EXHIBIT 4-mm
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL SENIOR ECU PUTTABLE FLOATING RATE NOTE DUE ___
BEARER BEARER
No. PGFL ______
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES
INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER
NOTES, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.(1)
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(1) Remove this legend if exchangeable for Registered Notes.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO
OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO
A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Senior ECU Puttable Floating Rate Notes)
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (together with its successors and assigns, the "Issuer"), for
value received, hereby promises to pay to bearer, upon surrender hereof, the
principal amount specified in [Schedule A hereto](2) [Schedule A-1 hereto](3),
on the Maturity Date specified above (except to the extent previously redeemed
or repaid) and to pay interest thereon, from and including the Interest
Accrual Date specified above at a rate per annum equal to the Initial Interest
Rate specified above until and excluding the Initial Interest Reset Date
specified above, and on and after at a rate per annum determined in accordance
with the provisions specified on the reverse hereof until but excluding the
date such principal amount is paid or duly made available for payment. The
Issuer will pay interest in arrears on each date (an "Interest Payment
Date") which falls one month, three months, six months or one year, as
specified above as the Interest Payment Period, after the preceding
Interest Payment Date, or the Interest Accrual Date in the case of the
Initial Interest Payment Date specified above and on the Maturity Date
specified above (or any redemption or repayment date); provided, however,
that if an Interest Payment Date or the Maturity Date or redemption or
repayment date would fall on a day that is not a Business Day, as defined
on the reverse hereof, such Interest Payment Date, Maturity Date or
redemption or repayment date shall be the following day that is a Business
Day, except that if such next Business Day falls in the next calendar
month, (i) the Interest Payment Date, Maturity Date or redemption or
repayment date shall be the immediately preceding day that is a Business
Day and (ii) each subsequent Interest Payment Date shall be the last day
that is a Business Day in the last month of the Interest Payment Period
commencing on the immediately preceding Interest Payment Date.
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(2) Applies if this Note is not issued as part of, or in relation to, a Unit.
(3) Applies if this Note is issued as part of, or in relation to, a Unit.
Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for, from and including
the Interest Accrual Date, until but excluding the date the principal hereof
has been paid or duly made available for payment (except as provided below).
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions described herein, be
paid to the holder of this Note at the office or agency of the Principal
Payment Agent (this and certain other capitalized terms used herein are
defined on the reverse of this Note) or at the office or agency of such other
paying agents outside the United States as the Issuer may determine for that
purpose (each, a "Paying Agent," which term shall include the Principal
Payment Agent).
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be made
upon presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest
on this Note will be made in ECU, except as provided on the reverse hereof.
Payment of the principal of and premium, if any, and interest on this Note
will be made in ECU either by a check drawn on a bank outside the United
States and mailed to an address outside the United States furnished by the
payee or, at the option of the payee and subject to applicable laws and
regulations and the procedures of the Paying Agent, by wire transfer of
immediately available funds to an account maintained by the payee with a bank
located outside the United States. To the extent any payment of the principal
of, premium, if any, and interest on this Note is payable in U.S. dollars,
such payment will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Such payments on this Note will be made either by a check
mailed to an address outside the United States furnished by the payee or, at
the option of the payee and subject to applicable laws and regulations and the
procedures of the Paying Agent, by wire transfer of immediately available
funds to an account maintained by the payee with a bank located outside the
United States if appropriate wire transfer instructions have been received by
the Paying Agent not less than 15 calendar days prior to the applicable
payment date. Notwithstanding the foregoing, in the event that any such
payment in U.S. dollars on this Note at the offices of all Paying Agents would
be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the United States, if such paying agency, under applicable law and
regulations, would be able to make such payment.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:____________________________________
Authorized Officer
[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under 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 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, the "Senior
Indenture"), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed The Chase Manhattan Bank (formerly known
as Chemical Bank), London Branch, as its principal paying agent for the Notes
(the "Principal Paying Agent," which term includes any additional or successor
Principal Paying Agent appointed by the Issuer). The terms of individual
Notes may vary with respect to interest rates, interest rate formulas, issue
dates, maturity dates, or otherwise, all as provided in the Senior Indenture.
To the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs and except as set forth below, will not be redeemable
or subject to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on the first Interest
Payment Date occurring on or after the Initial Redemption Date specified on
the face hereof and thereafter on any Interest Payment Date, on the terms set
forth on the face hereof, together with interest accrued and unpaid hereon to
the date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is 100%
of the principal amount hereof, together with interest accrued and unpaid
hereon to the date of redemption (except as provided below). Notice of
redemption shall be mailed to the holders of the Notes designated for
redemption who have filed their names and addresses with the Principal Paying
Agent, not less than 90 nor more than 120 days prior to the date fixed for
redemption, subject to all the conditions and provisions of the Senior
Indenture. Notice of redemption to all other holders of Notes shall be
published in the manner set forth in "Notices" as defined below, once in each
of the three successive calendar weeks, the first publication to be not less
than 90 nor more than 120 days prior to the date set for redemption. In the
event of redemption of this Note in part only, the Principal Paying Agent
shall cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount of
this Note so redeemed, whereupon the principal amount hereof shall be reduced
for all purposes by the amount so redeemed and noted. The Issuer will deliver
to the Trustee at least 130 days prior to the date fixed for redemption an
Officer's Certificate stating the aggregate principal amount of Notes to be
redeemed pursuant to this paragraph.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the terms set forth
herein. On any Interest Payment Date, this Note will be repayable in whole or
in part in increments of ECU 1,000 (provided that any remaining principal
amount hereof shall not be less than the minimum authorized denomination
hereof) at the option of the holder hereof at a price equal to the Optional
Repayment Percentage specified on the face hereof of the principal amount to
be repaid, together with interest accrued and unpaid hereon to the date of
repayment (except as provided below). For this Note to be repaid at the
option of the holder hereof, the Principal Paying Agent must receive at its
office in London, at least 90 but not more than 120 days prior to the date of
repayment this Note with the form entitled "Option to Elect Repayment" below
duly completed. Exercise of such repayment option by the holder hereof shall
be irrevocable. In the event of repayment of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to ECU LIBOR
based on the Index Maturity, if any, shown on the face hereof (i) plus or
minus the Spread, if any, or (ii) multiplied by the Spread Multiplier, if any,
specified on the face hereof. Commencing with the Initial Interest Reset Date
specified on the face hereof and thereafter on each Interest Payment Date
(each such date, including the Initial Interest Reset Date, an "Interest Reset
Date"), the rate at which interest on this Note is payable shall be reset as
of each Interest Reset Date; provided, however, that the interest rate in
effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate.
The Interest Determination Date pertaining to an Interest Reset
Date shall be the second London Banking Day preceding such Interest Reset
Date. As used herein, "London Banking Day" means any day on which dealings in
deposits in U.S. dollars are transacted in the London interbank market.
