracts:
a. Purchase Contract Property:
Quantity;
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
B-19
<PAGE>
C. The Company will advise Chase as the
Principal Paying Agent for the Notes or as
the Unit Agent for the Units by telephone or
electronic transmission (confirmed in
writing at any time on the same date) of the
information set forth in "Settlement
Procedures; Bearer Notes and Bearer Units"
"A" or "B", above, as applicable, and shall
give the Principal Paying Agent or the Unit
Agent, as the case may be, written
instructions (substantially in the form set
out in Appendix 3 and Appendix 4, as
applicable) to prepare a Temporary Global
Note for each Note Tranche or a Temporary
Global Unit (with the corresponding
temporary global forms of each security
comprised by such Unit) for each Unit
Tranche, as the case may be, which the
Company has agreed to sell. The Company will
send a copy of such instructions to the
Agent and the relevant Trustee.
The Principal Paying Agent or the Unit Agent
shall telephone each of the Euroclear
Operator, Clearstream or any other relevant
clearing system with a request for a
security code for each Note Tranche or Unit
Tranche (and, if applicable, a security code
for each security comprised by the Units of
such Unit Tranche) agreed to be issued and
shall notify the Company and the Agent of
such security code or codes as soon as
practicable.
D. In accordance with instructions received
from the Company, (i) the Principal Paying
Agent shall
B-20
<PAGE>
authenticate and deliver a Temporary Global
Note for each Note Tranche or Unit Tranche,
as applicable, which the Company has agreed
to sell and (ii) the Unit Agent shall
prepare a Temporary Global Unit for each
Unit Tranche for which the Company has
agreed to sell (including, as applicable, by
countersigning and delivering any Universal
Warrants includable in such Unit, by
countersigning, executing and delivering any
Purchase Contracts includable in such Unit
and by obtaining from the Principal Paying
Agent any Notes to be included in such
Units, authenticated in accordance with
clause (i) above). The settlement of each of
the Note Tranche and the Unit Tranche is to
occur on the relevant settlement date. All
such Temporary Global Notes and all such
Temporary Global Units (including all of the
securities included in such Units) will then
be delivered to the Depositary. The
Principal Paying Agent or the Unit Agent, as
the case may be, will also give instructions
to the Euroclear Operator, Clearstream or
any other relevant clearing system to credit
the Notes or Units represented by such
Temporary Global Note or Temporary Global
Unit delivered to such Depositary to, in the
case of the Notes, the Principal Paying
Agent's distribution account and, in the
case of the Units, the Unit Agent's
distribution account, at the Euroclear
Operator, Clearstream or any other relevant
clearing system. At settlement of any Note
Tranche, the Principal Paying Agent will
instruct
B-21
<PAGE>
the Euroclear Operator, Clearstream or any
other relevant clearing system to debit, on
the settlement date, from the distribution
account of the Principal Paying Agent the
principal amount of Notes of each Note
Tranche, with respect to which the Agent has
solicited an offer to purchase and to
credit, on the settlement date, such
principal amount to the account of the Agent
with the Euroclear Operator, Clearstream or
any other relevant clearing system against
payment of the purchase payment price of
such Notes. At settlement of any Unit
Tranche, the Unit Agent will instruct the
Euroclear Operator, Clearstream or any other
relevant clearing system to debit, on the
settlement date, from the distribution
account of the Unit Agent the number and
face amount of Units of each Unit Tranche,
with respect to which the Agent has
solicited an offer to purchase and to
credit, on the settlement date, such number
and face amount to the account of the Agent
with the Euroclear Operator, Clearstream or
any other relevant clearing system against
payment of the purchase payment price of
such Units. In the case of the Notes and the
Units, the Agent shall give corresponding
instructions to the Euroclear Operator,
Clearstream or any other relevant clearing
system.
