Exhibit 1-d
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
$[ ],000,000,000
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
June , 1997
Dean Witter International Ltd.
Morgan Stanley & Co. International Limited
Morgan Stanley Bank AG
Morgan Stanley S.A.
Bank Morgan Stanley AG
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
England
Dear Sirs:
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (the "Company"), confirms its agreement with you with respect to
the issue and sale from time to time by the Company primarily outside the
United States of up to $[ ],000,000,000 (or the equivalent thereof in one or
more foreign currencies or composite currencies) aggregate initial public
offering price of its Global Medium-Term Notes, Series D and Series E, each
due more than 9 months from the date of issue (the "Notes") and, its Global
Units, Series D and Series E , (the "Units" and together with the Notes,
"Program Securities"), in each case subject to reduction as a result of the
sale of the Company's Global Medium-Term Notes, Series C and Global Units,
Series C, to be sold primarily inside the United States, and the sale of
certain of the Company's other debt securities, warrants, preferred stock,
purchase contracts and units. The Series D Notes are intended to be listed on
the London Stock Exchange Limited (the "London Stock Exchange") or on another
stock exchange or exchanges, if so required by Section 3(i) hereof.
Application may, in certain circumstances described in the Prospectus
Supplement (as defined below), be made to list Series D Units on the London
Stock Exchange. The Series E Notes and the Series E Units will not be listed
on any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior
Notes") or as subordinated indebtedness (the "Subordinated Notes") of the
Company. The Senior Notes will be issued, either alone or as part of a Unit,
pursuant to the provisions of a senior indenture dated as of April 15, 1989, as
supplemented by a first supplemental senior indenture dated as of May 15, 1991
and a second supplemental senior indenture dated as of April 15, 1996, each
between Morgan Stanley Group Inc. and The Chase Manhattan Bank (formerly known
as Chemical Bank), as trustee (the "Senior Debt Trustee") and a third
supplemental senior indenture (the "Third Supplemental Senior Indenture")
dated as of June 1, 1997 , between the Company (as successor to Morgan
Stanley) and the Senior Debt Trustee (as so supplemented and as may be further
supplemented or amended from time to time, the "Senior Debt Indenture"). The
Subordinated Notes will be issued pursuant to the provisions of a subordinated
indenture dated as of April 15, 1989, as supplemented by a first supplemental
subordinated indenture dated as of May 15, 1991 and a second supplemental
subordinated indenture dated as of April 15, 1996 , each between Morgan
Stanley and The First National Bank of Chicago, as trustee (the "Subordinated
Debt Trustee"), and a third supplemental subordinated indenture (the "Third
Supplemental Subordinated Indenture") dated as of June 1, 1997, between the
Company (as successor to Morgan Stanley) and the Subordinated Debt Trustee (as
so supplemented and as may be further supplemented or amended from time to
time, the "Subordinated Debt Indenture"). The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter referred
to individually as a "Trustee" and collectively as the "Trustees."
The Units will be issued pursuant to the Unit Agreement dated
as of June 2, 1997, among the Company, The Chase Manhattan Bank, as Unit
Agent, as Collateral Agent, as Trustee and Paying Agent under the Indenture
referred to therein, and as Warrant Agent under the Warrant Agreement referred
to therein and the holders from time to time of the Units described therein.
Units may include one or more (i) Senior Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies
or composite currencies or (c) commodities, (iii) purchase contracts
("Purchase Contracts") requiring the holders thereof to purchase or sell (a)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or composite currencies or (c) commodities or (iv) any
combination thereof. The applicable prospectus supplement will specify
whether Notes, Universal Warrants and Purchase Contracts comprised by a Unit
may or may not be separated from any series of Units. Universal Warrants
issued as part of a Unit will be issued pursuant to the Universal Warrant
Agreement dated as of June 2, 1997 (the "Universal Warrant Agreement"),
between the Company and The Chase Manhattan Bank, as Warrant Agent. Purchase
Contracts entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
The Notes whether issued, alone or as part of a Unit, will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants issued as part of a Unit will have the exercise prices,
exercise dates, expiration dates and other terms as set forth in supplements
to the Basic Prospectus. The Purchase Contracts issued as part of a Unit will
have the closing dates, purchase or sale prices and other terms as set
forth in supplements to the Basic Prospectus. The Company has initially
appointed The Chase Manhattan Bank, London Branch, at its principal office
in London, as principal paying agent (the "Principal Paying Agent") for the
Notes.
The Notes will be issued in bearer form or in definitive
registered form without coupons (the "Registered Notes"), the Units will be
issued in bearer form or in definitive registered form (the "Registered
Units") and the securities included in a Unit will be in the form of such
Unit. The Notes and the Units, (the "Program Securities") issued in bearer
form will be represented initially by, in the case of the Notes, a temporary
global Note and, in the case of the Units, a temporary global Unit, each of
which will be delivered to a common depositary outside the United States for
the operator of the Euroclear System (the "Euroclear Operator") and Cedel
Bank, societe anonyme ("Cedel Bank"). Beneficial interests in a temporary
global Note or a temporary global Unit will be exchangeable for beneficial
interests in, in the case of a temporary global Note, a permanent global Note
and, in the case of a temporary global Unit, a permanent global Unit.
Beneficial interests in a permanent global Note will be exchangeable in whole,
but not in part, for definitive Notes in bearer form, with interest coupons
attached upon receipt of the Principal Paying Agent of an initial request to
so exchange by any holder of a beneficial interest in such permanent global
Note (such temporary global Note, permanent global Note and definitive Notes
in bearer form are collectively referred to as the "Bearer Notes"), or, if the
applicable Pricing Supplement so specifies, for Registered Notes. Beneficial
interests in a permanent global Unit (including an interest in the securities
included in such Unit) will be exchangeable in whole, but not in part, for
definitive Units in bearer form upon receipt of the Unit Agent of an initial
request to so exchange by any holder of a beneficial interest in such
permanent global Unit (such temporary global Unit, permanent global Unit and
definitive Units in bearer form are collectively referred to as the "Bearer
Units") or, if the applicable Pricing Supplement so specifies, for Registered
Units. As used in this Agreement, the term "Note" includes any temporary
global Note or permanent global Note issued pursuant to the Indentures and the
term "Unit" includes any temporary global Unit or permanent global Unit issued
pursuant to the Unit Agreement.
The Company hereby appoints you as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Program Securities from
the Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth,
you agree to use reasonable efforts to solicit and receive offers to purchase
Program Securities upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify. In addition, you
may also purchase Program Securities as principal pursuant to the terms of a
terms agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof. Program Securities denominated or
payable in Deutsche Marks may only be offered and sold by the Company through
Morgan Stanley Bank AG, the Deutsche Mark arranger, on an agency or principal
basis. Morgan Stanley Bank AG agrees to notify the German Central Bank at the
end of each month about the amounts, dates of issue and other terms of all
Program Securities denominated or payable in Deutsche Marks offered and sold
by Morgan Stanley Bank AG during the month in question. Program Securities
denominated or payable in French Francs may only be offered and sold by the
Company through Morgan Stanley S.A. on an agency or principal basis, and
Morgan Stanley S.A. agrees to notify the French Tresor prior to the issuance
of any such Program Securities. Program Securities denominated, payable in or
indexed to Swiss Francs may only be offered and sold by the Company through
Bank Morgan Stanley AG on an agency or principal basis, and Bank Morgan
Stanley AG agrees to notify the Swiss National Bank prior to the issuance of
any such Program Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Program Securities. Such registration statement,
including the exhibits thereto, as amended at the Commencement Date (as
hereinafter defined), is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Program Securities. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus"
means the Basic Prospectus together with the prospectus supplement or
supplements (each a "Prospectus Supplement") specifically relating to Program
Securities, as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424. As used herein, the terms "Basic Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Basic Prospectus
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with you as of the Commencement Date, as of each date
on which you solicit offers to purchase Program Securities, as of each date on
which the Company accepts an offer to purchase Program Securities (including
any purchase by you as principal pursuant to a Notes Terms Agreement or a
Units Terms Agreement), as of each date the Company issues and delivers
Program Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (1) the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
you furnished to the Company in writing by you expressly for use therein or
(B) to those parts of the Registration Statement that constitute the Statements
of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustees and (2) the representations and
warranties set forth in clauses (iii) and (iv) above, when made as of the
Commencement Date or as of any date on which you solicit offers to purchase
Program Securities or on which the Company accepts an offer to purchase
Program Securities, shall be deemed not to cover information concerning an
offering of particular Program Securities to the extent such information will
be set forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined) has
been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and the Universal
Warrant Agreement has been duly authorized, executed and delivered by the
Company or by Morgan Stanley Group Inc. (a predecessor to the Company) and
assumed by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at proceedings in equity or at law.
(g) The forms of Notes, whether issued alone or as part of a Unit,
have been duly authorized and established in conformity with the provisions of
the relevant Indenture and, when the Notes have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes will be
entitled to the benefits of such Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability is considered
at a proceeding in equity or at law.
(h) The forms of Units, including the forms of Universal Warrants
and Purchase Contracts which, in addition to the Notes, may comprise such
Units, have been duly authorized and established in conformity with the
provisions of (i) in the case of the Units and Purchase Contracts, the Unit
Agreement and (ii) in the case of Universal Warrants, the Universal Warrant
Agreement. When the Units have been delivered to and duly paid for by the
purchasers thereof and (A) any Purchase Contracts included in such Units have
been executed by the Company and countersigned and executed by the Unit Agent
and (B) any Universal Warrants included in such Units have been executed by
the Company and countersigned by the Warrant Agent, the Units (including any
such Purchase Contracts or Universal Warrants contained therein) will be
entitled to the benefits of the Unit Agreement and, in the case of the
Universal Warrants, the Universal Warrant Agreement and will be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(i) The execution and delivery by the Company of this Agreement,
the Notes (whether issued alone or as part of a Unit), the Units (including any
Purchase Contracts and Universal Warrants included therein) the Indentures,
the Unit Agreement, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, the Universal Warrant Agreement
and any applicable Notes Terms Agreement or Units Terms Agreement; provided,
however, that no representation is made or warranty given as to whether the
purchase of the Program Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or incorporated as
required.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(m) Dean Witter Reynolds Inc. is registered as a broker-dealer
and investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(n) Morgan Stanley & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered with
the Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
Notwithstanding the foregoing, it is understood and agreed that
the representations and warranties set forth in Section 1(b)(iii) and
1(b)(iv), 1(g) (except as to due authorization of the Notes), 1(h) (except as
to due authorization of the Units, Universal Warrants and Purchase Contracts)
and 1(i), when made as of the Commencement Date, or as of any date on which
you solicit offers to purchase Program Securities, with respect to any Program
Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities unaffiliated
with the Company, baskets of such securities, equity indices or other factors,
shall be deemed not to address the application of the Commodity Exchange Act,
as amended, or the rules, regulations or interpretations of the Commodity
Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as
agents hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct you to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Program Securities. Upon receipt of at
least one business day's prior notice from the Company, you will forthwith
suspend solicitations of offers to purchase Program Securities from the
Company until such time as the Company has advised you that such solicitation
may be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 5(a), 5(b) and 5(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for (i)
in the case of Notes, issued alone or as part of a Unit, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes, (ii) in the case of Units, a change in the exercise
price, exercise date or period or expiration of an underlying Universal
Warrant or a change in the settlement date or purchase or sale price of an
underlying Purchase Contract or (iii) for a change you deem to be immaterial),
you shall not be required to resume soliciting offers to purchase Program
Securities until the Company has delivered such certificates, opinions and
letters as you may request.
The Company agrees to pay to you, as consideration for the sale
of each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any underlying
Note's maturity or the terms of the Units and of the securities comprised by
such Units) of the principal amount of such Note or, in the case of Units, the
face amount of such Unit (provided that the commission for Notes having, or
Units including Notes or other securities having, a maturity of 30 years or
greater will be negotiated) or such other discount as may be specified in the
Prospectus Supplement relating to such Note or Unit.
You shall communicate to the Company, orally or in writing, each
offer to purchase Program Securities received by you as agent that in your
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Program Securities and may reject any offer
in whole or in part. You shall have the right to reject any offer to purchase
Program Securities that you consider to be unacceptable, and any such
rejection shall not be deemed a breach of your agreements contained herein.
The procedural details relating to the issue and delivery of Program
Securities sold by you as agent and the payment therefor shall be as set forth
in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to
you as principals shall be made in accordance with the terms of this
Agreement. In connection with each such sale, the Company will enter into a
Notes Terms Agreement or Units Terms Agreement that will provide for the sale
of such Program Securities to and the purchase thereof by you. Each Notes
Terms Agreement or Units Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially in
the form of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of
Notes, a "Written Notes Terms Agreement" and, in the case of Units, a "Written
Units Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal
pursuant to a Notes Terms Agreement or Units Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions
herein set forth. Each (i) Note Terms Agreement shall specify the principal
amount of Notes to be purchased by you pursuant thereto, the maturity date of
such Notes, the price to be paid to the Company for such Notes, the interest
rate and interest rate formula, if any, applicable to such Notes and any other
terms of such Notes and (ii) Unit Terms Agreement shall specify (a) the
information set forth in (i) above with respect to any Notes issued as part of
a Unit, (b) with respect to Universal Warrants issued as part of a Unit, the
exercise price, the exercise date or period, the expiration date and any other
terms of such Universal Warrants, and (c) with respect to Purchase Contracts
issued as part of a Unit, the settlement date, the purchase or sale price or
any other terms of such Purchase Contracts. Each such Notes Terms Agreement
or Units Terms Agreement may also specify any requirements for officers'
certificates, opinions of counsel and letters from the independent auditors of
the Company pursuant to Section 4 hereof. A Notes Terms Agreement and a Unit
Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall
specify the time and place of delivery of and payment for such Notes or Units,
as the case may be. Unless otherwise specified in a Notes Terms Agreement or
a Units Terms Agreement, the procedural details relating to the issue and
delivery of Notes or Units, as the case may be, purchased by you as principal
and the payment therefor shall be as set forth in the Administrative
Procedures. Each date of delivery of and payment for Program Securities to
be purchased by you as principal pursuant to a Notes Terms Agreement or a
Units Terms Agreement, as the case may be, is referred to herein as a
"Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, if you are purchasing Program Securities as principal you may
resell such Program Securities to other dealers. Any such sales may be at a
discount, which shall not exceed the amount set forth in the Prospectus
Supplement relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Global Medium-Term Notes, Series D and Series E and the
Global Units, Series D and Series E, Administrative Procedures (attached
hereto as Exhibit B) (the "Administrative Procedures"), as amended from time
to time. The Administrative Procedures may be amended only by written
agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 4
of this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as agent of the Company shall
be delivered at the office of Davis Polk & Wardwell, your counsel, not later
than 4:00 p.m., New York time, on the date hereof, or at such other time and/or
place as you and the Company may agree upon in writing, but in no event later
than the day prior to the earlier of (i) the date on which you begin
soliciting offers to purchase Program Securities and (ii) the first date on
which the Company accepts any offer by you to purchase Program Securities as
principal. The date of delivery of such documents is referred to herein as the
"Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or any Notes Terms Agreement or Units
Terms Agreement, the Company will not file any Prospectus Supplement relating
to the Program Securities or any amendment to the Registration Statement unless
the Company has previously furnished to you a copy thereof for your review and
will not file any such proposed supplement or amendment to which you
reasonably object; provided, however, that the foregoing requirement shall not
apply to any of the Company's periodic filings with the Commission required
to be filed pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the
Exchange Act, copies of which filings the Company will cause to be delivered
to you promptly after being transmitted for filing with the Commission.
Subject to the foregoing sentence, the Company will promptly cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act. The
Company will promptly advise you (i) of the filing of any amendment or
supplement to the Basic Prospectus, (ii) of the filing and effectiveness of
any amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of the issuance by any
non-United States regulatory authority of any request for information relating
to the Program Securities or suspension of the listing of the Program
Securities on any stock exchange on which the Program Securities are then
listed. The Company will use its best efforts to prevent the issuance of any
such stop order or notice of suspension of qualification or listing and, if
issued, to obtain as soon as possible the withdrawal thereof. If the Basic
Prospectus is amended or supplemented as a result of the filing under the
Exchange Act of any document incorporated by reference in the Prospectus, you
shall not be obligated to solicit offers to purchase Program Securities so
long as you are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances when the Prospectus, as then amended or supplemented, is
delivered to a purchaser, not misleading, or if, in your opinion or in the
opinion of the Company, it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law,
the Company will immediately notify you by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Program Securities and,
if so notified by the Company, you shall forthwith suspend such solicitation
and cease using the Prospectus, as then amended or supplemented. If the
Company shall decide to amend or supplement the Registration Statement or
Prospectus, as then amended or supplemented, it shall so advise you promptly
by telephone (with confirmation in writing) and, at its expense, shall prepare
and cause to be filed promptly with the Commission an amendment or supplement
to the Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement or
omission or effect such compliance and will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request. If any documents, certificates, opinions and letters furnished to
you pursuant to paragraph (e) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement are
satisfactory in all respects to you, upon the filing with the Commission of
such amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, you will resume the solicitation of
offers to purchase Program Securities hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request and shall furnish to you pursuant to paragraph (e) below
and Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as you may request in connection with the preparation and filing of
such amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Program Securities. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available not
later than 90 days after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days after the close of
the period covered thereby.
(d) The Company will furnish to you, without charge, a signed copy
of the Registration Statement, including exhibits and all amendments thereto,
and as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as you may reasonably
request.
(e) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Unit Agreement, the Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units Terms Agreement
and the performance by the Company of its obligations hereunder or thereunder
as you may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program Securities
is consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: (i) the preparation and filing of the Registration Statement and
the Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Program Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, of the Trustees
and their counsel, of the Unit Agent and its counsel, of the Warrant Agent and
its counsel and of the Principal Paying Agent and its counsel and any paying
agents for the Notes appointed by the Company, (iv) the fees and expenses
incurred with respect to listing the Series D Notes and, if listed, the Series
D Units on the London Stock Exchange or on another stock exchange or exchanges
if so required by Section 3(i), (v) the printing and delivery to you in
quantities as hereinabove stated of copies of the Registration Statement and
all amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to you of copies of the Indentures, the
Unit Agreement or the Universal Warrant Agreement, (vii) any fees charged by
rating agencies for the rating of the Program Securities, (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., (ix) the fees and disbursements of
your counsel incurred in connection with the offering and sale of the Program
Securities, including any opinions to be rendered by such counsel hereunder,
and (x) any out-of-pocket expenses incurred by you; provided that any
advertising expenses incurred by you shall have been approved by the Company.
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect
to such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of (i) in the case of Notes, any debt securities of the Company substantially
similar to the Notes set forth in such Notes Terms Agreement (other than (A)
the Notes that are to be sold pursuant to such Notes Terms Agreement, (B)
Notes previously agreed to be sold by the Company and (C) commercial paper
issued in the ordinary course of business) or (ii) in the case of Units, any
securities substantially similar to such Units (other than (A) the Units that
are sold pursuant to such Units Terms Agreement or (B) Units previously agreed
to be sold by the Company), in each case, except as may otherwise be provided
in the applicable Notes Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest and
penalties, on the issue of the Program Securities in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement, any
Written Notes Terms Agreement or Written Units Terms Agreement and on the
exchange of any temporary global Notes for definitive Notes or permanent
global Notes, of any temporary global Units for definitive Units or permanent
global Units, of any permanent global bearer Notes for definitive bearer Notes
or of any permanent global bearer Units for definitive bearer Units, that are
or may be required to be paid under the laws of the United Kingdom, the United
States or any political subdivision or taxing authority thereof or therein.
(j) In connection with any application to list the Series D Notes
and Series D Units on the London Stock Exchange, the Company will furnish from
time to time any and all documents, instruments, information and undertakings
and publish all advertisements or other material that may be necessary in order
to effect such listing and will maintain such listing until, (i) in the case
of the Notes, none of the Series D Notes is outstanding, either as part of a
Unit or otherwise, or until such time as payment of principal, premium, if
any, and interest in respect of all the Series D Notes, whether issued alone
or as part of a Unit, has been duly provided for, whichever is earlier and
(ii) in the case of the Units, none of the Series D Units is outstanding;
provided, however, that if the Company can no longer reasonably maintain such
listing, it will use its best efforts to obtain and maintain the quotation
for, or listing of, the Series D Notes and Series D Units on such other stock
exchange or exchanges as you shall reasonably request. In addition, for so
long as the Series D Notes and Series D Units are listed on a stock exchange
and such exchange so requires, the Company will maintain in London, or in such
other place as the Series D Notes and Series D Units are listed (if the Series
D Notes and Series D Units are no longer listed on the London Stock Exchange),
a paying agent in respect of the Series D Notes or Series D Units, as
required.
