EXHIBIT 1.d
MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
May 6, 1999
Morgan Stanley & Co. International Limited
Morgan Stanley Bank AG
Morgan Stanley S.A.
Bank Morgan Stanley AG
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
England
Dear Sirs:
Morgan Stanley Dean Witter & Co., a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
from time to time by the Company primarily outside the United States of up to
$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
D and Series E, each due more than 9 months from the date of issue (the "Notes")
and its Global Units, Series D and Series E (the "Units" and together with the
Notes, "Program Securities"), in each case subject to reduction as a result of
the sale of the Company's (i) Global Medium-Term Notes, Series C, to be sold
primarily inside the United States, (ii) Global Units, Series C, to be sold
primarily inside the United States, and (iii) the sale of certain of the
Company's other debt securities, warrants, preferred stock, purchase contracts
and units. The Series D Notes are intended to be listed on the London Stock
Exchange Limited (the "London Stock Exchange") or on another stock exchange or
exchanges, if so required by Section hereof. Application may, in certain
circumstances described in the Prospectus Supplement (as defined below), be made
to list Series D Units on the London Stock Exchange. The Series E Notes and the
Series E Units will not be listed on any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
as subordinated indebtedness (the "Subordinated Notes") of the Company. The
Senior Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture, dated as of May 1, 1999,
between the Company and The Chase Manhattan Bank, as trustee (the "Senior Debt
Trustee") (as may be supplemented or amended from time to time, the "Senior Debt
Indenture"). The Subordinated Notes will be issued pursuant to the provisions of
an amended and restated subordinated indenture, dated as of dated as of May 1,
1999 between the Company and The First National Bank of Chicago, as trustee (the
"Subordinated Debt Trustee") (as may be supplemented or amended from time to
time, the "Subordinated Debt Indenture"). The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees." Purchase
contracts ("Purchase Contracts") that require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued ("Pre-paid
Purchase Contracts") will be issued under the Indentures.
The Units will be issued pursuant to the Unit Agreement dated as of May
6, 1999, among the Company, The Chase Manhattan Bank, as Unit Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein
and the holders from time to time of the Units described therein (as may be
amended from time to time, the "Unit Agreement") or, if the Units do not include
Purchase Contracts (other than Pre-paid Purchase Contracts), pursuant to a Unit
Agreement between the Company and The Chase Manhattan Bank, as Unit Agent, as
Trustee and Paying Agent under the Indenture referred to therein, and as Warrant
Agent under the Warrant Agreement referred to therein in the form of such
agreement filed as an exhibit to the Registration Statement referred to below
(each such agreement, a "Unit Agreement Without Holders' Obligations"). Units
may include one or more (i) Senior Notes, (ii) warrants ("Universal Warrants")
entitling the holders thereof to purchase or sell (a) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or indices
of such securities or any combination of the above, (b) currencies or (c)
commodities, (iii) Purchase Contracts, including Pre-paid Purchase Contracts,
requiring the holders thereof to purchase or sell (a) securities of an entity
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
2
Manhattan Bank, as Warrant Agent. Purchase Contracts, other than Pre-paid
Purchase Contracts ("Non-pre-paid Purchase Contracts") entered into by the
Company and the holders thereof will be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants will have the exercise prices, exercise dates, expiration
dates and other terms as set forth in supplements to the Basic Prospectus. The
Purchase Contracts will have the closing dates, purchase or sale prices and
other terms as set forth in supplements to the Basic Prospectus. The Company has
initially appointed The Chase Manhattan Bank, London Branch, at its principal
office in London, as principal paying agent (the "Principal Paying Agent") for
the Notes.
