EXHIBIT 1-c
MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
May 6, 1999
Dean Witter Reynolds Inc.
Two World Trade Center
65th Floor
New York, New York 10048
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Morgan Stanley Dean Witter & Co., a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale from time to
time by the Company of up to $16,256,130,907 (or the equivalent thereof in one
or more foreign currencies) aggregate initial public offering price of its
Global Medium-Term Notes, Series C, due more than 9 months from the date of
issue (the "Notes") and its Global Units, Series C (the "Units" and together
with the Notes, the "Program Securities"), in each case subject to reduction as
a result of the sale of the Company's (i) Global Medium-Term Notes, Series D and
Series E, to be sold primarily outside of the United States, (ii) Global Units,
Series D and Series E, to be sold primarily outside of the United States, and
(iii) the sale of certain of the Company's other debt securities, warrants,
preferred stock, purchase contracts and units.
The Notes may be issued as senior indebtedness (the "Series C Senior
Notes") or as subordinated indebtedness (the "Series C Subordinated Notes") of
the Company. The Series C Senior Notes will be issued, either alone or as part
of a Unit, pursuant to the provisions of an amended and restated senior
indenture dated as of May 1, 1999, between the Company and The Chase Manhattan
Bank, as trustee (the "Senior Debt Trustee") (as may be supplemented or amended
from time to time, the "Senior Debt Indenture"). The Series C Subordinated Notes
will be issued pursuant to the provisions of an amended and restated
subordinated indenture dated as of May 1, 1999, between the Company and The
First National Bank of Chicago, as trustee (the "Subordinated Debt Trustee") (as
may be supplemented or amended from time to time, the "Subordinated Debt
Indenture"). The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures," and the Senior Debt Trustee and the
Subordinated Debt Trustee are sometimes hereinafter referred to individually as
a "Trustee" and collectively as the "Trustees." Purchase contracts ("Purchase
Contracts") that require holders to satisfy their obligations thereunder when
such Purchase Contracts are issued ("Pre-paid Purchase Contracts") will be
issued under the Indentures.
The Units will be issued pursuant to the Unit Agreement dated as of May 6,
1999, among the Company, The Chase Manhattan Bank, as Unit Agent, as Collateral
Agent, as Trustee and Paying Agent under the Indenture referred to therein, and
as Warrant Agent under the Warrant Agreement referred to therein and the holders
from time to time of the Units described therein (as may be amended from time to
time, the "Unit Agreement") or, if the Units do not include Purchase Contracts
(other than Pre-paid Purchase Contracts), pursuant to a Unit Agreement between
the Company and The Chase Manhattan Bank, as Unit Agent, as Trustee and Paying
Agent under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein in the form of such agreement filed as an
exhibit to the Registration Statement referred to below (each such agreement, a
"Unit Agreement Without Holders' Obligations"). Units may include one or more
(i) Series C Senior Notes, (ii) warrants ("Universal Warrants") entitling the
holders thereof to purchase or sell (a) securities of an entity unaffiliated
with the Company, a basket of such securities, an index or indices of such
securities or any combination of the above, (b) currencies or (c) commodities,
(iii) Purchase Contracts, including Pre-paid Purchase Contracts, requiring the
holders thereof to purchase or sell (a) securities or of an entity unaffiliated
with the Company, a basket of such securities, an index or indices of such
securities or any combination of the above, (b) currencies or (c) commodities or
(iv) any combination thereof. The applicable prospectus supplement will specify
whether Notes, Universal Warrants and Purchase Contracts comprised by a Unit may
or may not be separated from any series of Units. Universal Warrants issued as
part of a Unit will be issued pursuant to the Universal Warrant Agreement dated
as of May 6, 1999 (as may be amended from time to time, the "Universal Warrant
Agreement") between the Company and The Chase Manhattan Bank, as Warrant Agent.
Purchase Contracts other than Pre-paid Purchase Contracts ("Non-pre-paid
Purchase Contracts"), entered into by the Company and the holders thereof will
be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants will have the exercise prices, exercise dates, expiration
dates and other terms as set forth in supplements to the Basic Prospectus. The
Purchase Contracts will have the closing dates, purchase or sale prices and
other terms as set forth in supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agents for the purpose of
soliciting and receiving offers to purchase Program Securities from the Company
by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to use reasonable efforts to solicit and receive offers to purchase Program
Securities upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, you may
also purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file with
the Commission from time to time, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), supplements to the prospectus
included in the Registration Statement that will describe certain terms of the
Program Securities. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus." The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "Prospectus Supplement") specifically relating
to the Program Securities, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Basic Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). If the Company has filed an abbreviated
registration statement to register additional Program Securities pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants to
and agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issues and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this Section
1(b) do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to you furnished to the
Company in writing by you expressly for use therein or (B) to those parts of the
Registration Statement that constitute the Statements of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustees and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any date on
which you solicit offers to purchase Program Securities or on which the Company
accepts an offer to purchase Program Securities, shall be deemed not to cover
information concerning an offering of particular Program Securities to the
extent such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms Agreement
or Written Units Terms Agreement (each as hereinafter defined) has been duly
authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust Indenture Act
and each of the Senior Indenture, the Subordinated Indenture, the Unit Agreement
and the Universal Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations has been duly
authorized by the Company and, when a Unit Agreement Without Holders'
Obligations has been duly executed and delivered by the Company, the Unit
Agreement Without Holders' Obligations will be a valid and binding agreement of
the Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a proceeding in
equity or at law.
(h) The forms of Notes (including the form of Pre-paid Purchase Contract),
whether issued alone or as part of a Unit, have been duly authorized and
established in conformity with the provisions of the relevant Indenture and,
when the Notes (and the Pre-paid Purchase Contracts) have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes (and the
Pre-paid Purchase Contracts) will be entitled to the benefits of such Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof (i)
may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(i) The forms of Units under the Unit Agreement, including the forms of
Universal Warrants and Non-pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of (i) in the case
of such Units and Non-pre-paid Purchase Contracts, the Unit Agreement and (ii)
in the case of Universal Warrants, the Universal Warrant Agreement. When such
Units have been delivered to and duly paid for by the purchasers thereof and (A)
any Non-pre-paid Purchase Contracts included in such Units have been executed by
the Company and countersigned by the Unit Agent and (B) any Universal Warrants
included in such Units have been executed by the Company and countersigned by
the Warrant Agent, such Units (including any such Non-pre-paid Purchase
Contracts or Universal Warrants contained therein) will be entitled to the
benefits of the Unit Agreement and, in the case of the Universal Warrants, the
Universal Warrant Agreement and will be valid and binding obligations of the
Company, enforceable in accordance with their respective terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a proceeding in
equity or at law.
(j) When a Unit Agreement Without Holders' Obligations has been executed
and delivered by the Company, the Units to be issued thereunder will have been
duly authorized and when such Units have been established in conformity with the
provisions of the Unit Agreement Without Holders' Obligations and delivered to
and duly paid for by the purchasers thereof, and any Universal Warrants included
in such Units have been executed by the Company and countersigned by the Warrant
Agent, such Units (including any such Universal Warrants contained therein) will
be entitled to the benefits of the Unit Agreement Without Holders' Obligations
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof (i)
may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(k) The execution and delivery by the Company of this Agreement, the Notes
and Pre-paid Purchase Contracts (whether issued alone or as part of a Unit), the
Units (including any Purchase Contracts and Universal Warrants included
therein), the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Prepaid
Purchase Contracts, the Units (including any Purchase Contracts or Universal
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Notes, the Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Universal Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement, except such as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Program Securities; provided, however, that no
representation is made or warranty given as to whether the purchase of the
Program Securities constitutes a "prohibited transaction" under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended.
(l) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(n) Each of the Company and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(o) Dean Witter Reynolds Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity Futures
Trading Commission as a futures commission merchant and is a member of the New
York Stock Exchange, Inc. and the National Association of Securities Dealers,
Inc.
(p) Morgan Stanley & Co. Incorporated is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity Futures
Trading Commission as a futures commission merchant and is a member of the New
York Stock Exchange, Inc. and the National Association of Securities Dealers,
Inc.
(q) The Company is not and, after giving effect to the offering and sale of
the Program Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(r) The Company has no reason to believe, and does not believe, that there
are any issues related to the Company's preparedness to address any significant
risk that computer hardware or software applications used by the Company and its
subsidiaries will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000 that are of a character required
to be described or referred to in the Registration Statement or Prospectus which
have not been accurately described in the Registration Statement or Prospectus.
Notwithstanding the foregoing, it is understood and agreed that the
representations and warranties set forth in Section 1(b)(iii) and 1(b)(iv), 1(g)
(except as to due authorization of the Units and Universal Warrants), 1(h)
(except as to due authorization of the Notes and Pre-paid Purchase Contracts),
1(i) (except as to due authorization of the Units, Universal Warrants and
Non-pre-paid Purchase Contracts), 1(j) and 1(k), when made as of the
Commencement Date, or as of any date on which you solicit offers to purchase
Program Securities, with respect to any Program Securities the payments of
principal or interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company, baskets
of such securities, equity indices or other factors, shall be deemed not to
address the application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as agents
hereunder, you agree to use reasonable efforts to solicit offers to purchase
Program Securities upon the terms and conditions set forth in the Prospectus as
then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct you to
suspend at any time, for any period of time or permanently, the solicitation of
offers to purchase Program Securities. Upon receipt of at least one business
day's prior notice from the Company, you will forthwith suspend solicitations of
offers to purchase Program Securities from the Company until such time as the
Company has advised you that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c) provided, however, that if the Registration Statement or Prospectus is
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for (i) in the case of Notes, issued
alone or as part of a Unit, a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes, (ii) in
the case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement date
or purchase or sale price of an underlying Purchase Contract or (iii) for a
change you deem to be immaterial), you shall not be required to resume
soliciting offers to purchase Program Securities until the Company has delivered
such certificates, opinions and letters as you may request.
The Company agrees to pay to you, as consideration for the sale of each
Program Security resulting from a solicitation made or an offer to purchase
received by you, a commission in the form of a discount from the purchase price
of such Program Security equal to between .125% and .750% (depending upon such
Note's maturity or, in the case of Units, any underlying Note's maturity or the
terms of the Units and of the securities comprised by such Units) of the
principal amount of such Note or, in the case of Units, the face amount of such
Unit (provided that the commission for Notes having, or Units including Notes or
other securities having, a maturity of 30 years or greater will be negotiated)
or such other discount as may be specified in the Prospectus Supplement relating
to such Note or Unit.
You shall communicate to the Company, orally or in writing, each offer to
purchase Program Securities received by you as agent that in your judgment
should be considered by the Company. The Company shall have the sole right to
accept offers to purchase Program Securities and may reject any offer in whole
or in part. You shall have the right to reject any offer to purchase Program
Securities that you consider to be unacceptable, and any such rejection shall
not be deemed a breach of your agreements contained herein. The procedural
details relating to the issue and delivery of Program Securities sold by you as
agent and the payment therefor shall be as set forth in the Administrative
Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to you as
principals shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a written
agreement between you and the Company, which may be substantially in the form of
Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of Notes, a
"Written Notes Terms Agreement" and, in the case of Units, a "Written Units
Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal pursuant to a
Notes Terms Agreement or Units Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each (i) Note Terms Agreement shall specify the principal amount of Notes to be
purchased by you pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such Notes and
(ii) Unit Terms Agreement shall specify (a) the information set forth in (i)
above with respect to any Notes issued as part of a Unit, (b) with respect to
any Universal Warrants issued as part of a Unit, the exercise price, the
exercise date or period, the expiration date and any other terms of such
Universal Warrants, and (c) with respect to any Purchase Contracts issued as
part of a Unit, the settlement date, the purchase or sale price or any other
terms of such Purchase Contracts. Each such Notes Terms Agreement or Units Terms
Agreement may also specify any requirements for officers' certificates, opinions
of counsel and letters from the independent auditors of the Company pursuant to
Section 4 hereof. A Notes Terms Agreement and a Unit Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes or Units, as
the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall specify the
time and place of delivery of and payment for such Notes or Units, as the case
may be. Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, the procedural details relating to the issue and delivery of Notes or
Units, as the case may be, purchased by you as principal and the payment
therefor shall be as set forth in the Administrative Procedures. Each date of
delivery of and payment for Program Securities to be purchased by you as
principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as the
case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, if you are purchasing Program Securities, as principal you may resell
such Program Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the Prospectus Supplement
relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform the
respective duties and obligations specifically provided to be performed in the
Global Medium-Term Notes, Series C and the Global Units, Series C,
Administrative Procedures (attached hereto as Exhibit B) (the "Administrative
Procedures"), as amended from time to time. The Administrative Procedures may be
amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of this
Agreement as a condition precedent to your obligation to begin soliciting offers
to purchase Program Securities as agents of the Company shall be delivered at
the office of Davis Polk & Wardwell, your counsel, not later than 4:00 p.m., New
York time, on the date hereof, or at such other time and/or place as you and the
Company may agree upon in writing, but in no event later than the day prior to
the earlier of (i) the date on which you begin soliciting offers to purchase
Program Securities and (ii) the first date on which the Company accepts any
offer by you to purchase Program Securities as principal. The date of delivery
of such documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program Securities
pursuant to this Agreement or any Notes Terms Agreement or Units Terms
Agreement, the Company will not file any Prospectus Supplement relating to the
Program Securities or any amendment to the Registration Statement unless the
Company has previously furnished to you a copy thereof for your review and will
not file any such proposed supplement or amendment to which you reasonably
object; provided, however, that the foregoing requirement shall not apply to any
of the Company's periodic filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies
of which filings the Company will cause to be delivered to you promptly after
being transmitted for filing with the Commission. Subject to the foregoing
sentence, the Company will promptly cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in accordance with Rule 424(b)
under the Securities Act. The Company will promptly advise you (i) of the filing
of any amendment or supplement to the Basic Prospectus, (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or notice of suspension
of qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, you shall not be obligated to solicit offers to purchase Program
Securities so long as you are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program Securities is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or if, in your opinion or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified by the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to you in such quantities as
you may reasonably request. If any documents, certificates, opinions and letters
furnished to you pursuant to paragraph (f) below and Sections 5(a), 5(b) and
5(c) in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will resume the
solicitation of offers to purchase Program Securities hereunder. Notwithstanding
any other provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request and shall furnish to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters
as you may request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security holders and
to you as soon as practicable earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Program Securities. If such
fiscal quarter is the first fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after the close
of the period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish in New York City, without charge, (i) to each
Agent, a signed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and (ii) to each Agent that purchases Program
Securities pursuant to a Terms Agreement or solicits an offer to purchase
Program Securities that is accepted by the Company, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of such Terms Agreement
or the acceptance of such offer, as many copies of the Prospectus, as then
amended or supplemented (including the Prospectus Supplement relating to the
Program Securities to be purchased pursuant to such Terms Agreement or accepted
offer), as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to maintain such qualifications for as long as you shall reasonably
request.
(f) During the term of this Agreement, the Company shall furnish to you
such relevant documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the Registration Statement,
the Basic Prospectus, any amendments or supplements thereto, the Indentures, the
Unit Agreement, any Unit Agreement Without Holders' Obligations, the Warrant
Agreement, the Notes, the Units, the Universal Warrants, the Purchase Contracts,
this Agreement, the Administrative Procedures, any Notes Terms Agreement or
Units Terms Agreement and the performance by the Company of its obligations
hereunder or thereunder as you may from time to time reasonably request.