Determination of ECU LIBOR. ECU LIBOR with respect to this
Note shall be determined on each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the
Calculation Agent will determine the rate for deposits in ECU for the
period of the Index Maturity specified on the face hereof which appear
on Telerate Page 3750 (or such other page as may replace such page on
that service for the purpose of displaying London interbank offered
rates of major banks) at approximately 11:00 a.m., London time, on
such Interest Determination Date.
(ii) If such rate does not appear on the Telerate Page
3750 (or such other replacement page), the Calculation Agent will
request the principal London offices of each of four major banks in
the London interbank market, as selected by the Calculation Agent (the
"Reference Banks"), to provide the Calculation Agent with its offered
quotations for deposits in ECU for the period of the Index Maturity,
specified on the face hereof, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on such Interest
Determination Date and in a principal amount that is representative of
a single transaction in such market at such time. If at least two
such quotations are provided, ECU LIBOR will be the arithmetic mean of
such quotations.
(iii) If fewer than two quotations are provided pursuant
to (ii) above, ECU LIBOR in respect of such Interest Determination
Date will be the arithmetic mean of the rates quoted by three major
banks in Luxembourg selected by the Calculation Agent at approximately
11:00 a.m., Luxembourg time, on such Interest Determination Date for
loans in ECU to leading European banks, for the period of the Index
Maturity specified on the face hereof and in a principal amount that
is representative of a single transaction in such market at such time.
(iv) If fewer than three banks selected as aforesaid by
the Calculation Agent are quoting rates as mentioned in (iii) above,
the Calculation Agent will request each of the Reference Banks to
provide the Calculation Agent with the offered quotations provided to
them by leading banks in each relevant interbank market for deposits
in each of the then component currencies of the ECU (the "Relevant
Currencies") for the period of the Index Maturity specified on the
face hereof as at 11:00 a.m., London time, on the Interest
Determination Date (provided that, if the ECU is not then used as the
unit of account of the European Community, the component currencies of
the ECU shall be those determined by the Calculation Agent in the
manner set forth below in the nineteenth succeeding paragraph with
respect to payments in ECU) and the Calculation Agent will determine
ECU LIBOR on the basis of the respective offered rates so communicated
by the Reference Banks or any two or more of them weighted in the
manner provided below, provided that, if on any Interest Determination
Date the Reference Banks which are providing quotations do not provide
offered quotations for all the Relevant Currencies, but do provide
such quotations for Relevant Currencies representing in aggregate 95
percent (determined by the Calculation Agent as provided below) or
more of one ECU on such Interest Determination Date, then ECU LIBOR
for the applicable Interest Payment Period shall nevertheless be
calculated pursuant to this sub-paragraph (iv) on the basis of the
quotations so provided and ignoring the Relevant Currencies for which
such quotations are not provided.
(v) If the Reference Banks or any two or more of them
(if only such provide quotations) provide the Calculation Agent with
offered quotations pursuant to (iv) above for Relevant Currencies
representing in aggregate less than 95 percent (determined as provided
below) of one ECU on such Interest Determination Date then, with
respect to each of the Relevant Currencies for which quotations are
not so provided, the Calculation Agent shall determine such offered
rates as are reasonably representative of the rates at which deposits
in such Relevant Currency are being offered between leading banks
selected by it in the relevant interbank market as of the Interest
Determination Date for a period substantially co-extensive with the
Index Maturity specified on the face hereof. If on any Interest
Determination Date the Relevant Currencies for which quotations are
provided by the Reference Banks pursuant to (iv) above and the
Relevant Currencies for which rates are determined by the Calculation
Agent pursuant to this sub-paragraph (v) represent in aggregate 95
percent or more (determined as provided below) of one ECU on such
Interest Determination Date, then ECU LIBOR for the applicable
Interest Payment Period shall be calculated on the basis of such
quotations and rates.
(vi) If on any Interest Determination Date fewer than
two Reference Banks provide the Calculation Agent with offered
quotations pursuant to (iv) above or if the Relevant Currencies for
which quotations are provided by the Reference Banks pursuant to (iv)
above and the Relevant Currencies for which rates are determined by
the Calculation Agent pursuant to (v) above represent in aggregate
less than 95 percent (determined as provided below) of one ECU, then
ECU LIBOR for the applicable Interest Payment Period will be the same
as ECU LIBOR for the immediately preceding Interest Payment Period (or
if the Interest Determination Date is the Initial Interest
Determination Date, the rate of interest payable hereon will be
Initial Interest Rate).
The weighting to be given to a Relevant Currency, or the
percentage which it bears to one ECU, shall be determined by the Calculation
Agent by reference to the proportion that the amount of such Relevant Currency
included in one ECU bears to one ECU and calculated on the basis of the U.S.
dollar equivalent of each of the Relevant Currencies as at the Interest
Determination Date. Such U.S. dollar equivalent shall be determined by the
Calculation Agent in the manner provided in the nineteenth succeeding
paragraph except that, (i) any reference therein to a Day of Valuation shall
be deemed to refer to the Interest Determination Date, (ii) all decisions or
choices to be made by the Exchange Rate Agent thereunder shall be made by the
Calculation Agent and (iii) if the ECU is being used as the unit of account of
the European Community on such Interest Determination Date, the components of
the ECU shall be the currency amounts that are components of the ECU on such
date.
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The interest
rate on this Note will in no event be higher than the maximum rate permitted
by New York law, as the same may be modified by United States Federal law of
general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Accrued interest hereon
shall be an amount calculated by multiplying the principal amount hereof shown
on Schedule A hereto by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the period for which interest is being paid. The interest factor for each
such date shall be computed by dividing the interest rate applicable to such
day by 360. All percentages resulting from any calculation of the rate of
interest on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded upward). The interest rate in effect on any
Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without
interest coupons attached (a "Global Bearer Note"). The beneficial owner of
all or a portion of this Note may exchange its interest in this Note upon not
less than 30 days' written notice to the Principal Paying Agent through the
relevant clearing system, in whole for Notes in bearer form with interest
coupons attached (the "Definitive Bearer Notes," and, together with the Global
Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this
Note, at the beneficial owner's option, in whole or from time to time in part,
for Notes in fully registered form without coupons (the "Registered Notes"),
in each case, in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of ECU 100,000.