The Notes will be issued in bearer form or in definitive registered
form without coupons (the "Registered Notes"), the Units will be issued in
bearer form or in definitive registered form (the "Registered Units") and the
securities included in a Unit will be in the form of such Unit. The Program
Securities issued in bearer form will be represented initially by, in the case
of the Notes, a temporary global Note and, in the case of the Units, a temporary
global Unit, each of which will be delivered to a common depositary outside the
United States for the operator of the Euroclear System (the "Euroclear
Operator"), Cedelbank or any other relevant clearing system. Beneficial
interests in a temporary global Note or a temporary global Unit will be
exchangeable for beneficial interests in, in the case of a temporary global
Note, a permanent global Note and, in the case of a temporary global Unit, a
permanent global Unit. Beneficial interests in a permanent global Note will be
exchangeable in whole, but not in part, for definitive Notes in bearer form,
with interest coupons attached upon receipt of the Principal Paying Agent of an
initial request to so exchange by any holder of a beneficial interest in such
permanent global Note (such temporary global Note, permanent global Note and
definitive Notes in bearer form are collectively referred to as the "Bearer
Notes"), or, if the applicable Pricing Supplement so specifies, for Registered
Notes. Beneficial interests in a permanent global Unit (including an interest in
the securities included in such Unit) will be exchangeable in whole, but not in
part, for definitive Units in bearer form upon receipt of the Unit Agent of an
initial request to so exchange by any holder of a beneficial interest in such
permanent global Unit (such temporary global Unit, permanent global Unit and
definitive Units in bearer form are collectively referred to as the "Bearer
Units") or, if the applicable Pricing Supplement so specifies, for Registered
Units. As used in this Agreement, the term "Note" includes any temporary global
Note or permanent global Note issued pursuant to the Indentures and the term
"Unit" includes any temporary global Unit or permanent global Unit issued
pursuant to the Unit Agreement.
3
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 hereof. Program Securities denominated, payable in or
indexed to Swiss Francs may only be offered and sold by the Company through Bank
Morgan Stanley AG on an agency or principal basis, and Bank Morgan Stanley AG
agrees to notify the Swiss National Bank prior to the issuance of any such
Program Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file with
the Commission from time to time, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), supplements to the prospectus
included in the Registration Statement that will describe certain terms of the
Program Securities. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus." The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "Prospectus Supplement") specifically relating
to the Program Securities, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Basic Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
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
4
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, 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,
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 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 do not apply 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 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
5
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 may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and 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 will be
entitled
6
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 in the case of
such Units and Non-pre-paid Purchase Contracts, the Unit Agreement and 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 any
Non-pre-paid Purchase Contracts included in such Units have been executed by the
Company and countersigned by the Unit Agent 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 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
7
Holders' Obligations, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Pre-paid
Purchase Contracts, the Units (including any Purchase Contracts or Universal
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Notes, the Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Universal Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement, except such as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Program Securities; provided, however, that no
representation is made or warranty given as to whether the purchase of the
Program Securities constitutes a "prohibited transaction" under Section 406 of
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
8
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(i)
(except as to due authorization of the Notes and Pre-paid Purchase Contracts)
and 1(j), 1(k) (except as to due authorization of the Units, Universal Warrants
and Non-pre-paid Purchase Contracts), 1(j) (except as to due authorization of
the Units and the Universal Warrants) and 1(k), when made as of the Commencement
Date, or as of any date on which you solicit offers to purchase Program
Securities, with respect to any Program Securities the payments of principal or
interest on which, or any other payments with respect to which, will be
determined by reference to one or more currency exchange rates, commodity
prices, securities of entities unaffiliated with the Company, baskets of such
securities, equity indices or other factors, shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission.