E. The Euroclear Operator, Clearstream and any
other relevant clearing system shall debit
and credit accounts in accordance with
instructions received from the
B-22
<PAGE>
Principal Paying Agent and the Agent, in the
case of Notes and the Unit Agent and the
Agent, in the case of Units.
Each of the Principal Paying Agent and the
Unit Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a transfer
of funds to the U.S. dollar account of the
Company with a bank in New York City (or,
with respect to Notes and Units payable in a
Specified Currency other than U.S. dollars,
to an account maintained at a bank selected
by the Company, which bank shall be located
outside the United Kingdom in the case of
Notes and Units payable in a Specified
Currency other than pounds sterling that
mature not later than five years from and
including the date of issue thereof)
designated by the Company in writing.
Settlement Procedures
Timetable; Bearer Notes
and Bearer Units: For sales by the Company of Bearer Notes or of
Bearer Units to or through the Agent, "Settlement
Procedures; Bearer Notes and Bearer Units" "A"
through "E" above shall be completed on or before
the respective times set forth below:
B-23
<PAGE>
Settlement
Procedure;
Bearer Notes
and Bearer Units Time
---------------- ----
A 12:00 P.M. (NYC time) three days
before settlement date
B 12:00 P.M. (NYC time) three days
before settlement date
C 9:00 A.M. (London time) two days
before settlement date
D 3:45 P.M. (London time) one day
before settlement date
E 5:00 P.M. (NYC time) on
settlement date
Settlement Procedures;
Registered Notes and
Registered Units: Settlement Procedures with regard to each
Registered Note and Registered Unit sold by the
Company to or through the Agent (unless otherwise
specified pursuant to a Notes Terms Agreement or
a Units Terms Agreement) shall be as follows:
AA. In the case of a Registered Note (whether
issued alone or as part of a Unit), the
Agent will advise the Company by telephone
that such Note is a Registered Note and of
the following settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner
and address for payment of principal
and interest.
B-24
<PAGE>
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate Registered
Note, the Interest Rate, whether such
Note is an Amortizing Note and, if so,
the amortization schedule, or, in the
case of a Floating Rate Registered
Note, the Initial Interest Rate (if
known at such time), Interest Payment
Period, Calculation Agent, Base Rate,
Index Maturity, Index Currency,
Interest Reset Period, Initial Interest
Reset Date, Interest Reset Dates,
Spread or Spread Multiplier (if any),
Minimum Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if any).
8. Redemption or repayment provisions (if
any).
9. Ranking.
10. Settlement date and time (Original
Issue Date).
11. Interest Accrual Date.
12. Price.
B-25
<PAGE>
13. Agent's commission (if any) determined
as provided in the Distribution
Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note, and if
it is an OID Note, and the
applicability of Modified Payment upon
Acceleration (and if so, the Issue
Price).
17. Whether such Note is a Series D Note or
a Series E Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the Agent
will advise the Company by telephone that
such Unit is a Registered Unit, of the
information set forth in "Settlement
Procedures; Registered Notes and Registered
Units" "A" above with respect to any
Registered Notes that constitute a part of
such Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
B-26
<PAGE>
6. Number of Units (and Face Amount).
7. Agent's commission, if any, determined
as provided in the Distribution
Agreement.
8. Designation of the Securities comprised
by such Units:
a. Notes, if any (See "Settlement
Procedures; Registered Notes and
Registered Units" "A" );
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
9. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised
by such Unit).
10. If the Registered Unit comprises
Registered Universal Warrants:
a. Designation of the Series of
Universal Warrants: [Call][Put]
Warrants;
b. Warrant Property;
c. Aggregate Number of Universal
Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
B-27
<PAGE>
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by any holder
on any day;
j. Maximum number of Universal
Warrants exercisable on any day:
[In the aggregate] [By any
beneficial owner];
k. Formula for determining Cash
Settlement Value;
l. Exchange Rate (or method of
calculation);
m. Whether the Company or the holder
is the writer of the warrant; and
n. Any other applicable provisions.
11. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract Property:
Quantity;
b. Purchase Price;
c. Settlement Date;
B-28
<PAGE>
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
CC. The Company will advise Chase as Principal
Paying Agent for the Notes or as Unit Agent
for the Units, by telephone or electronic
transmission (confirmed in writing at any
time on the same date) of the information
set forth in "Settlement Procedures;
Registered Notes and Registered Units" "AA"
and "BB" above, as applicable.
DD. The Company will have delivered to Chase as
Principal Paying Agent for the Notes, or as
Unit Agent for the Units, a pre-printed
four-ply packet for such Note or such Unit,
as the case may be, which
B-29
<PAGE>
packet will contain the following documents
in forms that have been approved by the
Company, the Agent and Chase, as Principal
Paying Agent for the Notes, or as Unit Agent
for the Units:
1. Note or Unit, as the case may be, with
customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. Chase will (i) authenticate and deliver any
Note (whether issued alone or as part of a
Unit) through the Principal Paying Agent if
necessary, with the confirmation and Stubs
One and Two to the Agent, and (ii) complete
and deliver the Unit (including by
countersigning and delivering any Universal
Warrant includable in such Unit, by
countersigning, executing and delivering any
Purchase Contract includable in such Unit
and by obtaining from the Principal Paying
Agent any Notes to be included in such
Units, authenticated in accordance with
clause (i) above) with the confirmation and
Stubs One and Two to the Agent. The Agent
will acknowledge receipt of the Note or the
Unit, as the case may be, by stamping or
otherwise marking Stub One and returning it
to Chase, through the Principal Paying
Agent, in the case of the Notes, if
necessary. Such delivery will be made only
against such acknowledgment of receipt and
evidence that instructions have been given
by the Agent, with respect to Program
Securities denominated in U.S. dollars,
B-30
<PAGE>
for payment to the account of the Company at
Chase, New York, New York (or, with respect
to Program Securities payable in a Specified
Currency other than U.S. dollars, to an
account maintained at a bank selected by the
Company, which bank shall be located outside
the United Kingdom in the case of Program
Securities payable in a Specified Currency
other than pounds sterling that mature not
later than five years from and including the
date of issue thereof), in immediately
available funds, of an amount equal to the
purchase price of such Program Securities
less the Agent's commission (if any). In the
event that the instructions given by the
Agent for payment to the account of the
Company are revoked, the Company will as
promptly as possible wire transfer to the
account of the Agent an amount of
immediately available funds equal to the
amount of such payment made.
The Principal Paying Agent and the Unit
Agent shall pay the Company the aggregate
net proceeds received by it in immediately
available funds via a transfer of funds to
the U.S. dollar account of the Company with
Chase in New York City (or, with respect to
Program Securities payable in a Specified
Currency other than U.S. dollars, to an
account maintained at a bank selected by the
Company which bank shall be located outside
the United Kingdom in the case of Program
Securities payable in a Specified Currency
other than pounds sterling that mature not
later than five years including the date of
issue thereof).
B-31
<PAGE>
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will
deliver (with confirmation) such Program
Securities to the customer against payment
in immediately available funds. The Agent
will obtain the acknowledgment of receipt of
such Program Securities by retaining Stub
Two.
GG. In the case of all Program Securities, Chase
will send Stub Three to the Company by
first-class mail.