4. Conditions of the Obligations of the Agents. Your obligation
to solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of
the representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to
solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Program Securities, at the time the Company accepts the offer to
purchase such Program Securities and at the time of issuance and delivery) and
(in each case) to the following additional conditions precedent when and as
specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented at the time of
such solicitation or at the time such offer to purchase was made,
that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Program Securities on the
terms and in the manner contemplated by the Prospectus, as so amended
or supplemented;
(ii) there shall not have occurred such a change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely to
prejudice materially the success of the offering and distribution of the
Program Securities or dealings in the Program Securities in the secondary
market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or
(iii) above, as disclosed to you in writing by the Company prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made or (B) unless in each case
described in (ii) above, the relevant event shall have occurred and been known
to you prior to such solicitation or, in the case of a purchase of Program
Securities, before the offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of Brown & Wood LLP,
counsel to the Company, or of other counsel satisfactory to you and
who may be an officer of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(B) each of Dean Witter Reynolds Inc., Greenwood
Trust Company, Morgan Stanley & Co. Incorporated and Morgan
Stanley International Incorporated (each a "Material Subsidiary")
has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material
Subsidiaries has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, as amended or
supplemented, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable
Written Notes Terms Agreement or Written Units Terms Agreement
has been duly authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under
the Trust Indenture Act and each of the Third Supplemental Senior
Indenture and the Third Supplemental Subordinated Indenture, the
Unit Agreement and the Universal Warrant Agreement has been duly
authorized, executed and delivered by the Company and each of the
Indentures is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether
such enforceability is considered at a proceeding in equity or at
law;
(F) the forms of Notes, whether issued alone or
as part of a Unit, have been duly authorized and established in
conformity with the provisions of the relevant Indenture and, if
the Notes had been executed by the Company and authenticated by
the relevant Trustee or its duly appointed agent in accordance
with the provisions of the relevant Indenture and delivered to
and duly paid for by the purchasers thereof on the date of such
opinion, the Notes would be entitled to the benefits of such
Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(G) the forms of Units, including the forms of
Universal Warrants and Purchase Contracts which, in addition to
the Notes, may comprise such Units, have been duly authorized and
established in conformity with the provisions of (i) in the case
of Units and Purchase Contracts, the Unit Agreement and (ii) in
the case of the Universal Warrants, the Universal Warrant
Agreement, and if the Units (including the Universal Warrants and
the Purchase Contracts) had been delivered to and duly paid for
by the purchasers thereof (and any Universal Warrant included
therein had been executed by the Company and countersigned by the
Warrant Agent and any Purchase Contracts included therein had
been executed by the Company and executed and countersigned by
the Unit Agent) on the date of such opinion, the Units (including
the Universal Warrants and Purchase Contracts contained therein)
would be entitled to the benefits of the Unit Agreement and, in
the case of the Universal Warrants, the Universal Warrant
Agreement and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(H) the execution and delivery by the Company of
the Notes (whether issued alone or as part of a Unit), the Units
(including any Purchase Contract or Universal Warrant included
therein), the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or
Units Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of
the Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any of
its consolidated subsidiaries that is material to the Company and
its consolidated subsidiaries, taken as a whole, or, to the best
of such counsel's knowledge, any judgment, order or decree of any
U.S. governmental body, agency or court having jurisdiction over
the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of or qualification
with any U.S. governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Units, the Indentures, the Unit
Agreement, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement; provided,
however, that no opinion is expressed on whether the purchase of
the Program Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act
of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended;
(I) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus), "Description of Units" (in
the Prospectus Supplement and in the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic
Prospectus), (2) in the Registration Statement, as then amended
or supplemented, under Item 15, (3) in "Item 3 - Legal
Proceedings" of the most recent annual reports on Form 10-K
incorporated by reference in the Prospectus and (4) in "Item 1 -
Legal Proceedings" of Part II of the quarterly reports on Form
10-Q, if any, filed since such annual reports and incorporated by
reference in the Prospectus, in each case insofar as such
statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(J) after due inquiry, such counsel does not
know of any legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the
Company or any of its consolidated subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, and are not so
described or of any U.S. federal or state statutes, regulations,
contracts or other documents governed by U.S. federal or state
law that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, or
to be filed or incorporated by reference as exhibits to such
Registration Statement that are not described, filed or
incorporated by reference as required; and
(K) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus, as then amended or
supplemented (except as to financial statements and schedules
included therein as to which such counsel need not express any
opinion), complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no reason to
believe that any part of the Registration Statement (except as to
financial statements and schedules as to which such counsel need
not express any belief and except for that part of the
Registration Statement that constitutes the Forms T-1 heretofore
referred to), as then amended, if applicable, when such part
became effective contained, and the Registration Statement
(except as to financial statements and schedules included
therein, as to which such counsel need not express any belief and
except for the part of the Registration Statement that
constitutes the Form T-1) as of the date such opinion is
delivered, contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (3) is of the opinion that the Registration Statement
and Prospectus, as then amended or supplemented, if applicable
(except for financial statements and schedules included therein
as to which such counsel need not express any opinion), comply as
to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and
(4) has no reason to believe that the Prospectus, as then amended
or supplemented, if applicable (except for financial statements
and schedules as to which such counsel need not express any
belief), as of the date such opinion is delivered contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that in the case of an opinion delivered on
the Commencement Date or pursuant to Section 5(b), the opinion
and belief set forth in clauses (3) and (4) above shall be deemed
not to cover information concerning an offering of particular
Notes or Units to the extent such information will be set forth
in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in subparagraphs
(D), (E), (F), (G) and (I) (with respect to statements in the
Prospectus, as then amended or supplemented, under the captions
"Description of Notes" (in the Prospectus Supplement), "Description of
Debt Securities" (in the Basic Prospectus), "Description of Units" (in
the Prospectus Supplement and the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus))
and clauses (2), (3) and (4) of subparagraph (K) in paragraph (b)(i)
above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the Notes), (G) (except
as to due authorization of the Units, Universal Warrants and Purchase
Contracts), (H), (I)(1) and (K)(3) and (4) of paragraph (b)(i) above, when
contained in an opinion delivered on the Commencement Date or pursuant to
Section 5(b), shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission to Program Securities the payments of
principal or interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company,
baskets of such securities, equity indices or other factors.
With respect to subparagraph (K) of paragraph (b)(i) above, if
such opinion is given by counsel who is also an officer of the Company, such
counsel may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to
subparagraph (K) of paragraph (b)(i) above, Davis Polk & Wardwell and, if
Brown & Wood LLP is giving such opinion, Brown & Wood LLP may state that their
opinion and belief are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto (but not including documents incorporated therein by reference) and
review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check or
verification, except as specified.
(iii) The opinion, dated as of such date, of Brown & Wood LLP,
special counsel to the Company, to the effect that the statements set forth
under the caption "United States Federal Taxation" in the Prospectus
Supplement and under the caption "Limitations on Issuance of Bearer Securities
and Bearer Debt Warrants" in the Basic Prospectus, insofar as such statements
relate to statements of law or legal conclusions under the laws of the United
States or matters of United States law, fairly present the information called
for and fairly summarize the matters referred to therein.
The opinion of Brown & Wood LLP described in paragraph (b)(iii)
above and in paragraph (b)(i) above, if such opinion is given by Brown & Wood
LLP, shall be rendered to you at the request of the Company and shall so state
therein.
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the
effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or
letters, dated as of the Commencement Date or such Settlement Date, as the
case may be, in form and substance satisfactory to you containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
(f) On the Commencement Date, application to list the Series D
Notes and Series D Units on the London Stock Exchange shall have been made
and, prior to the issuance of the first Series D Note or Series D Unit, such
listing shall have been granted, subject to official notice of issuance.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than
by an amendment or supplement providing solely for (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in the
case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement
date or purchase or sale price of an underlying Purchase Contract or (iii) a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be,
in form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a) (other than any amendment or supplement to the Registration
Statement or Prospectus caused by the filing of a Current Report on Form 8-K
unless you shall reasonably request based on disclosure included or omitted
form such Report), the Company will furnish or cause to be furnished forthwith
to you a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall
be in a form satisfactory to you and shall be of the same tenor as the
opinions referred to in Section 4(b), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to you may furnish to you a letter to the effect
that you may rely on such last opinion to the same extent as though it were
dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented to the
date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person, if any, who controls you
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by you or any such controlling person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you
expressly for use in the Registration Statement or the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you, in the
case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b) above.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein in connection with any offering of Program Securities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and you on the other hand
from the offering of such Program Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand
and you on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and you on the other hand in connection with the
offering of such Program Securities shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Program Securities (before deducting expenses) received by the Company bear to
the total discounts and commissions received by you in respect thereof. The
relative fault of the Company on the one hand and of you on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, you shall not be required to contribute any
amount in excess of the amount by which the total price at which the Program
Securities referred to in paragraph (d) above that were offered and sold to
the public through you exceeds the amount of any damages that you have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain in full force and effect
regardless of (i) any termination of this Agreement or any such Notes Terms
Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company
and agree with respect to the Program Securities that:
(a) (i) you have not (A) offered or sold and during the
Restricted Period (as defined below) will not offer or sell Bearer
Notes (whether offered alone or as part of a Unit) (including any
Note that is exchangeable for Bearer Notes) directly or indirectly in
the United States (as defined below) or to or for the account of any
United States person (as defined below), other than to a Qualifying
Foreign Branch (as defined below) or to certain other persons as
provided under United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(1)(iii)(B) and (C); and (B) delivered and will not
deliver within the United States definitive Bearer Notes that are sold
during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have,
in effect procedures reasonably designed to ensure that your employees
or agents who are directly engaged in selling Bearer Notes (whether
offered alone or as part of a Unit) are aware that such Bearer Notes
may not be offered or sold during the Restricted Period to a person
who is within the United States or to a United States person, except
as permitted by Section 7(a)(i)(A) above;
(iii) if you are a United States person, you are acquiring the
Bearer Notes (whether offered alone or as part of a Unit) for purposes
of resale in connection with their original issuance and if you retain
Bearer Notes for your own account, you will only do so in accordance
with the requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether
offered alone or as part of a Unit) for the purpose of offering or
selling such Bearer Notes during the Restricted Period, you will
either (A) obtain from such affiliate for the benefit of the Company
the representations and agreements contained in clauses (i), (ii) and
(iii) above or (B) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it; and
(v) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii)
and (iv) above from any person other than your affiliate with whom you
enter into a written contract, within the meaning of United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the offer or
sale during the Restricted Period of Bearer Notes (whether offered
alone or as part of a Unit).
For purposes of this Section 7(a), an offer or sale will be
considered to be made in the United States if the offeror or seller of such
Notes (whether offered alone or as part of a Unit) has an address within the
United States for the offeree or purchaser of such Notes with respect to the
offer or sale. As used in this Section 7(a), "United States person" means a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source,
"United States" means the United States (including the States and the District
of Columbia), its territories, its possessions and any other areas subject to
its jurisdiction; "Qualifying Foreign Branch" means a branch of a United
States financial institution, as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v), located outside the United States that is
purchasing for its own account or for resale and that has agreed, as a
condition to purchase, to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations thereunder; and "Restricted
Period" with respect to each issuance means the period which begins on the
earlier of the date on which the Company receives the proceeds of the sale of
Notes with respect to such issuance or the first date on which the Notes are
offered to persons other than you, and which ends 40 days after the date on
which the Company receives the proceeds of the sale of such Notes; provided
that with respect to a Note held as part of an unsold allotment or
subscription, any offer or sale of such Note by the Company or you shall be
deemed to be during the Restricted Period.
(b) (i) In relation to Program Securities which have a maturity of
one year or more and which are to be listed on the London Stock Exchange, you
have not offered or sold and will not offer or sell any Program Securities to
persons in the United Kingdom prior to admission of such Program Securities
to listing in accordance with Part IV of the Financial Services Act 1986 (the
"Act"), except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 or the
Act; (ii) in relation to Program Securities which have a maturity of one year
or more and which are not to be listed on the London Stock Exchange, you have
not offered or sold and, prior to the expiry of the period of six months from
the date of issue of such Program Securities, will not offer or sell any such
Program Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (iii) you have complied with and will
comply with all applicable provisions of the Act with respect to anything done
by you in relation to the Program Securities in, from or otherwise involving
the United Kingdom; and (iv) you have only issued or passed on and will only
issue or pass on in the United Kingdom any document received by you in
connection with the issue of the Program Securities, other than any document
which consists of or any part of listing particulars, supplementary listing
particulars or any other document required or permitted to be published by the
listing rules under Part IV of the Act, to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom
such document may otherwise lawfully be issued or passed on.
(c) You will not offer or sell any Program Securities in any
jurisdiction if such offer or sale would not be in compliance with any
applicable law or regulation or if any consent, approval or permission is
needed for such offer or sale by you or for or on behalf of the Company unless
such consent, approval or permission has been previously obtained. Without
prejudice to the provisions of this Section 7 above and subject to the
obligations of the Company set forth in Section 3 of this Agreement, the
Company shall have no responsibility for, and you will obtain, any consent,
approval or permission required by you for the subscription, offer, sale or
delivery by you of Program Securities under the laws and regulations in force
in any jurisdiction to which you are subject or in or from which you make any
subscription, offer, sale or delivery.
(d) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan including any
corporation or other entity organized under the laws of Japan) or to others for
the re-offering or re-sale, directly or indirectly, in Japan or to a resident
of Japan except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with, the Securities and Exchange Law of Japan and
other relevant laws and regulations of Japan.
(e) You will not offer and sell any Program Securities in the
Federal Republic of Germany other than in compliance with the provisions of the
German Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of December
13, 1990, as amended, and of any other laws applicable in the Federal Republic
of Germany governing the issue, offering and sale of securities.
(f) You will not offer and sell any Program Securities denominated
or payable in or indexed to Swiss Francs other than in compliance with Swiss
law and the regulations of the Swiss National Bank in effect from time to
time.
(g) You will not offer and sell any Notes or Units denominated or
payable in or indexed to French Francs (in the case of Notes, "French Franc
Notes" and, in the case of Units, "French Franc Units") other than in
compliance with French law, including, without limitation, the marche de
l'eurofranc from time to time of the Comite des Emissions de Bourse ("French
EuroFranc Regulations"). Unless otherwise authorized pursuant to French law,
including, without limitation, the French EuroFranc Regulations, you agree
that French Franc Notes and French Franc Units will be issued outside the
Republic of France and that, in connection with their initial distribution,
you will not offer or sell, directly or indirectly, any French Franc Notes or
French Franc Units to the public in the Republic of France, and will not
distribute or cause to be distributed to the public in the Republic of France
the Prospectus or any other offering material relating to French Franc Notes
or French Franc Units.
8. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had
such sale been consummated.
9. Termination. This Agreement may be terminated at any time
either by the Company or by you upon the giving of written notice of such
termination to the other parties hereto, but without prejudice to any rights,
obligations or liabilities of the other parties hereto accrued or incurred
prior to such termination. The termination of this Agreement shall not require
termination of any Notes Terms Agreement or Units Terms Agreement, and the
termination of any such Notes Terms Agreement or Units Terms Agreement shall
not require termination of this Agreement. If this Agreement is terminated,
the provisions of the third paragraph of Section 2(a), the last sentence of
Section 3(b) and Sections 3(c), 3(g), 6, 7, 8, 11 and 13 shall survive;
provided that if at the time of termination an offer to purchase Program
Securities has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Program Securities has not occurred, the
provisions of Sections 1, 2(b), 2(c), 3(a), 3(b), 3(e), 3(f), 3(h), 4 and 5
shall also survive until such delivery has been made.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Morgan Stanley & Co. International
Limited, will be mailed, delivered or telefaxed and confirmed to (a) Morgan
Stanley & Co. International Limited at 25 Cabot Square, Canary Wharf, London
E14 4QA, England, to the attention of Capital Markets - Debt Syndicate
(Telephone No.: 011-44-71-425-7750; Telecopy No.: 011-44-71-425-7999), (b)
Morgan Stanley Bank AG, Rahmhofstrasse 2-4, 60313 Frankfurt am Main, Federal
Republic of Germany to the attention of Ron Lenihan (Telephone No.:
011-49-69-152-060; Telecopy No.: 011-49-69-597-6627), (c) Morgan Stanley S.A.,
25 rue Balzac, 75008 Paris, France to the attention of Debt Capital Markets
(Telephone No.: 011-33-1-5377-7879 or 7300; Telecopy No.:
011-33-1-5377-7899), (d) Bank Morgan Stanley AG, Bahnhofstrasse 92-3rd Floor,
Ch-8023, Zurich, Switzerland, to the attention of John Webley (Telephone No.
011-41-1-220-9111; Telecopy No. 011-41-1-220-9800) or (e) Dean Witter
International Ltd. [address to come], to the attention of [ ]
(Telephone No. [ ]; Telecopy [ ]) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1585 Broadway, New York, New York 10036, Attention: Secretary.
11. Successors. This Agreement and any Notes Terms Agreement or
Units Terms Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
MORGAN STANLEY, DISCOVER &
CO., DEAN WITTER
By:________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
DEAN WITTER INTERNATIONAL LTD.
By:________________________________
Name:
Title:
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
MORGAN STANLEY BANK AG
By:________________________________
Name:
Title:
MORGAN STANLEY S.A.
By:________________________________
Name:
Title:
BANK MORGAN STANLEY AG
By:________________________________
Name:
Title:
EXHIBIT A
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated June 2, 1997
(the "Euro Distribution Agreement")
----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term
Notes, Series [D/E], having the following terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ________________.
[DEAN WITTER INTERNATIONAL LTD.]
By:_______________________________
Name:
Title:
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
By:_______________________________
Name:
Title:
[MORGAN STANLEY BANK AG]
By:_______________________________
Name:
Title:
[MORGAN STANLEY S.A.]
By:_______________________________
Name:
Title:
[BANK MORGAN STANLEY AG]
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_______________________________
Name:
Title:
EXHIBIT A-1
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated June 2, 1997 (the
"Euro Distribution Agreement")
---------------------------------------------------
The undersigned agrees to purchase your Global Units, Series
[D/E], [specified designation] having the following terms:
---------
(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
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same force
and effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ___________.
[DEAN WITTER INTERNATIONAL
LTD.]
By:_______________________________
Name:
Title:
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
By:_______________________________
Name:
Title:
[MORGAN STANLEY BANK AG]
By:_______________________________
Name:
Title:
[MORGAN STANLEY S.A.]
By:_______________________________
Name:
Title:
[BANK MORGAN STANLEY AG]
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_______________________________
Name:
Title:
EXHIBIT B
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
GLOBAL UNITS, SERIES D AND SERIES E
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific
terms of the offering of (i) Global Medium-Term Notes, Series D (the "Series D
Notes"), (ii) Global Medium-Term Notes, Series E (the "Series E Notes" and
together with the Series D Notes, the "Notes"), (iii) Global Units, Series D
(the "Series D Units") and (iv) Global Units, Series E (the "Series E Units"
and together with the Series D Units, the "Units", and the Units together with
the Notes, the "Program Securities"), on a continuous basis by Morgan Stanley,
Dean Witter, Discover & Co. (the "Company") pursuant to the Euro Distribution
Agreement dated June ___, 1997 (the "Distribution Agreement") among the
Company, Dean Witter International Ltd., Morgan Stanley & Co. International
Limited, Morgan Stanley Bank AG, Morgan Stanley S.A. and Bank Morgan Stanley AG
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, in registered form without
coupons ("Registered Notes"), in bearer form with or without coupons ("Bearer
Notes") or in any combination of Registered Notes and Bearer Notes. The Units
may be issued in registered form ("Registered Units"), in bearer form ("Bearer
Units") or in any combination of Registered Units and Bearer Units. The
securities comprised by a Unit will be issued in the same form as such Unit.
Bearer Notes and Bearer Units initially will be represented by, in the case of
Bearer Notes, a Temporary Global Note and, in the case of Bearer Units, a
Temporary Global Unit. Such Temporary Global Note and Temporary Global Unit
will subsequently be represented by, in the case of the Temporary Global Note,
a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Interests in a Permanent Global Note may be exchanged,
in whole, for individual definitive Bearer Notes. Definitive Bearer Notes may
be exchanged, if the applicable Pricing Supplement so specifies, in whole or
in part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive
Bearer Units may be exchanged, if the applicable Pricing Supplement so
specifies, in whole or in part, for Registered Units.