Interests in this Note shall also be exchanged by the Issuer in whole, but not
in part, for Definitive Bearer Notes, which shall be serially numbered, with
coupons, if any, attached or, if indicated on the face of this Note, at the
beneficial owner's option, for Registered Notes, of any authorized
denominations if (i) this Note is accelerated following an Event of Default or
(ii) either Euroclear or Cedel Bank or any other relevant clearing system is
closed for business for a continuous period of fourteen days (other than by
reason of public holidays) or announces an intention to cease business
permanently or in fact does so. The Issuer shall give notice to the Principal
Paying Agent promptly following any such acceleration or upon learning of any
such closure. Any exchanges referred to above shall be made at the office of
the Principal Paying Agent, upon compliance with any procedures set forth in,
or established pursuant to, the Senior Indenture; provided, however, that the
Issuer shall not be required (i) to exchange this Note for a period of fifteen
calendar days preceding the first publication of a notice of redemption of all
or any portion hereof or (ii) to exchange any portion of this Note selected
for redemption or surrendered for optional repayment. Upon exchange of any
portion of this Note for a Definitive Bearer Note or Definitive Bearer Notes,
this Note will be exchanged in whole for Definitive Bearer Notes, whereupon
this Note will be canceled. All such exchanges of Notes will be free of
service charge, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Unless otherwise indicated on the face of this note, Registered Notes will not
be issuable in exchange for this Note or for a Definitive Bearer Note or
Definitive Bearer Notes. The date of any Note delivered upon any exchange of
this Note shall be such that no gain or loss of interest results from such
exchange.
All (and not less than all) interests in this Note will be
exchanged for Definitive Bearer Notes in accordance with the procedures set
forth in the following two sentences as soon as practicable after (i) the
first beneficial owner of an interest in this Note exchanges its interest for
a Definitive Bearer Note or (ii) the Issuer gives notice to the Principal
Paying Agent of an acceleration of the Note or the closure of a relevant
clearing system as described above; provided that a common depositary located
outside the United States (the "common depositary") holding this Note for
Morgan Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Cedel Bank, societe anonyme
("Cedel") and/or any other relevant clearing system (including Societe
Interprofessionelle pour la Compensation des Valeurs Mobilieres ("SICOVAM"))
instructs the Principal Paying Agent regarding the aggregate principal amount
of Definitive Bearer Notes and the denominations of such Definitive Bearer
Notes that must be authenticated and delivered to each relevant clearing
system in exchange for this Note. Thereafter, the Principal Paying Agent,
acting solely in reliance on such instructions, shall, upon surrender to it of
this Note and subject to the conditions in the preceding paragraph,
authenticate and deliver Definitive Bearer Notes in exchange for this Note in
accordance with such instructions and shall cause Schedule A of this Note to
be endorsed to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of this Note.
This Note may be transferred by delivery; provided, however,
that this Note may be transferred only to a common depositary outside the
United States for the Euroclear Operator, Cedel and/or any other relevant
clearing system or to a nominee of such depositary.
In case this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen this such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for this Note, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnify satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Global
Medium-Term Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of the debt securities of each affected series
(voting as a single class) may then declare the principal of all debt
securities of all such series and interest accrued thereon to be due and
payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Senior
Indenture applicable to all outstanding debt securities issued thereunder,
including this Note, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of all
debt securities issued under the Senior Indenture then outstanding (treated
as one class) may declare the principal of all such debt securities and
interest accrued thereon to be due and payable immediately, but upon
certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal (or premium,
if any) or interest on such debt securities) by the holders of a majority
in principal amount of the debt securities of all affected series then
outstanding.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed for
redemption, if the Issuer determines that, as a result of any change in or
amendment to the laws (or any regulations or rulings promulgated thereunder)
of the United States or of any political subdivision or taxing authority
thereof or therein affecting taxation, or any change in official position
regarding the application or interpretation of such laws, regulations or
rulings, which change or amendment becomes effective on or after the Original
Issue Date hereof, the Issuer has or will become obligated to pay Additional
Amounts (as defined below) with respect to this Note as described below.
Prior to the giving of any notice of redemption pursuant to this paragraph,
the Issuer shall deliver to the Trustee (i) a certificate stating that the
Issuer is entitled to effect such redemption and setting forth a statement
of facts showing that the conditions precedent to the right of the Issuer
to so redeem have occurred, and (ii) an opinion of independent counsel
satisfactory to the Trustee to such effect based on such statement of
facts; provided that no such notice of redemption shall be given earlier
than 60 days prior to the earliest date on which the Issuer would be
obligated to pay such Additional Amounts if a payment in respect of this
Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the
United States by the Issuer or any Paying Agent of principal, premium or
interest due in respect of this Note would, under any present or future laws
or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined below
(other than such a requirement (a) that would not be applicable to a payment
made by the Issuer or any Paying Agent (i) directly to the beneficial owner or
(ii) to a custodian, nominee or other agent of the beneficial owner, or (b)
that can be satisfied by such custodian, nominee or other agent certifying to
the effect that such beneficial owner is a United States Alien; provided that
in each case referred to in clauses (a)(ii) and (b) payment by such custodian,
nominee or agent to such beneficial owner is not otherwise subject to any such
requirement), the Issuer shall redeem this Note, as a whole, at a redemption
price equal to 100% of the principal amount thereof, together with accrued
interest to the date fixed for redemption, or, at the election of the Issuer
if the conditions of the next succeeding paragraph are satisfied, pay the
additional amounts specified in such paragraph. The Issuer shall make such
determination and election as soon as practicable, shall promptly notify the
Trustee thereof and shall publish prompt notice thereof (the "Determination
Notice") stating the effective date of such certification, identification or
other information reporting requirements, whether the Issuer will redeem this
Note or has elected to pay the additional amounts specified in the next
succeeding paragraph, and (if applicable) the last date by which the
redemption of this Note must take place, as provided in the next succeeding
sentence. If the Issuer redeems this Note, such redemption shall take place
on such date, not later than one year after the publication of the
Determination Notice, as the Issuer shall elect by notice to the Trustee at
least 60 days prior to the date fixed for redemption. Notice of such
redemption of this Note will be given to the holder of this Note not more than
60 nor less than 30 days prior to the date fixed for redemption.