9
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 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
10
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 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 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 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
11
principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as
the case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, if you are purchasing Program Securities, as principal you may resell
such Program Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the Prospectus Supplement
relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform
the respective duties and obligations specifically provided to be performed in
the Global Medium-Term Notes, Series D and Series E and the Global Units, Series
D and Series E, Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The Administrative
Procedures may be amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 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 the date on which you begin soliciting offers to
purchase Program Securities and 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 of the filing of
any amendment or supplement to the Basic Prospectus, of the filing and
effectiveness of any amendment to the Registration Statement, of any request
12
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, 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, of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Program
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and of the issuance by any non-United States
regulatory authority of any request for information relating to the Program
Securities or suspension of the listing of the Program Securities on any stock
exchange on which the Program Securities are then listed. The Company will use
its best efforts to prevent the issuance of any such stop order or notice of
suspension of qualification or listing and, if issued, to obtain as soon as
possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any document
incorporated by reference in the Prospectus, you shall not be obligated to
solicit offers to purchase Program Securities so long as you are not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or if, in your opinion or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified by the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to you in such quantities as
you may reasonably request. If any documents, certificates, opinions and letters
furnished to you pursuant to paragraph (e) below and Sections , and 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
13
Registration Statement, you will resume the solicitation of offers to purchase
Program Securities hereunder. Notwithstanding any other provision of this
Section , until the distribution of any Program Securities you may own as
principal has been completed, if any event described above in this paragraph (b)
occurs, the Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably request and shall
furnish to you pursuant to paragraph (e) below and Sections , and 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 The City of New York, without
charge, (i) to each Agent, a signed copy of the Registration Statement,
including exhibits and all amendments thereto, and as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as you may reasonably request and (ii) to each Agent that
purchases Program Securities pursuant to a Terms Agreement or solicits an offer
to purchase Program Securities that is accepted by the Company, prior to 10:00
a.m. New York City time on the business day next succeeding the date of such
Terms Agreement or the acceptance of such offer, as many copies of the
Prospectus, as then amended or supplemented (including the Prospectus Supplement
relating to the Program Securities to be purchased pursuant to such Terms
Agreement or accepted offer), as such Agent may reasonably request.
(e) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company relating
to the business, operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or supplements thereto, the
Indentures, the Unit Agreement, any Unit Agreement Without Holders' Obligations,
the Warrant Agreement, the Notes, the Units, the Universal Warrants, the
Purchase Contracts, this Agreement, the Administrative Procedures, any Notes
Terms Agreement or
14
Units Terms Agreement and the performance by the Company of its obligations
hereunder or thereunder as you may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded the Company or any of
the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Program Securities
is consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, the preparation, issuance
and delivery of the Program Securities, the fees and disbursements of the
Company's counsel and accountants, of the Trustees and their counsel, of the
Unit Agent and its counsel, of the Warrant Agent and its counsel and of the
Principal Paying Agent and its counsel and any paying agents for the Program
Securities appointed by the Company, the fees and expenses incurred with respect
to listing the Series D Notes and, if listed, the Series D Units on the London
Stock Exchange or on another stock exchange or exchanges if so required by
Section 3(j), 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, the printing and
delivery to you of copies of the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations and the Universal Warrant Agreement, any
fees charged by rating agencies for the rating of the Program Securities, the
fees and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., 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
any out-of-pocket expenses incurred by you; provided that any advertising
expenses incurred by you shall have been approved by the Company.
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect to
such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of 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 the
Notes that are to be sold pursuant to such Notes Terms Agreement, Notes
previously agreed to be sold by the Company and commercial paper issued in the
15
ordinary course of business) or in the case of Units, any securities
substantially similar to such Units (other than the Units that are sold pursuant
to such Units Terms Agreement or Units previously agreed to be sold by the
Company), in each case, except as may otherwise be provided in the applicable
Notes Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest and
penalties, on the issue of the Program Securities in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement, any Written
Notes Terms Agreement or Written Units Terms Agreement and on the exchange of
any temporary global Notes for definitive Notes or permanent global Notes, of
any temporary global Units for definitive Units or permanent global Units, of
any permanent global bearer Notes for definitive bearer Notes or of any
permanent global bearer Units for definitive bearer Units, that are or may be
required to be paid under the laws of the United Kingdom, the United States or
any political subdivision or taxing authority thereof or therein.