The Notes may be issued as senior indebtedness (the "Senior
Notes") or subordinated indebtedness (the "Subordinated Notes") of the
Company, and as used herein the term "Notes" includes the Senior Notes and the
Subordinated Notes. The Senior Notes will be issued pursuant to the
provisions of a senior indenture dated as of April 15, 1989 (as supplemented
by a first supplemental senior indenture dated as of May 15, 1991, a second
supplemental senior indenture dated as of April 15, 1996, a third supplemental
senior indenture dated as of June 1, 1997 and as it may be further
supplemented or amended from time to time, the "Senior Debt Indenture"),
between the Company and The Chase Manhattan Bank (formerly known as Chemical
Bank) ("Chase"), as trustee. The Subordinated Notes will be issued pursuant
to the provisions of a subordinated indenture dated as of April 15, 1989 (as
supplemented by a first supplemental subordinated indenture dated as of May
15, 1991, a second supplemental subordinated indenture dated as of April 15,
1996, a third supplemental subordinated indenture dated as of June 1, 1997 and
as it may be further supplemented or amended from time to time, the
"Subordinated Debt Indenture"), between the Company and The First National
Bank of Chicago, as trustee. The Senior Debt Indenture and the Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures."
The Units will be issued pursuant to the Unit Agreement dated as
of June 2, 1997 (the "Unit Agreement") among the Company, Chase, as Unit
Agent, as Collateral Agent, as Trustee and Paying Agent under the Senior Debt
Indenture, and as Warrant Agent under the Universal Warrant Agreement dated as
of June 2, 1997 between the Company and Chase, as Warrant Agent (the "Universal
Warrant Agreement"), and the holders from time to time of the Units. Units may
include, one or more (i) Senior Notes, (ii) warrants ("Universal Warrants")
entitling the holders thereof to purchase or sell (a) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (b) currencies or
composite currencies or (c) commodities, (iii) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (a) securities
of an entity unaffiliated with the Company, a basket of such securities, an
index or indices of such securities or any combination of the above, (b)
currencies or composite currencies or (c) commodities or (iv) any combination
thereof. The applicable Pricing Supplement will specify whether or not the
Notes, Universal Warrants and Purchase Contracts comprised by a Unit may or
may not be separated from the Unit. Universal Warrants issued as part of a
Unit will be issued pursuant to the Universal Warrant Agreement. Purchase
Contracts entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use
reasonable efforts to solicit purchases of the Program Securities, and the
administrative procedures explained below will govern the issuance and
settlement of any Program Securities sold through the Agent, as agent of the
Company. The Agent, as principal, may also purchase Program Securities for
its own account, and if requested by the Agent, the Company and the Agent will
enter into a terms agreement (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement"), as contemplated by the
Distribution Agreement. The administrative procedures explained below will
govern the issuance and settlement of any Program Securities purchased by the
Agent, as principal, unless otherwise specified in the applicable Notes Terms
Agreement or Units Terms Agreement.
Chase has initially been appointed the (i) Calculation Agent,
Authenticating Agent and Principal Paying Agent for the Notes, (ii) the Unit
Agent for the Units, (iii) the Warrant Agent for the Universal Warrants and
(iv) the Registrar for the Registered Notes, and will perform the duties
specified herein. As used herein, the term "Principal Paying Agent" shall
mean Chase acting through its London office in connection with the
authentication and delivery of the Notes, whether issued alone or as part of a
Unit, pursuant to the terms of the Indentures and the term "Unit Agent" shall
mean Chase acting through its London office in connection with the completion
and delivery of the Units (including, as applicable, countersigning and
delivering any Universal Warrants, as Warrant Agent, and countersigning,
executing and delivering any Purchase Contracts, as Unit Agent, includable in
such Unit), pursuant to the terms of the Unit Agreement. "Warrant Agent"
shall mean Chase acting through its London office. The Series D Notes and the
Series D Units are intended to be listed on The London Stock Exchange Limited
(the "London Stock Exchange"). Application may, in certain circumstances
described in the Prospectus Supplement relating to the Notes and the Units
(the "Prospectus Supplement"), be made to list Series D Notes and Series D
Units on the Bourse de Paris (the "Paris Bourse"). The Series E Notes and the
Series E Units will not be listed on any stock exchange. The Company has
appointed Morgan Stanley & Co. International Limited as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the London
Stock Exchange and has appointed Morgan Stanley S.A. as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the Paris
Bourse.
Each Bearer Note and each Bearer Unit (including each security
comprised by such Bearer Unit) initially will be represented by, in the case
of a Bearer Note, a Temporary Global Note and, in the case of a Bearer Unit, a
Temporary Global Unit, each of which will be delivered to a common depositary
located outside the United States (the "Depositary") for Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System (the
"Euroclear Operator"), Cedel Bank, societe anonyme ("Cedel Bank") and/or any
other relevant clearing system (including Societe Interprofessionalle pour la
Compensation des Valeures Mobilieres ("SICOVAM")). Such Temporary Global Note
and Temporary Global Unit will subsequently be represented by, in the case of
the Temporary Global Note, a Permanent Global Note and, in the case of the
Temporary Global Unit, a Permanent Global Unit. The first request by any
beneficial owner to exchange any interest in a Permanent Global Note to a
definitive Bearer Note shall result in the exchange of all (and not less than
all) interests in such Permanent Global Note for definitive Bearer Notes;
provided that, if the applicable Pricing Supplement so specifies, nothing
herein shall prevent the further exchange of definitive Bearer Notes for
Registered Notes. The first request by any beneficial owner to exchange any
interest in a Permanent Global Unit to a definitive Bearer Unit shall result
in the exchange of all (and not less than all) interests in such Permanent
Global Unit for definitive Bearer Units; provided that, if the applicable
Pricing Supplement so specifies, nothing herein shall prevent the further
exchange of definitive Bearer Units for Registered Units.
Unless otherwise defined herein, terms defined in the Indentures,
the Unit Agreement, the Universal Warrant Agreement, the Notes, the Units, the
Universal Warrants, the Purchase Contracts or any Prospectus Supplement
relating to the Program Securities shall be used herein as therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase
Program Securities, and the related settlement details.
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether issued
alone or as part of a Unit, will be dated as of
its Original Issue Date. Each Bearer Note will
bear an Original Issue Date, which will be (i)
with respect to a Temporary Global Note (or any
portion thereof), the date of its original
issue as specified in such Temporary Global
Note or (ii) with respect to any Permanent
Global Note or any definitive Bearer Note (or
any portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in
lieu of a destroyed, lost or stolen Bearer Note
(a "Replacement Bearer Note"), the Original
Issue Date of the predecessor Bearer Note,
regardless of the date of authentication of
such subsequently issued Bearer Note.
Registered Notes. Each Registered Note,
whether issued alone or as part of a Unit, will
be dated as of the date of its authentication
by Chase. Each Registered Note will also bear
an Original Issue Date, which will be (i) with
respect to an original Registered Note (an
"Original Registered Note") (or any portion
thereof), its original issuance date (which
will be the settlement date) and (ii) with
respect to any Registered Note (or portion
thereof) issued subsequently upon transfer or
exchange of a Registered Note or in lieu of a
destroyed, lost or stolen Registered Note (a
"Replacement Registered Note"), the original
issuance date of the predecessor Registered
Note, regardless of the date of authentication
of such subsequently issued Registered Note.
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form) will
be [deemed to be] dated as of the Original
Issue Date of the Bearer Note comprised by such
Unit in accordance with the procedures
described above.
Registered Units. Each Registered Unit will be
[deemed to be] dated as of the Original Issue
Date of the Registered Note comprised by such
Unit in accordance with the procedures
described above.
Denominations: Bearer Notes. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Notes,
whether issued alone or as part of a Unit, will
be issued only in denominations of $1,000 (or,
in the case of Bearer Notes not denominated in
U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or any
amount in excess thereof which is an integral
multiple of $1,000 (or, in the case of Bearer
Notes not denominated in U.S. dollars, 1,000
units of the Specified Currency).
Registered Notes. Unless otherwise specified
in the applicable Pricing Supplement,
Registered Notes will be issued, either alone
or as part of a Unit, only in denominations of
$1,000 (or, in the case of Registered Notes not
denominated in U.S. dollars, the equivalent
thereof in the Specified Currency, rounded to
the nearest 1,000 units of the Specified
Currency) or any amount in excess thereof which
is an integral multiple of $1,000 (or, in the
case of Registered Notes not denominated in
U.S. dollars, 1,000 units of the Specified
Currency).
Bearer Units. Unless otherwise specified in
the applicable Pricing Supplement, Bearer Units
will be issued only in denominations of a
single Unit and any integral multiple thereof,
with face amounts in denominations as indicated
in the applicable Pricing Supplement, generally
corresponding to the denominations of the Notes
comprised by such Units.
Registered Units. Unless otherwise specified
in the applicable Pricing Supplement,
Registered Units will be issued only in
denominations of a single Unit and any integral
multiple thereof, with face amounts in
denominations as indicated in the applicable
Pricing Supplement, generally corresponding to
the denominations of the Notes comprised by
such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined below) with
respect to an issuance of Bearer Notes has
occurred, such Notes, together with all other
Bearer Notes that have the same terms (other
than their respective principal amounts) (all
such Notes herein referred to collectively as a
"Note Tranche"), will be represented by a
single Temporary Global Note in bearer form
without interest coupons. The Company shall
execute, and upon Company instructions the
Principal Paying Agent shall complete and
authenticate, such Temporary Global Note upon
the same conditions and in substantially the
same manner, and with the same effect, as an
individual definitive Bearer Note. On or prior
to the settlement date (which will normally be
the Original Issue Date) with respect to such
Notes, the Principal Paying Agent shall deposit
the Temporary Global Note with the Depositary
in the manner specified below under "Settlement
Procedures; Bearer Notes and Bearer Units".
The interest of each beneficial owner of Notes
represented by such Temporary Global Note will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
On or after the date (the "Exchange Date") that
is the 40th day following the date on which the
Company receives the proceeds of the sale of a
Temporary Global Note (the "Closing Date"), or
if such Note is held by the Agent as part of an
unsold allotment or subscription more than 40
days after the Closing Date for such Note, on
or after the day after the date such Note is
sold by the Agent, all as notified by the Agent
in writing to Chase, the interest of the
beneficial owners of the Notes represented by
the Temporary Global Note shall be canceled and
such interests shall thereafter be represented
by a Permanent Global Note in bearer form
without interest coupons held in London by the
Depositary; provided that Final Certification
(as described below) has occurred. The
interest of each beneficial owner of Notes
represented by such Permanent Global Note will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
The beneficial owner of an interest in a
Permanent Global Note may, at any time, upon 30
days' written notice to the Principal Paying
Agent given by such beneficial owner through
either Cedel Bank, the Euroclear Operator or
any other relevant clearing system, as the case
may be, exchange its beneficial interest in
such Permanent Global Note for one or more
definitive Bearer Notes with coupons attached,
if appropriate, or, if the applicable Pricing
Supplement so specifies, one or more Registered
Notes in authorized denominations equal in
aggregate principal amount to such beneficial
interest; provided that a request by any
beneficial owner to exchange any interest in a
Permanent Global Note for a definitive Bearer
Note shall result in the exchange of all (and
not less than all) interests in such Permanent
Global Note for definitive Bearer Notes;
provided further, that, if the applicable
Pricing Supplement so specifies, nothing herein
shall prevent the further exchange of
definitive Bearer Notes for Registered Notes.
To effect such exchange, the interest of such
beneficial owner in such Permanent Global Note
shall be canceled and one or more definitive
Bearer Notes or Registered Notes, as the case
may be, shall be issued to such beneficial
owner, through the Euroclear Operator or Cedel
Bank or any other relevant clearing system, as
the case may be.
In all events, Bearer Notes and coupons will be
delivered by the Principal Paying Agent only
outside the United States.
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined below) has
occurred with respect to an issuance of Bearer
Notes included in an issuance of Bearer Units,
such Units, together with all other Bearer
Units that include securities that have the
same terms (other than their respective number
and face amounts) (all such Units herein
referred to collectively as a "Unit Tranche"),
will be represented by a single Temporary
Global Unit in bearer form (which form shall
include the corresponding temporary global
forms of each security comprised by such Unit).
The Company shall execute, and upon Company
instructions, Chase, as Unit Agent, shall
complete such Temporary Global Unit (including,
as applicable, authenticating any Temporary
Global Note, as Principal Paying Agent,
countersigning and delivering any Universal
Warrants, as Warrant Agent, and countersigning,
executing and delivering any Purchase
Contracts, as Unit Agent, includable in such
Unit) upon the same conditions and in
substantially the same manner, and with the
same effect, as an individual definitive Bearer
Unit. On or prior to the settlement date
(which will normally be the Original Issue Date
of the Notes comprised by a Unit) with respect
to such Units, the Unit Agent shall deposit the
Temporary Global Unit (with the corresponding
temporary global forms of each security
comprised by such Unit) with the Depositary in
the manner specified below under "Settlement
Procedures; Bearer Notes and Bearer Units".
The interest of each beneficial owner of Units
represented by such Temporary Global Unit will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
On or after the Exchange Date of the Temporary
Global Note comprised by a Temporary Global
Unit, the interest of the beneficial owners of
the Units represented by the Temporary Global
Unit shall be canceled and such interests shall
thereafter be represented by a Permanent Global
Unit in bearer form (with the corresponding
temporary global forms of each security
comprised by such Unit) held in London by the
Depositary; provided that Final Certification
(as described below) of the Notes comprised by
such Unit has occurred. The interest of each
beneficial owner of Units represented by such
Permanent Global Unit will be credited to the
appropriate account with Cedel Bank, the
Euroclear Operator or any other relevant
clearing system.
The beneficial owner of an interest in a
Permanent Global Unit may, at any time, upon 30
days' written notice to the Unit Agent given by
such beneficial owner through either Cedel
Bank, the Euroclear Operator or any other
relevant clearing system, as the case may be,
exchange its beneficial interest in such
Permanent Global Unit for one or more
definitive Bearer Units or, if the applicable
Pricing Supplement so specifies, one or more
Registered Units in authorized denominations
equal in aggregate number and aggregate face
amount to such beneficial interest; provided
that a request by any beneficial owner to
exchange any interest in a Permanent Global
Unit for a definitive Bearer Unit shall result
in the exchange of all (and not less than all)
interests in such Permanent Global Unit for
definitive Bearer Units; provided further,
that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the
further exchange of definitive Bearer Units for
Registered Units. To effect such exchange, the
interest of such beneficial owner in such
Permanent Global Unit shall be canceled and one
or more definitive Bearer Units or Registered
Units, as the case may be, shall be issued to
such beneficial owner, through the Euroclear
Operator or Cedel Bank or any other relevant
clearing system, as the case may be.
In all events, Bearer Units will be delivered
by the Unit Agent only outside the United
States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part
of a Unit) purchased in connection with
their original issuance by or on behalf of
a U.S. Person (as defined in the
Distribution Agreement) (other than a
branch of a United States financial
institution (as defined in United States
Treasury Regulation Section
1.165-12(c)(1)(v)) located outside the
United States purchasing for its own
account or for resale (a "Qualifying
Foreign Branch") or other permitted U.S.
purchasers as provided in the Prospectus
Supplement that satisfies the conditions
for receiving Bearer Notes as described
under "Final Certification" below) will be
issued only as Registered Notes and any
Units comprising such Notes will be issued
only as Registered Units.
Final Certification: Final Certification with respect to a
Temporary Global Note (whether issued
alone or as part of a Unit) shall mean the
delivery by the Euroclear Operator, Cedel
Bank or any other relevant clearing
system, as the case may be, to the
Principal Paying Agent of a signed
certificate (each a "Clearance System
Certificate") in the form set forth in
Appendix 1 hereto with respect to the
Notes being exchanged, dated no earlier
than the Exchange Date for such Notes, to
the effect that the Euroclear Operator,
Cedel Bank or any other relevant clearing
system, as the case may be, has received
certificates in writing, by tested telex
or by electronic transmission from the
account holders appearing on its records
as entitled to such Notes ("Ownership
Certificates") in the form set forth in
Appendix 2 hereto with respect to each of
such Notes, which Ownership Certificates
shall be dated no earlier than ten days
before the Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Program Security, will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act and will, as soon as
possible and in any event not later than the
date on which such Pricing Supplement is filed
with the Commission, deliver the number of
copies of such Pricing Supplement to the Agent
as the Agent shall request. The Agent will
cause such Pricing Supplement to be delivered
to the purchaser of the Program Security.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for (i) the
delivery of an authenticated Temporary Global
Note or a Temporary Global Unit (including each
security comprised by such Unit) to the
Depositary in the manner described in
"Settlement Procedures; Bearer Notes and
Bearer Units" below or (ii) the delivery of an
authenticated Registered Note or a Registered
Unit (including each security comprised by such
Unit) to the Agent shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be
settled on the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another day, which shall be no
earlier than the next Business Day.
Settlement
Procedures;
Bearer Notes
and Bearer Units: Procedures with regard to each Bearer Note or
Bearer Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms
Agreement) shall be as follows:
A. In the case of a Bearer Note
(whether issued alone or as part of
a Unit), the Agent will advise the
Company by telephone that such Note,
is initially a Bearer Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate Bearer
Note, whether such Note is an
Amortizing Note, and, if so, the
amortization schedule, or, in the
case of a Floating Rate Bearer Note,
the Initial Interest Rate (if known
at such time), Interest Payment
Period, Calculation Agent, Base Rate,
Index Maturity, Index Currency,
Interest Reset Period, Initial
Interest Reset Date, Interest Reset
Dates, Spread or Spread Multiplier
(if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread
(if any).
5. Redemption or repayment provisions
(if any).
6. Ranking.
7. Settlement date and time (Original
Issue Date).
8. Interest Accrual Date.
9. Price.
10. Agent's commission (if any) determined
as provided in the Distribution
Agreement.
11. Specified Currency.
12. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and
if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual period
OID and the applicability of
Modified Payment upon Acceleration
(and, if so, the Issue Price).
13. Agent's account number at Cedel Bank,
the Euroclear Operator or any other
relevant clearing system.
14. Whether such Note is a Series D Note
or a Series E Note.
15. Any other applicable provisions.
B. In the case of a Bearer Unit, the
Agent will advise the Company by
telephone that such Unit is initially
a Bearer Unit, of the information
set forth in "Settlement Procedures;
Bearer Notes and Bearer Units" "A"
above with respect to Bearer Notes
that constitute a part of such
Bearer Unit and of the following
information:
1. Settlement date and time.
2. Number of Units (and Face Amount).
3. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
4. Designation of the Securities
comprised by such Units:
a. Notes (See "Settlement
Procedures; Bearer Notes
and Bearer Units" "A" );
b. Universal Warrants, if
any; and
c. Purchase Contracts, if any.
5. Any other provisions applicable to
the Unit (other than those provisions
applicable to the securities comprised
by such Unit).
6. If the Bearer Unit comprises Bearer
Universal Warrants:
a. Designation of the Series of
Universal Warrants: [Call]
[Put] Universal Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise
Price;
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by any
holder on any day;
j. Maximum number of Universal
Warrants exercisable on any
day: [In the aggregate] [By
any beneficial owner];
k. Formula for determining Cash
Settlement Value;
l. Exchange Rate (or method of
calculation); and
m. Any other applicable provisions.
7. If the Bearer Unit comprises Bearer
Purchase Contracts:
a. Purchase Contract
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
C. The Company will advise Chase as the
Principal Paying Agent for the Notes or
as the Unit Agent for the Units by
telephone or electronic transmission
(confirmed in writing at any time on the
same date) of the information set forth
in "Settlement Procedures; Bearer Notes
and Bearer Units" "A" or "B", above, as
applicable, and shall give the Principal
Paying Agent or the Unit Agent, as the
case may be, written instructions
(substantially in the form set out in
Appendix 3 and Appendix 4, as applicable)
to prepare a Temporary Global Note for
each Note Tranche or a Temporary Global
Unit (with the corresponding temporary
global forms of each security comprised
by such Unit) for each Unit Tranche, as
the case may be, which the Company has
agreed to sell. The Company will send a
copy of such instructions to the Agent
and the relevant Trustee.
The Principal Paying Agent or the Unit Agent
shall telephone each of the Euroclear
Operator, Cedel Bank or any other
relevant clearing system with a request
for a security code for each Note Tranche
or Unit Tranche (and, if applicable, a
security code for each security comprised
by the Units of such Unit Tranche) agreed
to be issued and shall notify the Company
and the Agent of such security code or
codes as soon as practicable.