Notwithstanding the foregoing, the Issuer shall not so redeem this Note if the
Issuer shall subsequently determine, not less than 30 days prior to the date
fixed for redemption, that subsequent payments would not be subject to any
such certification, identification or information reporting requirement, in
which case the Issuer shall publish prompt notice of such determination and
any earlier redemption notice shall be revoked and of no further effect.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as a whole at any time pursuant to the applicable provisions of the
immediately preceding paragraph and the redemption price of this Note will not
be reduced for applicable withholding taxes. If the Issuer elects to pay
additional amounts pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
issuer will redeem this Note as a whole, pursuant to the applicable provisions
of the immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations
set forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
than every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount
provided for in this Note to be then due and payable. The Issuer will not,
however, be required to make any payment of Additional Amounts to any such
holder for or on account of:
(a) any such tax, assessment or other governmental
charge that would not have been so imposed but for (i) the existence
of any present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such holder,
if such holder is an estate, a trust, a partnership or a corporation)
and the United States, including, without limitation, such holder (or
such fiduciary, settlor, beneficiary, member or shareholder) being or
having been a citizen or resident thereof or being or having been
engaged in a trade or business or present therein or having, or having
had, a permanent establishment therein or (ii) the presentation by the
holder of this Note for payment on a date more than 15 days after the
date on which such payment became due and payable or the date on which
payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or governmental
charge;
(c) any tax, assessment or other governmental charge
imposed by reason of such holder's past or present status as a
personal holding company or foreign personal holding company or
controlled foreign corporation or passive foreign investment company
with respect to the United States or as a corporation which
accumulates earnings to avoid United States federal income tax or as a
private foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge
that is payable otherwise than by withholding from payments on or in
respect of this Note;
(e) any tax, assessment or other governmental charge
required to be withheld by any Paying Agent from any payment of
principal of, or interest on, this Note, if such payment can be made
without such withholding by any other Paying Agent in a city in
Western Europe;
(f) any tax, assessment or other governmental charge
that would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge
imposed by reason of such holder's past or present status as the
actual or constructive owner of 10% or more of the total combined
voting power of all classes of stock entitled to vote of the Issuer or
as a direct or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e),
(f) or (g);
nor shall Additional Amounts be paid with respect to any
payment on this note to a United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the United States (or any
political subdivision thereof) to be included in the income, for tax purposes,
of a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to the
Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder of this Note.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture.
With respect to each due date for the payment of the principal
of, premium, if any, or interest on, this Note on or after the first business
day in Brussels on which the ECU ceases to be used as the unit of account of
the European Community ("EC") and has not become a currency in its own right,
replacing all or some of the currencies of the member states of the EC, the
Issuer shall choose a substitute currency (the "Chosen Currency") which may be
any currency which was, on the last day on which the ECU was used as the unit
of account of the EC, a component currency of the ECU basket or U.S. dollars,
in which all such payments due on or after that date with respect to this Note
shall be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the basis
of the equivalent of the ECU in that currency, determined as described below,
as of the fourth business day in Brussels prior to the date on which such
payment is due.
On the first business day in Brussels on which the ECU
ceases to be used neither as the unit of account of the EC, and has not
become a currency in its own right, replacing all or some of the currencies
of the member states of the EC, the Issuer shall choose a Chosen Currency
in which all payments of principal, premium, if any, or interest with
respect to this Note having a due date prior thereto but not yet presented
for payment are to be made. The amount of each payment in such Chosen
Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business
day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined on the following basis
by, or on behalf of, an Exchange Rate Agent appointed by the Issuer. The
amounts and components composing the ECU for this purpose (the "Components")
shall be the amounts and components composing the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating the
U.S. dollar equivalents of the Components; and then, in the case of a Chosen
Currency other than U.S. dollars, using the rate used for determining the U.S.
dollar equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 p.m., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf;
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 p.m.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of notes
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided. If this
Note is listed on the London Stock Exchange Limited and such Exchange so
requires, the Issuer shall maintain a Paying Agent in London. The Issuer may
designate other agencies for the payment of said principal, premium and
interest at such place or places outside the United States (subject to
applicable laws and regulations) as the Issuer may decide. So long as there
shall be such an agency, the Issuer shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this Note
as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the holder of this
Note.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is nether a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close in The City of New York or in the City of London and that is
not a non-ECU clearing day, as determined by the ECU Banking
Association in Paris;
(b) the term "Notices" refers to notices to the holders
of the Notes to be given by publication in an authorized newspaper in
the English language and of general circulation in the Borough of
Manhattan, The City of New York, and London or, if publication in
London is not practical, in an English language newspaper with general
circulation in Western Europe. Such publication is expected to be
made in The Wall Street Journal and the Financial Times. Such Notices
will be deemed to have been given on the date of such publication, or
if published in such newspapers on different dates, on the date of the
first such publication;
(c) the term "United States" means the United States of
America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction; and
(d) the term "United States Alien" means any person
who, for United States federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership, one
or more of the members of which is a foreign corporation, a non-
resident alien individual or a non-resident alien fiduciary of a
foreign estate or trust.
All other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not
being repaid (in the absence of any such specification, one such Note will
be issued for the portion not being repaid): ________________.
Dated:______________________________ _________________________________
SCHEDULE A(4)
EXCHANGES FROM TEMPORARY GLOBAL DEALER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is ____________. The
following (A) exchanges of portions of a Temporary Global Bearer Note for an
interest in this Note or (B) (x) redemptions at the option of the Issuer or
(y) repayments at the option of the holder have been made:
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(4) Applies if this Note is not issued as part of, or in relation to, a Unit.
[SCHEDULE A-1](5)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")](6), (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")](7) for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
_______________
(5) This Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(6) Applies only if this Note is attached to a Unit.
(7) Applies only if this Note has been separated from a Unit.
Principal [Principal Principal
Date of Amount Amount [Principal Amount
Exchange, Exchanged Exchanged Amount Exchanged For
Cancellation From from an Exchanged for Definitive
Redemption, Temporary Attached Separated Bearer
or Repayment Global Notes Unit Note](5) Note](4) Notes
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[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL SENIOR ECU PUTTABLE FLOATING RATE NOTE DUE ___
BEARER BEARER
No. PGFL ______
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES
INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER
NOTES, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR
ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.(1)
------------
(1) Remove this legend if exchangeable for Registered Notes.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO
OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO
A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Senior ECU Puttable Floating Rate Notes)
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (together with its successors and assigns, the "Issuer"), for
value received, hereby promises to pay to bearer, upon surrender hereof, the
principal amount specified in [Schedule A hereto](2) [Schedule A-1 hereto](3),
on the Maturity Date specified above (except to the extent previously redeemed
or repaid) and to pay interest thereon, from and including the Interest
Accrual Date specified above at a rate per annum equal to the Initial Interest
Rate specified above until and excluding the Initial Interest Reset Date
specified above, and on and after at a rate per annum determined in accordance
with the provisions specified on the reverse hereof until but excluding the
date such principal amount is paid or duly made available for payment. The
Issuer will pay interest in arrears on each date (an "Interest Payment
Date") which falls one month, three months, six months or one year, as
specified above as the Interest Payment Period, after the preceding
Interest Payment Date, or the Interest Accrual Date in the case of the
Initial Interest Payment Date specified above and on the Maturity Date
specified above (or any redemption or repayment date); provided, however,
that if an Interest Payment Date or the Maturity Date or redemption or
repayment date would fall on a day that is not a Business Day, as defined
on the reverse hereof, such Interest Payment Date, Maturity Date or
redemption or repayment date shall be the following day that is a Business
Day, except that if such next Business Day falls in the next calendar
month, (i) the Interest Payment Date, Maturity Date or redemption or
repayment date shall be the immediately preceding day that is a Business
Day and (ii) each subsequent Interest Payment Date shall be the last day
that is a Business Day in the last month of the Interest Payment Period
commencing on the immediately preceding Interest Payment Date.