(j) In connection with any application to list the Series D Notes
and Series D Units on the London Stock Exchange, the Company will furnish from
time to time any and all documents, instruments, information and undertakings
and publish all advertisements or other material that may be necessary in order
to effect such listing and will maintain such listing until, in the case of the
Notes, none of the Series D Notes is outstanding, either as part of a Unit or
otherwise, or until such time as payment of principal, premium, if any, and
interest in respect of all the Series D Notes, whether issued alone or as part
of a Unit, has been duly provided for, whichever is earlier and in the case of
the Units, none of the Series D Units is outstanding; provided, however, that if
the Company can no longer reasonably maintain such listing, it will use its best
efforts to obtain and maintain the quotation for, or listing of, the Series D
Notes and Series D Units on such other stock exchange or exchanges as you shall
reasonably request. In addition, for so long as the Series D Notes and Series D
Units are listed on a stock exchange and such exchange so requires, the Company
will maintain in London, or in such other place as the Series D Notes and Series
D Units are listed (if the Series D Notes and Series D Units are no longer
listed on the London Stock Exchange), a paying agent in respect of the Series D
Notes or Series D Units, as required.
4. Conditions of the Obligations of the Agents. Your obligation to
solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished
16
pursuant to the provisions hereof and to the performance and observance by the
Company of all covenants and agreements herein contained on its part to be
performed and observed (in the case of your obligation to solicit offers to
purchase Program Securities, at the time of such solicitation, and, in the case
of your or any other purchaser's obligation to purchase Program Securities, at
the time the Company accepts the offer to purchase such Program Securities and
at the time of issuance and delivery) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Program Securities on the terms
and in the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred such a change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely
to prejudice materially the success of the offering and distribution
of the Program Securities or dealings in the Program Securities in
the secondary market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded 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.
17
(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;
18
(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 Prepaid 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;
19
(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;
20
(J) the execution and delivery by the Company of the Notes and Pre-paid
Purchase Contracts (whether issued alone or as part of a Unit), the Units
(including any Purchase Contract or Universal Warrant included therein),
the Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance
by the Company of its obligations under this Agreement, the Notes, the
Units, the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge, any agreement
or other instrument binding upon the Company or any of its consolidated
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any U.S. governmental body,
agency or court having jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval, authorization or order
of or qualification with any U.S. governmental body or agency is required
for the performance by the Company of its obligations under this Agreement,
the Notes, the Pre-paid Purchase Contracts, the Units (including any
Purchase Contracts or Universal Warrants included therein), the Indentures,
the Unit Agreement, any Unit Agreement Without Holders' Obligations, the
Universal Warrant Agreement and any applicable Notes Terms Agreement or
Units Terms Agreement; provided, however, that no opinion is expressed on
whether the purchase of the Program Securities constitutes a "prohibited
transaction" under Section 406 of the Employee Retirement Income Security
Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of
1986, as amended;
(K) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the Prospectus
Supplement), "Description of Debt Securities" (in the Basic Prospectus),
"Description of Units" (in the Prospectus Supplement and in the Basic
Prospectus), "Plan of Distribution"
21
(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
22
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 , 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.
23
Notwithstanding the foregoing, the opinions described in subparagraphs
(G) (except as to due authorization of the Notes), (H) (except as to due
authorization of the Units, Universal Warrants and 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 , 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.
24
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or letters,
dated as of the Commencement Date or such Settlement Date, as the case may be,
in form and substance satisfactory to you containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented; provided that each letter so furnished shall use a
"cut-off date" no more than three business days prior to the date of such
letter.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
(f) On the Commencement Date, application to list the Series D Notes
and Series D Units on the London Stock Exchange shall have been made and, prior
to the issuance of the first Series D Note or Series D Unit offered pursuant to
this Agreement, such listing shall have been granted, subject to official notice
of issuance.
5. Additional Agreements of the Company. Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for 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, 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 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
25
you, of the same tenor as the certificate referred to in Section 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 (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 , 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 , 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. 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
26
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 the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or 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
27
(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 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 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
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.