Settlement Procedures
Timetable; Registered Notes
and Registered Units: For sales by the Company of Registered Notes or
Registered Units to or through the Agent,
"Settlement Procedures; Registered Notes and
Registered Units" "AA" through "GG" set forth
above shall be completed on or before the
respective times (London time) set forth below:
Settlement
Procedure;
Registered Notes
and Registered Units Time
-------------------- ----
AA 2:00 P.M. on second day
before settlement date
BB 2:00 P.M. on second day
before settlement date
CC 3:00 P.M. on second day
before settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
Failure to Settle: Bearer Notes and Bearer Units. If the Agent shall
have advanced its own funds for payment against
subsequent receipt of funds from the purchaser
and if a purchaser shall fail to make payment for
a Note or a Unit, the Agent will promptly notify,
in the case of a Note, the
B-32
<PAGE>
Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator,
Clearstream and any other relevant clearing
system, and, in the case of the Unit, the
Company, the Unit Agent, the Depositary, and the
Euroclear Operator, Clearstream and any other
relevant clearing system, in each case by
telephone, promptly confirmed in writing (but no
later than the next Business Day). In such event,
the Company shall promptly instruct the Principal
Paying Agent, in the case of the Note, and the
Unit Agent, in the case of the Unit, to cancel
the purchaser's interest in the appropriate
Temporary Global Note representing such Note or
the appropriate Temporary Global Unit
representing such Unit. Upon (i) confirmation
from the Principal Paying Agent or the Unit Agent
in writing (which may be given by telex or
telecopy) that the Principal Paying Agent or the
Unit Agent has canceled such purchaser's interest
in such Temporary Global Note or Temporary Global
Unit, as the case may be, and (ii) confirmation
from the Agent in writing (which may be given by
telex or telecopy) that the Agent has not
received payment from the purchaser for the Note
or the Unit, the Company will promptly pay to the
Agent an amount in immediately available funds
equal to the amount previously paid by the Agent
in respect of such Bearer Note or Bearer Unit.
Such payment will be made on the settlement date,
if possible, and in any event not later than 12
noon (New York City time) on the Business Day
following the settlement date. The Principal
Paying Agent or the Unit Agent, as the case may
be, and the Depositary will make or cause to be
made such revisions to such Temporary Global Note
or Temporary Global Unit as are necessary to
reflect the cancellation of such portion of such
Temporary Global Note or Temporary Global Unit.
B-33
<PAGE>
If a purchaser shall fail to make payment for the
Note or Unit for any reason other than a default
by the Agent in the performance of its
obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the
Agent on an equitable basis for the Agent's loss
of the use of funds during the period when they
were credited to the account of the Company, the
Principal Paying Agent or the Unit Agent, as
applicable.
Immediately upon such cancellation, the Principal
Paying Agent or the Unit Agent, as the case may
be, will make appropriate entries in its records
to reflect the fact that a settlement did not
occur with respect to such Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
Chase, as Registrar of the Registered Notes or as
Unit Agent, by telephone and return such Note or
Unit to Chase through the Principal Paying Agent,
in the case of the Notes or the Unit Agent, in
the case of the Units, if necessary. Upon receipt
of such notice, the Company will immediately wire
transfer to the account of the Agent an amount
equal to the amount previously credited to the
Company's account in respect of such Note or
Unit. Such wire transfer will be made on the
settlement date, if possible, and in any event
not later than the Business Day following the
settlement date. If the failure shall have
occurred for any reason other than a default by
the Agent in the performance of its obligations
hereunder and under the Distribution Agreement,
then the Company will reimburse the Agent on an
equitable basis for its loss of the use of the
funds during the period when they were credited
to the account of the Company or Chase.
Immediately upon receipt of the Registered Note
or Registered Unit in respect of
B-34
<PAGE>
which such failure occurred, Chase will mark such
Note or Unit "canceled," make appropriate entries
in Chase's records and send such Note or Unit to
the Company.
Cancellation of Issuance: If any Program Securities of a particular series
in respect of which information has been supplied
under "Settlement Procedures" above is not to be
issued on a given issue date, the Issuer shall
promptly notify the Principal Paying Agent and
the Trustee and shall promptly confirm such
notification in writing. Upon receipt of such
notice, neither the Principal Paying Agent nor
the Trustee shall thereafter issue or release the
relevant Program Securities but shall, if
applicable, cancel and, unless otherwise
instructed by the Issuer in writing, dispose of
them in accordance with their customary
procedures.