D. In accordance with instructions received
from the Company, (i) the Principal
Paying Agent shall authenticate and
deliver a Temporary Global Note for each
Note Tranche or Unit Tranche, as
applicable, which the Company has agreed
to sell and (ii) the Unit Agent shall
prepare a Temporary Global Unit for each
Unit Tranche for which the Company has
agreed to sell (including, as applicable,
by countersigning and delivering any
Universal Warrants includable in such
Unit, by countersigning, executing and
delivering and Purchase Contracts
includable in such Unit and by obtaining
from the Principal Paying Agent the Notes
to be included in such Units,
authenticated in accordance with clause
(i) above). The settlement of each of
the Note Tranche and the Unit Tranche is
to occur on the relevant settlement date.
All such Temporary Global Notes and all
such Temporary Global Units (including
all of the securities included in such
Units) will then be delivered to the
Depositary. The Principal Paying Agent
or the Unit Agent, as the case may be,
will also give instructions to the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to credit
the Notes or Units represented by such
Temporary Global Note or Temporary Global
Unit delivered to such Depositary to, in
the case of the Notes, the Principal
Paying Agent's distribution account and,
in the case of the Units, the Unit
Agent's distribution account, at the
Euroclear Operator, Cedel Bank or any
other relevant clearing system. At
settlement of any Note Tranche, the
Principal Paying Agent will instruct the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to debit,
on the settlement date, from the
distribution account of the Principal
Paying Agent the principal amount of
Notes of each Note Tranche, with respect
to which the Agent has solicited an offer
to purchase and to credit, on the
settlement date, such principal amount to
the account of the Agent with the
Euroclear Operator, Cedel Bank or any
other relevant clearing system against
payment of the purchase payment price of
such Notes. At settlement of any Unit
Tranche, the Unit Agent will instruct the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to debit,
on the settlement date, from the
distribution account of the Unit Agent
the number and face amount of Units of
each Unit Tranche, with respect to which
the Agent has solicited an offer to
purchase and to credit, on the settlement
date, such number and face amount to the
account of the Agent with the Euroclear
Operator, Cedel Bank or any other
relevant clearing system against payment
of the purchase payment price of such
Units. In the case of the Notes and the
Units, the Agent shall give corresponding
instructions to the Euroclear Operator,
Cedel Bank or any other relevant clearing
system.
E. The Euroclear Operator, Cedel Bank and any
other relevant clearing system shall
debit and credit accounts in accordance
with instructions received from the
Principal Paying Agent and the Agent, in
the case of Notes and the Unit Agent and
the Agent, in the case of Units.
Each of the Principal Paying Agent and
the Unit Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a
transfer of funds to the U.S. dollar
account of the Company with a bank in New
York City (or, with respect to Notes and
Units payable in a Specified Currency
other than U.S. dollars, to an account
maintained at a bank selected by the
Company, which bank shall be located
outside the United Kingdom in the case of
Notes and Units payable in a Specified
Currency other than pounds sterling that
mature not later than five years from and
including the date of issue thereof)
designated by the Company in writing.
Settlement Procedures
Timetable; Bearer Notes
and Bearer Units: For sales by the Company of Bearer Notes
or of Bearer Units to or through the
Agent, "Settlement Procedures; Bearer
Notes and Bearer Units" "A" through "E"
above shall be completed on or before the
respective times set forth below:
Settlement
Procedure;
Bearer Notes
and Bearer
Units Time
------------ ----
A 12:00 P.M. (NYC time) three days
before settlement date
B 12:00 P.M. (NYC time) three days
be fore settlement date
C 9:00 A.M. (London time) two days
before settlement date
D 3:45 P.M. (London time) one day
before settlement date
E 5:00 P.M. (NYC time) on
settlement date
Settlement Procedures;
Registered Notes and
Registered Units: Settlement Procedures with regard to
each Registered Note and Registered
Unit sold by the Company to or through
the Agent (unless otherwise specified
pursuant to a Notes Terms Agreement or
a Units Terms Agreement) shall be as
follows:
AA. In the case of a Registered Note
(whether issued alone or as part of a
Unit), the Agent will advise the
Company by telephone that such Note is
a Registered Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note
Owner").
2. Address of the Registered Note
Owner and address for payment of
principal and interest.
3. Taxpayer identification number
of the Registered Note Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate
Registered Note, the Interest
Rate, whether such Note is an
Amortizing Note and, if so, the
amortization schedule, or, in
the case of a Floating Rate
Registered Note, the Initial
Interest Rate (if known at
such time), Interest Payment
Period, Calculation Agent,
Base Rate, Index Maturity,
Index Currency, Interest
Reset Period, Initial
Interest Reset Date, Interest
Reset Dates, Spread or Spread
Multiplier (if any), Minimum
Interest Rate (if any),
Maximum Interest Rate (if
any) and the Alternate Rate
Event Spread (if any).
8. Redemption or repayment
provisions (if any).
9. Ranking.
10. Settlement date and time
(Original Issue Date).
11. Interest Accrual Date.
12. Price.
13. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note,
and if it is an OID Note, the
total amount of OID, the yield
to maturity, the initial accrual
period OID and the applicability
of Modified Payment upon
Acceleration (and if so, the
Issue Price).
17. Whether such Note is a Series D
Note or a Series E Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the
Agent will advise the Company by
telephone that such Unit is a
Registered Unit, of the information set
forth in "Settlement Procedures;
Registered Notes and Registered Units"
"A" above with respect to Registered
Notes that constitute a part of such
Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit
Owner").
2. Address of the Registered Unit
Owner.
3. Taxpayer identification number of
the Registered Unit Owner (if
available).
4. Denominations.
5. Settlement date and time.
6. Number of Units (and Face Amount).
7. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
8. Designation of the Securities
comprised by such Units:
a. Notes (See "Settlement
Procedures; Registered
Notes and Registered Units"
"A");
b. Universal Warrants, if any;
and
c. Purchase Contracts, if any.
9. Any other provisions applicable to
the Unit (other than those
provisions applicable to the
securities comprised by such
Unit).
10. If the Registered Unit comprises
Registered Universal Warrants:
a. Designation of the Series of
Universal Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise
Price;
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by
any holder on any day;
j. Maximum number of Universal
Warrants exercisable on any
day: [In the aggregate]
[By any beneficial owner];
k. Formula for determining
Cash Settlement Value;
l. Exchange Rate (or method
of calculation); and
m. Any other applicable
provisions.
11. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract Property:
Quantity;
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of Settlement
Payment;
h. Authorized Number of
Purchase Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable
provisions.
CC. The Company will advise Chase as
Principal Paying Agent for the Notes or
as Unit Agent for the Units, by
telephone or electronic transmission
(confirmed in writing at any time on
the same date) of the information set
forth in "Settlement Procedures;
Registered Notes and Registered Units"
"AA" and "BB" above, as applicable.
DD. The Company will have delivered to Chase
as Principal Paying Agent for the Notes,
or as Unit Agent for the Units, a
pre-printed four-ply packet for such
Note or such Unit, as the case may be,
which packet will contain the following
documents in forms that have been
approved by the Company, the Agent and
Chase, as Principal Paying Agent for the
Notes, or as Unit Agent for the Units:
1. Note or Unit, as the case may be,
with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. Chase will (i) authenticate and deliver
any Note (whether issued alone or as
part of a Unit) through the Principal
Paying Agent if necessary, with the
confirmation and Stubs One and Two to
the Agent, and (ii) complete and
deliver the Unit (including by
countersigning and delivering any
Universal Warrant includable in such
Unit, by countersigning, executing and
delivering any Purchase Contract
includable in such Unit and by obtaining
from the Principal Paying Agent the
Notes to be included in such Units,
authenticated in accordance with clause
(i) above) with the confirmation and
Stubs One and Two to the Agent. The
Agent will acknowledge receipt of the
Note or the Unit, as the case may be,
by stamping or otherwise marking Stub
One and returning it to Chase, through
the Principal Paying Agent, in the case
of the Notes, if necessary. Such
delivery will be made only against such
acknowledgment of receipt and evidence
that instructions have been given by the
Agent, with respect to Program
Securities denominated in U.S. dollars,
for payment to the account of the
Company at Chase, New York, New York
(or, with respect to Program Securities
payable in a Specified Currency other
than U.S. dollars, to an account
maintained at a bank selected by the
Company, which bank shall be located
outside the United Kingdom in the case
of Program Securities payable in a
Specified Currency other than pounds
sterling that mature not later than
five years from and including the date
of issue thereof), in immediately
available funds, of an amount equal to
the purchase price of such Program
Securities less the Agent's commission
(if any). In the event that the
instructions given by the Agent for
payment to the account of the Company
are revoked, the Company will as
promptly as possible wire transfer to
the account of the Agent an amount of
immediately available funds equal to the
amount of such payment made.
The Principal Paying Agent and the Unit
Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a
transfer of funds to the U.S. dollar
account of the Company with Chase in
New York City (or, with respect to
Program Securities payable in a
Specified Currency other than U.S.
dollars, to an account maintained at a
bank selected by the Company which bank
shall be located outside the United
Kingdom in the case of Program
Securities payable in a Specified
Currency other than pounds sterling
that mature not later than five years
including the date of issue thereof).
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will
deliver (with confirmation) such Program
Securities to the customer against
payment in immediately available funds.
The Agent will obtain the
acknowledgment of receipt of such
Program Securities by retaining Stub
Two.
GG. In the case of all Program Securities,
Chase will send Stub Three to the
Company by first-class mail.
Settlement Procedures
Timetable; Registered Notes
and Registered Units: For sales by the Company of Registered Notes
or Registered Units to or through the Agent,
"Settlement Procedures; Registered Notes and
Registered Units" "AA" through "GG" set forth
above shall be completed on or before the
respective times (London time) set forth
below:
Settlement
Procedure;
Registered
Notes
and
Registered
Units Time
---------- ----
AA 2:00 P.M. on second day before
settlement date
BB 2:00 P.M. on second day before
settlement date
CC 3:00 P.M. on second day before
settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
Failure to Settle: Bearer Notes and Bearer Units. If the Agent
shall have advanced its own funds for payment
against subsequent receipt of funds from the
purchaser and if a purchaser shall fail to
make payment for a Note or a Unit, the Agent
will promptly notify, in the case of a Note,
the Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator, Cedel
Bank and any other relevant clearing system,
and, in the case of the Unit, the Company,
the Unit Agent, the Depositary, and the
Euroclear Operator, Cedel Bank and any other
relevant clearing system, in each case by
telephone, promptly confirmed in writing (but
no later than the next Business Day). In
such event, the Company shall promptly
instruct the Principal Paying Agent, in the
case of the Note, and the Unit Agent, in the
case of the Unit, to cancel the purchaser's
interest in the appropriate Temporary Global
Note representing such Note or the
appropriate Temporary Global Unit representing
such Unit. Upon (i) confirmation from the
Principal Paying Agent or the Unit Agent in
writing (which may be given by telex or
telecopy) that the Principal Paying Agent or
the Unit Agent has canceled such purchaser's
interest in such Temporary Global Note or
Temporary Global Unit, as the case may be,
and (ii) confirmation from the Agent in
writing (which may be given by telex or
telecopy) that the Agent has not received
payment from the purchaser for the Note or
the Unit, the Company will promptly pay to
the Agent an amount in immediately available
funds equal to the amount previously paid by
the Agent in respect of such Bearer Note or
Bearer Unit. Such payment will be made on the
settlement date, if possible, and in any
event not later than 12 noon (New York City
time) on the Business Day following the
settlement date. The Principal Paying Agent
or the Unit Agent, as the case may be, and
the Depositary will make or cause to be made
such revisions to such Temporary Global Note
or Temporary Global Unit as are necessary to
reflect the cancellation of such portion of
such Temporary Global Note or Temporary
Global Unit.
If a purchaser shall fail to make payment for
the Note or Unit for any reason other than a
default by the Agent in the performance of
its obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for
the Agent's loss of the use of funds during
the period when they were credited to the
account of the Company, the Principal Paying
Agent or the Unit Agent, as applicable.
Immediately upon such cancellation, the
Principal Paying Agent or the Unit Agent, as
the case may be, will make appropriate
entries in its records to reflect the fact
that a settlement did not occur with respect
to such Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
Chase, as Registrar of the Registered Notes
or as Unit Agent, by telephone and return
such Note or Unit to Chase through the
Principal Paying Agent, in the case of the
Notes or the Unit Agent, in the case of the
Units, if necessary. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an
amount equal to the amount previously
credited to the Company's account in respect
of such Note or Unit. Such wire transfer
will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date.
If the failure shall have occurred for any
reason other than a default by the Agent in
the performance of its obligations hereunder
and under the Distribution Agreement, then
the Company will reimburse the Agent on an
equitable basis for its loss of the use of
the funds during the period when they were
credited to the account of the Company or
Chase. Immediately upon receipt of the
Registered Note or Registered Unit in respect
of which such failure occurred, Chase will
mark such Note or Unit "canceled," make
appropriate entries in Chase's records and
send such Note or Unit to the Company.
Notice of Issuance
London Stock Exchange: The Sponsoring Member Firm will provide
information with respect to the
issuance of each Series D Note and
Series D Unit to the London Stock
Exchange or the Paris Bourse, as the
case may be, and will advise the
Company in writing as to the
effectiveness of the listing of such
Series D Note and Series D Unit by the
close of business on the related
settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the London Stock Exchange or
the Paris Bourse, as the case may be with such
information regarding Series D Notes and
Series D Units issued and outstanding as such
exchange may require.
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDEL BANK AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley, Dean Witter, Discover & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof, [U.S.$]
__________ principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that are (a)
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) United States persons
who acquired the Securities through foreign branches of United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
U.S. Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, seeking to collect principal or
interest with respect to) any portion of the temporary global Security
representing the above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) that as of the date hereof we
have not received any notification from any of our Member Organizations to the
effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith (or, if relevant, with respect to
which principal or interest is being requested) are no longer true and cannot
be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________, 19__
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear
System]
[Cedel Bank S.A.]
[Other]
By:__________________________________
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR AND CEDEL BANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley, Dean Witter, Discover & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you
may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) are owned
by United States or foreign financial institution(s) for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) such financial
institution has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States
or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to [U.S.$]
__________ of such interest in the above Securities in respect of which we are
not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection
of any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________, 19__
[To be dated no earlier than
the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[Name of Account Holder]
By:__________________________________
(Authorized Signatory)
Name:
Title:
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
--------------------------------------------------
To: The Chase Manhattan Bank,
London Office
Attention: __________________________________
__________________________________
and with a copy to:
[The Chase Manhattan Bank, as Senior Debt Trustee]
[The First National Bank of Chicago, as
Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated June __, 1997
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro
Distribution Agreement and to give instructions to the Euroclear Operator,
Cedel Bank and/or any other relevant clearing system in order for you to:
(4) Credit account of [Name of Agent] with [Euroclear/Cedel
Bank/Other](5) with the following Bearer Notes:
----------
(4) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if
Bearer Notes of more than one Note Tranche are to be issued to an
Agent.
(5) Delete as appropriate.
against payment of [__________________].
Date:
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:__________________________________
__________________________________
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
--------------------------------------
To: The Chase Manhattan Bank,
Attention:__________________________________
__________________________________
Re: Euro Distribution Agreement
dated June __, 1997
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms
Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Cedel Bank and/or
any other relevant clearing system in order for you to:
* Credit account of [Name of Agent] with [Euroclear/Cedel
Bank/Other](2) with the following Bearer Units:
----------
(1) Separate instructions are to be sent in respect of each offer accepted by
the Company. Repeat this information (numbering consecutively)
if Bearer Units of more than one Unit Tranche are to be issued
to an Agent.
(2) Delete as appropriate.
Universal Warrants Purchase Contracts
Issued as Part of a Issued as Part of a
All Units: Unit: Unit:
---------------------- ----------------------- -------------------------
Principal Amount: Price: Price:
Purchase Price: Specified Currency or Settlement Date and
Composite Currency: Time:
Price to Public: Exercise Date: Buy or Sell:
Place of Delivery: Warrant Property: Purchase Contract
Property:
Specified Currency: Permitted Payment: Purchase or Sale Price:
Original Issue Date: Exercise Price:
Expiration Date: Specified Currency or
Composite Currency:
Put or Call: Permitted Payment:
against payment of [_________________].
Date:
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:__________________________________
__________________________________
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
$[ ],000,000,000
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
June , 1997
Dean Witter International Ltd.
Morgan Stanley & Co. International Limited
Morgan Stanley Bank AG
Morgan Stanley S.A.
Bank Morgan Stanley AG
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
England
Dear Sirs:
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (the "Company"), confirms its agreement with you with respect to
the issue and sale from time to time by the Company primarily outside the
United States of up to $[ ],000,000,000 (or the equivalent thereof in one or
more foreign currencies or composite currencies) aggregate initial public
offering price of its Global Medium-Term Notes, Series D and Series E, each
due more than 9 months from the date of issue (the "Notes") and, its Global
Units, Series D and Series E , (the "Units" and together with the Notes,
"Program Securities"), in each case subject to reduction as a result of the
sale of the Company's Global Medium-Term Notes, Series C and Global Units,
Series C, to be sold primarily inside the United States, and the sale of
certain of the Company's other debt securities, warrants, preferred stock,
purchase contracts and units. The Series D Notes are intended to be listed on
the London Stock Exchange Limited (the "London Stock Exchange") or on another
stock exchange or exchanges, if so required by Section 3(i) hereof.
Application may, in certain circumstances described in the Prospectus
Supplement (as defined below), be made to list Series D Units on the London
Stock Exchange. The Series E Notes and the Series E Units will not be listed
on any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior
Notes") or as subordinated indebtedness (the "Subordinated Notes") of the
Company. The Senior Notes will be issued, either alone or as part of a Unit,
pursuant to the provisions of a senior indenture dated as of April 15, 1989, as
supplemented by a first supplemental senior indenture dated as of May 15, 1991
and a second supplemental senior indenture dated as of April 15, 1996, each
between Morgan Stanley Group Inc. and The Chase Manhattan Bank (formerly known
as Chemical Bank), as trustee (the "Senior Debt Trustee") and a third
supplemental senior indenture (the "Third Supplemental Senior Indenture")
dated as of June 1, 1997 , between the Company (as successor to Morgan
Stanley) and the Senior Debt Trustee (as so supplemented and as may be further
supplemented or amended from time to time, the "Senior Debt Indenture"). The
Subordinated Notes will be issued pursuant to the provisions of a subordinated
indenture dated as of April 15, 1989, as supplemented by a first supplemental
subordinated indenture dated as of May 15, 1991 and a second supplemental
subordinated indenture dated as of April 15, 1996 , each between Morgan
Stanley and The First National Bank of Chicago, as trustee (the "Subordinated
Debt Trustee"), and a third supplemental subordinated indenture (the "Third
Supplemental Subordinated Indenture") dated as of June 1, 1997, between the
Company (as successor to Morgan Stanley) and the Subordinated Debt Trustee (as
so supplemented and as may be further supplemented or amended from time to
time, the "Subordinated Debt Indenture"). The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter referred
to individually as a "Trustee" and collectively as the "Trustees."
The Units will be issued pursuant to the Unit Agreement dated
as of June 2, 1997, among the Company, The Chase Manhattan Bank, as Unit
Agent, as Collateral Agent, as Trustee and Paying Agent under the Indenture
referred to therein, and as Warrant Agent under the Warrant Agreement referred
to therein and the holders from time to time of the Units described therein.
Units may include one or more (i) Senior Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies
or composite currencies or (c) commodities, (iii) purchase contracts
("Purchase Contracts") requiring the holders thereof to purchase or sell (a)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or composite currencies or (c) commodities or (iv) any
combination thereof. The applicable prospectus supplement will specify
whether Notes, Universal Warrants and Purchase Contracts comprised by a Unit
may or may not be separated from any series of Units. Universal Warrants
issued as part of a Unit will be issued pursuant to the Universal Warrant
Agreement dated as of June 2, 1997 (the "Universal Warrant Agreement"),
between the Company and The Chase Manhattan Bank, as Warrant Agent. Purchase
Contracts entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
The Notes whether issued, alone or as part of a Unit, will have
the maturities, interest rates, redemption provisions, if any, and other terms
as set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants issued as part of a Unit will have the exercise prices,
exercise dates, expiration dates and other terms as set forth in supplements
to the Basic Prospectus. The Purchase Contracts issued as part of a Unit will
have the closing dates, purchase or sale prices and other terms as set
forth in supplements to the Basic Prospectus. The Company has initially
appointed The Chase Manhattan Bank, London Branch, at its principal office
in London, as principal paying agent (the "Principal Paying Agent") for the
Notes.