(g) The Company shall notify you promptly in writing of any downgrading, or
of its receipt of any notice of any intended or potential downgrading or of any
review for possible change that does not indicate the direction of the possible
change, in the rating accorded the Company or any of the Company's securities by
any "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Program Securities is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: (i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Program Securities, (iii) the fees and
disbursements of the Company's counsel and accountants, of the Trustees and
their counsel, the Unit Agent and its counsel, and the Warrant Agent and its
counsel (iv) the qualification of the Notes and Units (and of any securities
comprised thereby) under securities or Blue Sky laws in accordance with the
provisions of Section 3(f), including filing fees and the fees and disbursements
of your counsel in connection therewith and in connection with the preparation
of any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to
you in quantities as hereinabove stated of copies of the Registration Statement
and all amendments thereto and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to you of copies of the
Indentures, the Unit Agreement, any Unit Agreement Without Holders' Obligations,
the Universal Warrant Agreement and any Blue Sky or Legal Investment Memoranda,
(vii) any fees charged by rating agencies for the rating of the Program
Securities, (viii) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (ix) the fees
and disbursements of your counsel incurred in connection with the offering and
sale of the Program Securities, including any opinions to be rendered by such
counsel hereunder, and (x) any out-of-pocket expenses incurred by you; provided
that any advertising expenses incurred by you shall have been approved by the
Company.
(i) During the period beginning on the date of any Notes Terms Agreement or
Units Terms Agreement relating to either Notes or Units, as the case may be, and
continuing to and including the Settlement Date with respect to such Notes Terms
Agreement or Units Terms Agreement, the Company will not, without your prior
consent, offer, sell, contract to sell or otherwise dispose of (i) in the case
of Notes, any debt securities of the Company substantially similar to the Notes
set forth in such Notes Terms Agreement (other than (A) the Notes that are to be
sold pursuant to such Notes Terms Agreement, (B) Notes previously agreed to be
sold by the Company and (C) commercial paper issued in the ordinary course of
business) or (ii) in the case of Units, any securities substantially similar to
such Units (other than (A) the Units that are sold pursuant to such Units Terms
Agreement or (B) Units previously agreed to be sold by the Company), in each
case, except as may otherwise be provided in the applicable Notes Terms
Agreement or Units Terms Agreement.
4. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Program Securities as agents of the Company, your obligation
to purchase Program Securities as principals pursuant to any Notes Terms
Agreement or Units Terms Agreement and the obligation of any other purchaser to
purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to solicit
offers to purchase Program Securities, at the time of such solicitation, and, in
the case of your or any other purchaser's obligation to purchase Program
Securities, at the time the Company accepts the offer to purchase such Program
Securities and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to market the
Program Securities on the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the Company on any exchange
or in any over-the-counter market, (C) declaration of a general moratorium
on commercial banking activities in New York by either Federal or New York
State authorities or (D) any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your
judgment, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or together
with any other such event, makes it, in your judgment, impracticable to
market the Program Securities on the terms and in the manner contemplated
by the Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of the Company's
securities by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(A) except, in each case described in paragraph (i), (ii) or (iii)
above, as disclosed to you in writing by the Company prior to such
solicitation or, in the case of a purchase of Program Securities,
before the offer to purchase such Program Securities was made or
(B) unless in each case described in (ii) above, the relevant
event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities,
before the offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of Brown & Wood llp, counsel
to the Company, or of other counsel satisfactory to you and who may be an
officer of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus, as amended
or supplemented, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(B) each of Dean Witter Reynolds Inc., Greenwood Trust Company,
Morgan Stanley & Co. Incorporated and Morgan Stanley International
Incorporated (each a "Material Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus, as amended or supplemented,
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as
amended or supplemented, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company
and its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement has been duly authorized,
executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust
Indenture Act and each of the Senior Indenture, the Subordinated
Indenture, the Unit Agreement and the Universal Warrant Agreement has
been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance
with its terms except as the enforceability thereof (i) may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(F) the Unit Agreement Without Holders' Obligations has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(G) the forms of Notes (including the form of Pre-paid Purchase
Contracts), whether issued alone or as part of a Unit, have been duly
authorized and established in conformity with the provisions of the
relevant Indenture and, if the Notes and the Pre-paid Purchase
Contracts had been executed by the Company and authenticated by the
relevant Trustee or its duly appointed agent in accordance with the
provisions of the relevant Indenture and delivered to and duly paid
for by the purchasers thereof on the date of such opinion, the Notes
and the Pre-paid Purchase Contracts would be entitled to the benefits
of such Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms except
as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(H) the forms of Units under the Unit Agreement, including the
forms of Universal Warrants and Non-pre-paid Purchase Contracts, have
been duly authorized and established in conformity with the provisions
of (i) in the case of Units under the Unit Agreement and Non-pre-paid
Purchase Contracts, the Unit Agreement and (ii) in the case of the
Universal Warrants, the Universal Warrant Agreement. If such Units
(including the Universal Warrants and the Non-pre-paid Purchase
Contracts) had been delivered to and duly paid for by the purchasers
thereof (and any Purchase Contracts included therein had been executed
by the Company and countersigned by the Unit Agent and any Universal
Warrants included therein had been executed by the Company and
countersigned by the Warrant Agent) on the date of such opinion, the
Units (including the Non-pre-paid Purchase Contracts and the Universal
Warrants contained therein) would be entitled to the benefits of the
Unit Agreement and in the case of the Universal Warrants, the
Universal Warrant Agreement, and would be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(I) the Units under the Unit Agreement Without Holders'
Obligations have been duly authorized (and the forms of any Universal
Warrants included therein have been duly authorized and established in
conformity with the provisions of the Universal Warrant Agreement),
and if such Units (including the Universal Warrants) had been
delivered to and duly paid for by the purchasers thereof (and any
Universal Warrants included therein had been executed by the Company
and countersigned by the Warrant Agent) on the date of such opinion,
the Units (including the Universal Warrants contained therein) would
be entitled to the benefits of the Unit Agreement Without Holders'
Obligations and in the case of the Universal Warrants, the Universal
Warrant Agreement, and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms except
as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(J) the execution and delivery by the Company of the Notes and
Pre-paid Purchase Contracts (whether issued alone or as part of a
Unit), the Units (including any Purchase Contract or Universal Warrant
included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Universal Warrant
Agreement and any applicable Written Notes Terms Agreement or Written
Units Terms Agreement and the performance by the Company of its
obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Universal Warrant Agreement and any applicable Notes
Terms Agreement or Units Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or any of
its consolidated subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any U.S.
governmental body, agency or court having jurisdiction over the
Company or any of its consolidated subsidiaries, and no consent,
approval, authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the
Pre-paid Purchase Contracts, the Units (including any Purchase
Contracts or Universal Warrants included therein), the Indentures, the
Unit Agreement, any Unit Agreement Without the Holders' Obligations,
the Universal Warrant Agreement and any applicable Notes Terms
Agreement or Units Terms Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Program Securities; provided, however,
that no opinion is expressed on whether the purchase of the Program
Securities constitutes a "prohibited transaction" under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended;
(K) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and
in the Basic Prospectus), "Plan of Distribution" (in the Prospectus
Supplement and in the Basic Prospectus), "Description of Purchase
Contracts" (in the Basic Prospectus) and "Description of Warrants" (in
the Basic Prospectus), (2) in the Registration Statement, as then
amended or supplemented, under Item 15, (3) in "Item 3 - Legal
Proceedings" of the most recent annual reports on Form 10-K
incorporated by reference in the Prospectus and (4) in "Item 1 - Legal
Proceedings" of Part II of the quarterly reports on Form 10-Q, if any,
filed since such annual reports and incorporated by reference in the
Prospectus, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(L) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, and are
not so described or of any U.S. federal or state statutes,
regulations, contracts or other documents governed by U.S. federal or
state law that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, or to be
filed or incorporated by reference as exhibits to such Registration
Statement that are not described, filed or incorporated by reference
as required; and
(M) the Company is not and, after giving effect to the offering
and sale of the Program Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(N) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus as then amended or supplemented (except as to
financial statements and schedules included therein as to which such
counsel need not express any opinion), complied when so filed as to
form in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (2) has no reason
to believe that any part of the Registration Statement (except as to
financial statements and schedules as to which such counsel need not
express any belief and except for that part of the Registration
Statement that constitutes the Forms T-1 heretofore referred to), as
then amended, if applicable, when such part became effective
contained, and the Registration Statement (except as to financial
statements and schedules included therein, as to which such counsel
need not express any belief and except for the part of the
Registration Statement that constitutes the Forms T-1) as of the date
such opinion is delivered, contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (3) has no reason to believe that the Registration
Statement and Prospectus, as then amended or supplemented, if
applicable (except for financial statements and schedules included
therein as to which such counsel need not express any opinion), do not
comply as to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder and
(4) has no reason to believe that the Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules as to which such counsel need not express any belief), as of
the date such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that in the case of an
opinion delivered on the Commencement Date or pursuant to Section
5(b), the opinion and belief set forth in clauses (3) and (4) above
shall be deemed not to cover information concerning an offering of
particular Notes or Units to the extent such information will be set
forth in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk & Wardwell,
your special counsel, covering the matters in subparagraphs (D), (E), (F),
(G), (H), (I) and (K) (with respect to statements in the Prospectus, as
then amended or supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and the
Basic Prospectus), "Plan of Distribution" (in the Prospectus Supplement and
in the Basic Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus)) and
clauses (2), (3) and (4) of subparagraph (N) in paragraph (b)(i) above.
The opinions described in subparagraphs (F) and (I) need only be
contained in an opinion delivered on a Settlement Date related to an
offering of Units under a Unit Agreement Without Holders' Obligations to be
executed on or prior to such Settlement Date.
Notwithstanding the foregoing, the opinions described in subparagraphs
(G) (except as to due authorization of the Notes and Pre-paid Purchase
Contracts), (H) (except as to due authorization of the Units, Universal
Warrants and Non-pre-paid Purchase Contracts), (I) (except as to due
authorization of the Units and Universal Warrants) (J), (K)(1) and (N)(3)
and (4) of paragraph (b)(i) above, when contained in an opinion delivered
on the Commencement Date or pursuant to Section 5(b), shall be deemed not
to address the application of the Commodity Exchange Act, as amended, or
the rules, regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or interest on
which, or any other payments with respect to which, will be determined by
reference to one or more currency exchange rates, commodity prices,
securities of entities unaffiliated with the Company, baskets of such
securities, equity indices or other factors.
With respect to subparagraph (N) of paragraph (b)(i) above, if such
opinion is given by counsel who is also an officer of the Company, such
counsel may state that his or her opinion and belief are based upon his or
her participation, or the participation of someone under his or her
supervision, in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified. With respect to subparagraph (N) of paragraph (b)(i) above,
Davis Polk & Wardwell and, if Brown & Wood LLP is giving such opinion,
Brown & Wood LLP may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and discussion of
the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
(iii) The opinion, dated as of such date, of Brown & Wood llp, special
counsel to the Company, to the effect that the statements set forth under
the caption "United States Federal Taxation" in the Prospectus Supplement
and under the caption "Forms of Securities -- Limitations on Issuance of
Bearer Securities and Bearer Debt Warrants" in the Basic Prospectus,
insofar as such statements relate to statements of law or legal conclusions
under the laws of the United States or matters of United States law, fairly
present the information called for and fairly summarize the matters
referred to therein.
The opinion of Brown & Wood LLP described in paragraph (b)(iii) above and
in paragraph (b)(i) above, if such opinion is given by Brown & Wood LLP, shall
be rendered to you at the request of the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or letters,
dated as of the Commencement Date or such Settlement Date, as the case may be,
in form and substance satisfactory to you containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented; provided that each letter so furnished shall use a
"cut-off date" no more than three business days prior to the date of such
letter.
(e) On the Commencement Date and on each Settlement Date, the Company shall
have furnished to you such appropriate further information, certificates and
documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for (i) in the case of Notes, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes issued alone or as part of a Unit, (ii) in the case of
Units, (x) a change in the exercise price, exercise date or period or expiration
of an underlying Universal Warrant or (y) a change in the settlement date or
purchase or sale price of an underlying Purchase Contract or (iii) a change you
deem to be immaterial), the Company will deliver or cause to be delivered
forthwith to you a certificate signed by an executive officer of the Company,
dated the date of such amendment or supplement, as the case may be, in form
reasonably satisfactory to you, of the same tenor as the certificate referred to
in Section 4(c) relating to the Registration Statement or the Prospectus as
amended or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section 5(a)
(other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Current Report on Form 8-K unless you shall
reasonably request based on disclosure included or omitted from such Report),
the Company will furnish or cause to be furnished forthwith to you a written
opinion of counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred to
in Section 4(b), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to you may
furnish to you a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent auditors forthwith to
furnish you with a letter, dated the date of such amendment or supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of such
letter; provided that each letter so furnished shall use a "cut-off date" no
more than three business days prior to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to you, but only with reference to information
relating to you furnished to the Company in writing by you expressly for use in
the Registration Statement or the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Program Securities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and you on the other hand from the offering of such Program Securities
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and you on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and you on the other
hand in connection with the offering of such Program Securities shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Program Securities (before deducting expenses) received by the
Company bear to the total discounts and commissions received by you in respect
thereof. The relative fault of the Company on the one hand and of you on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by you and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, you shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Program Securities referred to in paragraph (d) above that
were offered and sold to the public through you exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6
and the representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain operative and in full force
and effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust with
any purchaser of Program Securities. You shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Program Securities has been solicited by you and accepted by the Company, but
you shall not have any liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver Program Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or
liability arising from or as a result of such default and shall, in particular,
pay to you the commission you would have received had such sale been
consummated.
8. Termination. This Agreement may be terminated at any time either by the
Company or by you upon the giving of written notice of such termination to the
other parties hereto, but without prejudice to any rights, obligations or
liabilities of either parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(h), 6, 7, 9, 10 and 12 shall survive; provided that if at the
time of termination an offer to purchase Program Securities has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Program Securities has not occurred, the provisions of Sections 1, 2(b), 2(c),
3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such
delivery has been made.
9. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or telefaxed and
confirmed to you at 1585 Broadway, New York, New York 10036, Attention: Manager,
Continuously Offered Products (telefax number: 212-761-2000), with a copy to
1585 Broadway, 34th Floor, New York, New York 10036, Attention: Peter Cooper,
Investment Banking Information Center (telefax number: 212-761-0260) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1585 Broadway, New York, New York 10036, Attention: Secretary.
10. Successors. This Agreement and any Notes Terms Agreement or Units Terms
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 6 and the purchasers of Notes and Units (to the
extent expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
MORGAN STANLEY DEAN WITTER & CO.
By:
----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
DEAN WITTER REYNOLDS INC.
By:____________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
----------------------------
Name:
Title:
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated May 6, 1999
(the "U.S. Distribution Agreement")
---------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series C,
having the following terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 9 through
13 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(h), 6, 9, 10 and 12 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
________________.
DEAN WITTER REYNOLDS INC.
By:
------------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
------------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY DEAN
WITTER & CO.
By:
------------------------------------
Name:
Title:
EXHIBIT A-1
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL UNITS, SERIES C
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated May 6, 1999 (the
"U.S. Distribution Agreement")
--------------------------------------------------
The undersigned agrees to purchase your Global Units, Series C, [specified
designation] having the following terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 9 through
13 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(h), 6, 9, 10 and 12 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
___________.
DEAN WITTER REYNOLDS INC.
By:
---------------------------------
Name
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
---------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY DEAN
WITTER & CO.