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(2) Applies if this Note is not issued as part of, or in relation to, a Unit.
(3) Applies if this Note is issued as part of, or in relation to, a Unit.
Interest on this Note will accrue from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for, from and including
the Interest Accrual Date, until but excluding the date the principal hereof
has been paid or duly made available for payment (except as provided below).
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, subject to certain exceptions described herein, be
paid to the holder of this Note at the office or agency of the Principal
Payment Agent (this and certain other capitalized terms used herein are
defined on the reverse of this Note) or at the office or agency of such other
paying agents outside the United States as the Issuer may determine for that
purpose (each, a "Paying Agent," which term shall include the Principal
Payment Agent).
Payment of the principal of this Note, any premium and the
interest due at maturity (or on any redemption or repayment date) will be made
upon presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest
on this Note will be made in ECU, except as provided on the reverse hereof.
Payment of the principal of and premium, if any, and interest on this Note
will be made in ECU either by a check drawn on a bank outside the United
States and mailed to an address outside the United States furnished by the
payee or, at the option of the payee and subject to applicable laws and
regulations and the procedures of the Paying Agent, by wire transfer of
immediately available funds to an account maintained by the payee with a bank
located outside the United States. To the extent any payment of the principal
of, premium, if any, and interest on this Note is payable in U.S. dollars,
such payment will be made in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts. Such payments on this Note will be made either by a check
mailed to an address outside the United States furnished by the payee or, at
the option of the payee and subject to applicable laws and regulations and the
procedures of the Paying Agent, by wire transfer of immediately available
funds to an account maintained by the payee with a bank located outside the
United States if appropriate wire transfer instructions have been received by
the Paying Agent not less than 15 calendar days prior to the applicable
payment date. Notwithstanding the foregoing, in the event that any such
payment in U.S. dollars on this Note at the offices of all Paying Agents would
be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the United States, if such paying agency, under applicable law and
regulations, would be able to make such payment.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior Indenture, as
defined on the reverse hereof, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Securities referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:____________________________________
Authorized Officer
[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under 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 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, the "Senior
Indenture"), to which Senior Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities of the Issuer, the Trustee and holders of the
Notes and the terms upon which the Notes are, and are to be, authenticated and
delivered. The Issuer has appointed The Chase Manhattan Bank (formerly known
as Chemical Bank), London Branch, as its principal paying agent for the Notes
(the "Principal Paying Agent," which term includes any additional or successor
Principal Paying Agent appointed by the Issuer). The terms of individual
Notes may vary with respect to interest rates, interest rate formulas, issue
dates, maturity dates, or otherwise, all as provided in the Senior Indenture.
To the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
This Note will not be subject to any sinking fund and, unless
otherwise provided on the face hereof in accordance with the provisions of the
following two paragraphs and except as set forth below, will not be redeemable
or subject to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on the first Interest
Payment Date occurring on or after the Initial Redemption Date specified on
the face hereof and thereafter on any Interest Payment Date, on the terms set
forth on the face hereof, together with interest accrued and unpaid hereon to
the date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is 100%
of the principal amount hereof, together with interest accrued and unpaid
hereon to the date of redemption (except as provided below). Notice of
redemption shall be mailed to the holders of the Notes designated for
redemption who have filed their names and addresses with the Principal Paying
Agent, not less than 90 nor more than 120 days prior to the date fixed for
redemption, subject to all the conditions and provisions of the Senior
Indenture. Notice of redemption to all other holders of Notes shall be
published in the manner set forth in "Notices" as defined below, once in each
of the three successive calendar weeks, the first publication to be not less
than 90 nor more than 120 days prior to the date set for redemption. In the
event of redemption of this Note in part only, the Principal Paying Agent
shall cause Schedule A of this Note to be endorsed to reflect the reduction of
its principal amount by an amount equal to the aggregate principal amount of
this Note so redeemed, whereupon the principal amount hereof shall be reduced
for all purposes by the amount so redeemed and noted. The Issuer will deliver
to the Trustee at least 130 days prior to the date fixed for redemption an
Officer's Certificate stating the aggregate principal amount of Notes to be
redeemed pursuant to this paragraph.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the terms set forth
herein. On any Interest Payment Date, this Note will be repayable in whole or
in part in increments of ECU 1,000 (provided that any remaining principal
amount hereof shall not be less than the minimum authorized denomination
hereof) at the option of the holder hereof at a price equal to the Optional
Repayment Percentage specified on the face hereof of the principal amount to
be repaid, together with interest accrued and unpaid hereon to the date of
repayment (except as provided below). For this Note to be repaid at the
option of the holder hereof, the Principal Paying Agent must receive at its
office in London, at least 90 but not more than 120 days prior to the date of
repayment this Note with the form entitled "Option to Elect Repayment" below
duly completed. Exercise of such repayment option by the holder hereof shall
be irrevocable. In the event of repayment of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to ECU LIBOR
based on the Index Maturity, if any, shown on the face hereof (i) plus or
minus the Spread, if any, or (ii) multiplied by the Spread Multiplier, if any,
specified on the face hereof. Commencing with the Initial Interest Reset Date
specified on the face hereof and thereafter on each Interest Payment Date
(each such date, including the Initial Interest Reset Date, an "Interest Reset
Date"), the rate at which interest on this Note is payable shall be reset as
of each Interest Reset Date; provided, however, that the interest rate in
effect for the period from the Interest Accrual Date to the Initial Interest
Reset Date will be the Initial Interest Rate.
The Interest Determination Date pertaining to an Interest Reset
Date shall be the second London Banking Day preceding such Interest Reset
Date. As used herein, "London Banking Day" means any day on which dealings in
deposits in U.S. dollars are transacted in the London interbank market.
Determination of ECU LIBOR. ECU LIBOR with respect to this
Note shall be determined on each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the
Calculation Agent will determine the rate for deposits in ECU for the
period of the Index Maturity specified on the face hereof which appear
on Telerate Page 3750 (or such other page as may replace such page on
that service for the purpose of displaying London interbank offered
rates of major banks) at approximately 11:00 a.m., London time, on
such Interest Determination Date.
(ii) If such rate does not appear on the Telerate Page
3750 (or such other replacement page), the Calculation Agent will
request the principal London offices of each of four major banks in
the London interbank market, as selected by the Calculation Agent (the
"Reference Banks"), to provide the Calculation Agent with its offered
quotations for deposits in ECU for the period of the Index Maturity,
specified on the face hereof, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on such Interest
Determination Date and in a principal amount that is representative of
a single transaction in such market at such time. If at least two
such quotations are provided, ECU LIBOR will be the arithmetic mean of
such quotations.