The Notes will be issued in bearer form or in definitive
registered form without coupons (the "Registered Notes"), the Units will be
issued in bearer form or in definitive registered form (the "Registered
Units") and the securities included in a Unit will be in the form of such
Unit. The Notes and the Units, (the "Program Securities") issued in bearer
form will be represented initially by, in the case of the Notes, a temporary
global Note and, in the case of the Units, a temporary global Unit, each of
which will be delivered to a common depositary outside the United States for
the operator of the Euroclear System (the "Euroclear Operator") and Cedel
Bank, societe anonyme ("Cedel Bank"). Beneficial interests in a temporary
global Note or a temporary global Unit will be exchangeable for beneficial
interests in, in the case of a temporary global Note, a permanent global Note
and, in the case of a temporary global Unit, a permanent global Unit.
Beneficial interests in a permanent global Note will be exchangeable in whole,
but not in part, for definitive Notes in bearer form, with interest coupons
attached upon receipt of the Principal Paying Agent of an initial request to
so exchange by any holder of a beneficial interest in such permanent global
Note (such temporary global Note, permanent global Note and definitive Notes
in bearer form are collectively referred to as the "Bearer Notes"), or, if the
applicable Pricing Supplement so specifies, for Registered Notes. Beneficial
interests in a permanent global Unit (including an interest in the securities
included in such Unit) will be exchangeable in whole, but not in part, for
definitive Units in bearer form upon receipt of the Unit Agent of an initial
request to so exchange by any holder of a beneficial interest in such
permanent global Unit (such temporary global Unit, permanent global Unit and
definitive Units in bearer form are collectively referred to as the "Bearer
Units") or, if the applicable Pricing Supplement so specifies, for Registered
Units. As used in this Agreement, the term "Note" includes any temporary
global Note or permanent global Note issued pursuant to the Indentures and the
term "Unit" includes any temporary global Unit or permanent global Unit issued
pursuant to the Unit Agreement.
The Company hereby appoints you as its exclusive agents for the
purpose of soliciting and receiving offers to purchase Program Securities from
the Company by others and, on the basis of the representations and warranties
herein contained, but subject to the terms and conditions herein set forth,
you agree to use reasonable efforts to solicit and receive offers to purchase
Program Securities upon terms acceptable to the Company at such times and in
such amounts as the Company shall from time to time specify. In addition, you
may also purchase Program Securities as principal pursuant to the terms of a
terms agreement relating to such sale (in the case of Notes, a "Notes Terms
Agreement" and, in the case of Units, a "Units Terms Agreement") in accordance
with the provisions of Section 2(b) hereof. Program Securities denominated or
payable in Deutsche Marks may only be offered and sold by the Company through
Morgan Stanley Bank AG, the Deutsche Mark arranger, on an agency or principal
basis. Morgan Stanley Bank AG agrees to notify the German Central Bank at the
end of each month about the amounts, dates of issue and other terms of all
Program Securities denominated or payable in Deutsche Marks offered and sold
by Morgan Stanley Bank AG during the month in question. Program Securities
denominated or payable in French Francs may only be offered and sold by the
Company through Morgan Stanley S.A. on an agency or principal basis, and
Morgan Stanley S.A. agrees to notify the French Tresor prior to the issuance
of any such Program Securities. Program Securities denominated, payable in or
indexed to Swiss Francs may only be offered and sold by the Company through
Bank Morgan Stanley AG on an agency or principal basis, and Bank Morgan
Stanley AG agrees to notify the Swiss National Bank prior to the issuance of
any such Program Securities.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a
prospectus, relating to the Program Securities. Such registration statement,
including the exhibits thereto, as amended at the Commencement Date (as
hereinafter defined), is hereinafter referred to as the "Registration
Statement." The Company proposes to file with the Commission from time to
time, pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), supplements to the prospectus included in the Registration
Statement that will describe certain terms of the Program Securities. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus"
means the Basic Prospectus together with the prospectus supplement or
supplements (each a "Prospectus Supplement") specifically relating to Program
Securities, as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424. As used herein, the terms "Basic Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Basic Prospectus
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with you as of the Commencement Date, as of each date
on which you solicit offers to purchase Program Securities, as of each date on
which the Company accepts an offer to purchase Program Securities (including
any purchase by you as principal pursuant to a Notes Terms Agreement or a
Units Terms Agreement), as of each date the Company issues and delivers
Program Securities and as of each date the Registration Statement or the Basic
Prospectus is amended or supplemented, as follows (it being understood that
such representations, warranties and agreements shall be deemed to relate to
the Registration Statement, the Basic Prospectus and the Prospectus, each as
amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part
of the Registration Statement, when such part became effective, did not
contain and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that (1) the representations and warranties set
forth in this Section 1(b) do not apply (A) to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
you furnished to the Company in writing by you expressly for use therein or
(B) to those parts of the Registration Statement that constitute the Statements
of Eligibility (Form T-1) under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), of the Trustees and (2) the representations and
warranties set forth in clauses (iii) and (iv) above, when made as of the
Commencement Date or as of any date on which you solicit offers to purchase
Program Securities or on which the Company accepts an offer to purchase
Program Securities, shall be deemed not to cover information concerning an
offering of particular Program Securities to the extent such information will
be set forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business
as described in the Prospectus and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries, taken
as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement (each as hereinafter defined) has
been duly authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture Act and each of the Indentures, the Unit Agreement and the Universal
Warrant Agreement has been duly authorized, executed and delivered by the
Company or by Morgan Stanley Group Inc. (a predecessor to the Company) and
assumed by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of whether such
enforceability is considered at proceedings in equity or at law.
(g) The forms of Notes, whether issued alone or as part of a Unit,
have been duly authorized and established in conformity with the provisions of
the relevant Indenture and, when the Notes have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes will be
entitled to the benefits of such Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general
principles of equity, regardless of whether such enforceability is considered
at a proceeding in equity or at law.
(h) The forms of Units, including the forms of Universal Warrants
and Purchase Contracts which, in addition to the Notes, may comprise such
Units, have been duly authorized and established in conformity with the
provisions of (i) in the case of the Units and Purchase Contracts, the Unit
Agreement and (ii) in the case of Universal Warrants, the Universal Warrant
Agreement. When the Units have been delivered to and duly paid for by the
purchasers thereof and (A) any Purchase Contracts included in such Units have
been executed by the Company and countersigned and executed by the Unit Agent
and (B) any Universal Warrants included in such Units have been executed by
the Company and countersigned by the Warrant Agent, the Units (including any
such Purchase Contracts or Universal Warrants contained therein) will be
entitled to the benefits of the Unit Agreement and, in the case of the
Universal Warrants, the Universal Warrant Agreement and will be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered at a proceeding in equity or at law.
(i) The execution and delivery by the Company of this Agreement,
the Notes (whether issued alone or as part of a Unit), the Units (including any
Purchase Contracts and Universal Warrants included therein) the Indentures,
the Unit Agreement, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, the Universal Warrant Agreement
and any applicable Notes Terms Agreement or Units Terms Agreement; provided,
however, that no representation is made or warranty given as to whether the
purchase of the Program Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act of 1974, as
amended, or Section 4975 of the Internal Revenue Code of 1986, as amended.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as exhibits to
the Registration Statement that are not described, filed or incorporated as
required.
(l) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
(m) Dean Witter Reynolds Inc. is registered as a broker-dealer
and investment adviser with the Commission, is registered with the Commodity
Futures Trading Commission as a futures commission merchant and is a member of
the New York Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc.
(n) Morgan Stanley & Co. Incorporated is registered as a
broker-dealer and investment adviser with the Commission, is registered with
the Commodity Futures Trading Commission as a futures commission merchant and
is a member of the New York Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc.
Notwithstanding the foregoing, it is understood and agreed that
the representations and warranties set forth in Section 1(b)(iii) and
1(b)(iv), 1(g) (except as to due authorization of the Notes), 1(h) (except as
to due authorization of the Units, Universal Warrants and Purchase Contracts)
and 1(i), when made as of the Commencement Date, or as of any date on which
you solicit offers to purchase Program Securities, with respect to any Program
Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities unaffiliated
with the Company, baskets of such securities, equity indices or other factors,
shall be deemed not to address the application of the Commodity Exchange Act,
as amended, or the rules, regulations or interpretations of the Commodity
Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as
agents hereunder, you agree to use reasonable efforts to solicit offers to
purchase Program Securities upon the terms and conditions set forth in the
Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct you to suspend at any time, for any period of time or permanently,
the solicitation of offers to purchase Program Securities. Upon receipt of at
least one business day's prior notice from the Company, you will forthwith
suspend solicitations of offers to purchase Program Securities from the
Company until such time as the Company has advised you that such solicitation
may be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 5(a), 5(b) and 5(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for (i)
in the case of Notes, issued alone or as part of a Unit, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes, (ii) in the case of Units, a change in the exercise
price, exercise date or period or expiration of an underlying Universal
Warrant or a change in the settlement date or purchase or sale price of an
underlying Purchase Contract or (iii) for a change you deem to be immaterial),
you shall not be required to resume soliciting offers to purchase Program
Securities until the Company has delivered such certificates, opinions and
letters as you may request.
The Company agrees to pay to you, as consideration for the sale
of each Program Security resulting from a solicitation made or an offer to
purchase received by you, a commission in the form of a discount from the
purchase price of such Program Security equal to between .125% and .750%
(depending upon such Note's maturity or, in the case of Units, any underlying
Note's maturity or the terms of the Units and of the securities comprised by
such Units) of the principal amount of such Note or, in the case of Units, the
face amount of such Unit (provided that the commission for Notes having, or
Units including Notes or other securities having, a maturity of 30 years or
greater will be negotiated) or such other discount as may be specified in the
Prospectus Supplement relating to such Note or Unit.
You shall communicate to the Company, orally or in writing, each
offer to purchase Program Securities received by you as agent that in your
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Program Securities and may reject any offer
in whole or in part. You shall have the right to reject any offer to purchase
Program Securities that you consider to be unacceptable, and any such
rejection shall not be deemed a breach of your agreements contained herein.
The procedural details relating to the issue and delivery of Program
Securities sold by you as agent and the payment therefor shall be as set forth
in the Administrative Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to
you as principals shall be made in accordance with the terms of this
Agreement. In connection with each such sale, the Company will enter into a
Notes Terms Agreement or Units Terms Agreement that will provide for the sale
of such Program Securities to and the purchase thereof by you. Each Notes
Terms Agreement or Units Terms Agreement will take the form of either (i) a
written agreement between you and the Company, which may be substantially in
the form of Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of
Notes, a "Written Notes Terms Agreement" and, in the case of Units, a "Written
Units Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal
pursuant to a Notes Terms Agreement or Units Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions
herein set forth. Each (i) Note Terms Agreement shall specify the principal
amount of Notes to be purchased by you pursuant thereto, the maturity date of
such Notes, the price to be paid to the Company for such Notes, the interest
rate and interest rate formula, if any, applicable to such Notes and any other
terms of such Notes and (ii) Unit Terms Agreement shall specify (a) the
information set forth in (i) above with respect to any Notes issued as part of
a Unit, (b) with respect to Universal Warrants issued as part of a Unit, the
exercise price, the exercise date or period, the expiration date and any other
terms of such Universal Warrants, and (c) with respect to Purchase Contracts
issued as part of a Unit, the settlement date, the purchase or sale price or
any other terms of such Purchase Contracts. Each such Notes Terms Agreement
or Units Terms Agreement may also specify any requirements for officers'
certificates, opinions of counsel and letters from the independent auditors of
the Company pursuant to Section 4 hereof. A Notes Terms Agreement and a Unit
Terms Agreement may also specify certain provisions relating to the reoffering
of such Notes or Units, as the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall
specify the time and place of delivery of and payment for such Notes or Units,
as the case may be. Unless otherwise specified in a Notes Terms Agreement or
a Units Terms Agreement, the procedural details relating to the issue and
delivery of Notes or Units, as the case may be, purchased by you as principal
and the payment therefor shall be as set forth in the Administrative
Procedures. Each date of delivery of and payment for Program Securities to
be purchased by you as principal pursuant to a Notes Terms Agreement or a
Units Terms Agreement, as the case may be, is referred to herein as a
"Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, if you are purchasing Program Securities as principal you may
resell such Program Securities to other dealers. Any such sales may be at a
discount, which shall not exceed the amount set forth in the Prospectus
Supplement relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to
perform the respective duties and obligations specifically provided to be
performed in the Global Medium-Term Notes, Series D and Series E and the
Global Units, Series D and Series E, Administrative Procedures (attached
hereto as Exhibit B) (the "Administrative Procedures"), as amended from time
to time. The Administrative Procedures may be amended only by written
agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 4
of this Agreement as a condition precedent to your obligation to begin
soliciting offers to purchase Program Securities as agent of the Company shall
be delivered at the office of Davis Polk & Wardwell, your counsel, not later
than 4:00 p.m., New York time, on the date hereof, or at such other time and/or
place as you and the Company may agree upon in writing, but in no event later
than the day prior to the earlier of (i) the date on which you begin
soliciting offers to purchase Program Securities and (ii) the first date on
which the Company accepts any offer by you to purchase Program Securities as
principal. The date of delivery of such documents is referred to herein as the
"Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities pursuant to this Agreement or any Notes Terms Agreement or Units
Terms Agreement, the Company will not file any Prospectus Supplement relating
to the Program Securities or any amendment to the Registration Statement unless
the Company has previously furnished to you a copy thereof for your review and
will not file any such proposed supplement or amendment to which you
reasonably object; provided, however, that the foregoing requirement shall not
apply to any of the Company's periodic filings with the Commission required
to be filed pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the
Exchange Act, copies of which filings the Company will cause to be delivered
to you promptly after being transmitted for filing with the Commission.
Subject to the foregoing sentence, the Company will promptly cause each
Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act. The
Company will promptly advise you (i) of the filing of any amendment or
supplement to the Basic Prospectus, (ii) of the filing and effectiveness of
any amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of the issuance by any
non-United States regulatory authority of any request for information relating
to the Program Securities or suspension of the listing of the Program
Securities on any stock exchange on which the Program Securities are then
listed. The Company will use its best efforts to prevent the issuance of any
such stop order or notice of suspension of qualification or listing and, if
issued, to obtain as soon as possible the withdrawal thereof. If the Basic
Prospectus is amended or supplemented as a result of the filing under the
Exchange Act of any document incorporated by reference in the Prospectus, you
shall not be obligated to solicit offers to purchase Program Securities so
long as you are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances when the Prospectus, as then amended or supplemented, is
delivered to a purchaser, not misleading, or if, in your opinion or in the
opinion of the Company, it is necessary at any time to amend or supplement the
Prospectus, as then amended or supplemented, to comply with applicable law,
the Company will immediately notify you by telephone (with confirmation in
writing) to suspend solicitation of offers to purchase Program Securities and,
if so notified by the Company, you shall forthwith suspend such solicitation
and cease using the Prospectus, as then amended or supplemented. If the
Company shall decide to amend or supplement the Registration Statement or
Prospectus, as then amended or supplemented, it shall so advise you promptly
by telephone (with confirmation in writing) and, at its expense, shall prepare
and cause to be filed promptly with the Commission an amendment or supplement
to the Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, that will correct such statement or
omission or effect such compliance and will supply such amended or
supplemented Prospectus to you in such quantities as you may reasonably
request. If any documents, certificates, opinions and letters furnished to
you pursuant to paragraph (e) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement are
satisfactory in all respects to you, upon the filing with the Commission of
such amendment or supplement to the Prospectus or upon the effectiveness of an
amendment to the Registration Statement, you will resume the solicitation of
offers to purchase Program Securities hereunder. Notwithstanding any other
provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request and shall furnish to you pursuant to paragraph (e) below
and Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as you may request in connection with the preparation and filing of
such amendment or supplement.
(c) The Company will make generally available to its security
holders and to you as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Program Securities. If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available not
later than 90 days after the close of the period covered thereby and in all
other cases shall be made available not later than 45 days after the close of
the period covered thereby.
(d) The Company will furnish to you, without charge, a signed copy
of the Registration Statement, including exhibits and all amendments thereto,
and as many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto as you may reasonably
request.
(e) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indentures, the Unit Agreement, the Warrant Agreement, the Notes,
the Units, the Universal Warrants, the Purchase Contracts, this Agreement, the
Administrative Procedures, any Notes Terms Agreement or Units Terms Agreement
and the performance by the Company of its obligations hereunder or thereunder
as you may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program Securities
is consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: (i) the preparation and filing of the Registration Statement and
the Prospectus and all amendments and supplements thereto, (ii) the
preparation, issuance and delivery of the Program Securities, (iii) the fees
and disbursements of the Company's counsel and accountants, of the Trustees
and their counsel, of the Unit Agent and its counsel, of the Warrant Agent and
its counsel and of the Principal Paying Agent and its counsel and any paying
agents for the Notes appointed by the Company, (iv) the fees and expenses
incurred with respect to listing the Series D Notes and, if listed, the Series
D Units on the London Stock Exchange or on another stock exchange or exchanges
if so required by Section 3(i), (v) the printing and delivery to you in
quantities as hereinabove stated of copies of the Registration Statement and
all amendments thereto and of the Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to you of copies of the Indentures, the
Unit Agreement or the Universal Warrant Agreement, (vii) any fees charged by
rating agencies for the rating of the Program Securities, (viii) the fees and
expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., (ix) the fees and disbursements of
your counsel incurred in connection with the offering and sale of the Program
Securities, including any opinions to be rendered by such counsel hereunder,
and (x) any out-of-pocket expenses incurred by you; provided that any
advertising expenses incurred by you shall have been approved by the Company.
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect
to such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of (i) in the case of Notes, any debt securities of the Company substantially
similar to the Notes set forth in such Notes Terms Agreement (other than (A)
the Notes that are to be sold pursuant to such Notes Terms Agreement, (B)
Notes previously agreed to be sold by the Company and (C) commercial paper
issued in the ordinary course of business) or (ii) in the case of Units, any
securities substantially similar to such Units (other than (A) the Units that
are sold pursuant to such Units Terms Agreement or (B) Units previously agreed
to be sold by the Company), in each case, except as may otherwise be provided
in the applicable Notes Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest and
penalties, on the issue of the Program Securities in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement, any
Written Notes Terms Agreement or Written Units Terms Agreement and on the
exchange of any temporary global Notes for definitive Notes or permanent
global Notes, of any temporary global Units for definitive Units or permanent
global Units, of any permanent global bearer Notes for definitive bearer Notes
or of any permanent global bearer Units for definitive bearer Units, that are
or may be required to be paid under the laws of the United Kingdom, the United
States or any political subdivision or taxing authority thereof or therein.
(j) In connection with any application to list the Series D Notes
and Series D Units on the London Stock Exchange, the Company will furnish from
time to time any and all documents, instruments, information and undertakings
and publish all advertisements or other material that may be necessary in order
to effect such listing and will maintain such listing until, (i) in the case
of the Notes, none of the Series D Notes is outstanding, either as part of a
Unit or otherwise, or until such time as payment of principal, premium, if
any, and interest in respect of all the Series D Notes, whether issued alone
or as part of a Unit, has been duly provided for, whichever is earlier and
(ii) in the case of the Units, none of the Series D Units is outstanding;
provided, however, that if the Company can no longer reasonably maintain such
listing, it will use its best efforts to obtain and maintain the quotation
for, or listing of, the Series D Notes and Series D Units on such other stock
exchange or exchanges as you shall reasonably request. In addition, for so
long as the Series D Notes and Series D Units are listed on a stock exchange
and such exchange so requires, the Company will maintain in London, or in such
other place as the Series D Notes and Series D Units are listed (if the Series
D Notes and Series D Units are no longer listed on the London Stock Exchange),
a paying agent in respect of the Series D Notes or Series D Units, as
required.