Notice of Issuance to the
UK Listing Authority and
the London Stock Exchange: The Sponsoring Member Firm will provide
information with respect to the issuance of each
Series D Note and Series D Unit to the London
Stock Exchange or the Paris Bourse, as the case
may be, and will advise the Company in writing as
to the effectiveness of the listing of such
Series D Note and Series D Unit by the close of
business on the related settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the London Stock Exchange or the
Paris Bourse, as the case may be with such
information regarding Series D Notes and Series D
Units issued and outstanding as such exchange may
require.
B-35
<PAGE>
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR, CLEARSTREAM, LUXEMBOURG AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_______________
Morgan Stanley Dean Witter & Co.
Notes, Series D/E
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that, based solely on certifications we have received
in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof,
__________ principal amount of the above- captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust if
both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined in
the applicable U.S. Treasury Regulations) ("financial institutions") purchasing
for their own account or for resale, or (b) United States persons who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in the applicable U.S. Treasury Regulations),
and such United States or foreign
<PAGE>
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions. Any such
certification by electronic transmission satisfies the requirements set forth
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(ii). We
will retain all certifications from our Member Organizations for the period
specified in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(i)(C).
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, seeking to collect principal or interest with
respect to) any portion of the temporary global Security representing the
above-captioned Securities excepted in the above-referenced certificates of
Member Organizations and (ii) that as of the date hereof we have not received
any notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith (or, if relevant, with respect to which principal or
interest is being requested) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
Dated: ___________, 20__
[To be dated no earlier than
[insert date of Interest Payment
Date prior to Exchange Date]
[insert date of Redemption Date
prior to Exchange Date] [insert
Exchange Date]]
2
<PAGE>
[EUROCLEAR BANK, SOCIETE
ANONYME, as Operator of the Euroclear
System]
[CLEARSTREAM BANKING, SOCIETE
ANONYME]
[OTHER]
By:___________________________________
Name:
Title:
3
<PAGE>
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY
AN ACCOUNT HOLDER OF EUROCLEAR, CLEARSTREAM,
LUXEMBOURG AND/OR ANY OTHER RELEVANT
CLEARING SYSTEM]
CERTIFICATE
______________
Morgan Stanley Dean Witter & Co.
Notes, Series D/E
Represented by Temporary Global [Fixed/Floating] Rate
Senior Bearer Note No. __
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, an estate the income of which is subject
to United States Federal income taxation regardless of its source, or a trust
if both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (as
defined in the applicable U.S. Treasury Regulations) ("financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise the Issuer or the Issuer's agent that it will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S.
Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in the applicable
U.S. Treasury Regulations), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) such financial
institution has not acquired the Securities for purposes of resale directly or
<PAGE>
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to [U.S.$] _________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand exchange for and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
2
<PAGE>
Dated: ___________, 20__
[To be dated no earlier than
the 10th day before [insert
date of Interest Payment Date
prior to Exchange Date] [insert
date of Redemption Date prior to
Exchange Date] [insert Exchange
Date]]
[NAME OF ACCOUNT HOLDER]
By:_______________________________
(Authorized Signatory)
Name:
Title:
3
<PAGE>
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
To: The Chase Manhattan Bank,
London Office
Attention: ___________________________
___________________________
and with a copy to:
[The Chase Manhattan Bank, as Senior Debt Trustee]
[Bank One Trust Company, N.A.
(as successor to The First National Bank of Chicago),
as Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated January [ ], 2001
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Clearstream
and/or any other relevant clearing system in order for you to:
**** Credit account of [Name of Agent] with
[Euroclear/Clearstream/Other]***** with the following
Bearer Notes:
___________________
4 Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if Bearer
Notes of more than one Note Tranche are to be issued to an Agent.