(iii) If fewer than two quotations are provided pursuant
to (ii) above, ECU LIBOR in respect of such Interest Determination
Date will be the arithmetic mean of the rates quoted by three major
banks in Luxembourg selected by the Calculation Agent at approximately
11:00 a.m., Luxembourg time, on such Interest Determination Date for
loans in ECU to leading European banks, for the period of the Index
Maturity specified on the face hereof and in a principal amount that
is representative of a single transaction in such market at such time.
(iv) If fewer than three banks selected as aforesaid by
the Calculation Agent are quoting rates as mentioned in (iii) above,
the Calculation Agent will request each of the Reference Banks to
provide the Calculation Agent with the offered quotations provided to
them by leading banks in each relevant interbank market for deposits
in each of the then component currencies of the ECU (the "Relevant
Currencies") for the period of the Index Maturity specified on the
face hereof as at 11:00 a.m., London time, on the Interest
Determination Date (provided that, if the ECU is not then used as the
unit of account of the European Community, the component currencies of
the ECU shall be those determined by the Calculation Agent in the
manner set forth below in the nineteenth succeeding paragraph with
respect to payments in ECU) and the Calculation Agent will determine
ECU LIBOR on the basis of the respective offered rates so communicated
by the Reference Banks or any two or more of them weighted in the
manner provided below, provided that, if on any Interest Determination
Date the Reference Banks which are providing quotations do not provide
offered quotations for all the Relevant Currencies, but do provide
such quotations for Relevant Currencies representing in aggregate 95
percent (determined by the Calculation Agent as provided below) or
more of one ECU on such Interest Determination Date, then ECU LIBOR
for the applicable Interest Payment Period shall nevertheless be
calculated pursuant to this sub-paragraph (iv) on the basis of the
quotations so provided and ignoring the Relevant Currencies for which
such quotations are not provided.
(v) If the Reference Banks or any two or more of them
(if only such provide quotations) provide the Calculation Agent with
offered quotations pursuant to (iv) above for Relevant Currencies
representing in aggregate less than 95 percent (determined as provided
below) of one ECU on such Interest Determination Date then, with
respect to each of the Relevant Currencies for which quotations are
not so provided, the Calculation Agent shall determine such offered
rates as are reasonably representative of the rates at which deposits
in such Relevant Currency are being offered between leading banks
selected by it in the relevant interbank market as of the Interest
Determination Date for a period substantially co-extensive with the
Index Maturity specified on the face hereof. If on any Interest
Determination Date the Relevant Currencies for which quotations are
provided by the Reference Banks pursuant to (iv) above and the
Relevant Currencies for which rates are determined by the Calculation
Agent pursuant to this sub-paragraph (v) represent in aggregate 95
percent or more (determined as provided below) of one ECU on such
Interest Determination Date, then ECU LIBOR for the applicable
Interest Payment Period shall be calculated on the basis of such
quotations and rates.
(vi) If on any Interest Determination Date fewer than
two Reference Banks provide the Calculation Agent with offered
quotations pursuant to (iv) above or if the Relevant Currencies for
which quotations are provided by the Reference Banks pursuant to (iv)
above and the Relevant Currencies for which rates are determined by
the Calculation Agent pursuant to (v) above represent in aggregate
less than 95 percent (determined as provided below) of one ECU, then
ECU LIBOR for the applicable Interest Payment Period will be the same
as ECU LIBOR for the immediately preceding Interest Payment Period (or
if the Interest Determination Date is the Initial Interest
Determination Date, the rate of interest payable hereon will be
Initial Interest Rate).
The weighting to be given to a Relevant Currency, or the
percentage which it bears to one ECU, shall be determined by the Calculation
Agent by reference to the proportion that the amount of such Relevant Currency
included in one ECU bears to one ECU and calculated on the basis of the U.S.
dollar equivalent of each of the Relevant Currencies as at the Interest
Determination Date. Such U.S. dollar equivalent shall be determined by the
Calculation Agent in the manner provided in the nineteenth succeeding
paragraph except that, (i) any reference therein to a Day of Valuation shall
be deemed to refer to the Interest Determination Date, (ii) all decisions or
choices to be made by the Exchange Rate Agent thereunder shall be made by the
Calculation Agent and (iii) if the ECU is being used as the unit of account of
the European Community on such Interest Determination Date, the components of
the ECU shall be the currency amounts that are components of the ECU on such
date.
Notwithstanding the foregoing, the interest rate hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The interest
rate on this Note will in no event be higher than the maximum rate permitted
by New York law, as the same may be modified by United States Federal law of
general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Accrued interest hereon
shall be an amount calculated by multiplying the principal amount hereof shown
on Schedule A hereto by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the period for which interest is being paid. The interest factor for each
such date shall be computed by dividing the interest rate applicable to such
day by 360. All percentages resulting from any calculation of the rate of
interest on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded upward). The interest rate in effect on any
Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
This Note and all the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without
interest coupons attached (a "Global Bearer Note"). The beneficial owner of
all or a portion of this Note may exchange its interest in this Note upon not
less than 30 days' written notice to the Principal Paying Agent through the
relevant clearing system, in whole for Notes in bearer form with interest
coupons attached (the "Definitive Bearer Notes," and, together with the Global
Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this
Note, at the beneficial owner's option, in whole or from time to time in part,
for Notes in fully registered form without coupons (the "Registered Notes"),
in each case, in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of ECU 100,000.
Interests in this Note shall also be exchanged by the Issuer in whole, but not
in part, for Definitive Bearer Notes, which shall be serially numbered, with
coupons, if any, attached or, if indicated on the face of this Note, at the
beneficial owner's option, for Registered Notes, of any authorized
denominations if (i) this Note is accelerated following an Event of Default or
(ii) either Euroclear or Cedel Bank or any other relevant clearing system is
closed for business for a continuous period of fourteen days (other than by
reason of public holidays) or announces an intention to cease business
permanently or in fact does so. The Issuer shall give notice to the Principal
Paying Agent promptly following any such acceleration or upon learning of any
such closure. Any exchanges referred to above shall be made at the office of
the Principal Paying Agent, upon compliance with any procedures set forth in,
or established pursuant to, the Senior Indenture; provided, however, that the
Issuer shall not be required (i) to exchange this Note for a period of fifteen
calendar days preceding the first publication of a notice of redemption of all
or any portion hereof or (ii) to exchange any portion of this Note selected
for redemption or surrendered for optional repayment. Upon exchange of any
portion of this Note for a Definitive Bearer Note or Definitive Bearer Notes,
this Note will be exchanged in whole for Definitive Bearer Notes, whereupon
this Note will be canceled. All such exchanges of Notes will be free of
service charge, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Unless otherwise indicated on the face of this note, Registered Notes will not
be issuable in exchange for this Note or for a Definitive Bearer Note or
Definitive Bearer Notes. The date of any Note delivered upon any exchange of
this Note shall be such that no gain or loss of interest results from such
exchange.