4. Conditions of the Obligations of the Agents. Your obligation
to solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of
the representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to
solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser's obligation to
purchase Program Securities, at the time the Company accepts the offer to
purchase such Program Securities and at the time of issuance and delivery) and
(in each case) to the following additional conditions precedent when and as
specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Prospectus, as amended or supplemented at the time of
such solicitation or at the time such offer to purchase was made,
that, in your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Program Securities on the
terms and in the manner contemplated by the Prospectus, as so amended
or supplemented;
(ii) there shall not have occurred such a change in national
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely to
prejudice materially the success of the offering and distribution of the
Program Securities or dealings in the Program Securities in the secondary
market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or
(iii) above, as disclosed to you in writing by the Company prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made or (B) unless in each case
described in (ii) above, the relevant event shall have occurred and been known
to you prior to such solicitation or, in the case of a purchase of Program
Securities, before the offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of Brown & Wood LLP,
counsel to the Company, or of other counsel satisfactory to you and
who may be an officer of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
State of Delaware, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(B) each of Dean Witter Reynolds Inc., Greenwood
Trust Company, Morgan Stanley & Co. Incorporated and Morgan
Stanley International Incorporated (each a "Material Subsidiary")
has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the
Prospectus, as amended or supplemented, and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material
Subsidiaries has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its
business in the manner described in the Prospectus, as amended or
supplemented, except to the extent that the failure to obtain or
file would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable
Written Notes Terms Agreement or Written Units Terms Agreement
has been duly authorized, executed and delivered by the Company;
(E) each Indenture has been duly qualified under
the Trust Indenture Act and each of the Third Supplemental Senior
Indenture and the Third Supplemental Subordinated Indenture, the
Unit Agreement and the Universal Warrant Agreement has been duly
authorized, executed and delivered by the Company and each of the
Indentures is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other
similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether
such enforceability is considered at a proceeding in equity or at
law;
(F) the forms of Notes, whether issued alone or
as part of a Unit, have been duly authorized and established in
conformity with the provisions of the relevant Indenture and, if
the Notes had been executed by the Company and authenticated by
the relevant Trustee or its duly appointed agent in accordance
with the provisions of the relevant Indenture and delivered to
and duly paid for by the purchasers thereof on the date of such
opinion, the Notes would be entitled to the benefits of such
Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(G) the forms of Units, including the forms of
Universal Warrants and Purchase Contracts which, in addition to
the Notes, may comprise such Units, have been duly authorized and
established in conformity with the provisions of (i) in the case
of Units and Purchase Contracts, the Unit Agreement and (ii) in
the case of the Universal Warrants, the Universal Warrant
Agreement, and if the Units (including the Universal Warrants and
the Purchase Contracts) had been delivered to and duly paid for
by the purchasers thereof (and any Universal Warrant included
therein had been executed by the Company and countersigned by the
Warrant Agent and any Purchase Contracts included therein had
been executed by the Company and executed and countersigned by
the Unit Agent) on the date of such opinion, the Units (including
the Universal Warrants and Purchase Contracts contained therein)
would be entitled to the benefits of the Unit Agreement and, in
the case of the Universal Warrants, the Universal Warrant
Agreement and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms
except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other similar laws affecting creditors' rights generally and
(ii) is subject to general principles of equity, regardless of
whether such enforceability is considered at a proceeding in
equity or at law;
(H) the execution and delivery by the Company of
the Notes (whether issued alone or as part of a Unit), the Units
(including any Purchase Contract or Universal Warrant included
therein), the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes,
the Units, the Indentures, the Unit Agreement, the Universal
Warrant Agreement and any applicable Notes Terms Agreement or
Units Terms Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of
the Company or, to the best of such counsel's knowledge, any
agreement or other instrument binding upon the Company or any of
its consolidated subsidiaries that is material to the Company and
its consolidated subsidiaries, taken as a whole, or, to the best
of such counsel's knowledge, any judgment, order or decree of any
U.S. governmental body, agency or court having jurisdiction over
the Company or any of its consolidated subsidiaries, and no
consent, approval, authorization or order of or qualification
with any U.S. governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement, the Notes, the Units, the Indentures, the Unit
Agreement, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement; provided,
however, that no opinion is expressed on whether the purchase of
the Program Securities constitutes a "prohibited transaction"
under Section 406 of the Employee Retirement Income Security Act
of 1974, as amended, or Section 4975 of the Internal Revenue Code
of 1986, as amended;
(I) the statements (1) in the Prospectus, as then
amended or supplemented, under the captions "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus), "Description of Units" (in
the Prospectus Supplement and in the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic
Prospectus), (2) in the Registration Statement, as then amended
or supplemented, under Item 15, (3) in "Item 3 - Legal
Proceedings" of the most recent annual reports on Form 10-K
incorporated by reference in the Prospectus and (4) in "Item 1 -
Legal Proceedings" of Part II of the quarterly reports on Form
10-Q, if any, filed since such annual reports and incorporated by
reference in the Prospectus, in each case insofar as such
statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(J) after due inquiry, such counsel does not
know of any legal or governmental proceedings pending or
threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the
Company or any of its consolidated subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, and are not so
described or of any U.S. federal or state statutes, regulations,
contracts or other documents governed by U.S. federal or state
law that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, or
to be filed or incorporated by reference as exhibits to such
Registration Statement that are not described, filed or
incorporated by reference as required; and
(K) such counsel (1) is of the opinion that each
document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus, as then amended or
supplemented (except as to financial statements and schedules
included therein as to which such counsel need not express any
opinion), complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder, (2) has no reason to
believe that any part of the Registration Statement (except as to
financial statements and schedules as to which such counsel need
not express any belief and except for that part of the
Registration Statement that constitutes the Forms T-1 heretofore
referred to), as then amended, if applicable, when such part
became effective contained, and the Registration Statement
(except as to financial statements and schedules included
therein, as to which such counsel need not express any belief and
except for the part of the Registration Statement that
constitutes the Form T-1) as of the date such opinion is
delivered, contains any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, (3) is of the opinion that the Registration Statement
and Prospectus, as then amended or supplemented, if applicable
(except for financial statements and schedules included therein
as to which such counsel need not express any opinion), comply as
to form in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and
(4) has no reason to believe that the Prospectus, as then amended
or supplemented, if applicable (except for financial statements
and schedules as to which such counsel need not express any
belief), as of the date such opinion is delivered contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided that in the case of an opinion delivered on
the Commencement Date or pursuant to Section 5(b), the opinion
and belief set forth in clauses (3) and (4) above shall be deemed
not to cover information concerning an offering of particular
Notes or Units to the extent such information will be set forth
in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, your special counsel, covering the matters in subparagraphs
(D), (E), (F), (G) and (I) (with respect to statements in the
Prospectus, as then amended or supplemented, under the captions
"Description of Notes" (in the Prospectus Supplement), "Description of
Debt Securities" (in the Basic Prospectus), "Description of Units" (in
the Prospectus Supplement and the Basic Prospectus), "Plan of
Distribution" (in the Prospectus Supplement and in the Basic
Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus))
and clauses (2), (3) and (4) of subparagraph (K) in paragraph (b)(i)
above.
Notwithstanding the foregoing, the opinions described in
subparagraphs (F) (except as to due authorization of the Notes), (G) (except
as to due authorization of the Units, Universal Warrants and Purchase
Contracts), (H), (I)(1) and (K)(3) and (4) of paragraph (b)(i) above, when
contained in an opinion delivered on the Commencement Date or pursuant to
Section 5(b), shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission to Program Securities the payments of
principal or interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company,
baskets of such securities, equity indices or other factors.
With respect to subparagraph (K) of paragraph (b)(i) above, if
such opinion is given by counsel who is also an officer of the Company, such
counsel may state that his or her opinion and belief are based upon his or her
participation, or the participation of someone under his or her supervision, in
the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but are without
independent check or verification, except as specified. With respect to
subparagraph (K) of paragraph (b)(i) above, Davis Polk & Wardwell and, if
Brown & Wood LLP is giving such opinion, Brown & Wood LLP may state that their
opinion and belief are based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto (but not including documents incorporated therein by reference) and
review and discussion of the contents thereof (including documents
incorporated therein by reference), but are without independent check or
verification, except as specified.
(iii) The opinion, dated as of such date, of Brown & Wood LLP,
special counsel to the Company, to the effect that the statements set forth
under the caption "United States Federal Taxation" in the Prospectus
Supplement and under the caption "Limitations on Issuance of Bearer Securities
and Bearer Debt Warrants" in the Basic Prospectus, insofar as such statements
relate to statements of law or legal conclusions under the laws of the United
States or matters of United States law, fairly present the information called
for and fairly summarize the matters referred to therein.
The opinion of Brown & Wood LLP described in paragraph (b)(iii)
above and in paragraph (b)(i) above, if such opinion is given by Brown & Wood
LLP, shall be rendered to you at the request of the Company and shall so state
therein.
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the
effect that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or
letters, dated as of the Commencement Date or such Settlement Date, as the
case may be, in form and substance satisfactory to you containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in or incorporated by reference into the
Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
(f) On the Commencement Date, application to list the Series D
Notes and Series D Units on the London Stock Exchange shall have been made
and, prior to the issuance of the first Series D Note or Series D Unit, such
listing shall have been granted, subject to official notice of issuance.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than
by an amendment or supplement providing solely for (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in the
case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement
date or purchase or sale price of an underlying Purchase Contract or (iii) a
change you deem to be immaterial), the Company will deliver or cause to be
delivered forthwith to you a certificate signed by an executive officer of the
Company, dated the date of such amendment or supplement, as the case may be,
in form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 4(c) relating to the Registration Statement or the
Prospectus as amended or supplemented to the time of delivery of such
certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a) (other than any amendment or supplement to the Registration
Statement or Prospectus caused by the filing of a Current Report on Form 8-K
unless you shall reasonably request based on disclosure included or omitted
form such Report), the Company will furnish or cause to be furnished forthwith
to you a written opinion of counsel for the Company. Any such opinion shall
be dated the date of such amendment or supplement, as the case may be, shall
be in a form satisfactory to you and shall be of the same tenor as the
opinions referred to in Section 4(b), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such opinion. In lieu of such opinion, counsel last
furnishing such an opinion to you may furnish to you a letter to the effect
that you may rely on such last opinion to the same extent as though it were
dated the date of such letter (except that statements in such last opinion
will be deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to the time of delivery of such letter.)
(c) Each time the Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in the Prospectus, the Company shall cause its independent auditors
forthwith to furnish you with a letter, dated the date of such amendment or
supplement, as the case may be, in form satisfactory to you, of the same tenor
as the letter referred to in Section 4(d), with regard to the amended or
supplemental financial information included or incorporated by reference in
the Registration Statement or the Prospectus as amended or supplemented to the
date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless you and each person, if any, who controls you
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by you or any such controlling person in connection with
defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you
expressly for use in the Registration Statement or the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by you, in the
case of parties indemnified pursuant to paragraph (a) above, and by the
Company, in the case of parties indemnified pursuant to paragraph (b) above.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein in connection with any offering of Program Securities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and you on the other hand
from the offering of such Program Securities or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand
and you on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and you on the other hand in connection with the
offering of such Program Securities shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Program Securities (before deducting expenses) received by the Company bear to
the total discounts and commissions received by you in respect thereof. The
relative fault of the Company on the one hand and of you on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or by you and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, you shall not be required to contribute any
amount in excess of the amount by which the total price at which the Program
Securities referred to in paragraph (d) above that were offered and sold to
the public through you exceeds the amount of any damages that you have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 6, representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain in full force and effect
regardless of (i) any termination of this Agreement or any such Notes Terms
Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company
and agree with respect to the Program Securities that:
(a) (i) you have not (A) offered or sold and during the
Restricted Period (as defined below) will not offer or sell Bearer
Notes (whether offered alone or as part of a Unit) (including any
Note that is exchangeable for Bearer Notes) directly or indirectly in
the United States (as defined below) or to or for the account of any
United States person (as defined below), other than to a Qualifying
Foreign Branch (as defined below) or to certain other persons as
provided under United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(1)(iii)(B) and (C); and (B) delivered and will not
deliver within the United States definitive Bearer Notes that are sold
during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have,
in effect procedures reasonably designed to ensure that your employees
or agents who are directly engaged in selling Bearer Notes (whether
offered alone or as part of a Unit) are aware that such Bearer Notes
may not be offered or sold during the Restricted Period to a person
who is within the United States or to a United States person, except
as permitted by Section 7(a)(i)(A) above;
(iii) if you are a United States person, you are acquiring the
Bearer Notes (whether offered alone or as part of a Unit) for purposes
of resale in connection with their original issuance and if you retain
Bearer Notes for your own account, you will only do so in accordance
with the requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether
offered alone or as part of a Unit) for the purpose of offering or
selling such Bearer Notes during the Restricted Period, you will
either (A) obtain from such affiliate for the benefit of the Company
the representations and agreements contained in clauses (i), (ii) and
(iii) above or (B) repeat and confirm the representations and
agreements contained in clauses (i), (ii) and (iii) above on such
affiliate's behalf and obtain from such affiliate the authority to so
obligate it; and
(v) you will obtain for the benefit of the Company the
representations and agreements contained in clauses (i), (ii), (iii)
and (iv) above from any person other than your affiliate with whom you
enter into a written contract, within the meaning of United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the offer or
sale during the Restricted Period of Bearer Notes (whether offered
alone or as part of a Unit).
For purposes of this Section 7(a), an offer or sale will be
considered to be made in the United States if the offeror or seller of such
Notes (whether offered alone or as part of a Unit) has an address within the
United States for the offeree or purchaser of such Notes with respect to the
offer or sale. As used in this Section 7(a), "United States person" means a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or any
political subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source,
"United States" means the United States (including the States and the District
of Columbia), its territories, its possessions and any other areas subject to
its jurisdiction; "Qualifying Foreign Branch" means a branch of a United
States financial institution, as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v), located outside the United States that is
purchasing for its own account or for resale and that has agreed, as a
condition to purchase, to comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986,
as amended (the "Code"), and the regulations thereunder; and "Restricted
Period" with respect to each issuance means the period which begins on the
earlier of the date on which the Company receives the proceeds of the sale of
Notes with respect to such issuance or the first date on which the Notes are
offered to persons other than you, and which ends 40 days after the date on
which the Company receives the proceeds of the sale of such Notes; provided
that with respect to a Note held as part of an unsold allotment or
subscription, any offer or sale of such Note by the Company or you shall be
deemed to be during the Restricted Period.
(b) (i) In relation to Program Securities which have a maturity of
one year or more and which are to be listed on the London Stock Exchange, you
have not offered or sold and will not offer or sell any Program Securities to
persons in the United Kingdom prior to admission of such Program Securities
to listing in accordance with Part IV of the Financial Services Act 1986 (the
"Act"), except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995 or the
Act; (ii) in relation to Program Securities which have a maturity of one year
or more and which are not to be listed on the London Stock Exchange, you have
not offered or sold and, prior to the expiry of the period of six months from
the date of issue of such Program Securities, will not offer or sell any such
Program Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing
of investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (iii) you have complied with and will
comply with all applicable provisions of the Act with respect to anything done
by you in relation to the Program Securities in, from or otherwise involving
the United Kingdom; and (iv) you have only issued or passed on and will only
issue or pass on in the United Kingdom any document received by you in
connection with the issue of the Program Securities, other than any document
which consists of or any part of listing particulars, supplementary listing
particulars or any other document required or permitted to be published by the
listing rules under Part IV of the Act, to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom
such document may otherwise lawfully be issued or passed on.
(c) You will not offer or sell any Program Securities in any
jurisdiction if such offer or sale would not be in compliance with any
applicable law or regulation or if any consent, approval or permission is
needed for such offer or sale by you or for or on behalf of the Company unless
such consent, approval or permission has been previously obtained. Without
prejudice to the provisions of this Section 7 above and subject to the
obligations of the Company set forth in Section 3 of this Agreement, the
Company shall have no responsibility for, and you will obtain, any consent,
approval or permission required by you for the subscription, offer, sale or
delivery by you of Program Securities under the laws and regulations in force
in any jurisdiction to which you are subject or in or from which you make any
subscription, offer, sale or delivery.
(d) You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan including any
corporation or other entity organized under the laws of Japan) or to others for
the re-offering or re-sale, directly or indirectly, in Japan or to a resident
of Japan except pursuant to an exemption from the registration requirements of,
and otherwise in compliance with, the Securities and Exchange Law of Japan and
other relevant laws and regulations of Japan.
(e) You will not offer and sell any Program Securities in the
Federal Republic of Germany other than in compliance with the provisions of the
German Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of December
13, 1990, as amended, and of any other laws applicable in the Federal Republic
of Germany governing the issue, offering and sale of securities.
(f) You will not offer and sell any Program Securities denominated
or payable in or indexed to Swiss Francs other than in compliance with Swiss
law and the regulations of the Swiss National Bank in effect from time to
time.
(g) You will not offer and sell any Notes or Units denominated or
payable in or indexed to French Francs (in the case of Notes, "French Franc
Notes" and, in the case of Units, "French Franc Units") other than in
compliance with French law, including, without limitation, the marche de
l'eurofranc from time to time of the Comite des Emissions de Bourse ("French
EuroFranc Regulations"). Unless otherwise authorized pursuant to French law,
including, without limitation, the French EuroFranc Regulations, you agree
that French Franc Notes and French Franc Units will be issued outside the
Republic of France and that, in connection with their initial distribution,
you will not offer or sell, directly or indirectly, any French Franc Notes or
French Franc Units to the public in the Republic of France, and will not
distribute or cause to be distributed to the public in the Republic of France
the Prospectus or any other offering material relating to French Franc Notes
or French Franc Units.
8. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company shall
default in its obligations to deliver Program Securities to a purchaser whose
offer it has accepted, the Company shall hold you harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to you the commission you would have received had
such sale been consummated.
9. Termination. This Agreement may be terminated at any time
either by the Company or by you upon the giving of written notice of such
termination to the other parties hereto, but without prejudice to any rights,
obligations or liabilities of the other parties hereto accrued or incurred
prior to such termination. The termination of this Agreement shall not require
termination of any Notes Terms Agreement or Units Terms Agreement, and the
termination of any such Notes Terms Agreement or Units Terms Agreement shall
not require termination of this Agreement. If this Agreement is terminated,
the provisions of the third paragraph of Section 2(a), the last sentence of
Section 3(b) and Sections 3(c), 3(g), 6, 7, 8, 11 and 13 shall survive;
provided that if at the time of termination an offer to purchase Program
Securities has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Program Securities has not occurred, the
provisions of Sections 1, 2(b), 2(c), 3(a), 3(b), 3(e), 3(f), 3(h), 4 and 5
shall also survive until such delivery has been made.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Morgan Stanley & Co. International
Limited, will be mailed, delivered or telefaxed and confirmed to (a) Morgan
Stanley & Co. International Limited at 25 Cabot Square, Canary Wharf, London
E14 4QA, England, to the attention of Capital Markets - Debt Syndicate
(Telephone No.: 011-44-71-425-7750; Telecopy No.: 011-44-71-425-7999), (b)
Morgan Stanley Bank AG, Rahmhofstrasse 2-4, 60313 Frankfurt am Main, Federal
Republic of Germany to the attention of Ron Lenihan (Telephone No.:
011-49-69-152-060; Telecopy No.: 011-49-69-597-6627), (c) Morgan Stanley S.A.,
25 rue Balzac, 75008 Paris, France to the attention of Debt Capital Markets
(Telephone No.: 011-33-1-5377-7879 or 7300; Telecopy No.:
011-33-1-5377-7899), (d) Bank Morgan Stanley AG, Bahnhofstrasse 92-3rd Floor,
Ch-8023, Zurich, Switzerland, to the attention of John Webley (Telephone No.
011-41-1-220-9111; Telecopy No. 011-41-1-220-9800) or (e) Dean Witter
International Ltd. [address to come], to the attention of [ ]
(Telephone No. [ ]; Telecopy [ ]) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1585 Broadway, New York, New York 10036, Attention: Secretary.
11. Successors. This Agreement and any Notes Terms Agreement or
Units Terms Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
MORGAN STANLEY, DISCOVER &
CO., DEAN WITTER
By:________________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
DEAN WITTER INTERNATIONAL LTD.
By:________________________________
Name:
Title:
MORGAN STANLEY & CO. INTERNATIONAL LIMITED
By:________________________________
Name:
Title:
MORGAN STANLEY BANK AG
By:________________________________
Name:
Title:
MORGAN STANLEY S.A.
By:________________________________
Name:
Title:
BANK MORGAN STANLEY AG
By:________________________________
Name:
Title:
EXHIBIT A
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated June 2, 1997
(the "Euro Distribution Agreement")
----------------------------------------------
The undersigned agrees to purchase your Global Medium-Term
Notes, Series [D/E], having the following terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ________________.
[DEAN WITTER INTERNATIONAL LTD.]