By:
---------------------------------
Name:
Title:
EXHIBIT B
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
GLOBAL UNITS, SERIES C
ADMINISTRATIVE PROCEDURES
--------------------
Explained below are the administrative procedures and specific terms of the
offering of Global Medium-Term Notes, Series C (the "Notes") and Global Units,
Series C (the "Units"), on a continuous basis by Morgan Stanley Dean Witter &
Co. (the "Company") pursuant to the U.S. Distribution Agreement, dated May 6,
1999 (as may be amended from time to time, the "Distribution Agreement") among
the Company, Dean Witter Reynolds Inc. and Morgan Stanley & Co. Incorporated
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, as senior indebtedness (the
"Senior Notes") or subordinated indebtedness (the "Subordinated Notes") of the
Company, and as used herein the term "Notes" includes the Senior Notes and the
Subordinated Notes. The Senior Notes will be issued, either alone or as part of
a Unit, pursuant to the provisions of an amended and restated senior indenture
dated as of May 1, 1999 (as it may be supplemented or amended from time to time,
the "Senior Debt Indenture"), between the Company and The Chase Manhattan Bank
("Chase"), as trustee. The Subordinated Notes will be issued pursuant to the
provisions of an amended and restated subordinated indenture, dated as of May 1,
1999 (as it may be supplemented or amended from time to time, the "Subordinated
Debt Indenture"), between the Company and The First National Bank of Chicago, as
trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." Purchase Contracts that require holders to
satisfy their obligations thereunder when such Purchase Contracts are issued
("Pre-paid Purchase Contracts") will be issued under an Indenture.
Unless otherwise specified in the applicable Pricing Supplement, the Units
will be issued (i) pursuant to the Unit Agreement dated as of May 6, 1999, among
the Company, The Chase Manhattan Bank, as Unit Agent, as Collateral Agent, as
Trustee under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein and the holders from time to time of the
Units described therein (as may be amended from time to time, the "Unit
Agreement") or (ii) if Units do not include Purchase Contracts (other than
Pre-paid Purchase Contracts), pursuant to a unit agreement among the Company,
The Chase Manhattan Bank, as Unit Agent, as Trustee under the Indenture referred
to therein, and as Warrant Agent under the Warrant Agreement referred to therein
in the form of such agreement filed as an exhibit to the Registratrion Statement
(each such agreement, a "Unit Agreement Without Holders' Obligations"). Units
may include one or more (i) Series C Senior Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies or
(c) commodities, (iii) purchase contracts ("Purchase Contracts"), including
Pre-paid Purchase Contracts, requiring the holders thereof to purchase or sell
(a) securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or (c) commodities or (iv) any combination thereof. The
applicable Pricing Supplement will specify whether or not any Notes, Universal
Warrants and Purchase Contracts comprised by a Unit may or may not be separated
from the Unit. Universal Warrants issued as part of a Unit will be issued
pursuant to the Universal Warrant Agreement dated as of May 6, 1999, between the
Company and Chase, as Warrant Agent (as may be amended from time to time, the
"Universal Warrant Agreement"). Purchase Contracts, other than Pre-paid Purchase
Contracts, entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes and Units for its own account, and if
requested by the Agent, the Company and the Agent will enter into a terms
agreement (in the case of Notes, a " Notes Terms Agreement" and, in the case of
Units, a "Units Terms Agreement"), as contemplated by the Distribution
Agreement. The administrative procedures explained below will govern the
issuance and settlement of any Notes or Units purchased by the Agent, as
principal, unless otherwise specified in the applicable Notes Terms Agreement or
Units Terms Agreement.
Chase will be the Registrar, Calculation Agent, Authenticating Agent and
Paying Agent for both the Senior Notes and the Subordinated Notes, the Unit
Agent for the Units and Purchase Contracts and Warrant Agent for the Universal
Warrants, and in each case, will perform the duties specified herein. Each Note
and each Unit will be represented by either (i) in the case of the Notes, a
Global Note and, in the case of the Units, a Global Unit (each as defined below)
delivered to Chase, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (in the case of a Note, a
"Book-Entry Note" and , in the case of a Unit, a "Book-Entry Unit") or (ii) a
certificate delivered to the holder thereof or a person designated by such
holder (in the case of a Note, a "Certificated Note" and, in the case of a Unit,
a "Certificated Unit"). Each Note, Universal Warrant or Purchase Contract which
my be included in any Unit will be issued in the corresponding global or
certificated form. Except as set forth in the Indentures, in the case of Notes
(or Pre-paid Purchase Contracts), the Unit Agreement or a Unit Agreement Without
Holders' Obligations, as applicable, in the case of Units and all other Purchase
Contracts, or the Universal Warrant Agreement, in the case of the Universal
Warrants, an owner of a Book-Entry Note or Book-Entry Unit (or of any Note,
Universal Warrant or Purchase Contract included in such Book-Entry Unit), as the
case may be, will not be entitled to receive a Certificated Note (including with
respect to a Book-Entry Note included in a Book-Entry Unit) or a Certificated
Unit (or certificated Universal Warrants or Purchase Contracts, as applicable).
Book-Entry Notes and Book-Entry Units, which may be payable in either U.S.
dollars or other specified currencies, will be issued in accordance with the
administrative procedures set forth in Part I hereof as they may subsequently be
amended as the result of changes in DTC's operating procedures. Certificated
Notes and Certificated Units will be issued in accordance with the
administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures, the Unit
Agreement, the Unit Agreement Without Holders' Obligations, the Universal
Warrant Agreement, the Notes, the Units, the Universal Warrants, the Purchase
Contracts or any Prospectus Supplement relating to the Notes and Units shall be
used herein as therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase Notes
and Units and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes and Book-Entry
Units for eligibility in the book-entry system maintained by DTC, Chase will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under (i) a Letter of
Representations from the Company and Chase to DTC, dated as of May [ ], 1999,
for medium-term notes (the "MTN Letter of Representations"), (ii) a letter of
representations from the Company and Chase to DTC, dated as of May [ ], 1999,
for optionally exchangeable medium-term notes (the "Optionally Exchangeable MTN
Letter of Representations"), (iii) a Letter of Representations from the Company
and Chase to DTC, dated as of May [ ], 1999, for mandatorily exchangeable
medium-term notes (the "Mandatorily Exchangeable MTN Letter of Representation"),
(iv) a Letter of Representations from the Company and Chase to DTC, dated as of
May [ ], 1999, for global units consisting of medium-term notes and universal
warrants (the "Optionally Exchangeable Unit Letter of Representation") and (iv)
a Letter of Representations from the Company and Chase to DTC, dated as of May [
], 1999, for global units consisting of medium-term notes and purchase contracts
(the "Mandatorily Exchangeable Unit Letter of Representation" and collectively
the "Letters of Representations") and a Medium-Term Note Certificate Agreement
between Chase and DTC, dated as of December 2, 1988, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, or one or more Book-Entry Units, the
Company will issue, in the case of the Notes, a
single global Note in fully registered form
without coupons (a "Global Note") representing
up to U.S. $200,000,000 principal amount of all
such Notes that have the same Original Issue
Date, Maturity Date and other terms and, in the
case of a Unit, a single global unit in fully
registered form (a "Global Unit"), representing
up to U.S. $200,000,000 face amount of all such
Units that have the same Original Issue Date and
that otherwise comprise the same securities and
have the same terms. Each Global Note, whether
issued alone or as part of a Unit, will be dated
and issued as of the date of its authentication
by Chase and each Global Unit will be dated and
issued as of the date of the issuances of the
other securities comprised by such Unit. Each
Global Note, whether alone or as part of a Unit,
will bear an "Interest Accrual Date," which will
be (i) with respect to an original Global Note
(or any portion thereof), its original issuance
date and (ii) with respect to any Global Note
(or any portion thereof) issued subsequently
upon exchange of a Global Note, or in lieu of a
destroyed, lost or stolen Global Note, the most
recent Interest Payment Date to which interest
has been paid or duly provided for on the
predecessor Global Note or Notes (or if no such
payment or provision has been made, the original
issuance date of the predecessor Global Note),
regardless of the date of authentication of such
subsequently issued Global Note. Book-Entry
Notes and Book-Entry Units may be payable in
either U.S. dollars or other specified
currencies. No Global Note or Global Unit will
represent, any Certificated Note or Certificated
Unit, as the case may be.
Denominations: Book-Entry Notes and Book-Entry Units will be
issued in (i) in the case of Book-Entry Notes,
principal amounts of U.S. $1,000 or any amount
in excess thereof that is an integral multiple of
U.S. $1,000 or, if such Book-Entry Notes are
issued in a currency other than U.S. dollars,
principal amounts of such currency in
denominations of the equivalent of U.S. $1,000
(rounded to an integral multiple of 1,000 units
of such currency), unless otherwise indicated in
the applicable Pricing Supplement and (ii) in
the case of Book-Entry Units, denominations of a
single unit and any integral multiple thereof
with face amounts of U.S. $1,000 or any amount
in excess thereof that is an integral multiple
of U.S. $1,000 or, if such Book-Entry Units are
issued in a currency other than U.S. dollars,
face amounts of such currency in denominations
of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such
currency), unless otherwise indicated in the
applicable Pricing Supplement. Global Notes and
Global Units will be denominated in, in the case
of Global Notes, principal amounts not in excess
of U.S.$200,000,000 and, in the case of Global
Units, face amounts not in excess of U.S.
$200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of
U.S. $200,000,000, or one or more Book-Entry
Units having an aggregate face amount, in excess
of $200,000,000 would, but for the preceding
sentence, be represented by a single Global Note
or Global Unit, as the case may be, then one
Global Note will be issued to represent each U.S.
$200,000,000 principal amount of such Book-Entry
Note or Notes and one Global Unit will be issued
to represent each U.S.$200,000,000 face amount
of such Book-Entry Unit or Units and an
additional Global Note or Global Unit, will be
issued to represent any remaining principal
amount of such Book-Entry Note or Notes or face
amount of such Book-Entry Unit or Units. In
such a case, each of the Global Notes or Global
Units representing such Book-Entry Note or Notes
or such Book-Entry Unit or Units, as the case may
be, shall be assigned the same CUSIP number.
Preparation of
Pricing Supplement: If any order to purchase a Book-Entry Note or
Book-Entry Unit is accepted by or on behalf of
the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format
document, in the manner prescribed by the EDGAR
Filer Manual, of such Pricing Supplement with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, (ii)
will, as soon as possible and in any event not
later than the date on which such Pricing
Supplement is filed with the Commission, deliver
the number of copies of such Pricing Supplement
to the Agent as the Agent shall request and
(iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the
National Association of Securities Dealers, Inc.
(the "NASD"). The Agent will cause such Pricing
Supplement to be delivered to the purchaser of
the Note or Unit.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
or a Book-Entry Unit and, in the case of the
Note, the authentication and issuance of the
Global Note representing such Note or, in the
case of the Unit, the completion and issuance of
the Global Unit representing such Unit (and of
each security comprised by such Unit) shall
constitute "settlement" with respect to such
Note or Unit, as the case may be. All orders
accepted by the Company will be settled on the
fifth Business Day pursuant to the timetable for
settlement set forth below unless the Company
and the purchaser agree to settlement on another
day, which shall be no earlier than the next
Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note and each Book-Entry Unit sold
by the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement), shall be
as follows:
A. In the case of a Book-Entry Note (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note
is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note, and, if so, the amortization
schedule, or, in the case of a Floating
Rate Book-Entry Note, the Initial Interest
Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
4. Redemption or repayment provisions, if any.
5. Ranking.
6. Settlement date and time (Original Issue
Date).
7. Interest Accrual Date.
8. Price.
9. Agent's commission, if any, determined as
provided in the Distribution Agreement.
10. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if it
is an OID Note, the applicability of
Modified Payment upon Acceleration (and,
if so, the Issue Price).
11. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
12. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
13. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
14. Any other applicable provisions.
B. In the case of a Book-Entry Unit, the Agent will
advise the Company by telephone that such Unit
is a Book-Entry Unit, of the information set
forth in Settlement Procedures "A" above with
respect to any Book-Entry Notes that constitute
a part of such Book-Entry Unit and of the
following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
4. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement Procedures "A");
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised by
such Unit).
7. If the Book-Entry Unit comprises
Book-Entry Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Universal
Warrants;
b. Warrant Property;
c. Aggregate Number of Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants may
be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash Settlement
Value;
m. Exchange Rate (or method of
calculation); and
n. Whether the Company or the holder is
the writer of the Universal Warrant.
o. Any other applicable provisions.
8. If the Book-Entry Unit comprises
Book-Entry Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in "Settlement Procedure" "A" and "B"
above, as applicable. Chase will then assign a
CUSIP number to the Global Note representing a
Note, whether issued alone or as part of a Unit,
and will notify the Company and the Agent of
such CUSIP number(s) by telephone as soon as
practicable, except that for Optionally
Exchangeable and Mandatorily Exchangeable Notes
the Agent will obtain a CUSIP number for the
Global Note representing such Note and will
notify the Company and Chase of such CUSIP
number(s) by telephone as soon as practicable.
The Agent will obtain a CUSIP number for (i) the
Global Unit representing a Unit, (ii) the
Universal Warrant, if any, issued as part of a
Unit and (iii) the Purchase Contract, if any,
issued as part of a Unit and, in each case will
notify the Company and Chase of such CUSIP
number(s) by telephone as soon as practicable.
D. Chase will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the Agent and Standard & Poor's Corporation:
1. The information set forth in "Settlement
Procedure" "A" and "B" above, as
applicable.
2. The Initial Interest Payment Date for the
Notes, whether issued alone or as part of a
Unit, the number of days by which such
date succeeds the related DTC Record Date
and, if known, amount of interest payable
on such Initial Interest Payment Date.
3. The CUSIP number of the Global Note
(whether issued alone or as part of a
Unit), Global Unit, Universal Warrant
issued as part of a Unit and Purchase
Contract issued as part of a Unit, as
applicable.
4. Whether the Global Note or Global Unit
will represent any other Book-Entry Note
or Book-Entry Unit, as the case may be (to
the extent known at such time).
5. Whether any Note, issued alone or as part
of a Unit, is an Amortizing Note (by an
appropriate notation in the comments field
of DTC's Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent
and Chase.
E. Chase will, as applicable, authenticate, complete
and deliver the Global Note representing the Note
and will complete the Global Unit representing
the Unit (including, as applicable, by
countersigning and delivering any Universal
Warrants and by countersigning, executing and
delivering any Purchase Contracts includable in
such Unit).
F. DTC will credit such Note or Unit to Chase's
participant account at DTC.
G. Chase will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit the Note or Unit, as the case
may be, to Chase's participant account and
credit such Note or Unit to the Agent's
participant account and (ii) debit the Agent's
settlement account and credit Chase's settlement
account for an amount equal to the price of such
Note or Unit, as the case may be, less the
Agent's commission, if any. The entry of such a
deliver order shall constitute a representation
and warranty by Chase to DTC that (a) the Global
Note representing a Book-Entry Note has been
issued and authenticated or a Global Unit
representing a Book-Entry Unit has been
completed and issued and (b) Chase is holding
such Global Note or Global Unit pursuant to the
Medium-Term Note Certificate Agreement between
Chase and DTC.
H. Unless the Agent is the end purchaser of a Note
or Unit, the Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note or Unit to
the Agent's participant account and credit such
Note or Unit to the participant accounts of the
Participants with respect to such Note or Unit
and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of
the Agent for an amount equal to the price of
such Note or Unit.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures
"G" and "H" will be settled in accordance with
SDFS operating procedures in effect on the
settlement date.
J. Chase will credit to the account of the Company
maintained at Chase, New York, New York, in
funds available for immediate use in the amount
transferred to Chase in accordance with
"Settlement Procedure" "G".
K. Unless the Agent is the end purchaser of the Note
or Unit, the Agent will confirm the purchase of
such Note or Unit to the purchaser either by
transmitting to the Participants with respect to
such Note or Unit a confirmation order or orders
through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
L. Monthly, Chase will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
Indentures or, in the case of Units, the
aggregate face amount of Units outstanding as of
that date, under the Unit Agreement, and setting
forth a brief description of any sales of which
the Company has advised Chase that have not yet
been settled.
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes or
Book-Entry Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) for
settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "K"
set forth above shall be completed as soon as
possible but not later than the respective times
in New York City set forth below:
Settlement
Procedure
Time
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 12:00 Noon on the sale date
D 2:00 P.M. on the sale date
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B", "C" and "D" shall be completed as soon
as practicable but no later than 11:00 A.M.,
11:00 A.M., 12 Noon and 2:00 P.M., respectively,
on the first Business Day after the sale date.