All (and not less than all) interests in this Note will be
exchanged for Definitive Bearer Notes in accordance with the procedures set
forth in the following two sentences as soon as practicable after (i) the
first beneficial owner of an interest in this Note exchanges its interest for
a Definitive Bearer Note or (ii) the Issuer gives notice to the Principal
Paying Agent of an acceleration of the Note or the closure of a relevant
clearing system as described above; provided that a common depositary located
outside the United States (the "common depositary") holding this Note for
Morgan Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Cedel Bank, societe anonyme
("Cedel") and/or any other relevant clearing system (including Societe
Interprofessionelle pour la Compensation des Valeurs Mobilieres ("SICOVAM"))
instructs the Principal Paying Agent regarding the aggregate principal amount
of Definitive Bearer Notes and the denominations of such Definitive Bearer
Notes that must be authenticated and delivered to each relevant clearing
system in exchange for this Note. Thereafter, the Principal Paying Agent,
acting solely in reliance on such instructions, shall, upon surrender to it of
this Note and subject to the conditions in the preceding paragraph,
authenticate and deliver Definitive Bearer Notes in exchange for this Note in
accordance with such instructions and shall cause Schedule A of this Note to
be endorsed to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of this Note.
This Note may be transferred by delivery; provided, however,
that this Note may be transferred only to a common depositary outside the
United States for the Euroclear Operator, Cedel and/or any other relevant
clearing system or to a nominee of such depositary.
In case this Note shall at any time become mutilated, defaced
or be destroyed, lost or stolen this such Note or evidence of the loss, theft
or destruction thereof (together with the indemnity hereinafter referred to
and such other documents or proof as may be required in the premises) shall
be delivered to the Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for this Note, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnify satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior Global
Medium-Term Notes of which this Note forms a part, or due to the default in
the performance or breach of any other covenant or warranty of the Issuer
applicable to the debt securities of such series but not applicable to all
outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of the debt securities of each affected series
(voting as a single class) may then declare the principal of all debt
securities of all such series and interest accrued thereon to be due and
payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Senior
Indenture applicable to all outstanding debt securities issued thereunder,
including this Note, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either
the Trustee or the holders of not less than 25% in principal amount of all
debt securities issued under the Senior Indenture then outstanding (treated
as one class) may declare the principal of all such debt securities and
interest accrued thereon to be due and payable immediately, but upon
certain conditions such declarations may be annulled and past defaults may
be waived (except a continuing default in payment of principal (or premium,
if any) or interest on such debt securities) by the holders of a majority
in principal amount of the debt securities of all affected series then
outstanding.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed for
redemption, if the Issuer determines that, as a result of any change in or
amendment to the laws (or any regulations or rulings promulgated thereunder)
of the United States or of any political subdivision or taxing authority
thereof or therein affecting taxation, or any change in official position
regarding the application or interpretation of such laws, regulations or
rulings, which change or amendment becomes effective on or after the Original
Issue Date hereof, the Issuer has or will become obligated to pay Additional
Amounts (as defined below) with respect to this Note as described below.
Prior to the giving of any notice of redemption pursuant to this paragraph,
the Issuer shall deliver to the Trustee (i) a certificate stating that the
Issuer is entitled to effect such redemption and setting forth a statement
of facts showing that the conditions precedent to the right of the Issuer
to so redeem have occurred, and (ii) an opinion of independent counsel
satisfactory to the Trustee to such effect based on such statement of
facts; provided that no such notice of redemption shall be given earlier
than 60 days prior to the earliest date on which the Issuer would be
obligated to pay such Additional Amounts if a payment in respect of this
Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the
United States by the Issuer or any Paying Agent of principal, premium or
interest due in respect of this Note would, under any present or future laws
or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined below
(other than such a requirement (a) that would not be applicable to a payment
made by the Issuer or any Paying Agent (i) directly to the beneficial owner or
(ii) to a custodian, nominee or other agent of the beneficial owner, or (b)
that can be satisfied by such custodian, nominee or other agent certifying to
the effect that such beneficial owner is a United States Alien; provided that
in each case referred to in clauses (a)(ii) and (b) payment by such custodian,
nominee or agent to such beneficial owner is not otherwise subject to any such
requirement), the Issuer shall redeem this Note, as a whole, at a redemption
price equal to 100% of the principal amount thereof, together with accrued
interest to the date fixed for redemption, or, at the election of the Issuer
if the conditions of the next succeeding paragraph are satisfied, pay the
additional amounts specified in such paragraph. The Issuer shall make such
determination and election as soon as practicable, shall promptly notify the
Trustee thereof and shall publish prompt notice thereof (the "Determination
Notice") stating the effective date of such certification, identification or
other information reporting requirements, whether the Issuer will redeem this
Note or has elected to pay the additional amounts specified in the next
succeeding paragraph, and (if applicable) the last date by which the
redemption of this Note must take place, as provided in the next succeeding
sentence. If the Issuer redeems this Note, such redemption shall take place
on such date, not later than one year after the publication of the
Determination Notice, as the Issuer shall elect by notice to the Trustee at
least 60 days prior to the date fixed for redemption. Notice of such
redemption of this Note will be given to the holder of this Note not more than
60 nor less than 30 days prior to the date fixed for redemption.