By:_______________________________
Name:
Title:
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
By:_______________________________
Name:
Title:
[MORGAN STANLEY BANK AG]
By:_______________________________
Name:
Title:
[MORGAN STANLEY S.A.]
By:_______________________________
Name:
Title:
[BANK MORGAN STANLEY AG]
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_______________________________
Name:
Title:
EXHIBIT A-1
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley, Dean Witter,
Discover & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated June 2, 1997 (the
"Euro Distribution Agreement")
---------------------------------------------------
The undersigned agrees to purchase your Global Units, Series
[D/E], [specified designation] having the following terms:
---------
(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
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same force
and effect as if set forth in full herein.
This Agreement is subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ___________.
[DEAN WITTER INTERNATIONAL
LTD.]
By:_______________________________
Name:
Title:
[MORGAN STANLEY & CO. INTERNATIONAL
LIMITED]
By:_______________________________
Name:
Title:
[MORGAN STANLEY BANK AG]
By:_______________________________
Name:
Title:
[MORGAN STANLEY S.A.]
By:_______________________________
Name:
Title:
[BANK MORGAN STANLEY AG]
By:_______________________________
Name:
Title:
Accepted:
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_______________________________
Name:
Title:
EXHIBIT B
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
GLOBAL UNITS, SERIES D AND SERIES E
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific
terms of the offering of (i) Global Medium-Term Notes, Series D (the "Series D
Notes"), (ii) Global Medium-Term Notes, Series E (the "Series E Notes" and
together with the Series D Notes, the "Notes"), (iii) Global Units, Series D
(the "Series D Units") and (iv) Global Units, Series E (the "Series E Units"
and together with the Series D Units, the "Units", and the Units together with
the Notes, the "Program Securities"), on a continuous basis by Morgan Stanley,
Dean Witter, Discover & Co. (the "Company") pursuant to the Euro Distribution
Agreement dated June ___, 1997 (the "Distribution Agreement") among the
Company, Dean Witter International Ltd., Morgan Stanley & Co. International
Limited, Morgan Stanley Bank AG, Morgan Stanley S.A. and Bank Morgan Stanley AG
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, in registered form without
coupons ("Registered Notes"), in bearer form with or without coupons ("Bearer
Notes") or in any combination of Registered Notes and Bearer Notes. The Units
may be issued in registered form ("Registered Units"), in bearer form ("Bearer
Units") or in any combination of Registered Units and Bearer Units. The
securities comprised by a Unit will be issued in the same form as such Unit.
Bearer Notes and Bearer Units initially will be represented by, in the case of
Bearer Notes, a Temporary Global Note and, in the case of Bearer Units, a
Temporary Global Unit. Such Temporary Global Note and Temporary Global Unit
will subsequently be represented by, in the case of the Temporary Global Note,
a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Interests in a Permanent Global Note may be exchanged,
in whole, for individual definitive Bearer Notes. Definitive Bearer Notes may
be exchanged, if the applicable Pricing Supplement so specifies, in whole or
in part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive
Bearer Units may be exchanged, if the applicable Pricing Supplement so
specifies, in whole or in part, for Registered Units.
The Notes may be issued as senior indebtedness (the "Senior
Notes") or subordinated indebtedness (the "Subordinated Notes") of the
Company, and as used herein the term "Notes" includes the Senior Notes and the
Subordinated Notes. The Senior Notes will be issued pursuant to the
provisions of a senior indenture dated as of April 15, 1989 (as supplemented
by a first supplemental senior indenture dated as of May 15, 1991, a second
supplemental senior indenture dated as of April 15, 1996, a third supplemental
senior indenture dated as of June 1, 1997 and as it may be further
supplemented or amended from time to time, the "Senior Debt Indenture"),
between the Company and The Chase Manhattan Bank (formerly known as Chemical
Bank) ("Chase"), as trustee. The Subordinated Notes will be issued pursuant
to the provisions of a subordinated indenture dated as of April 15, 1989 (as
supplemented by a first supplemental subordinated indenture dated as of May
15, 1991, a second supplemental subordinated indenture dated as of April 15,
1996, a third supplemental subordinated indenture dated as of June 1, 1997 and
as it may be further supplemented or amended from time to time, the
"Subordinated Debt Indenture"), between the Company and The First National
Bank of Chicago, as trustee. The Senior Debt Indenture and the Subordinated
Debt Indenture are sometimes hereinafter referred to individually as an
"Indenture" and collectively as the "Indentures."
The Units will be issued pursuant to the Unit Agreement dated as
of June 2, 1997 (the "Unit Agreement") among the Company, Chase, as Unit
Agent, as Collateral Agent, as Trustee and Paying Agent under the Senior Debt
Indenture, and as Warrant Agent under the Universal Warrant Agreement dated as
of June 2, 1997 between the Company and Chase, as Warrant Agent (the "Universal
Warrant Agreement"), and the holders from time to time of the Units. Units may
include, one or more (i) Senior Notes, (ii) warrants ("Universal Warrants")
entitling the holders thereof to purchase or sell (a) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or
indices of such securities or any combination of the above, (b) currencies or
composite currencies or (c) commodities, (iii) purchase contracts ("Purchase
Contracts") requiring the holders thereof to purchase or sell (a) securities
of an entity unaffiliated with the Company, a basket of such securities, an
index or indices of such securities or any combination of the above, (b)
currencies or composite currencies or (c) commodities or (iv) any combination
thereof. The applicable Pricing Supplement will specify whether or not the
Notes, Universal Warrants and Purchase Contracts comprised by a Unit may or
may not be separated from the Unit. Universal Warrants issued as part of a
Unit will be issued pursuant to the Universal Warrant Agreement. Purchase
Contracts entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use
reasonable efforts to solicit purchases of the Program Securities, and the
administrative procedures explained below will govern the issuance and
settlement of any Program Securities sold through the Agent, as agent of the
Company. The Agent, as principal, may also purchase Program Securities for
its own account, and if requested by the Agent, the Company and the Agent will
enter into a terms agreement (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement"), as contemplated by the
Distribution Agreement. The administrative procedures explained below will
govern the issuance and settlement of any Program Securities purchased by the
Agent, as principal, unless otherwise specified in the applicable Notes Terms
Agreement or Units Terms Agreement.
Chase has initially been appointed the (i) Calculation Agent,
Authenticating Agent and Principal Paying Agent for the Notes, (ii) the Unit
Agent for the Units, (iii) the Warrant Agent for the Universal Warrants and
(iv) the Registrar for the Registered Notes, and will perform the duties
specified herein. As used herein, the term "Principal Paying Agent" shall
mean Chase acting through its London office in connection with the
authentication and delivery of the Notes, whether issued alone or as part of a
Unit, pursuant to the terms of the Indentures and the term "Unit Agent" shall
mean Chase acting through its London office in connection with the completion
and delivery of the Units (including, as applicable, countersigning and
delivering any Universal Warrants, as Warrant Agent, and countersigning,
executing and delivering any Purchase Contracts, as Unit Agent, includable in
such Unit), pursuant to the terms of the Unit Agreement. "Warrant Agent"
shall mean Chase acting through its London office. The Series D Notes and the
Series D Units are intended to be listed on The London Stock Exchange Limited
(the "London Stock Exchange"). Application may, in certain circumstances
described in the Prospectus Supplement relating to the Notes and the Units
(the "Prospectus Supplement"), be made to list Series D Notes and Series D
Units on the Bourse de Paris (the "Paris Bourse"). The Series E Notes and the
Series E Units will not be listed on any stock exchange. The Company has
appointed Morgan Stanley & Co. International Limited as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the London
Stock Exchange and has appointed Morgan Stanley S.A. as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the Paris
Bourse.
Each Bearer Note and each Bearer Unit (including each security
comprised by such Bearer Unit) initially will be represented by, in the case
of a Bearer Note, a Temporary Global Note and, in the case of a Bearer Unit, a
Temporary Global Unit, each of which will be delivered to a common depositary
located outside the United States (the "Depositary") for Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System (the
"Euroclear Operator"), Cedel Bank, societe anonyme ("Cedel Bank") and/or any
other relevant clearing system (including Societe Interprofessionalle pour la
Compensation des Valeures Mobilieres ("SICOVAM")). Such Temporary Global Note
and Temporary Global Unit will subsequently be represented by, in the case of
the Temporary Global Note, a Permanent Global Note and, in the case of the
Temporary Global Unit, a Permanent Global Unit. The first request by any
beneficial owner to exchange any interest in a Permanent Global Note to a
definitive Bearer Note shall result in the exchange of all (and not less than
all) interests in such Permanent Global Note for definitive Bearer Notes;
provided that, if the applicable Pricing Supplement so specifies, nothing
herein shall prevent the further exchange of definitive Bearer Notes for
Registered Notes. The first request by any beneficial owner to exchange any
interest in a Permanent Global Unit to a definitive Bearer Unit shall result
in the exchange of all (and not less than all) interests in such Permanent
Global Unit for definitive Bearer Units; provided that, if the applicable
Pricing Supplement so specifies, nothing herein shall prevent the further
exchange of definitive Bearer Units for Registered Units.
Unless otherwise defined herein, terms defined in the Indentures,
the Unit Agreement, the Universal Warrant Agreement, the Notes, the Units, the
Universal Warrants, the Purchase Contracts or any Prospectus Supplement
relating to the Program Securities shall be used herein as therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase
Program Securities, and the related settlement details.
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether issued
alone or as part of a Unit, will be dated as of
its Original Issue Date. Each Bearer Note will
bear an Original Issue Date, which will be (i)
with respect to a Temporary Global Note (or any
portion thereof), the date of its original
issue as specified in such Temporary Global
Note or (ii) with respect to any Permanent
Global Note or any definitive Bearer Note (or
any portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in
lieu of a destroyed, lost or stolen Bearer Note
(a "Replacement Bearer Note"), the Original
Issue Date of the predecessor Bearer Note,
regardless of the date of authentication of
such subsequently issued Bearer Note.
Registered Notes. Each Registered Note,
whether issued alone or as part of a Unit, will
be dated as of the date of its authentication
by Chase. Each Registered Note will also bear
an Original Issue Date, which will be (i) with
respect to an original Registered Note (an
"Original Registered Note") (or any portion
thereof), its original issuance date (which
will be the settlement date) and (ii) with
respect to any Registered Note (or portion
thereof) issued subsequently upon transfer or
exchange of a Registered Note or in lieu of a
destroyed, lost or stolen Registered Note (a
"Replacement Registered Note"), the original
issuance date of the predecessor Registered
Note, regardless of the date of authentication
of such subsequently issued Registered Note.
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form) will
be [deemed to be] dated as of the Original
Issue Date of the Bearer Note comprised by such
Unit in accordance with the procedures
described above.
Registered Units. Each Registered Unit will be
[deemed to be] dated as of the Original Issue
Date of the Registered Note comprised by such
Unit in accordance with the procedures
described above.
Denominations: Bearer Notes. Unless otherwise specified in the
applicable Pricing Supplement, Bearer Notes,
whether issued alone or as part of a Unit, will
be issued only in denominations of $1,000 (or,
in the case of Bearer Notes not denominated in
U.S. dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or any
amount in excess thereof which is an integral
multiple of $1,000 (or, in the case of Bearer
Notes not denominated in U.S. dollars, 1,000
units of the Specified Currency).
Registered Notes. Unless otherwise specified
in the applicable Pricing Supplement,
Registered Notes will be issued, either alone
or as part of a Unit, only in denominations of
$1,000 (or, in the case of Registered Notes not
denominated in U.S. dollars, the equivalent
thereof in the Specified Currency, rounded to
the nearest 1,000 units of the Specified
Currency) or any amount in excess thereof which
is an integral multiple of $1,000 (or, in the
case of Registered Notes not denominated in
U.S. dollars, 1,000 units of the Specified
Currency).
Bearer Units. Unless otherwise specified in
the applicable Pricing Supplement, Bearer Units
will be issued only in denominations of a
single Unit and any integral multiple thereof,
with face amounts in denominations as indicated
in the applicable Pricing Supplement, generally
corresponding to the denominations of the Notes
comprised by such Units.
Registered Units. Unless otherwise specified
in the applicable Pricing Supplement,
Registered Units will be issued only in
denominations of a single Unit and any integral
multiple thereof, with face amounts in
denominations as indicated in the applicable
Pricing Supplement, generally corresponding to
the denominations of the Notes comprised by
such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined below) with
respect to an issuance of Bearer Notes has
occurred, such Notes, together with all other
Bearer Notes that have the same terms (other
than their respective principal amounts) (all
such Notes herein referred to collectively as a
"Note Tranche"), will be represented by a
single Temporary Global Note in bearer form
without interest coupons. The Company shall
execute, and upon Company instructions the
Principal Paying Agent shall complete and
authenticate, such Temporary Global Note upon
the same conditions and in substantially the
same manner, and with the same effect, as an
individual definitive Bearer Note. On or prior
to the settlement date (which will normally be
the Original Issue Date) with respect to such
Notes, the Principal Paying Agent shall deposit
the Temporary Global Note with the Depositary
in the manner specified below under "Settlement
Procedures; Bearer Notes and Bearer Units".
The interest of each beneficial owner of Notes
represented by such Temporary Global Note will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
On or after the date (the "Exchange Date") that
is the 40th day following the date on which the
Company receives the proceeds of the sale of a
Temporary Global Note (the "Closing Date"), or
if such Note is held by the Agent as part of an
unsold allotment or subscription more than 40
days after the Closing Date for such Note, on
or after the day after the date such Note is
sold by the Agent, all as notified by the Agent
in writing to Chase, the interest of the
beneficial owners of the Notes represented by
the Temporary Global Note shall be canceled and
such interests shall thereafter be represented
by a Permanent Global Note in bearer form
without interest coupons held in London by the
Depositary; provided that Final Certification
(as described below) has occurred. The
interest of each beneficial owner of Notes
represented by such Permanent Global Note will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
The beneficial owner of an interest in a
Permanent Global Note may, at any time, upon 30
days' written notice to the Principal Paying
Agent given by such beneficial owner through
either Cedel Bank, the Euroclear Operator or
any other relevant clearing system, as the case
may be, exchange its beneficial interest in
such Permanent Global Note for one or more
definitive Bearer Notes with coupons attached,
if appropriate, or, if the applicable Pricing
Supplement so specifies, one or more Registered
Notes in authorized denominations equal in
aggregate principal amount to such beneficial
interest; provided that a request by any
beneficial owner to exchange any interest in a
Permanent Global Note for a definitive Bearer
Note shall result in the exchange of all (and
not less than all) interests in such Permanent
Global Note for definitive Bearer Notes;
provided further, that, if the applicable
Pricing Supplement so specifies, nothing herein
shall prevent the further exchange of
definitive Bearer Notes for Registered Notes.
To effect such exchange, the interest of such
beneficial owner in such Permanent Global Note
shall be canceled and one or more definitive
Bearer Notes or Registered Notes, as the case
may be, shall be issued to such beneficial
owner, through the Euroclear Operator or Cedel
Bank or any other relevant clearing system, as
the case may be.
In all events, Bearer Notes and coupons will be
delivered by the Principal Paying Agent only
outside the United States.
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined below) has
occurred with respect to an issuance of Bearer
Notes included in an issuance of Bearer Units,
such Units, together with all other Bearer
Units that include securities that have the
same terms (other than their respective number
and face amounts) (all such Units herein
referred to collectively as a "Unit Tranche"),
will be represented by a single Temporary
Global Unit in bearer form (which form shall
include the corresponding temporary global
forms of each security comprised by such Unit).
The Company shall execute, and upon Company
instructions, Chase, as Unit Agent, shall
complete such Temporary Global Unit (including,
as applicable, authenticating any Temporary
Global Note, as Principal Paying Agent,
countersigning and delivering any Universal
Warrants, as Warrant Agent, and countersigning,
executing and delivering any Purchase
Contracts, as Unit Agent, includable in such
Unit) upon the same conditions and in
substantially the same manner, and with the
same effect, as an individual definitive Bearer
Unit. On or prior to the settlement date
(which will normally be the Original Issue Date
of the Notes comprised by a Unit) with respect
to such Units, the Unit Agent shall deposit the
Temporary Global Unit (with the corresponding
temporary global forms of each security
comprised by such Unit) with the Depositary in
the manner specified below under "Settlement
Procedures; Bearer Notes and Bearer Units".
The interest of each beneficial owner of Units
represented by such Temporary Global Unit will
be credited to the appropriate account with
Cedel Bank, the Euroclear Operator or any other
relevant clearing system.
On or after the Exchange Date of the Temporary
Global Note comprised by a Temporary Global
Unit, the interest of the beneficial owners of
the Units represented by the Temporary Global
Unit shall be canceled and such interests shall
thereafter be represented by a Permanent Global
Unit in bearer form (with the corresponding
temporary global forms of each security
comprised by such Unit) held in London by the
Depositary; provided that Final Certification
(as described below) of the Notes comprised by
such Unit has occurred. The interest of each
beneficial owner of Units represented by such
Permanent Global Unit will be credited to the
appropriate account with Cedel Bank, the
Euroclear Operator or any other relevant
clearing system.
The beneficial owner of an interest in a
Permanent Global Unit may, at any time, upon 30
days' written notice to the Unit Agent given by
such beneficial owner through either Cedel
Bank, the Euroclear Operator or any other
relevant clearing system, as the case may be,
exchange its beneficial interest in such
Permanent Global Unit for one or more
definitive Bearer Units or, if the applicable
Pricing Supplement so specifies, one or more
Registered Units in authorized denominations
equal in aggregate number and aggregate face
amount to such beneficial interest; provided
that a request by any beneficial owner to
exchange any interest in a Permanent Global
Unit for a definitive Bearer Unit shall result
in the exchange of all (and not less than all)
interests in such Permanent Global Unit for
definitive Bearer Units; provided further,
that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the
further exchange of definitive Bearer Units for
Registered Units. To effect such exchange, the
interest of such beneficial owner in such
Permanent Global Unit shall be canceled and one
or more definitive Bearer Units or Registered
Units, as the case may be, shall be issued to
such beneficial owner, through the Euroclear
Operator or Cedel Bank or any other relevant
clearing system, as the case may be.
In all events, Bearer Units will be delivered
by the Unit Agent only outside the United
States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part
of a Unit) purchased in connection with
their original issuance by or on behalf of
a U.S. Person (as defined in the
Distribution Agreement) (other than a
branch of a United States financial
institution (as defined in United States
Treasury Regulation Section
1.165-12(c)(1)(v)) located outside the
United States purchasing for its own
account or for resale (a "Qualifying
Foreign Branch") or other permitted U.S.
purchasers as provided in the Prospectus
Supplement that satisfies the conditions
for receiving Bearer Notes as described
under "Final Certification" below) will be
issued only as Registered Notes and any
Units comprising such Notes will be issued
only as Registered Units.
Final Certification: Final Certification with respect to a
Temporary Global Note (whether issued
alone or as part of a Unit) shall mean the
delivery by the Euroclear Operator, Cedel
Bank or any other relevant clearing
system, as the case may be, to the
Principal Paying Agent of a signed
certificate (each a "Clearance System
Certificate") in the form set forth in
Appendix 1 hereto with respect to the
Notes being exchanged, dated no earlier
than the Exchange Date for such Notes, to
the effect that the Euroclear Operator,
Cedel Bank or any other relevant clearing
system, as the case may be, has received
certificates in writing, by tested telex
or by electronic transmission from the
account holders appearing on its records
as entitled to such Notes ("Ownership
Certificates") in the form set forth in
Appendix 2 hereto with respect to each of
such Notes, which Ownership Certificates
shall be dated no earlier than ten days
before the Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security is
accepted by or on behalf of the Company, the
Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms of
such Program Security, will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act and will, as soon as
possible and in any event not later than the
date on which such Pricing Supplement is filed
with the Commission, deliver the number of
copies of such Pricing Supplement to the Agent
as the Agent shall request. The Agent will
cause such Pricing Supplement to be delivered
to the purchaser of the Program Security.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for (i) the
delivery of an authenticated Temporary Global
Note or a Temporary Global Unit (including each
security comprised by such Unit) to the
Depositary in the manner described in
"Settlement Procedures; Bearer Notes and
Bearer Units" below or (ii) the delivery of an
authenticated Registered Note or a Registered
Unit (including each security comprised by such
Unit) to the Agent shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be
settled on the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another day, which shall be no
earlier than the next Business Day.