If the Initial Interest Rate for a Floating Rate
Book-Entry Note, whether issued alone or as part
of a Unit, has not been determined at the time
that "Settlement Procedure" "A" is completed,
"Settlement Procedure" "C" and "D" shall be
completed as soon as such rate has been
determined but no later than 12 Noon and 2:00
P.M., respectively, on the first Business Day
before the settlement date. "Settlement
Procedure" "I" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in
the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note or a
Book-Entry Unit is rescheduled or canceled,
Chase, after receiving notice from the Company
or the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
P.M. on the Business Day immediately preceding
the scheduled settlement date.
Failure to Settle: If Chase fails to enter an SDFS deliver order
with respect to a Book-Entry Note or a Book-Entry
Unit pursuant to "Settlement Procedure" "G",
Chase may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC
to debit such Note or Unit to Chase's participant
account, provided that Chase's participant
account contains a principal amount of the
Global Note representing such Note or a face
amount of the Global Unit representing such Unit
that is at least equal to the principal amount
or face amount to be debited. If a withdrawal
message is processed with respect to all the
Book-Entry Notes represented by a Global Note or
all of the Book-Entry Units represented by the
Global Units, Chase will mark such Global Note
or Global Unit "canceled," make appropriate
entries in Chase's records and send such
canceled Global Note or Global Unit to the
Company. The CUSIP number assigned to such
Global Note, Global Unit, Universal Warrant
included in such Unit, or Purchase Contract
included in such Unit, shall, in accordance with
the procedures of the CUSIP Service Bureau of
Standard & Poor's Corporation, be canceled and
not immediately reassigned. If a withdrawal
message is processed with respect to one or
more, but not all, of the Book-Entry Notes
represented by a Global Note or with respect to
one or more, but not all, of the Book-Entry Units
represented by a Global Unit, Chase will exchange
such Global Note or Global Unit, as the case may
be, for two Global Notes or for two Global Units,
as the case may be, one of which shall represent
such Book-Entry Note or Notes or such Book-Entry
Unit or Units and shall be canceled immediately
after issuance and the other of which shall
represent the remaining Book-Entry Notes or
Book-Entry Units previously represented by the
surrendered Global Note or Global Unit and shall
bear the CUSIP number of the surrendered Global
Note, Global Unit, Universal Warrant included in
such Unit, or Purchase Contract included in such
Unit.
If the purchase price for any Book-Entry Note or
Book-Entry Unit is not timely paid to the
Participants with respect to such Note or Unit by
the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting
on behalf of such purchaser), such Participants
and, in turn, the Agent may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures "G" and "H", respectively.
Thereafter, Chase will deliver the withdrawal
message and take the related actions described
in the preceding paragraph.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note or
Book-Entry Unit, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes or Book-Entry Units to have been
represented by a Global Note or a Global Unit,
as the case may be, Chase will provide, in
accordance with Settlement Procedures "E" and
"G", for the authentication and issuance of a
Global Note representing the Book-Entry Notes to
be represented by such Global Note and for the
issuance of a Global Unit representing the
Book-Entry Units to be represented by such
Global Unit and, in each case, will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
AND CERTIFICATED UNITS
Chase will serve as registrar in connection with
the Certificated Notes and the Certificated
Units.
Issuance: Each Certificated Note will be dated and issued
as of the date of its authentication by Chase
and each Certificated Unit will be deemed to be
dated as of the date of the underlying
Certificated Note or, if there is not such
underlying Certificated Note on the date of the
other securities comprised thereby. Each
Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an
original Certificated Note (or any portion
thereof), its original issuance date (which will
be the settlement date) and (ii) with respect to
any Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed,
lost or stolen Certificated Note, the original
issuance date of the predecessor Certificated
Note, regardless of the date of authentication
of such subsequently issued Certificated Note.
Preparation of
Pricing Supplement: If any order to purchase a Certificated Note or a
Certificated Unit is accepted by or on behalf of
the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format
document, in the manner prescribed by the EDGAR
Filer Manual, of such Pricing Supplement with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, (ii)
will, as soon as possible and in any event not
later than the date on which such Pricing
Supplement is filed with the Commission, deliver
the number of copies of such Pricing Supplement
to the Agent as the Agent shall request and
(iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the
NASD. The Agent will cause such Pricing
Supplement to be delivered to the purchaser of
the Note or the Unit, as the case may be.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note or a Certificated Unit
delivered to the Agent and the Agent's delivery
of such Note or Unit against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be
settled on or before the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another date.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note and each Certificated
Unit sold by the Company to or through the
Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units
Terms Agreement) shall be as follows:
A. In the case of Certificated Notes (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note
is a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note and, if so, the amortization schedule,
or, in the case of a Floating Rate
Certificated Note, the Initial Interest
Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
7. Redemption or repayment provisions, if any.
8. Ranking.
9. Settlement date and time (Original Issue
Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if any, determined as
provided in the Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Whether the Note is an OID Note, and if it
is an OID Note, the applicability of
Modified Payment upon Acceleration (and
if so, the Issue Price).
16. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the
Election Dates and the Maturity Extension
Dates.
17. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
18. Any other applicable provisions.
B. In the case of a Certificated Unit, the Agent
will advise the Company by telephone that such
Unit is a Certificated Unit, of the information
set forth in Settlement Procedure "A" above with
respect to Certificated Notes that constitute a
part of such Certificated Unit and of the
following information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Face Amount.
7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by
such Units:
a. Notes, if any (See Settlement
Procedures "A" );
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
9. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
10. Any other provisions applicable to the Unit
(other than those provisions applicable to
the securities comprised by such Unit).
11. If the Certificated Unit comprises
Certificated Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants may
be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash Settlement
Value;
m. Exchange Rate (or method of
calculation); and
n. Whether the Company or the holder is
the writer of the warrant.
o. Any other applicable provisions.
12. If the Certificated Unit comprises
Certificated Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at
any time on the sale date) of the information set
forth in Settlement Procedure "A" and "B" above,
as applicable.
D. The Company will have delivered to Chase a
pre-printed four-ply packet for each Note and
Unit, which packet will contain the following
documents in forms that have been approved by
the Company, the Agent, the Trustee and the Unit
Agent, as applicable:
1. Note with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
E. Chase will (i) with respect to a Note,
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the Agent
or (ii) with respect to a Unit, complete and
deliver the Unit (including countersigning and
delivering the Universal Warrant and
countersigning, executing and delivering the
Purchase Contract) with the confirmation Stubs
One and Two to the Agent. The Agent will
acknowledge receipt of the Note or the Unit, as
the case may be, by stamping or otherwise
marking Stub One and returning it to Chase.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent for
payment to the account of the Company at Chase,
New York, New York, or to such other account as
the Company shall have specified to the Agent
and Chase in funds available for immediate use,
of an amount equal to the price of such Note or
Unit less the Agent's commission, if any. In the
event that the instructions given by the Agent
for payment to the account of the Company are
revoked, the Company will as promptly as
possible wire transfer to the account of the
Agent an amount of immediately available funds
equal to the amount of such payment made.
F. Unless the Agent is the end purchaser of such
Note or Unit, the Agent will deliver such Note or
Unit (with confirmation) to the customer against
payment in immediately payable funds. The Agent
will obtain the acknowledgment of receipt of
such Note or Unit by retaining Stub Two.
G. Chase will send Stub Three to the Company by
first-class mail. Periodically, Chase will also
send to the Company a statement setting forth,
in the case of the Notes, the principal amount
of the Notes outstanding as of that date under
each Indenture and, in the case of the Units, the
aggregate face amount of the Units outstanding
under the Unit Agreement and, in each case,
setting forth a brief description of any sales of
which the Company has advised Chase that have
not yet been settled.
Settlement Procedures
Timetable: For sales by the Company of Certificated Notes or
of Certificated Units to or through the Agent
(unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement),
Settlement Procedures "A" through "G" set forth
above shall be completed on or before the
respective times in New York City set forth
below:
Settlement
Procedure Time
A 2:00 P.M. on day before settlement date
B 2:00 P.M. on day before settlement date
C 3:00 P.M. on day before settlement date
D-E 2:15 P.M. on settlement date
F 3:00 P.M. on settlement date
G 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and
make payment for any Certificated Note or any
Certificated Unit, the Agent will notify the
Company and Chase by telephone and return such
Note or Unit to Chase. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an amount
equal to the amount previously credited thereto
in respect to such Note or Unit. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If
the failure shall have occurred for any reason
other than a default by the Agent in the
performance of its obligations hereunder and
under the Distribution Agreement, then the
Company will reimburse the Agent or Chase, as
appropriate, on an equitable basis for its loss
of the use of the funds during the period when
they were credited to the account of the
Company. Immediately upon receipt of the
Certificated Note or the Certificated Unit in
respect of which such failure occurred, Chase
will mark such note or Unit "canceled," make
appropriate entries in Chase's records and send
such Note or Unit, as the case may be, to the
Company.
MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series C
Global Units, Series C
U.S. DISTRIBUTION AGREEMENT
May 6, 1999
Dean Witter Reynolds Inc.
Two World Trade Center
65th Floor
New York, New York 10048
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs:
Morgan Stanley Dean Witter & Co., a Delaware corporation (the "Company"),
confirms its agreement with you with respect to the issue and sale from time to
time by the Company of up to $16,256,130,907 (or the equivalent thereof in one
or more foreign currencies) aggregate initial public offering price of its
Global Medium-Term Notes, Series C, due more than 9 months from the date of
issue (the "Notes") and its Global Units, Series C (the "Units" and together
with the Notes, the "Program Securities"), in each case subject to reduction as
a result of the sale of the Company's (i) Global Medium-Term Notes, Series D and
Series E, to be sold primarily outside of the United States, (ii) Global Units,
Series D and Series E, to be sold primarily outside of the United States, and
(iii) the sale of certain of the Company's other debt securities, warrants,
preferred stock, purchase contracts and units.
The Notes may be issued as senior indebtedness (the "Series C Senior
Notes") or as subordinated indebtedness (the "Series C Subordinated Notes") of
the Company. The Series C Senior Notes will be issued, either alone or as part
of a Unit, pursuant to the provisions of an amended and restated senior
indenture dated as of May 1, 1999, between the Company and The Chase Manhattan
Bank, as trustee (the "Senior Debt Trustee") (as may be supplemented or amended
from time to time, the "Senior Debt Indenture"). The Series C Subordinated Notes
will be issued pursuant to the provisions of an amended and restated
subordinated indenture dated as of May 1, 1999, between the Company and The
First National Bank of Chicago, as trustee (the "Subordinated Debt Trustee") (as
may be supplemented or amended from time to time, the "Subordinated Debt
Indenture"). The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures," and the Senior Debt Trustee and the
Subordinated Debt Trustee are sometimes hereinafter referred to individually as
a "Trustee" and collectively as the "Trustees." Purchase contracts ("Purchase
Contracts") that require holders to satisfy their obligations thereunder when
such Purchase Contracts are issued ("Pre-paid Purchase Contracts") will be
issued under the Indentures.
The Units will be issued pursuant to the Unit Agreement dated as of May 6,
1999, among the Company, The Chase Manhattan Bank, as Unit Agent, as Collateral
Agent, as Trustee and Paying Agent under the Indenture referred to therein, and
as Warrant Agent under the Warrant Agreement referred to therein and the holders
from time to time of the Units described therein (as may be amended from time to
time, the "Unit Agreement") or, if the Units do not include Purchase Contracts
(other than Pre-paid Purchase Contracts), pursuant to a Unit Agreement between
the Company and The Chase Manhattan Bank, as Unit Agent, as Trustee and Paying
Agent under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein in the form of such agreement filed as an
exhibit to the Registration Statement referred to below (each such agreement, a
"Unit Agreement Without Holders' Obligations"). Units may include one or more
(i) Series C Senior Notes, (ii) warrants ("Universal Warrants") entitling the
holders thereof to purchase or sell (a) securities of an entity unaffiliated
with the Company, a basket of such securities, an index or indices of such
securities or any combination of the above, (b) currencies or (c) commodities,
(iii) Purchase Contracts, including Pre-paid Purchase Contracts, requiring the
holders thereof to purchase or sell (a) securities or of an entity unaffiliated
with the Company, a basket of such securities, an index or indices of such
securities or any combination of the above, (b) currencies or (c) commodities or
(iv) any combination thereof. The applicable prospectus supplement will specify
whether Notes, Universal Warrants and Purchase Contracts comprised by a Unit may
or may not be separated from any series of Units. Universal Warrants issued as
part of a Unit will be issued pursuant to the Universal Warrant Agreement dated
as of May 6, 1999 (as may be amended from time to time, the "Universal Warrant
Agreement") between the Company and The Chase Manhattan Bank, as Warrant Agent.
Purchase Contracts other than Pre-paid Purchase Contracts ("Non-pre-paid
Purchase Contracts"), entered into by the Company and the holders thereof will
be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants will have the exercise prices, exercise dates, expiration
dates and other terms as set forth in supplements to the Basic Prospectus. The
Purchase Contracts will have the closing dates, purchase or sale prices and
other terms as set forth in supplements to the Basic Prospectus.
The Company hereby appoints you as its exclusive agents for the purpose of
soliciting and receiving offers to purchase Program Securities from the Company
by others and, on the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, you agree
to use reasonable efforts to solicit and receive offers to purchase Program
Securities upon terms acceptable to the Company at such times and in such
amounts as the Company shall from time to time specify. In addition, you may
also purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement") in accordance with the
provisions of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file with
the Commission from time to time, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), supplements to the prospectus
included in the Registration Statement that will describe certain terms of the
Program Securities. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus." The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "Prospectus Supplement") specifically relating
to the Program Securities, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Basic Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). If the Company has filed an abbreviated
registration statement to register additional Program Securities pursuant to
Rule 462(b) under the Securities Act (the "Rule 462 Registration Statement"),
then any reference herein to the term "Registration Statement" shall be deemed
to include such Rule 462 Registration Statement.
1. Representations and Warranties. The Company represents and warrants to
and agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issues and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that (1) the representations and warranties set forth in this Section
1(b) do not apply (A) to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to you furnished to the
Company in writing by you expressly for use therein or (B) to those parts of the
Registration Statement that constitute the Statements of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the Trustees and (2) the representations and warranties set forth in clauses
(iii) and (iv) above, when made as of the Commencement Date or as of any date on
which you solicit offers to purchase Program Securities or on which the Company
accepts an offer to purchase Program Securities, shall be deemed not to cover
information concerning an offering of particular Program Securities to the
extent such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of Delaware, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Written Notes Terms Agreement
or Written Units Terms Agreement (each as hereinafter defined) has been duly
authorized, executed and delivered by the Company.
(f) Each Indenture has been duly qualified under the Trust Indenture Act
and each of the Senior Indenture, the Subordinated Indenture, the Unit Agreement
and the Universal Warrant Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as the enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations has been duly
authorized by the Company and, when a Unit Agreement Without Holders'
Obligations has been duly executed and delivered by the Company, the Unit
Agreement Without Holders' Obligations will be a valid and binding agreement of
the Company, enforceable in accordance with its terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a proceeding in
equity or at law.