5 Delete as appropriate.
<PAGE>
<TABLE>
<CAPTION>
Fixed-Rate Floating-Rate
All Notes: Notes: Notes:
---------------------------- ---------------------------- ----------------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Optional Redemption Face Amount: Minimum Interest Rate:
Date(s):
Initial Redemption Date: Fixed Amount of each Interest Payment Period:
Indexed Currency (if any):
Initial Redemption Aggregate Fixed Amount of Calculation Agent:
Percentage: each Indexed Currency (if
any):
Annual Redemption Indexed Currency (if any): Reporting Service:
Percentage Reduction:
Ranking: Index Currency:
Series: Designated CMT
Telerate Page:
Minimum Denominations: Designated CMT
Maturity Index:
Other Provisions:
</TABLE>
2
<PAGE>
against payment of [______________________________].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By: __________________________________
3
<PAGE>
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
To: The Chase Manhattan Bank,
Attention: ______________________
______________________
Re: Euro Distribution Agreement
dated January [ ], 2001
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms
Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Clearstream
and/or any other relevant clearing system in order for you to:
* Credit account of [Name of Agent] with
[Euroclear/Clearstream/Other]** with the following Bearer
Units:
_________________
1 Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if Bearer
Units of more than one Unit Tranche are to be issued to an Agent.
2 Delete as appropriate.
<PAGE>
<TABLE>
<CAPTION>
Universal Warrants Purchase Contracts
All Units: Issued as Part of a Unit: Issued as Part of a Unit:
------------------------------- ------------------------------- -------------------------------
<S> <C> <C>
Principal Amount: Price: Price:
Purchase Price: Specified Currency or Settlement Date and Time:
Composite Currency:
Price to Public: Exercise Date: Buy or Sell:
Place of Delivery: Warrant Property: Purchase Contract
Property:
Specified Currency: Permitted Payment: Purchase or Sale Price:
Original Issue Date: Exercise Price:
Expiration Date: Specified Currency or
Composite Currency:
Put or Call: Permitted Payment:
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
All Notes Issued Fixed Rate Notes Issued Floating Rate Notes
as Part of a Unit: as Part of a Unit: as Part of a Unit:
------------------------------- ------------------------------- -------------------------------
<S> <C> <C>
Principal Amount: Interest Rate: Base Rate:
Purchase Price: Applicability of Modified Index Maturity:
Payment upon
Acceleration:
Price to Public: If yes, state issue price: Spread (Plus or Minus):
Settlement Date and Time: Amortization Schedule: Spread Multiplier:
Place of Delivery: Applicability of Annual Alternate Rate Event
Interest Payments: Spread:
Specified Currency: Denominated Currency (if Initial Interest Rate:
any):
Original Issue Date: Indexed Currency or Initial Interest Reset
Currencies (if any): Date:
Interest Accrual Date: Payment Currency (if any): Interest Reset Dates:
Interest Payment Date(s): Exchange Rate Agent (if Interest Reset Period:
any):
Maturity Date: Reference Dealers: Maximum Interest Rate:
Optional Repayment Face Amount: Minimum Interest Rate:
Date(s):
Optional Redemption Fixed Amount of each Interest Payment Period:
Date(s): Indexed Currency (if any):
Initial Redemption Date: Aggregate Fixed Amount Calculation Agent:
of each Indexed Currency
(if any):
Initial Redemption Indexed Currency (if any): Reporting Service:
Percentage:
Annual Redemption Index Currency:
Percentage Reduction:
Ranking: Designated CMT
Telerate Page:
Series: Designated CMT
Maturity Index:
3
<PAGE>
All Notes Issued Fixed Rate Notes Issued Floating Rate Notes
as Part of a Unit: as Part of a Unit: as Part of a Unit:
------------------------------- ------------------------------- -------------------------------
<S> <C> <C>
Minimum Denominations:
Other Provisions:
</TABLE>
against payment of [______________________________].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By:___________________________________
___________________________________