Settlement
Procedures;
Bearer Notes
and Bearer Units: Procedures with regard to each Bearer Note or
Bearer Unit sold by the Company to or through
the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms
Agreement) shall be as follows:
A. In the case of a Bearer Note
(whether issued alone or as part of
a Unit), the Agent will advise the
Company by telephone that such Note,
is initially a Bearer Note and of
the following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate Bearer
Note, whether such Note is an
Amortizing Note, and, if so, the
amortization schedule, or, in the
case of a Floating Rate Bearer Note,
the Initial Interest Rate (if known
at such time), Interest Payment
Period, Calculation Agent, Base Rate,
Index Maturity, Index Currency,
Interest Reset Period, Initial
Interest Reset Date, Interest Reset
Dates, Spread or Spread Multiplier
(if any), Minimum Interest Rate (if
any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread
(if any).
5. Redemption or repayment provisions
(if any).
6. Ranking.
7. Settlement date and time (Original
Issue Date).
8. Interest Accrual Date.
9. Price.
10. Agent's commission (if any) determined
as provided in the Distribution
Agreement.
11. Specified Currency.
12. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and
if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual period
OID and the applicability of
Modified Payment upon Acceleration
(and, if so, the Issue Price).
13. Agent's account number at Cedel Bank,
the Euroclear Operator or any other
relevant clearing system.
14. Whether such Note is a Series D Note
or a Series E Note.
15. Any other applicable provisions.
B. In the case of a Bearer Unit, the
Agent will advise the Company by
telephone that such Unit is initially
a Bearer Unit, of the information
set forth in "Settlement Procedures;
Bearer Notes and Bearer Units" "A"
above with respect to Bearer Notes
that constitute a part of such
Bearer Unit and of the following
information:
1. Settlement date and time.
2. Number of Units (and Face Amount).
3. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
4. Designation of the Securities
comprised by such Units:
a. Notes (See "Settlement
Procedures; Bearer Notes
and Bearer Units" "A" );
b. Universal Warrants, if
any; and
c. Purchase Contracts, if any.
5. Any other provisions applicable to
the Unit (other than those provisions
applicable to the securities comprised
by such Unit).
6. If the Bearer Unit comprises Bearer
Universal Warrants:
a. Designation of the Series of
Universal Warrants: [Call]
[Put] Universal Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise
Price;
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by any
holder on any day;
j. Maximum number of Universal
Warrants exercisable on any
day: [In the aggregate] [By
any beneficial owner];
k. Formula for determining Cash
Settlement Value;
l. Exchange Rate (or method of
calculation); and
m. Any other applicable provisions.
7. If the Bearer Unit comprises Bearer
Purchase Contracts:
a. Purchase Contract
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing Settlement
Amount;
g. Currency of Settlement Payment;
h. Authorized Number of Purchase
Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable provisions.
C. The Company will advise Chase as the
Principal Paying Agent for the Notes or
as the Unit Agent for the Units by
telephone or electronic transmission
(confirmed in writing at any time on the
same date) of the information set forth
in "Settlement Procedures; Bearer Notes
and Bearer Units" "A" or "B", above, as
applicable, and shall give the Principal
Paying Agent or the Unit Agent, as the
case may be, written instructions
(substantially in the form set out in
Appendix 3 and Appendix 4, as applicable)
to prepare a Temporary Global Note for
each Note Tranche or a Temporary Global
Unit (with the corresponding temporary
global forms of each security comprised
by such Unit) for each Unit Tranche, as
the case may be, which the Company has
agreed to sell. The Company will send a
copy of such instructions to the Agent
and the relevant Trustee.
The Principal Paying Agent or the Unit Agent
shall telephone each of the Euroclear
Operator, Cedel Bank or any other
relevant clearing system with a request
for a security code for each Note Tranche
or Unit Tranche (and, if applicable, a
security code for each security comprised
by the Units of such Unit Tranche) agreed
to be issued and shall notify the Company
and the Agent of such security code or
codes as soon as practicable.
D. In accordance with instructions received
from the Company, (i) the Principal
Paying Agent shall authenticate and
deliver a Temporary Global Note for each
Note Tranche or Unit Tranche, as
applicable, which the Company has agreed
to sell and (ii) the Unit Agent shall
prepare a Temporary Global Unit for each
Unit Tranche for which the Company has
agreed to sell (including, as applicable,
by countersigning and delivering any
Universal Warrants includable in such
Unit, by countersigning, executing and
delivering and Purchase Contracts
includable in such Unit and by obtaining
from the Principal Paying Agent the Notes
to be included in such Units,
authenticated in accordance with clause
(i) above). The settlement of each of
the Note Tranche and the Unit Tranche is
to occur on the relevant settlement date.
All such Temporary Global Notes and all
such Temporary Global Units (including
all of the securities included in such
Units) will then be delivered to the
Depositary. The Principal Paying Agent
or the Unit Agent, as the case may be,
will also give instructions to the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to credit
the Notes or Units represented by such
Temporary Global Note or Temporary Global
Unit delivered to such Depositary to, in
the case of the Notes, the Principal
Paying Agent's distribution account and,
in the case of the Units, the Unit
Agent's distribution account, at the
Euroclear Operator, Cedel Bank or any
other relevant clearing system. At
settlement of any Note Tranche, the
Principal Paying Agent will instruct the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to debit,
on the settlement date, from the
distribution account of the Principal
Paying Agent the principal amount of
Notes of each Note Tranche, with respect
to which the Agent has solicited an offer
to purchase and to credit, on the
settlement date, such principal amount to
the account of the Agent with the
Euroclear Operator, Cedel Bank or any
other relevant clearing system against
payment of the purchase payment price of
such Notes. At settlement of any Unit
Tranche, the Unit Agent will instruct the
Euroclear Operator, Cedel Bank or any
other relevant clearing system to debit,
on the settlement date, from the
distribution account of the Unit Agent
the number and face amount of Units of
each Unit Tranche, with respect to which
the Agent has solicited an offer to
purchase and to credit, on the settlement
date, such number and face amount to the
account of the Agent with the Euroclear
Operator, Cedel Bank or any other
relevant clearing system against payment
of the purchase payment price of such
Units. In the case of the Notes and the
Units, the Agent shall give corresponding
instructions to the Euroclear Operator,
Cedel Bank or any other relevant clearing
system.
E. The Euroclear Operator, Cedel Bank and any
other relevant clearing system shall
debit and credit accounts in accordance
with instructions received from the
Principal Paying Agent and the Agent, in
the case of Notes and the Unit Agent and
the Agent, in the case of Units.
Each of the Principal Paying Agent and
the Unit Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a
transfer of funds to the U.S. dollar
account of the Company with a bank in New
York City (or, with respect to Notes and
Units payable in a Specified Currency
other than U.S. dollars, to an account
maintained at a bank selected by the
Company, which bank shall be located
outside the United Kingdom in the case of
Notes and Units payable in a Specified
Currency other than pounds sterling that
mature not later than five years from and
including the date of issue thereof)
designated by the Company in writing.
Settlement Procedures
Timetable; Bearer Notes
and Bearer Units: For sales by the Company of Bearer Notes
or of Bearer Units to or through the
Agent, "Settlement Procedures; Bearer
Notes and Bearer Units" "A" through "E"
above shall be completed on or before the
respective times set forth below:
Settlement
Procedure;
Bearer Notes
and Bearer
Units Time
------------ ----
A 12:00 P.M. (NYC time) three days
before settlement date
B 12:00 P.M. (NYC time) three days
be fore settlement date
C 9:00 A.M. (London time) two days
before settlement date
D 3:45 P.M. (London time) one day
before settlement date
E 5:00 P.M. (NYC time) on
settlement date
Settlement Procedures;
Registered Notes and
Registered Units: Settlement Procedures with regard to
each Registered Note and Registered
Unit sold by the Company to or through
the Agent (unless otherwise specified
pursuant to a Notes Terms Agreement or
a Units Terms Agreement) shall be as
follows:
AA. In the case of a Registered Note
(whether issued alone or as part of a
Unit), the Agent will advise the
Company by telephone that such Note is
a Registered Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note
Owner").
2. Address of the Registered Note
Owner and address for payment of
principal and interest.
3. Taxpayer identification number
of the Registered Note Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate
Registered Note, the Interest
Rate, whether such Note is an
Amortizing Note and, if so, the
amortization schedule, or, in
the case of a Floating Rate
Registered Note, the Initial
Interest Rate (if known at
such time), Interest Payment
Period, Calculation Agent,
Base Rate, Index Maturity,
Index Currency, Interest
Reset Period, Initial
Interest Reset Date, Interest
Reset Dates, Spread or Spread
Multiplier (if any), Minimum
Interest Rate (if any),
Maximum Interest Rate (if
any) and the Alternate Rate
Event Spread (if any).
8. Redemption or repayment
provisions (if any).
9. Ranking.
10. Settlement date and time
(Original Issue Date).
11. Interest Accrual Date.
12. Price.
13. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note,
and if it is an OID Note, the
total amount of OID, the yield
to maturity, the initial accrual
period OID and the applicability
of Modified Payment upon
Acceleration (and if so, the
Issue Price).
17. Whether such Note is a Series D
Note or a Series E Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the
Agent will advise the Company by
telephone that such Unit is a
Registered Unit, of the information set
forth in "Settlement Procedures;
Registered Notes and Registered Units"
"A" above with respect to Registered
Notes that constitute a part of such
Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit
Owner").
2. Address of the Registered Unit
Owner.
3. Taxpayer identification number of
the Registered Unit Owner (if
available).
4. Denominations.
5. Settlement date and time.
6. Number of Units (and Face Amount).
7. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
8. Designation of the Securities
comprised by such Units:
a. Notes (See "Settlement
Procedures; Registered
Notes and Registered Units"
"A");
b. Universal Warrants, if any;
and
c. Purchase Contracts, if any.
9. Any other provisions applicable to
the Unit (other than those
provisions applicable to the
securities comprised by such
Unit).
10. If the Registered Unit comprises
Registered Universal Warrants:
a. Designation of the Series of
Universal Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise
Price;
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by
any holder on any day;
j. Maximum number of Universal
Warrants exercisable on any
day: [In the aggregate]
[By any beneficial owner];
k. Formula for determining
Cash Settlement Value;
l. Exchange Rate (or method
of calculation); and
m. Any other applicable
provisions.
11. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract Property:
Quantity;
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of Settlement
Payment;
h. Authorized Number of
Purchase Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable
provisions.
CC. The Company will advise Chase as
Principal Paying Agent for the Notes or
as Unit Agent for the Units, by
telephone or electronic transmission
(confirmed in writing at any time on
the same date) of the information set
forth in "Settlement Procedures;
Registered Notes and Registered Units"
"AA" and "BB" above, as applicable.
DD. The Company will have delivered to Chase
as Principal Paying Agent for the Notes,
or as Unit Agent for the Units, a
pre-printed four-ply packet for such
Note or such Unit, as the case may be,
which packet will contain the following
documents in forms that have been
approved by the Company, the Agent and
Chase, as Principal Paying Agent for the
Notes, or as Unit Agent for the Units:
1. Note or Unit, as the case may be,
with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. Chase will (i) authenticate and deliver
any Note (whether issued alone or as
part of a Unit) through the Principal
Paying Agent if necessary, with the
confirmation and Stubs One and Two to
the Agent, and (ii) complete and
deliver the Unit (including by
countersigning and delivering any
Universal Warrant includable in such
Unit, by countersigning, executing and
delivering any Purchase Contract
includable in such Unit and by obtaining
from the Principal Paying Agent the
Notes to be included in such Units,
authenticated in accordance with clause
(i) above) with the confirmation and
Stubs One and Two to the Agent. The
Agent will acknowledge receipt of the
Note or the Unit, as the case may be,
by stamping or otherwise marking Stub
One and returning it to Chase, through
the Principal Paying Agent, in the case
of the Notes, if necessary. Such
delivery will be made only against such
acknowledgment of receipt and evidence
that instructions have been given by the
Agent, with respect to Program
Securities denominated in U.S. dollars,
for payment to the account of the
Company at Chase, New York, New York
(or, with respect to Program Securities
payable in a Specified Currency other
than U.S. dollars, to an account
maintained at a bank selected by the
Company, which bank shall be located
outside the United Kingdom in the case
of Program Securities payable in a
Specified Currency other than pounds
sterling that mature not later than
five years from and including the date
of issue thereof), in immediately
available funds, of an amount equal to
the purchase price of such Program
Securities less the Agent's commission
(if any). In the event that the
instructions given by the Agent for
payment to the account of the Company
are revoked, the Company will as
promptly as possible wire transfer to
the account of the Agent an amount of
immediately available funds equal to the
amount of such payment made.
The Principal Paying Agent and the Unit
Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a
transfer of funds to the U.S. dollar
account of the Company with Chase in
New York City (or, with respect to
Program Securities payable in a
Specified Currency other than U.S.
dollars, to an account maintained at a
bank selected by the Company which bank
shall be located outside the United
Kingdom in the case of Program
Securities payable in a Specified
Currency other than pounds sterling
that mature not later than five years
including the date of issue thereof).
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will
deliver (with confirmation) such Program
Securities to the customer against
payment in immediately available funds.
The Agent will obtain the
acknowledgment of receipt of such
Program Securities by retaining Stub
Two.
GG. In the case of all Program Securities,
Chase will send Stub Three to the
Company by first-class mail.
Settlement Procedures
Timetable; Registered Notes
and Registered Units: For sales by the Company of Registered Notes
or Registered Units to or through the Agent,
"Settlement Procedures; Registered Notes and
Registered Units" "AA" through "GG" set forth
above shall be completed on or before the
respective times (London time) set forth
below:
Settlement
Procedure;
Registered
Notes
and
Registered
Units Time
---------- ----
AA 2:00 P.M. on second day before
settlement date
BB 2:00 P.M. on second day before
settlement date
CC 3:00 P.M. on second day before
settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
Failure to Settle: Bearer Notes and Bearer Units. If the Agent
shall have advanced its own funds for payment
against subsequent receipt of funds from the
purchaser and if a purchaser shall fail to
make payment for a Note or a Unit, the Agent
will promptly notify, in the case of a Note,
the Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator, Cedel
Bank and any other relevant clearing system,
and, in the case of the Unit, the Company,
the Unit Agent, the Depositary, and the
Euroclear Operator, Cedel Bank and any other
relevant clearing system, in each case by
telephone, promptly confirmed in writing (but
no later than the next Business Day). In
such event, the Company shall promptly
instruct the Principal Paying Agent, in the
case of the Note, and the Unit Agent, in the
case of the Unit, to cancel the purchaser's
interest in the appropriate Temporary Global
Note representing such Note or the
appropriate Temporary Global Unit representing
such Unit. Upon (i) confirmation from the
Principal Paying Agent or the Unit Agent in
writing (which may be given by telex or
telecopy) that the Principal Paying Agent or
the Unit Agent has canceled such purchaser's
interest in such Temporary Global Note or
Temporary Global Unit, as the case may be,
and (ii) confirmation from the Agent in
writing (which may be given by telex or
telecopy) that the Agent has not received
payment from the purchaser for the Note or
the Unit, the Company will promptly pay to
the Agent an amount in immediately available
funds equal to the amount previously paid by
the Agent in respect of such Bearer Note or
Bearer Unit. Such payment will be made on the
settlement date, if possible, and in any
event not later than 12 noon (New York City
time) on the Business Day following the
settlement date. The Principal Paying Agent
or the Unit Agent, as the case may be, and
the Depositary will make or cause to be made
such revisions to such Temporary Global Note
or Temporary Global Unit as are necessary to
reflect the cancellation of such portion of
such Temporary Global Note or Temporary
Global Unit.
If a purchaser shall fail to make payment for
the Note or Unit for any reason other than a
default by the Agent in the performance of
its obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for
the Agent's loss of the use of funds during
the period when they were credited to the
account of the Company, the Principal Paying
Agent or the Unit Agent, as applicable.
Immediately upon such cancellation, the
Principal Paying Agent or the Unit Agent, as
the case may be, will make appropriate
entries in its records to reflect the fact
that a settlement did not occur with respect
to such Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
Chase, as Registrar of the Registered Notes
or as Unit Agent, by telephone and return
such Note or Unit to Chase through the
Principal Paying Agent, in the case of the
Notes or the Unit Agent, in the case of the
Units, if necessary. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an
amount equal to the amount previously
credited to the Company's account in respect
of such Note or Unit. Such wire transfer
will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date.
If the failure shall have occurred for any
reason other than a default by the Agent in
the performance of its obligations hereunder
and under the Distribution Agreement, then
the Company will reimburse the Agent on an
equitable basis for its loss of the use of
the funds during the period when they were
credited to the account of the Company or
Chase. Immediately upon receipt of the
Registered Note or Registered Unit in respect
of which such failure occurred, Chase will
mark such Note or Unit "canceled," make
appropriate entries in Chase's records and
send such Note or Unit to the Company.
Notice of Issuance
London Stock Exchange: The Sponsoring Member Firm will provide
information with respect to the
issuance of each Series D Note and
Series D Unit to the London Stock
Exchange or the Paris Bourse, as the
case may be, and will advise the
Company in writing as to the
effectiveness of the listing of such
Series D Note and Series D Unit by the
close of business on the related
settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the London Stock Exchange or
the Paris Bourse, as the case may be with such
information regarding Series D Notes and
Series D Units issued and outstanding as such
exchange may require.
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDEL BANK AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley, Dean Witter, Discover & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof, [U.S.$]
__________ principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that are (a)
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (b) United States persons
who acquired the Securities through foreign branches of United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (a) or (b), each
such United States financial institution has agreed, on its own behalf or
through its agent, that we may advise the Issuer or the Issuer's agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
U.S. Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the
further effect that United States or foreign financial institutions described
in clause (iii) above (whether or not also described in clause (i) or (ii))
have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, seeking to collect principal or
interest with respect to) any portion of the temporary global Security
representing the above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) that as of the date hereof we
have not received any notification from any of our Member Organizations to the
effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith (or, if relevant, with respect to
which principal or interest is being requested) are no longer true and cannot
be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________, 19__
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, BRUSSELS OFFICE,
as Operator of the Euroclear
System]
[Cedel Bank S.A.]
[Other]
By:__________________________________
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR AND CEDEL BANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley, Dean Witter, Discover & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States Federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you
may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) are owned
by United States or foreign financial institution(s) for purposes of resale
during the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and in addition if the owner of the Securities is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)) such financial
institution has not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States
or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to [U.S.$]
__________ of such interest in the above Securities in respect of which we are
not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection
of any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________, 19__
[To be dated no earlier than
the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[Name of Account Holder]
By:__________________________________
(Authorized Signatory)
Name:
Title:
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
--------------------------------------------------
To: The Chase Manhattan Bank,
London Office
Attention: __________________________________
__________________________________
and with a copy to:
[The Chase Manhattan Bank, as Senior Debt Trustee]
[The First National Bank of Chicago, as
Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated June __, 1997
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro
Distribution Agreement and to give instructions to the Euroclear Operator,
Cedel Bank and/or any other relevant clearing system in order for you to:
(4) Credit account of [Name of Agent] with [Euroclear/Cedel
Bank/Other](5) with the following Bearer Notes:
----------
(4) Separate instructions are to be sent in respect of each offer accepted
by the Company. Repeat this information (numbering consecutively) if
Bearer Notes of more than one Note Tranche are to be issued to an
Agent.
(5) Delete as appropriate.
against payment of [__________________].
Date:
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:__________________________________
__________________________________
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
--------------------------------------
To: The Chase Manhattan Bank,
Attention:__________________________________
__________________________________
Re: Euro Distribution Agreement
dated June __, 1997
---------------------------
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms
Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Cedel Bank and/or
any other relevant clearing system in order for you to:
* Credit account of [Name of Agent] with [Euroclear/Cedel
Bank/Other](2) with the following Bearer Units:
----------
(1) Separate instructions are to be sent in respect of each offer accepted by
the Company. Repeat this information (numbering consecutively)
if Bearer Units of more than one Unit Tranche are to be issued
to an Agent.
(2) Delete as appropriate.
Universal Warrants Purchase Contracts
Issued as Part of a Issued as Part of a
All Units: Unit: Unit:
---------------------- ----------------------- -------------------------
Principal Amount: Price: Price:
Purchase Price: Specified Currency or Settlement Date and
Composite Currency: Time:
Price to Public: Exercise Date: Buy or Sell:
Place of Delivery: Warrant Property: Purchase Contract
Property:
Specified Currency: Permitted Payment: Purchase or Sale Price:
Original Issue Date: Exercise Price:
Expiration Date: Specified Currency or
Composite Currency:
Put or Call: Permitted Payment:
against payment of [_________________].
Date:
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:__________________________________
__________________________________