(h) The forms of Notes (including the form of Pre-paid Purchase Contract),
whether issued alone or as part of a Unit, have been duly authorized and
established in conformity with the provisions of the relevant Indenture and,
when the Notes (and the Pre-paid Purchase Contracts) have been executed and
authenticated in accordance with the provisions of the relevant Indenture and
delivered to and duly paid for by the purchasers thereof, the Notes (and the
Pre-paid Purchase Contracts) will be entitled to the benefits of such Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof (i)
may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(i) The forms of Units under the Unit Agreement, including the forms of
Universal Warrants and Non-pre-paid Purchase Contracts, have been duly
authorized and established in conformity with the provisions of (i) in the case
of such Units and Non-pre-paid Purchase Contracts, the Unit Agreement and (ii)
in the case of Universal Warrants, the Universal Warrant Agreement. When such
Units have been delivered to and duly paid for by the purchasers thereof and (A)
any Non-pre-paid Purchase Contracts included in such Units have been executed by
the Company and countersigned by the Unit Agent and (B) any Universal Warrants
included in such Units have been executed by the Company and countersigned by
the Warrant Agent, such Units (including any such Non-pre-paid Purchase
Contracts or Universal Warrants contained therein) will be entitled to the
benefits of the Unit Agreement and, in the case of the Universal Warrants, the
Universal Warrant Agreement and will be valid and binding obligations of the
Company, enforceable in accordance with their respective terms except as the
enforceability thereof (i) may be limited by bankruptcy, insolvency,
reorganization, liquidation, moratorium and other similar laws affecting
creditors' rights generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a proceeding in
equity or at law.
(j) When a Unit Agreement Without Holders' Obligations has been executed
and delivered by the Company, the Units to be issued thereunder will have been
duly authorized and when such Units have been established in conformity with the
provisions of the Unit Agreement Without Holders' Obligations and delivered to
and duly paid for by the purchasers thereof, and any Universal Warrants included
in such Units have been executed by the Company and countersigned by the Warrant
Agent, such Units (including any such Universal Warrants contained therein) will
be entitled to the benefits of the Unit Agreement Without Holders' Obligations
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as the enforceability thereof (i)
may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and (ii)
is subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law.
(k) The execution and delivery by the Company of this Agreement, the Notes
and Pre-paid Purchase Contracts (whether issued alone or as part of a Unit), the
Units (including any Purchase Contracts and Universal Warrants included
therein), the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Prepaid
Purchase Contracts, the Units (including any Purchase Contracts or Universal
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Notes, the Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Universal Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement, except such as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Program Securities; provided, however, that no
representation is made or warranty given as to whether the purchase of the
Program Securities constitutes a "prohibited transaction" under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended.
(l) There has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other documents that
are required to be described in the Registration Statement or the Prospectus or
to be filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required.
(n) Each of the Company and its subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(o) Dean Witter Reynolds Inc. is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity Futures
Trading Commission as a futures commission merchant and is a member of the New
York Stock Exchange, Inc. and the National Association of Securities Dealers,
Inc.
(p) Morgan Stanley & Co. Incorporated is registered as a broker-dealer and
investment adviser with the Commission, is registered with the Commodity Futures
Trading Commission as a futures commission merchant and is a member of the New
York Stock Exchange, Inc. and the National Association of Securities Dealers,
Inc.
(q) The Company is not and, after giving effect to the offering and sale of
the Program Securities and the application of the proceeds thereof as described
in the Prospectus, will not be an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(r) The Company has no reason to believe, and does not believe, that there
are any issues related to the Company's preparedness to address any significant
risk that computer hardware or software applications used by the Company and its
subsidiaries will not, in the case of dates or time periods occurring after
December 31, 1999, function at least as effectively as in the case of dates or
time periods occurring prior to January 1, 2000 that are of a character required
to be described or referred to in the Registration Statement or Prospectus which
have not been accurately described in the Registration Statement or Prospectus.
Notwithstanding the foregoing, it is understood and agreed that the
representations and warranties set forth in Section 1(b)(iii) and 1(b)(iv), 1(g)
(except as to due authorization of the Units and Universal Warrants), 1(h)
(except as to due authorization of the Notes and Pre-paid Purchase Contracts),
1(i) (except as to due authorization of the Units, Universal Warrants and
Non-pre-paid Purchase Contracts), 1(j) and 1(k), when made as of the
Commencement Date, or as of any date on which you solicit offers to purchase
Program Securities, with respect to any Program Securities the payments of
principal or interest on which, or any other payments with respect to which,
will be determined by reference to one or more currency exchange rates,
commodity prices, securities of entities unaffiliated with the Company, baskets
of such securities, equity indices or other factors, shall be deemed not to
address the application of the Commodity Exchange Act, as amended, or the rules,
regulations or interpretations of the Commodity Futures Trading Commission.
2. Solicitations as Agents; Purchases as Principals.
(a) Solicitations as Agents. In connection with your actions as agents
hereunder, you agree to use reasonable efforts to solicit offers to purchase
Program Securities upon the terms and conditions set forth in the Prospectus as
then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct you to
suspend at any time, for any period of time or permanently, the solicitation of
offers to purchase Program Securities. Upon receipt of at least one business
day's prior notice from the Company, you will forthwith suspend solicitations of
offers to purchase Program Securities from the Company until such time as the
Company has advised you that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c) provided, however, that if the Registration Statement or Prospectus is
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for (i) in the case of Notes, issued
alone or as part of a Unit, a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes, (ii) in
the case of Units, a change in the exercise price, exercise date or period or
expiration of an underlying Universal Warrant or a change in the settlement date
or purchase or sale price of an underlying Purchase Contract or (iii) for a
change you deem to be immaterial), you shall not be required to resume
soliciting offers to purchase Program Securities until the Company has delivered
such certificates, opinions and letters as you may request.
The Company agrees to pay to you, as consideration for the sale of each
Program Security resulting from a solicitation made or an offer to purchase
received by you, a commission in the form of a discount from the purchase price
of such Program Security equal to between .125% and .750% (depending upon such
Note's maturity or, in the case of Units, any underlying Note's maturity or the
terms of the Units and of the securities comprised by such Units) of the
principal amount of such Note or, in the case of Units, the face amount of such
Unit (provided that the commission for Notes having, or Units including Notes or
other securities having, a maturity of 30 years or greater will be negotiated)
or such other discount as may be specified in the Prospectus Supplement relating
to such Note or Unit.
You shall communicate to the Company, orally or in writing, each offer to
purchase Program Securities received by you as agent that in your judgment
should be considered by the Company. The Company shall have the sole right to
accept offers to purchase Program Securities and may reject any offer in whole
or in part. You shall have the right to reject any offer to purchase Program
Securities that you consider to be unacceptable, and any such rejection shall
not be deemed a breach of your agreements contained herein. The procedural
details relating to the issue and delivery of Program Securities sold by you as
agent and the payment therefor shall be as set forth in the Administrative
Procedures (as hereinafter defined).
(b) Purchases as Principals. Each sale of Program Securities to you as
principals shall be made in accordance with the terms of this Agreement. In
connection with each such sale, the Company will enter into a Notes Terms
Agreement or Units Terms Agreement that will provide for the sale of such
Program Securities to and the purchase thereof by you. Each Notes Terms
Agreement or Units Terms Agreement will take the form of either (i) a written
agreement between you and the Company, which may be substantially in the form of
Exhibit A or Exhibit A-1 (as applicable) hereto (in the case of Notes, a
"Written Notes Terms Agreement" and, in the case of Units, a "Written Units
Terms Agreement"), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your commitment to purchase Program Securities as principal pursuant to a
Notes Terms Agreement or Units Terms Agreement shall be deemed to have been made
on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each (i) Note Terms Agreement shall specify the principal amount of Notes to be
purchased by you pursuant thereto, the maturity date of such Notes, the price to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such Notes and
(ii) Unit Terms Agreement shall specify (a) the information set forth in (i)
above with respect to any Notes issued as part of a Unit, (b) with respect to
any Universal Warrants issued as part of a Unit, the exercise price, the
exercise date or period, the expiration date and any other terms of such
Universal Warrants, and (c) with respect to any Purchase Contracts issued as
part of a Unit, the settlement date, the purchase or sale price or any other
terms of such Purchase Contracts. Each such Notes Terms Agreement or Units Terms
Agreement may also specify any requirements for officers' certificates, opinions
of counsel and letters from the independent auditors of the Company pursuant to
Section 4 hereof. A Notes Terms Agreement and a Unit Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes or Units, as
the case may be, by you.
Each Notes Terms Agreement and each Units Terms Agreement shall specify the
time and place of delivery of and payment for such Notes or Units, as the case
may be. Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, the procedural details relating to the issue and delivery of Notes or
Units, as the case may be, purchased by you as principal and the payment
therefor shall be as set forth in the Administrative Procedures. Each date of
delivery of and payment for Program Securities to be purchased by you as
principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as the
case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, if you are purchasing Program Securities, as principal you may resell
such Program Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the Prospectus Supplement
relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform the
respective duties and obligations specifically provided to be performed in the
Global Medium-Term Notes, Series C and the Global Units, Series C,
Administrative Procedures (attached hereto as Exhibit B) (the "Administrative
Procedures"), as amended from time to time. The Administrative Procedures may be
amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 4 of this
Agreement as a condition precedent to your obligation to begin soliciting offers
to purchase Program Securities as agents of the Company shall be delivered at
the office of Davis Polk & Wardwell, your counsel, not later than 4:00 p.m., New
York time, on the date hereof, or at such other time and/or place as you and the
Company may agree upon in writing, but in no event later than the day prior to
the earlier of (i) the date on which you begin soliciting offers to purchase
Program Securities and (ii) the first date on which the Company accepts any
offer by you to purchase Program Securities as principal. The date of delivery
of such documents is referred to herein as the "Commencement Date."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program Securities
pursuant to this Agreement or any Notes Terms Agreement or Units Terms
Agreement, the Company will not file any Prospectus Supplement relating to the
Program Securities or any amendment to the Registration Statement unless the
Company has previously furnished to you a copy thereof for your review and will
not file any such proposed supplement or amendment to which you reasonably
object; provided, however, that the foregoing requirement shall not apply to any
of the Company's periodic filings with the Commission required to be filed
pursuant to Section 13(a), 13(c), 13(f), 14 or 15(d) of the Exchange Act, copies
of which filings the Company will cause to be delivered to you promptly after
being transmitted for filing with the Commission. Subject to the foregoing
sentence, the Company will promptly cause each Prospectus Supplement to be filed
with or transmitted for filing to the Commission in accordance with Rule 424(b)
under the Securities Act. The Company will promptly advise you (i) of the filing
of any amendment or supplement to the Basic Prospectus, (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will use its best
efforts to prevent the issuance of any such stop order or notice of suspension
of qualification and, if issued, to obtain as soon as possible the withdrawal
thereof. If the Basic Prospectus is amended or supplemented as a result of the
filing under the Exchange Act of any document incorporated by reference in the
Prospectus, you shall not be obligated to solicit offers to purchase Program
Securities so long as you are not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Program Securities is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or if, in your opinion or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified by the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to you in such quantities as
you may reasonably request. If any documents, certificates, opinions and letters
furnished to you pursuant to paragraph (f) below and Sections 5(a), 5(b) and
5(c) in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will resume the
solicitation of offers to purchase Program Securities hereunder. Notwithstanding
any other provision of this Section 3(b), until the distribution of any Program
Securities you may own as principal has been completed, if any event described
above in this paragraph (b) occurs, the Company will, at its own expense,
forthwith prepare and cause to be filed promptly with the Commission an
amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to you, will supply such
amended or supplemented Prospectus to you in such quantities as you may
reasonably request and shall furnish to you pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and letters
as you may request in connection with the preparation and filing of such
amendment or supplement.
(c) The Company will make generally available to its security holders and
to you as soon as practicable earning statements that satisfy the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder covering twelve month periods beginning, in each case, not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in Rule 158 under the Securities Act) of the
Registration Statement with respect to each sale of Program Securities. If such
fiscal quarter is the first fiscal quarter of the Company's fiscal year, such
earning statement shall be made available not later than 90 days after the close
of the period covered thereby and in all other cases shall be made available not
later than 45 days after the close of the period covered thereby.
(d) The Company will furnish in New York City, without charge, (i) to each
Agent, a signed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto as
you may reasonably request and (ii) to each Agent that purchases Program
Securities pursuant to a Terms Agreement or solicits an offer to purchase
Program Securities that is accepted by the Company, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of such Terms Agreement
or the acceptance of such offer, as many copies of the Prospectus, as then
amended or supplemented (including the Prospectus Supplement relating to the
Program Securities to be purchased pursuant to such Terms Agreement or accepted
offer), as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and to maintain such qualifications for as long as you shall reasonably
request.
(f) During the term of this Agreement, the Company shall furnish to you
such relevant documents and certificates of officers of the Company relating to
the business, operations and affairs of the Company, the Registration Statement,
the Basic Prospectus, any amendments or supplements thereto, the Indentures, the
Unit Agreement, any Unit Agreement Without Holders' Obligations, the Warrant
Agreement, the Notes, the Units, the Universal Warrants, the Purchase Contracts,
this Agreement, the Administrative Procedures, any Notes Terms Agreement or
Units Terms Agreement and the performance by the Company of its obligations
hereunder or thereunder as you may from time to time reasonably request.
(g) The Company shall notify you promptly in writing of any downgrading, or
of its receipt of any notice of any intended or potential downgrading or of any
review for possible change that does not indicate the direction of the possible
change, in the rating accorded the Company or any of the Company's securities by
any "nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Program Securities is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: (i) the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Program Securities, (iii) the fees and
disbursements of the Company's counsel and accountants, of the Trustees and
their counsel, the Unit Agent and its counsel, and the Warrant Agent and its
counsel (iv) the qualification of the Notes and Units (and of any securities
comprised thereby) under securities or Blue Sky laws in accordance with the
provisions of Section 3(f), including filing fees and the fees and disbursements
of your counsel in connection therewith and in connection with the preparation
of any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery to
you in quantities as hereinabove stated of copies of the Registration Statement
and all amendments thereto and of the Prospectus and any amendments or
supplements thereto, (vi) the printing and delivery to you of copies of the
Indentures, the Unit Agreement, any Unit Agreement Without Holders' Obligations,
the Universal Warrant Agreement and any Blue Sky or Legal Investment Memoranda,
(vii) any fees charged by rating agencies for the rating of the Program
Securities, (viii) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (ix) the fees
and disbursements of your counsel incurred in connection with the offering and
sale of the Program Securities, including any opinions to be rendered by such
counsel hereunder, and (x) any out-of-pocket expenses incurred by you; provided
that any advertising expenses incurred by you shall have been approved by the
Company.
(i) During the period beginning on the date of any Notes Terms Agreement or
Units Terms Agreement relating to either Notes or Units, as the case may be, and
continuing to and including the Settlement Date with respect to such Notes Terms
Agreement or Units Terms Agreement, the Company will not, without your prior
consent, offer, sell, contract to sell or otherwise dispose of (i) in the case
of Notes, any debt securities of the Company substantially similar to the Notes
set forth in such Notes Terms Agreement (other than (A) the Notes that are to be
sold pursuant to such Notes Terms Agreement, (B) Notes previously agreed to be
sold by the Company and (C) commercial paper issued in the ordinary course of
business) or (ii) in the case of Units, any securities substantially similar to
such Units (other than (A) the Units that are sold pursuant to such Units Terms
Agreement or (B) Units previously agreed to be sold by the Company), in each
case, except as may otherwise be provided in the applicable Notes Terms
Agreement or Units Terms Agreement.
4. Conditions of the Obligations of the Agents. Your obligation to solicit
offers to purchase Program Securities as agents of the Company, your obligation
to purchase Program Securities as principals pursuant to any Notes Terms
Agreement or Units Terms Agreement and the obligation of any other purchaser to
purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed (in the case of your obligation to solicit
offers to purchase Program Securities, at the time of such solicitation, and, in
the case of your or any other purchaser's obligation to purchase Program
Securities, at the time the Company accepts the offer to purchase such Program
Securities and at the time of issuance and delivery) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to market the
Program Securities on the terms and in the manner contemplated by the
Prospectus, as so amended or supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the Company on any exchange
or in any over-the-counter market, (C) declaration of a general moratorium
on commercial banking activities in New York by either Federal or New York
State authorities or (D) any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in your
judgment, is material and adverse and, in the case of any of the events
described in clauses (ii)(A) through (D), such event, singly or together
with any other such event, makes it, in your judgment, impracticable to
market the Program Securities on the terms and in the manner contemplated
by the Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of the Company's
securities by any "nationally recognized statistical rating organization,"
as such term is defined for purposes of Rule 436(g)(2) under the Securities
Act;
(A) except, in each case described in paragraph (i), (ii) or (iii)
above, as disclosed to you in writing by the Company prior to such
solicitation or, in the case of a purchase of Program Securities,
before the offer to purchase such Program Securities was made or
(B) unless in each case described in (ii) above, the relevant
event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities,
before the offer to purchase such Program Securities was made.