28
(e) The Company and you agree that it would not be just or equitable
if contribution pursuant to this Section 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 , 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 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 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 any termination of this Agreement or any such
Notes Terms Agreement or Units Terms Agreement, 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 acceptance
of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company and
agree with respect to the Program Securities that:
(a) (i) you have not offered or sold and will not offer or sell during
the Restricted Period (as defined below) Bearer Notes (whether offered
alone or as part of a Unit) (including any Note that is exchangeable for
Bearer Notes) directly or indirectly in the United States (as defined
below) or to or for the account of any United States person (as defined
below), other than to a Qualifying Foreign Branch (as defined below) or to
certain other persons as provided under United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and delivered and will not
deliver within the United States definitive Bearer Notes that are sold
during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have, in
effect procedures reasonably designed to ensure that your employees or
agents who are directly engaged in selling Bearer Notes (whether offered
alone or as part of a Unit) are aware that such Bearer Notes may not be
offered or sold during the Restricted Period to a person who is within the
United States or to a United States person, except as permitted by Section
above;
29
(iii) if you are a United States person, you are acquiring the Bearer
Notes (whether offered alone or as part of a Unit) for purposes of resale
in connection with their original issuance and if you retain Bearer Notes
for your own account, you will only do so in accordance with the
requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether offered
alone or as part of a Unit) for the purpose of offering or selling such
Bearer Notes during the Restricted Period, you will either obtain from such
affiliate for the benefit of the Company the representations and agreements
contained in clauses (i), (ii) and (iii) above or repeat and confirm the
representations and agreements contained in clauses (i), (ii) and (iii)
above on such affiliate's behalf and obtain from such affiliate the
authority to so obligate it; and
(v) you will obtain for the benefit of the Company the representations
and agreements contained in clauses (i), (ii), (iii) and (iv) above from
any person other than your affiliate with whom you enter into a written
contract, within the meaning of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(4), for the offer or sale during the Restricted Period
of Bearer Notes (whether offered alone or as part of a Unit).
For purposes of this Section , an offer or sale will be considered to be made in
the United States if the offeror or seller of such Notes (whether offered alone
or as part of a Unit) has an address within the United States for the offeree or
purchaser of such Notes with respect to the offer or sale. As used in this
Section , "United States person" means a citizen or resident of the United
States, a corporation or partnership (including an entitly treated as a
corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, or an estate the income of which is subject
to United States federal income taxation regardless of its source or a trust if
both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust, "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch" means a branch of a
United States financial institution, as defined in the applicable United States
Treasury Regulations, located outside the United States that is purchasing for
its own account or for resale and that has agreed, as a condition to purchase,
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder; and "Restricted Period" with respect to each issuance
30
means the period which begins on the earlier of the date on which the Company
receives the proceeds of the sale of Notes with respect to such issuance or the
first date on which the Notes are offered to persons other than you, and which
ends 40 days after the date on which the Company receives the proceeds of the
sale of such Notes; provided that with respect to a Note held as part of an
unsold allotment or subscription, any offer or sale of such Note by the Company
or you shall be deemed to be during the Restricted Period.
(b)(i) In relation to Program Securities which have a maturity of one
year or more and which are to be listed on the London Stock Exchange, you have
not offered or sold and will not offer or sell any Program Securities to persons
in the United Kingdom prior to admission of such Program Securities to listing
in accordance with Part IV of the Financial Services Act 1986 (the "Act"),
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995 or the Act; in relation to
Program Securities which have a maturity of one year or more and which are not
to be listed on the London Stock Exchange, you have not offered or sold and,
prior to the expiry of the period of six months from the date of issue of such
Program Securities, will not offer or sell any such Program Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; you have complied with and will comply with all
applicable provisions of the Act with respect to anything done by you in
relation to the Program Securities in, from or otherwise involving the United
Kingdom; and you have only issued or passed on and will only issue or pass on in
the United Kingdom any document received by you in connection with the issue of
the Program Securities, other than any document which consists of or any part of
listing particulars, supplementary listing particulars or any other document
required or permitted to be published by the listing rules under Part IV of the
Act, to a person who is of a kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom such document may otherwise lawfully be issued
or passed on.