Notwithstanding the foregoing, the Issuer shall not so redeem this Note if the
Issuer shall subsequently determine, not less than 30 days prior to the date
fixed for redemption, that subsequent payments would not be subject to any
such certification, identification or information reporting requirement, in
which case the Issuer shall publish prompt notice of such determination and
any earlier redemption notice shall be revoked and of no further effect.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as a whole at any time pursuant to the applicable provisions of the
immediately preceding paragraph and the redemption price of this Note will not
be reduced for applicable withholding taxes. If the Issuer elects to pay
additional amounts pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
issuer will redeem this Note as a whole, pursuant to the applicable provisions
of the immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations
set forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
than every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount
provided for in this Note to be then due and payable. The Issuer will not,
however, be required to make any payment of Additional Amounts to any such
holder for or on account of:
(a) any such tax, assessment or other governmental
charge that would not have been so imposed but for (i) the existence
of any present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such holder,
if such holder is an estate, a trust, a partnership or a corporation)
and the United States, including, without limitation, such holder (or
such fiduciary, settlor, beneficiary, member or shareholder) being or
having been a citizen or resident thereof or being or having been
engaged in a trade or business or present therein or having, or having
had, a permanent establishment therein or (ii) the presentation by the
holder of this Note for payment on a date more than 15 days after the
date on which such payment became due and payable or the date on which
payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or governmental
charge;
(c) any tax, assessment or other governmental charge
imposed by reason of such holder's past or present status as a
personal holding company or foreign personal holding company or
controlled foreign corporation or passive foreign investment company
with respect to the United States or as a corporation which
accumulates earnings to avoid United States federal income tax or as a
private foundation or other tax-exempt organization;
(d) any tax, assessment or other governmental charge
that is payable otherwise than by withholding from payments on or in
respect of this Note;
(e) any tax, assessment or other governmental charge
required to be withheld by any Paying Agent from any payment of
principal of, or interest on, this Note, if such payment can be made
without such withholding by any other Paying Agent in a city in
Western Europe;
(f) any tax, assessment or other governmental charge
that would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge
imposed by reason of such holder's past or present status as the
actual or constructive owner of 10% or more of the total combined
voting power of all classes of stock entitled to vote of the Issuer or
as a direct or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e),
(f) or (g);
nor shall Additional Amounts be paid with respect to any
payment on this note to a United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the United States (or any
political subdivision thereof) to be included in the income, for tax purposes,
of a beneficiary or settlor with respect to such fiduciary or a member of such
partnership or a beneficial owner who would not have been entitled to the
Additional Amounts had such beneficiary, settlor, member or beneficial owner
been the holder of this Note.
The Senior Indenture permits the Issuer and the Trustee, with
the consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture.
With respect to each due date for the payment of the principal
of, premium, if any, or interest on, this Note on or after the first business
day in Brussels on which the ECU ceases to be used as the unit of account of
the European Community ("EC") and has not become a currency in its own right,
replacing all or some of the currencies of the member states of the EC, the
Issuer shall choose a substitute currency (the "Chosen Currency") which may be
any currency which was, on the last day on which the ECU was used as the unit
of account of the EC, a component currency of the ECU basket or U.S. dollars,
in which all such payments due on or after that date with respect to this Note
shall be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the basis
of the equivalent of the ECU in that currency, determined as described below,
as of the fourth business day in Brussels prior to the date on which such
payment is due.
On the first business day in Brussels on which the ECU
ceases to be used neither as the unit of account of the EC, and has not
become a currency in its own right, replacing all or some of the currencies
of the member states of the EC, the Issuer shall choose a Chosen Currency
in which all payments of principal, premium, if any, or interest with
respect to this Note having a due date prior thereto but not yet presented
for payment are to be made. The amount of each payment in such Chosen
Currency shall be computed on the basis of the equivalent of the ECU in
that currency, determined as described below, as of such first business
day.
The equivalent of the ECU in the relevant Chosen Currency as of
any date (the "Day of Valuation") shall be determined on the following basis
by, or on behalf of, an Exchange Rate Agent appointed by the Issuer. The
amounts and components composing the ECU for this purpose (the "Components")
shall be the amounts and components composing the ECU as of the last date on
which the ECU was used as the unit of account of the EC. The equivalent of
the ECU in the Chosen Currency shall be calculated by, first, aggregating the
U.S. dollar equivalents of the Components; and then, in the case of a Chosen
Currency other than U.S. dollars, using the rate used for determining the U.S.
dollar equivalent of the Components in the Chosen Currency as set forth below,
calculating the equivalent in the Chosen Currency of such aggregate amount in
U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by, or on behalf of, the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 p.m., Brussels time, on the
Day of Valuation, as obtained by, or on behalf of, the Exchange Rate Agent
from one or more major banks, as selected by the Issuer, in the country of
issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf;
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 p.m.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of notes
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the specified
office of a paying agent in the country of the Chosen Currency, or, if none,
or at the option of the holder, at the specified office of any Paying Agent
either by a check drawn on, or by transfer to an account maintained by the
holder with, a bank in the principal financial center of the country of the
Chosen Currency.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of this Note.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal of
and premium, if any, and interest on this Note as herein provided. If this
Note is listed on the London Stock Exchange Limited and such Exchange so
requires, the Issuer shall maintain a Paying Agent in London. The Issuer may
designate other agencies for the payment of said principal, premium and
interest at such place or places outside the United States (subject to
applicable laws and regulations) as the Issuer may decide. So long as there
shall be such an agency, the Issuer shall keep the Trustee advised of the
names and locations of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that such
moneys shall be repaid to the Issuer and any person claiming such moneys shall
thereafter look only to the Issuer for payment thereof and (ii) such moneys
shall be so repaid to the Issuer. Upon such repayment all liability of the
Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer
may have to pay the principal of or interest or premium, if any, on this Note
as the same shall become due.
No provision of this Note or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the holder of this
Note.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed
in accordance with, the laws of the State of New York.
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is nether a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close in The City of New York or in the City of London and that is
not a non-ECU clearing day, as determined by the ECU Banking
Association in Paris;
(b) the term "Notices" refers to notices to the holders
of the Notes to be given by publication in an authorized newspaper in
the English language and of general circulation in the Borough of
Manhattan, The City of New York, and London or, if publication in
London is not practical, in an English language newspaper with general
circulation in Western Europe. Such publication is expected to be
made in The Wall Street Journal and the Financial Times. Such Notices
will be deemed to have been given on the date of such publication, or
if published in such newspapers on different dates, on the date of the
first such publication;
(c) the term "United States" means the United States of
America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction; and
(d) the term "United States Alien" means any person
who, for United States federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partnership, one
or more of the members of which is a foreign corporation, a non-
resident alien individual or a non-resident alien fiduciary of a
foreign estate or trust.
All other terms used in this Note which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: __________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not
being repaid (in the absence of any such specification, one such Note will
be issued for the portion not being repaid): ________________.
Dated:______________________________ _________________________________
SCHEDULE A(4)
EXCHANGES FROM TEMPORARY GLOBAL DEALER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is ____________. The
following (A) exchanges of portions of a Temporary Global Bearer Note for an
interest in this Note or (B) (x) redemptions at the option of the Issuer or
(y) repayments at the option of the holder have been made:
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(4) Applies if this Note is not issued as part of, or in relation to, a Unit.
[SCHEDULE A-1](5)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")](6), (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")](7) for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
_______________
(5) This Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(6) Applies only if this Note is attached to a Unit.
(7) Applies only if this Note has been separated from a Unit.
Principal [Principal Principal
Date of Amount Amount [Principal Amount
Exchange, Exchanged Exchanged Amount Exchanged For
Cancellation From from an Exchanged for Definitive
Redemption, Temporary Attached Separated Bearer
or Repayment Global Notes Unit Note](5) Note](4) Notes
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