(b) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received:
(i) The opinion, dated as of such date, of Brown & Wood llp, counsel
to the Company, or of other counsel satisfactory to you and who may be an
officer of the Company, to the effect that:
(A) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus, as amended
or supplemented, and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(B) each of Dean Witter Reynolds Inc., Greenwood Trust Company,
Morgan Stanley & Co. Incorporated and Morgan Stanley International
Incorporated (each a "Material Subsidiary") has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus, as amended or supplemented,
and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its consolidated subsidiaries, taken as a whole;
(C) each of the Company and its Material Subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus, as
amended or supplemented, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company
and its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written Notes Terms
Agreement or Written Units Terms Agreement has been duly authorized,
executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust
Indenture Act and each of the Senior Indenture, the Subordinated
Indenture, the Unit Agreement and the Universal Warrant Agreement has
been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance
with its terms except as the enforceability thereof (i) may be limited
by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(F) the Unit Agreement Without Holders' Obligations has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms except as the enforceability thereof (i) may be limited by
bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(G) the forms of Notes (including the form of Pre-paid Purchase
Contracts), whether issued alone or as part of a Unit, have been duly
authorized and established in conformity with the provisions of the
relevant Indenture and, if the Notes and the Pre-paid Purchase
Contracts had been executed by the Company and authenticated by the
relevant Trustee or its duly appointed agent in accordance with the
provisions of the relevant Indenture and delivered to and duly paid
for by the purchasers thereof on the date of such opinion, the Notes
and the Pre-paid Purchase Contracts would be entitled to the benefits
of such Indenture and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms except
as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(H) the forms of Units under the Unit Agreement, including the
forms of Universal Warrants and Non-pre-paid Purchase Contracts, have
been duly authorized and established in conformity with the provisions
of (i) in the case of Units under the Unit Agreement and Non-pre-paid
Purchase Contracts, the Unit Agreement and (ii) in the case of the
Universal Warrants, the Universal Warrant Agreement. If such Units
(including the Universal Warrants and the Non-pre-paid Purchase
Contracts) had been delivered to and duly paid for by the purchasers
thereof (and any Purchase Contracts included therein had been executed
by the Company and countersigned by the Unit Agent and any Universal
Warrants included therein had been executed by the Company and
countersigned by the Warrant Agent) on the date of such opinion, the
Units (including the Non-pre-paid Purchase Contracts and the Universal
Warrants contained therein) would be entitled to the benefits of the
Unit Agreement and in the case of the Universal Warrants, the
Universal Warrant Agreement, and would be valid and binding
obligations of the Company, enforceable in accordance with their
respective terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(I) the Units under the Unit Agreement Without Holders'
Obligations have been duly authorized (and the forms of any Universal
Warrants included therein have been duly authorized and established in
conformity with the provisions of the Universal Warrant Agreement),
and if such Units (including the Universal Warrants) had been
delivered to and duly paid for by the purchasers thereof (and any
Universal Warrants included therein had been executed by the Company
and countersigned by the Warrant Agent) on the date of such opinion,
the Units (including the Universal Warrants contained therein) would
be entitled to the benefits of the Unit Agreement Without Holders'
Obligations and in the case of the Universal Warrants, the Universal
Warrant Agreement, and would be valid and binding obligations of the
Company, enforceable in accordance with their respective terms except
as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such
enforceability is considered at a proceeding in equity or at law;
(J) the execution and delivery by the Company of the Notes and
Pre-paid Purchase Contracts (whether issued alone or as part of a
Unit), the Units (including any Purchase Contract or Universal Warrant
included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Universal Warrant
Agreement and any applicable Written Notes Terms Agreement or Written
Units Terms Agreement and the performance by the Company of its
obligations under this Agreement, the Notes, the Units, the
Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Universal Warrant Agreement and any applicable Notes
Terms Agreement or Units Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or, to the best of such counsel's knowledge,
any agreement or other instrument binding upon the Company or any of
its consolidated subsidiaries that is material to the Company and its
consolidated subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any U.S.
governmental body, agency or court having jurisdiction over the
Company or any of its consolidated subsidiaries, and no consent,
approval, authorization or order of or qualification with any U.S.
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Notes, the
Pre-paid Purchase Contracts, the Units (including any Purchase
Contracts or Universal Warrants included therein), the Indentures, the
Unit Agreement, any Unit Agreement Without the Holders' Obligations,
the Universal Warrant Agreement and any applicable Notes Terms
Agreement or Units Terms Agreement, except such as may be required by
the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Program Securities; provided, however,
that no opinion is expressed on whether the purchase of the Program
Securities constitutes a "prohibited transaction" under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or
Section 4975 of the Internal Revenue Code of 1986, as amended;
(K) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the
Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and
in the Basic Prospectus), "Plan of Distribution" (in the Prospectus
Supplement and in the Basic Prospectus), "Description of Purchase
Contracts" (in the Basic Prospectus) and "Description of Warrants" (in
the Basic Prospectus), (2) in the Registration Statement, as then
amended or supplemented, under Item 15, (3) in "Item 3 - Legal
Proceedings" of the most recent annual reports on Form 10-K
incorporated by reference in the Prospectus and (4) in "Item 1 - Legal
Proceedings" of Part II of the quarterly reports on Form 10-Q, if any,
filed since such annual reports and incorporated by reference in the
Prospectus, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(L) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or
any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, and are
not so described or of any U.S. federal or state statutes,
regulations, contracts or other documents governed by U.S. federal or
state law that are required to be described in the Registration
Statement or the Prospectus, as then amended or supplemented, or to be
filed or incorporated by reference as exhibits to such Registration
Statement that are not described, filed or incorporated by reference
as required; and
(M) the Company is not and, after giving effect to the offering
and sale of the Program Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended;
(N) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Prospectus as then amended or supplemented (except as to
financial statements and schedules included therein as to which such
counsel need not express any opinion), complied when so filed as to
form in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (2) has no reason
to believe that any part of the Registration Statement (except as to
financial statements and schedules as to which such counsel need not
express any belief and except for that part of the Registration
Statement that constitutes the Forms T-1 heretofore referred to), as
then amended, if applicable, when such part became effective
contained, and the Registration Statement (except as to financial
statements and schedules included therein, as to which such counsel
need not express any belief and except for the part of the
Registration Statement that constitutes the Forms T-1) as of the date
such opinion is delivered, contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (3) has no reason to believe that the Registration
Statement and Prospectus, as then amended or supplemented, if
applicable (except for financial statements and schedules included
therein as to which such counsel need not express any opinion), do not
comply as to form in all material respects with the Securities Act and
the applicable rules and regulations of the Commission thereunder and
(4) has no reason to believe that the Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules as to which such counsel need not express any belief), as of
the date such opinion is delivered contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that in the case of an
opinion delivered on the Commencement Date or pursuant to Section
5(b), the opinion and belief set forth in clauses (3) and (4) above
shall be deemed not to cover information concerning an offering of
particular Notes or Units to the extent such information will be set
forth in a supplement to the Basic Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk & Wardwell,
your special counsel, covering the matters in subparagraphs (D), (E), (F),
(G), (H), (I) and (K) (with respect to statements in the Prospectus, as
then amended or supplemented, under the captions "Description of Notes" (in
the Prospectus Supplement), "Description of Debt Securities" (in the Basic
Prospectus), "Description of Units" (in the Prospectus Supplement and the
Basic Prospectus), "Plan of Distribution" (in the Prospectus Supplement and
in the Basic Prospectus), "Description of Purchase Contracts" (in the Basic
Prospectus) and "Description of Warrants" (in the Basic Prospectus)) and
clauses (2), (3) and (4) of subparagraph (N) in paragraph (b)(i) above.
The opinions described in subparagraphs (F) and (I) need only be
contained in an opinion delivered on a Settlement Date related to an
offering of Units under a Unit Agreement Without Holders' Obligations to be
executed on or prior to such Settlement Date.
Notwithstanding the foregoing, the opinions described in subparagraphs
(G) (except as to due authorization of the Notes and Pre-paid Purchase
Contracts), (H) (except as to due authorization of the Units, Universal
Warrants and Non-pre-paid Purchase Contracts), (I) (except as to due
authorization of the Units and Universal Warrants) (J), (K)(1) and (N)(3)
and (4) of paragraph (b)(i) above, when contained in an opinion delivered
on the Commencement Date or pursuant to Section 5(b), shall be deemed not
to address the application of the Commodity Exchange Act, as amended, or
the rules, regulations or interpretations of the Commodity Futures Trading
Commission to Program Securities the payments of principal or interest on
which, or any other payments with respect to which, will be determined by
reference to one or more currency exchange rates, commodity prices,
securities of entities unaffiliated with the Company, baskets of such
securities, equity indices or other factors.
With respect to subparagraph (N) of paragraph (b)(i) above, if such
opinion is given by counsel who is also an officer of the Company, such
counsel may state that his or her opinion and belief are based upon his or
her participation, or the participation of someone under his or her
supervision, in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents
incorporated therein by reference and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified. With respect to subparagraph (N) of paragraph (b)(i) above,
Davis Polk & Wardwell and, if Brown & Wood LLP is giving such opinion,
Brown & Wood LLP may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto (but not including
documents incorporated therein by reference) and review and discussion of
the contents thereof (including documents incorporated therein by
reference), but are without independent check or verification, except as
specified.
(iii) The opinion, dated as of such date, of Brown & Wood llp, special
counsel to the Company, to the effect that the statements set forth under
the caption "United States Federal Taxation" in the Prospectus Supplement
and under the caption "Forms of Securities -- Limitations on Issuance of
Bearer Securities and Bearer Debt Warrants" in the Basic Prospectus,
insofar as such statements relate to statements of law or legal conclusions
under the laws of the United States or matters of United States law, fairly
present the information called for and fairly summarize the matters
referred to therein.
The opinion of Brown & Wood LLP described in paragraph (b)(iii) above and
in paragraph (b)(i) above, if such opinion is given by Brown & Wood LLP, shall
be rendered to you at the request of the Company and shall so state therein.
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or letters,
dated as of the Commencement Date or such Settlement Date, as the case may be,
in form and substance satisfactory to you containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented; provided that each letter so furnished shall use a
"cut-off date" no more than three business days prior to the date of such
letter.
(e) On the Commencement Date and on each Settlement Date, the Company shall
have furnished to you such appropriate further information, certificates and
documents as you may reasonably request.
5. Additional Agreements of the Company. (a) Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for (i) in the case of Notes, a change in the
interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes issued alone or as part of a Unit, (ii) in the case of
Units, (x) a change in the exercise price, exercise date or period or expiration
of an underlying Universal Warrant or (y) a change in the settlement date or
purchase or sale price of an underlying Purchase Contract or (iii) a change you
deem to be immaterial), the Company will deliver or cause to be delivered
forthwith to you a certificate signed by an executive officer of the Company,
dated the date of such amendment or supplement, as the case may be, in form
reasonably satisfactory to you, of the same tenor as the certificate referred to
in Section 4(c) relating to the Registration Statement or the Prospectus as
amended or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section 5(a)
(other than any amendment or supplement to the Registration Statement or
Prospectus caused by the filing of a Current Report on Form 8-K unless you shall
reasonably request based on disclosure included or omitted from such Report),
the Company will furnish or cause to be furnished forthwith to you a written
opinion of counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred to
in Section 4(b), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to you may
furnish to you a letter to the effect that you may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter.)
(c) Each time the Registration Statement or the Prospectus is amended or
supplemented to set forth amended or supplemental financial information or such
amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent auditors forthwith to
furnish you with a letter, dated the date of such amendment or supplement, as
the case may be, in form satisfactory to you, of the same tenor as the letter
referred to in Section 4(d), with regard to the amended or supplemental
financial information included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented to the date of such
letter; provided that each letter so furnished shall use a "cut-off date" no
more than three business days prior to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless you and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to you
furnished to the Company in writing by you expressly for use therein.
(b) You agree to indemnify and hold harmless the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to you, but only with reference to information
relating to you furnished to the Company in writing by you expressly for use in
the Registration Statement or the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either paragraph (a) or (b) above, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by you, in the case of parties indemnified pursuant to
paragraph (a) above, and by the Company, in the case of parties indemnified
pursuant to paragraph (b) above. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Program Securities, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and you on the other hand from the offering of such Program Securities
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and you on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and you on the other
hand in connection with the offering of such Program Securities shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Program Securities (before deducting expenses) received by the
Company bear to the total discounts and commissions received by you in respect
thereof. The relative fault of the Company on the one hand and of you on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by you and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6, you shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Program Securities referred to in paragraph (d) above that
were offered and sold to the public through you exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 6
and the representations, warranties and other statements of the Company, its
officers and you set forth in or made pursuant to this Agreement or any Notes
Terms Agreement or Units Terms Agreement will remain operative and in full force
and effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or on
behalf of you or any person controlling you or by or on behalf of the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the Program Securities.
7. Position of the Agent. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust with
any purchaser of Program Securities. You shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Program Securities has been solicited by you and accepted by the Company, but
you shall not have any liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default in its
obligations to deliver Program Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or
liability arising from or as a result of such default and shall, in particular,
pay to you the commission you would have received had such sale been
consummated.
8. Termination. This Agreement may be terminated at any time either by the
Company or by you upon the giving of written notice of such termination to the
other parties hereto, but without prejudice to any rights, obligations or
liabilities of either parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(h), 6, 7, 9, 10 and 12 shall survive; provided that if at the
time of termination an offer to purchase Program Securities has been accepted by
the Company but the time of delivery to the purchaser or its agent of such
Program Securities has not occurred, the provisions of Sections 1, 2(b), 2(c),
3(a), 3(d), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such
delivery has been made.
9. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to you, will be mailed, delivered or telefaxed and
confirmed to you at 1585 Broadway, New York, New York 10036, Attention: Manager,
Continuously Offered Products (telefax number: 212-761-2000), with a copy to
1585 Broadway, 34th Floor, New York, New York 10036, Attention: Peter Cooper,
Investment Banking Information Center (telefax number: 212-761-0260) or, if sent
to the Company, will be mailed, delivered or telefaxed and confirmed to the
Company at 1585 Broadway, New York, New York 10036, Attention: Secretary.
10. Successors. This Agreement and any Notes Terms Agreement or Units Terms
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors and controlling
persons referred to in Section 6 and the purchasers of Notes and Units (to the
extent expressly provided in Section 4), and no other person will have any right
or obligation hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
MORGAN STANLEY DEAN WITTER & CO.
By:
----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
DEAN WITTER REYNOLDS INC.
By:____________________________
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
----------------------------
Name:
Title:
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated May 6, 1999
(the "U.S. Distribution Agreement")
---------------------------------------------
The undersigned agrees to purchase your Global Medium-Term Notes, Series C,
having the following terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 9 through
13 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(h), 6, 9, 10 and 12 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
________________.
DEAN WITTER REYNOLDS INC.
By:
------------------------------------
Name:
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
------------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY DEAN
WITTER & CO.
By:
------------------------------------
Name:
Title:
EXHIBIT A-1
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL UNITS, SERIES C
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: U.S. Distribution Agreement dated May 6, 1999 (the
"U.S. Distribution Agreement")
--------------------------------------------------
The undersigned agrees to purchase your Global Units, Series C, [specified
designation] having the following terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6 and 9 through
13 of the U.S. Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
This Agreement is also subject to termination on the terms incorporated by
reference herein. If this Agreement is terminated, the provisions of Sections
3(h), 6, 9, 10 and 12 of the U.S. Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions, certificates, letters and documents
referred to in Section 4 of the U.S. Distribution Agreement will be required:
___________.
DEAN WITTER REYNOLDS INC.
By:
---------------------------------
Name
Title:
MORGAN STANLEY & CO.
INCORPORATED
By:
---------------------------------
Name:
Title:
Accepted:
MORGAN STANLEY DEAN
WITTER & CO.
By:
---------------------------------
Name:
Title:
EXHIBIT B
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES C
GLOBAL UNITS, SERIES C
ADMINISTRATIVE PROCEDURES
--------------------
Explained below are the administrative procedures and specific terms of the
offering of Global Medium-Term Notes, Series C (the "Notes") and Global Units,
Series C (the "Units"), on a continuous basis by Morgan Stanley Dean Witter &
Co. (the "Company") pursuant to the U.S. Distribution Agreement, dated May 6,
1999 (as may be amended from time to time, the "Distribution Agreement") among
the Company, Dean Witter Reynolds Inc. and Morgan Stanley & Co. Incorporated
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, as senior indebtedness (the
"Senior Notes") or subordinated indebtedness (the "Subordinated Notes") of the
Company, and as used herein the term "Notes" includes the Senior Notes and the
Subordinated Notes. The Senior Notes will be issued, either alone or as part of
a Unit, pursuant to the provisions of an amended and restated senior indenture
dated as of May 1, 1999 (as it may be supplemented or amended from time to time,
the "Senior Debt Indenture"), between the Company and The Chase Manhattan Bank
("Chase"), as trustee. The Subordinated Notes will be issued pursuant to the
provisions of an amended and restated subordinated indenture, dated as of May 1,
1999 (as it may be supplemented or amended from time to time, the "Subordinated
Debt Indenture"), between the Company and The First National Bank of Chicago, as
trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." Purchase Contracts that require holders to
satisfy their obligations thereunder when such Purchase Contracts are issued
("Pre-paid Purchase Contracts") will be issued under an Indenture.
Unless otherwise specified in the applicable Pricing Supplement, the Units
will be issued (i) pursuant to the Unit Agreement dated as of May 6, 1999, among
the Company, The Chase Manhattan Bank, as Unit Agent, as Collateral Agent, as
Trustee under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein and the holders from time to time of the
Units described therein (as may be amended from time to time, the "Unit
Agreement") or (ii) if Units do not include Purchase Contracts (other than
Pre-paid Purchase Contracts), pursuant to a unit agreement among the Company,
The Chase Manhattan Bank, as Unit Agent, as Trustee under the Indenture referred
to therein, and as Warrant Agent under the Warrant Agreement referred to therein
in the form of such agreement filed as an exhibit to the Registratrion Statement
(each such agreement, a "Unit Agreement Without Holders' Obligations"). Units
may include one or more (i) Series C Senior Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies or
(c) commodities, (iii) purchase contracts ("Purchase Contracts"), including
Pre-paid Purchase Contracts, requiring the holders thereof to purchase or sell
(a) securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or (c) commodities or (iv) any combination thereof. The
applicable Pricing Supplement will specify whether or not any Notes, Universal
Warrants and Purchase Contracts comprised by a Unit may or may not be separated
from the Unit. Universal Warrants issued as part of a Unit will be issued
pursuant to the Universal Warrant Agreement dated as of May 6, 1999, between the
Company and Chase, as Warrant Agent (as may be amended from time to time, the
"Universal Warrant Agreement"). Purchase Contracts, other than Pre-paid Purchase
Contracts, entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use reasonable
efforts to solicit purchases of the Notes and the Units, and the administrative
procedures explained below will govern the issuance and settlement of any Notes
or Units sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes and Units for its own account, and if
requested by the Agent, the Company and the Agent will enter into a terms
agreement (in the case of Notes, a " Notes Terms Agreement" and, in the case of
Units, a "Units Terms Agreement"), as contemplated by the Distribution
Agreement. The administrative procedures explained below will govern the
issuance and settlement of any Notes or Units purchased by the Agent, as
principal, unless otherwise specified in the applicable Notes Terms Agreement or
Units Terms Agreement.
Chase will be the Registrar, Calculation Agent, Authenticating Agent and
Paying Agent for both the Senior Notes and the Subordinated Notes, the Unit
Agent for the Units and Purchase Contracts and Warrant Agent for the Universal
Warrants, and in each case, will perform the duties specified herein. Each Note
and each Unit will be represented by either (i) in the case of the Notes, a
Global Note and, in the case of the Units, a Global Unit (each as defined below)
delivered to Chase, as agent for The Depository Trust Company ("DTC"), and
recorded in the book-entry system maintained by DTC (in the case of a Note, a
"Book-Entry Note" and , in the case of a Unit, a "Book-Entry Unit") or (ii) a
certificate delivered to the holder thereof or a person designated by such
holder (in the case of a Note, a "Certificated Note" and, in the case of a Unit,
a "Certificated Unit"). Each Note, Universal Warrant or Purchase Contract which
my be included in any Unit will be issued in the corresponding global or
certificated form. Except as set forth in the Indentures, in the case of Notes
(or Pre-paid Purchase Contracts), the Unit Agreement or a Unit Agreement Without
Holders' Obligations, as applicable, in the case of Units and all other Purchase
Contracts, or the Universal Warrant Agreement, in the case of the Universal
Warrants, an owner of a Book-Entry Note or Book-Entry Unit (or of any Note,
Universal Warrant or Purchase Contract included in such Book-Entry Unit), as the
case may be, will not be entitled to receive a Certificated Note (including with
respect to a Book-Entry Note included in a Book-Entry Unit) or a Certificated
Unit (or certificated Universal Warrants or Purchase Contracts, as applicable).
Book-Entry Notes and Book-Entry Units, which may be payable in either U.S.
dollars or other specified currencies, will be issued in accordance with the
administrative procedures set forth in Part I hereof as they may subsequently be
amended as the result of changes in DTC's operating procedures. Certificated
Notes and Certificated Units will be issued in accordance with the
administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indentures, the Unit
Agreement, the Unit Agreement Without Holders' Obligations, the Universal
Warrant Agreement, the Notes, the Units, the Universal Warrants, the Purchase
Contracts or any Prospectus Supplement relating to the Notes and Units shall be
used herein as therein defined.
The Company will advise the Agent in writing of the employees of the
Company with whom the Agent is to communicate regarding offers to purchase Notes
and Units and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
AND BOOK-ENTRY UNITS
In connection with the qualification of the Book-Entry Notes and Book-Entry
Units for eligibility in the book-entry system maintained by DTC, Chase will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under (i) a Letter of
Representations from the Company and Chase to DTC, dated as of May [ ], 1999,
for medium-term notes (the "MTN Letter of Representations"), (ii) a letter of
representations from the Company and Chase to DTC, dated as of May [ ], 1999,
for optionally exchangeable medium-term notes (the "Optionally Exchangeable MTN
Letter of Representations"), (iii) a Letter of Representations from the Company
and Chase to DTC, dated as of May [ ], 1999, for mandatorily exchangeable
medium-term notes (the "Mandatorily Exchangeable MTN Letter of Representation"),
(iv) a Letter of Representations from the Company and Chase to DTC, dated as of
May [ ], 1999, for global units consisting of medium-term notes and universal
warrants (the "Optionally Exchangeable Unit Letter of Representation") and (iv)
a Letter of Representations from the Company and Chase to DTC, dated as of May [
], 1999, for global units consisting of medium-term notes and purchase contracts
(the "Mandatorily Exchangeable Unit Letter of Representation" and collectively
the "Letters of Representations") and a Medium-Term Note Certificate Agreement
between Chase and DTC, dated as of December 2, 1988, and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry
Notes, or one or more Book-Entry Units, the
Company will issue, in the case of the Notes, a
single global Note in fully registered form
without coupons (a "Global Note") representing
up to U.S. $200,000,000 principal amount of all
such Notes that have the same Original Issue
Date, Maturity Date and other terms and, in the
case of a Unit, a single global unit in fully
registered form (a "Global Unit"), representing
up to U.S. $200,000,000 face amount of all such
Units that have the same Original Issue Date and
that otherwise comprise the same securities and
have the same terms. Each Global Note, whether
issued alone or as part of a Unit, will be dated
and issued as of the date of its authentication
by Chase and each Global Unit will be dated and
issued as of the date of the issuances of the
other securities comprised by such Unit. Each
Global Note, whether alone or as part of a Unit,
will bear an "Interest Accrual Date," which will
be (i) with respect to an original Global Note
(or any portion thereof), its original issuance
date and (ii) with respect to any Global Note
(or any portion thereof) issued subsequently
upon exchange of a Global Note, or in lieu of a
destroyed, lost or stolen Global Note, the most
recent Interest Payment Date to which interest
has been paid or duly provided for on the
predecessor Global Note or Notes (or if no such
payment or provision has been made, the original
issuance date of the predecessor Global Note),
regardless of the date of authentication of such
subsequently issued Global Note. Book-Entry
Notes and Book-Entry Units may be payable in
either U.S. dollars or other specified
currencies. No Global Note or Global Unit will
represent, any Certificated Note or Certificated
Unit, as the case may be.
Denominations: Book-Entry Notes and Book-Entry Units will be
issued in (i) in the case of Book-Entry Notes,
principal amounts of U.S. $1,000 or any amount
in excess thereof that is an integral multiple of
U.S. $1,000 or, if such Book-Entry Notes are
issued in a currency other than U.S. dollars,
principal amounts of such currency in
denominations of the equivalent of U.S. $1,000
(rounded to an integral multiple of 1,000 units
of such currency), unless otherwise indicated in
the applicable Pricing Supplement and (ii) in
the case of Book-Entry Units, denominations of a
single unit and any integral multiple thereof
with face amounts of U.S. $1,000 or any amount
in excess thereof that is an integral multiple
of U.S. $1,000 or, if such Book-Entry Units are
issued in a currency other than U.S. dollars,
face amounts of such currency in denominations
of the equivalent of U.S. $1,000 (rounded to an
integral multiple of 1,000 units of such
currency), unless otherwise indicated in the
applicable Pricing Supplement. Global Notes and
Global Units will be denominated in, in the case
of Global Notes, principal amounts not in excess
of U.S.$200,000,000 and, in the case of Global
Units, face amounts not in excess of U.S.
$200,000,000. If one or more Book-Entry Notes
having an aggregate principal amount in excess of
U.S. $200,000,000, or one or more Book-Entry
Units having an aggregate face amount, in excess
of $200,000,000 would, but for the preceding
sentence, be represented by a single Global Note
or Global Unit, as the case may be, then one
Global Note will be issued to represent each U.S.
$200,000,000 principal amount of such Book-Entry
Note or Notes and one Global Unit will be issued
to represent each U.S.$200,000,000 face amount
of such Book-Entry Unit or Units and an
additional Global Note or Global Unit, will be
issued to represent any remaining principal
amount of such Book-Entry Note or Notes or face
amount of such Book-Entry Unit or Units. In
such a case, each of the Global Notes or Global
Units representing such Book-Entry Note or Notes
or such Book-Entry Unit or Units, as the case may
be, shall be assigned the same CUSIP number.
Preparation of
Pricing Supplement: If any order to purchase a Book-Entry Note or
Book-Entry Unit is accepted by or on behalf of
the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format
document, in the manner prescribed by the EDGAR
Filer Manual, of such Pricing Supplement with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, (ii)
will, as soon as possible and in any event not
later than the date on which such Pricing
Supplement is filed with the Commission, deliver
the number of copies of such Pricing Supplement
to the Agent as the Agent shall request and
(iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the
National Association of Securities Dealers, Inc.
(the "NASD"). The Agent will cause such Pricing
Supplement to be delivered to the purchaser of
the Note or Unit.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry Note
or a Book-Entry Unit and, in the case of the
Note, the authentication and issuance of the
Global Note representing such Note or, in the
case of the Unit, the completion and issuance of
the Global Unit representing such Unit (and of
each security comprised by such Unit) shall
constitute "settlement" with respect to such
Note or Unit, as the case may be. All orders
accepted by the Company will be settled on the
fifth Business Day pursuant to the timetable for
settlement set forth below unless the Company
and the purchaser agree to settlement on another
day, which shall be no earlier than the next
Business Day.
Settlement Procedures: Settlement Procedures with regard to each
Book-Entry Note and each Book-Entry Unit sold
by the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement), shall be
as follows:
A. In the case of a Book-Entry Note (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note
is a Book-Entry Note and of the following
settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed Rate Book-Entry
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note, and, if so, the amortization
schedule, or, in the case of a Floating
Rate Book-Entry Note, the Initial Interest
Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
4. Redemption or repayment provisions, if any.
5. Ranking.
6. Settlement date and time (Original Issue
Date).
7. Interest Accrual Date.
8. Price.
9. Agent's commission, if any, determined as
provided in the Distribution Agreement.
10. Whether the Note is an Original Issue
Discount Note (an "OID Note"), and if it
is an OID Note, the applicability of
Modified Payment upon Acceleration (and,
if so, the Issue Price).
11. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date,
the Election Dates and the Maturity
Extension Dates.
12. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
13. Whether the Note is an Optionally
Exchangeable Note, a Mandatorily
Exchangeable Note, or any form of
exchangeable Note.
14. Any other applicable provisions.
B. In the case of a Book-Entry Unit, the Agent will
advise the Company by telephone that such Unit
is a Book-Entry Unit, of the information set
forth in Settlement Procedures "A" above with
respect to any Book-Entry Notes that constitute
a part of such Book-Entry Unit and of the
following information:
1. Settlement date and time.
2. Face Amount.
3. Agent's commission, if any, determined as
provided in the Distribution Agreement.
4. Designation of the Securities comprised by
such Units:
a. Notes (See Settlement Procedures "A");
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
5. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
6. Any other provisions applicable to the
Unit (other than those provisions
applicable to the securities comprised by
such Unit).
7. If the Book-Entry Unit comprises
Book-Entry Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Universal
Warrants;
b. Warrant Property;
c. Aggregate Number of Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants may
be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash Settlement
Value;
m. Exchange Rate (or method of
calculation); and
n. Whether the Company or the holder is
the writer of the Universal Warrant.
o. Any other applicable provisions.
8. If the Book-Entry Unit comprises
Book-Entry Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at
any time on the same date) of the information set
forth in "Settlement Procedure" "A" and "B"
above, as applicable. Chase will then assign a
CUSIP number to the Global Note representing a
Note, whether issued alone or as part of a Unit,
and will notify the Company and the Agent of
such CUSIP number(s) by telephone as soon as
practicable, except that for Optionally
Exchangeable and Mandatorily Exchangeable Notes
the Agent will obtain a CUSIP number for the
Global Note representing such Note and will
notify the Company and Chase of such CUSIP
number(s) by telephone as soon as practicable.
The Agent will obtain a CUSIP number for (i) the
Global Unit representing a Unit, (ii) the
Universal Warrant, if any, issued as part of a
Unit and (iii) the Purchase Contract, if any,
issued as part of a Unit and, in each case will
notify the Company and Chase of such CUSIP
number(s) by telephone as soon as practicable.
D. Chase will enter a pending deposit message
through DTC's Participant Terminal System,
providing the following settlement information to
DTC, the Agent and Standard & Poor's Corporation:
1. The information set forth in "Settlement
Procedure" "A" and "B" above, as
applicable.
2. The Initial Interest Payment Date for the
Notes, whether issued alone or as part of a
Unit, the number of days by which such
date succeeds the related DTC Record Date
and, if known, amount of interest payable
on such Initial Interest Payment Date.
3. The CUSIP number of the Global Note
(whether issued alone or as part of a
Unit), Global Unit, Universal Warrant
issued as part of a Unit and Purchase
Contract issued as part of a Unit, as
applicable.
4. Whether the Global Note or Global Unit
will represent any other Book-Entry Note
or Book-Entry Unit, as the case may be (to
the extent known at such time).
5. Whether any Note, issued alone or as part
of a Unit, is an Amortizing Note (by an
appropriate notation in the comments field
of DTC's Participant Terminal System).
6. The number of Participant accounts to be
maintained by DTC on behalf of the Agent
and Chase.
E. Chase will, as applicable, authenticate, complete
and deliver the Global Note representing the Note
and will complete the Global Unit representing
the Unit (including, as applicable, by
countersigning and delivering any Universal
Warrants and by countersigning, executing and
delivering any Purchase Contracts includable in
such Unit).
F. DTC will credit such Note or Unit to Chase's
participant account at DTC.
G. Chase will enter an SDFS deliver order through
DTC's Participant Terminal System instructing
DTC to (i) debit the Note or Unit, as the case
may be, to Chase's participant account and
credit such Note or Unit to the Agent's
participant account and (ii) debit the Agent's
settlement account and credit Chase's settlement
account for an amount equal to the price of such
Note or Unit, as the case may be, less the
Agent's commission, if any. The entry of such a
deliver order shall constitute a representation
and warranty by Chase to DTC that (a) the Global
Note representing a Book-Entry Note has been
issued and authenticated or a Global Unit
representing a Book-Entry Unit has been
completed and issued and (b) Chase is holding
such Global Note or Global Unit pursuant to the
Medium-Term Note Certificate Agreement between
Chase and DTC.
H. Unless the Agent is the end purchaser of a Note
or Unit, the Agent will enter an SDFS deliver
order through DTC's Participant Terminal System
instructing DTC (i) to debit such Note or Unit to
the Agent's participant account and credit such
Note or Unit to the participant accounts of the
Participants with respect to such Note or Unit
and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of
the Agent for an amount equal to the price of
such Note or Unit.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement Procedures
"G" and "H" will be settled in accordance with
SDFS operating procedures in effect on the
settlement date.
J. Chase will credit to the account of the Company
maintained at Chase, New York, New York, in
funds available for immediate use in the amount
transferred to Chase in accordance with
"Settlement Procedure" "G".
K. Unless the Agent is the end purchaser of the Note
or Unit, the Agent will confirm the purchase of
such Note or Unit to the purchaser either by
transmitting to the Participants with respect to
such Note or Unit a confirmation order or orders
through DTC's institutional delivery system or by
mailing a written confirmation to such purchaser.
L. Monthly, Chase will send to the Company a
statement setting forth the principal amount of
Notes outstanding as of that date under the
Indentures or, in the case of Units, the
aggregate face amount of Units outstanding as of
that date, under the Unit Agreement, and setting
forth a brief description of any sales of which
the Company has advised Chase that have not yet
been settled.
Settlement
Procedures
Timetable: For sales by the Company of Book-Entry Notes or
Book-Entry Units to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) for
settlement on the first Business Day after the
sale date, Settlement Procedures "A" through "K"
set forth above shall be completed as soon as
possible but not later than the respective times
in New York City set forth below:
Settlement
Procedure
Time
A 11:00 A.M. on the sale date
B 11:00 A.M. on the sale date
C 12:00 Noon on the sale date
D 2:00 P.M. on the sale date
E 9:00 A.M. on the settlement date
F 10:00 A.M. on the settlement date
G-H 2:00 P.M. on the settlement date
I 4:45 P.M. on the settlement date
J-K 5:00 P.M. on the settlement date
If a sale is to be settled more than one Business
Day after the sale date, Settlement Procedures
"A", "B", "C" and "D" shall be completed as soon
as practicable but no later than 11:00 A.M.,
11:00 A.M., 12 Noon and 2:00 P.M., respectively,
on the first Business Day after the sale date.
If the Initial Interest Rate for a Floating Rate
Book-Entry Note, whether issued alone or as part
of a Unit, has not been determined at the time
that "Settlement Procedure" "A" is completed,
"Settlement Procedure" "C" and "D" shall be
completed as soon as such rate has been
determined but no later than 12 Noon and 2:00
P.M., respectively, on the first Business Day
before the settlement date. "Settlement
Procedure" "I" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in
the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note or a
Book-Entry Unit is rescheduled or canceled,
Chase, after receiving notice from the Company
or the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation
message to such effect by no later than 2:00
P.M. on the Business Day immediately preceding
the scheduled settlement date.
Failure to Settle: If Chase fails to enter an SDFS deliver order
with respect to a Book-Entry Note or a Book-Entry
Unit pursuant to "Settlement Procedure" "G",
Chase may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC
to debit such Note or Unit to Chase's participant
account, provided that Chase's participant
account contains a principal amount of the
Global Note representing such Note or a face
amount of the Global Unit representing such Unit
that is at least equal to the principal amount
or face amount to be debited. If a withdrawal
message is processed with respect to all the
Book-Entry Notes represented by a Global Note or
all of the Book-Entry Units represented by the
Global Units, Chase will mark such Global Note
or Global Unit "canceled," make appropriate
entries in Chase's records and send such
canceled Global Note or Global Unit to the
Company. The CUSIP number assigned to such
Global Note, Global Unit, Universal Warrant
included in such Unit, or Purchase Contract
included in such Unit, shall, in accordance with
the procedures of the CUSIP Service Bureau of
Standard & Poor's Corporation, be canceled and
not immediately reassigned. If a withdrawal
message is processed with respect to one or
more, but not all, of the Book-Entry Notes
represented by a Global Note or with respect to
one or more, but not all, of the Book-Entry Units
represented by a Global Unit, Chase will exchange
such Global Note or Global Unit, as the case may
be, for two Global Notes or for two Global Units,
as the case may be, one of which shall represent
such Book-Entry Note or Notes or such Book-Entry
Unit or Units and shall be canceled immediately
after issuance and the other of which shall
represent the remaining Book-Entry Notes or
Book-Entry Units previously represented by the
surrendered Global Note or Global Unit and shall
bear the CUSIP number of the surrendered Global
Note, Global Unit, Universal Warrant included in
such Unit, or Purchase Contract included in such
Unit.
If the purchase price for any Book-Entry Note or
Book-Entry Unit is not timely paid to the
Participants with respect to such Note or Unit by
the beneficial purchaser thereof (or a person,
including an indirect participant in DTC, acting
on behalf of such purchaser), such Participants
and, in turn, the Agent may enter SDFS deliver
orders through DTC's Participant Terminal System
reversing the orders entered pursuant to
Settlement Procedures "G" and "H", respectively.
Thereafter, Chase will deliver the withdrawal
message and take the related actions described
in the preceding paragraph.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note or
Book-Entry Unit, DTC may take any actions in
accordance with its SDFS operating procedures
then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes or Book-Entry Units to have been
represented by a Global Note or a Global Unit,
as the case may be, Chase will provide, in
accordance with Settlement Procedures "E" and
"G", for the authentication and issuance of a
Global Note representing the Book-Entry Notes to
be represented by such Global Note and for the
issuance of a Global Unit representing the
Book-Entry Units to be represented by such
Global Unit and, in each case, will make
appropriate entries in its records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
AND CERTIFICATED UNITS
Chase will serve as registrar in connection with
the Certificated Notes and the Certificated
Units.
Issuance: Each Certificated Note will be dated and issued
as of the date of its authentication by Chase
and each Certificated Unit will be deemed to be
dated as of the date of the underlying
Certificated Note or, if there is not such
underlying Certificated Note on the date of the
other securities comprised thereby. Each
Certificated Note will bear an Original Issue
Date, which will be (i) with respect to an
original Certificated Note (or any portion
thereof), its original issuance date (which will
be the settlement date) and (ii) with respect to
any Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed,
lost or stolen Certificated Note, the original
issuance date of the predecessor Certificated
Note, regardless of the date of authentication
of such subsequently issued Certificated Note.
Preparation of
Pricing Supplement: If any order to purchase a Certificated Note or a
Certificated Unit is accepted by or on behalf of
the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting
the terms of such Note or Unit. The Company (i)
will arrange to file an electronic format
document, in the manner prescribed by the EDGAR
Filer Manual, of such Pricing Supplement with the
Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act, (ii)
will, as soon as possible and in any event not
later than the date on which such Pricing
Supplement is filed with the Commission, deliver
the number of copies of such Pricing Supplement
to the Agent as the Agent shall request and
(iii) will, on the Agent's behalf, promptly file
five copies of such Pricing Supplement with the
NASD. The Agent will cause such Pricing
Supplement to be delivered to the purchaser of
the Note or the Unit, as the case may be.
In each instance that a Pricing Supplement is
prepared, the Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements, and the
Prospectuses to which they are attached (other
than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note or a Certificated Unit
delivered to the Agent and the Agent's delivery
of such Note or Unit against receipt of
immediately available funds shall constitute
"settlement" with respect to such Note or Unit.
All offers accepted by the Company will be
settled on or before the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another date.
Settlement Procedures: Settlement Procedures with regard to each
Certificated Note and each Certificated
Unit sold by the Company to or through the
Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units
Terms Agreement) shall be as follows:
A. In the case of Certificated Notes (whether issued
alone or as part of a Unit), the Agent will
advise the Company by telephone that such Note
is a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note Owner").
2. Address of the Registered Note Owner and
address for payment of principal and
interest.
3. Taxpayer identification number of the
Registered Note Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate Certificated
Note, the Interest Rate, whether such Note
will pay interest annually or semiannually
and whether such Note is an Amortizing
Note and, if so, the amortization schedule,
or, in the case of a Floating Rate
Certificated Note, the Initial Interest
Rate (if known at such time), Interest
Payment Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Index Currency, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
7. Redemption or repayment provisions, if any.
8. Ranking.
9. Settlement date and time (Original Issue
Date).
10. Interest Accrual Date.
11. Price.
12. Agent's commission, if any, determined as
provided in the Distribution Agreement.
13. Denominations.
14. Specified Currency.
15. Whether the Note is an OID Note, and if it
is an OID Note, the applicability of
Modified Payment upon Acceleration (and
if so, the Issue Price).
16. Whether the Note is a Renewable Note, and
if it is a Renewable Note, the Initial
Maturity Date, the Final Maturity Date, the
Election Dates and the Maturity Extension
Dates.
17. Whether the Company has the option to
reset the Spread or Spread Multiplier of
the Note.
18. Any other applicable provisions.
B. In the case of a Certificated Unit, the Agent
will advise the Company by telephone that such
Unit is a Certificated Unit, of the information
set forth in Settlement Procedure "A" above with
respect to Certificated Notes that constitute a
part of such Certificated Unit and of the
following information:
1. Name in which such Unit is to be
registered ("Registered Unit Owner").
2. Address of the Registered Unit Owner.
3. Taxpayer identification number of the
Registered Unit Owner (if available).
4. Denominations.
5. Settlement date and time.
6. Face Amount.
7. Agent's commission, if any, determined as
provided in the Distribution Agreement.
8. Designation of the Securities comprised by
such Units:
a. Notes, if any (See Settlement
Procedures "A" );
b. Universal Warrants, if any; and
c. Purchase Contracts, if any.
9. Whether, and the terms under which, the
Securities comprised by such Unit will be
separately tradeable.
10. Any other provisions applicable to the Unit
(other than those provisions applicable to
the securities comprised by such Unit).
11. If the Certificated Unit comprises
Certificated Universal Warrants:
a. Designation of the Series of Universal
Warrants: [Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise Price;
f. Dates upon which Universal Warrants may
be exercised;
g. Expiration Date;
h. Form;
i. Currency in which exercise payments
shall be made;
j. Minimum number of Universal Warrants
exercisable by any holder on any day;
k. Maximum number of Universal Warrants
exercisable on any day: [In the
aggregate] [By any beneficial owner];
l. Formula for determining Cash Settlement
Value;
m. Exchange Rate (or method of
calculation); and
n. Whether the Company or the holder is
the writer of the warrant.
o. Any other applicable provisions.
12. If the Certificated Unit comprises
Certificated Purchase Contracts:
a. Designation of the Series of Purchase
Contracts: [Purchase][Sale] Purchase
Contracts;
b. Purchase Contract Property;
c. Aggregate Number of Purchase Contracts;
d. Price to Public;
e. Settlement Date;
f. [Purchase/Sale] Price of Purchase
Contract Property;
g. Form; and
h. Any other applicable provisions.
C. The Company will advise Chase by telephone or
electronic transmission (confirmed in writing at
any time on the sale date) of the information set
forth in Settlement Procedure "A" and "B" above,
as applicable.
D. The Company will have delivered to Chase a
pre-printed four-ply packet for each Note and
Unit, which packet will contain the following
documents in forms that have been approved by
the Company, the Agent, the Trustee and the Unit
Agent, as applicable:
1. Note with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
E. Chase will (i) with respect to a Note,
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the Agent
or (ii) with respect to a Unit, complete and
deliver the Unit (including countersigning and
delivering the Universal Warrant and
countersigning, executing and delivering the
Purchase Contract) with the confirmation Stubs
One and Two to the Agent. The Agent will
acknowledge receipt of the Note or the Unit, as
the case may be, by stamping or otherwise
marking Stub One and returning it to Chase.
Such delivery will be made only against such
acknowledgment of receipt and evidence that
instructions have been given by the Agent for
payment to the account of the Company at Chase,
New York, New York, or to such other account as
the Company shall have specified to the Agent
and Chase in funds available for immediate use,
of an amount equal to the price of such Note or
Unit less the Agent's commission, if any. In the
event that the instructions given by the Agent
for payment to the account of the Company are
revoked, the Company will as promptly as
possible wire transfer to the account of the
Agent an amount of immediately available funds
equal to the amount of such payment made.
F. Unless the Agent is the end purchaser of such
Note or Unit, the Agent will deliver such Note or
Unit (with confirmation) to the customer against
payment in immediately payable funds. The Agent
will obtain the acknowledgment of receipt of
such Note or Unit by retaining Stub Two.
G. Chase will send Stub Three to the Company by
first-class mail. Periodically, Chase will also
send to the Company a statement setting forth,
in the case of the Notes, the principal amount
of the Notes outstanding as of that date under
each Indenture and, in the case of the Units, the
aggregate face amount of the Units outstanding
under the Unit Agreement and, in each case,
setting forth a brief description of any sales of
which the Company has advised Chase that have
not yet been settled.
Settlement Procedures
Timetable: For sales by the Company of Certificated Notes or
of Certificated Units to or through the Agent
(unless otherwise specified pursuant to a Notes
Terms Agreement or a Units Terms Agreement),
Settlement Procedures "A" through "G" set forth
above shall be completed on or before the
respective times in New York City set forth
below:
Settlement
Procedure Time
A 2:00 P.M. on day before settlement date
B 2:00 P.M. on day before settlement date
C 3:00 P.M. on day before settlement date
D-E 2:15 P.M. on settlement date
F 3:00 P.M. on settlement date
G 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and
make payment for any Certificated Note or any
Certificated Unit, the Agent will notify the
Company and Chase by telephone and return such
Note or Unit to Chase. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an amount
equal to the amount previously credited thereto
in respect to such Note or Unit. Such wire
transfer will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date. If
the failure shall have occurred for any reason
other than a default by the Agent in the
performance of its obligations hereunder and
under the Distribution Agreement, then the
Company will reimburse the Agent or Chase, as
appropriate, on an equitable basis for its loss
of the use of the funds during the period when
they were credited to the account of the
Company. Immediately upon receipt of the
Certificated Note or the Certificated Unit in
respect of which such failure occurred, Chase
will mark such note or Unit "canceled," make
appropriate entries in Chase's records and send
such Note or Unit, as the case may be, to the
Company.