(c) You will not offer or sell any Program Securities in any
jurisdiction if such offer or sale would not be in compliance with any
applicable law or regulation or if any consent, approval or permission is needed
for such offer or sale by you or for or on behalf of the Company unless such
consent, approval or permission has been previously obtained. Without prejudice
to the provisions of this Section above and subject to the obligations of the
Company set forth in
31
Section 3 of this Agreement, the Company shall have no responsibility for, and
you will obtain, any consent, approval or permission required by you for the
subscription, offer, sale or delivery by you of Program Securities under the
laws and regulations in force in any jurisdiction to which you are subject or in
or from which you make any subscription, offer, sale or delivery.
(d) [You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan including any corporation
or other entity organized under the laws of Japan) or to others for the
re-offering or re-sale, directly or indirectly, in Japan or to a resident of
Japan except pursuant to an exemption from the registration requirements of, and
otherwise in compliance with, the Securities and Exchange Law of Japan and other
relevant laws and regulations of Japan. Confirm.]
(e) [You will not offer and sell any Program Securities in the
Federal Republic of Germany other than in compliance with the provisions of the
German Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of December 13,
1990, as amended, and of any other laws applicable in the Federal Republic of
Germany governing the issue, offering and sale of securities. Confirm.]
(f) [You will not offer and sell any Program Securities denominated
or payable in or indexed to Swiss Francs other than in compliance with Swiss law
and the regulations of the Swiss National Bank in effect from time to time.
Confirm.]
(g) Each of the Agents and the Company represents and agrees that
Program Securities will be issued outside the Republic of France, that it will
not offer or sell any Program Securities in the Republic of France, in
connection with their initial distribution, and will not distribute or cause to
be distributed in the Republic of France the Prospectus or any other offering
material relating to Program Securities, except to (i) qualified investors
(investisseurs qualifies) or (ii) within a restricted circle of investors
(cercle restreint d'investisseurs), all as defined in Article 6 of Ordinance no
67-833 dated 28th September, 1967 (as amended) and Decree no 98-880 dated 1st
October, 1998.
8. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any
32
such purchase is not consummated for any reason. If the Company shall default in
its obligations to deliver Program Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or
liability arising from or as a result of such default and shall, in particular,
pay to you the commission you would have received had such sale been
consummated.
9. Termination. This Agreement may be terminated at any time either
by the Company or by you upon the giving of written notice of such termination
to the other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(g), 3(i), 3(j), 6, 7, 8, and 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(h), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Morgan Stanley & Co. International
Limited, will be mailed, delivered or telefaxed and confirmed to Morgan
Stanley & Co. International Limited at 25 Cabot Square, Canary Wharf, London
E14 4QA, England, to the attention of Capital Markets - Debt Syndicate
(Telephone No.: 011-44-71-425-7750; Telecopy No.: 011-44-71-425-7999),
Morgan Stanley Bank AG, Rahmhofstrasse 2-4, 60313 Frankfurt am Main,
Federal Republic of Germany to the attention of Ron Lenihan (Telephone No.:
011-49-69-152-060; Telecopy No.: 011-49-69-597-6627), Morgan Stanley
S.A., 25 rue Balzac, 75008 Paris, France to the attention of Debt Capital
Markets (Telephone No.: 011-33-1-5377-7879 or 7300; Telecopy No.: 011-33-1-5377-
7899) or Bank Morgan Stanley AG, Bahnhofstrasse 92-3rd Floor, Ch-8023, Zurich,
Switzerland, to the attention of John Webley (Telephone No. 011-41-1-220-9111;
Telecopy No. 011-41-1-220-9800) or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to the Company at 1585 Broadway, New York,
New York 10036, Attention: Secretary.
11. Successors. This Agreement and any Notes Terms Agreement or Units
Terms Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
33
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
34
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.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:___________________
Name:
Title:
MORGAN STANLEY BANK AG
By:___________________
Name:
Title:
MORGAN STANLEY S.A.
By:___________________
Name:
Title:
35
BANK MORGAN STANLEY AG
By:___________________
Name:
Title:
36
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated May 6, 1999
(the "Euro Distribution Agreement")
The undersigned agrees to purchase your Global Medium-Term
Notes, Series [D/E], having the following terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
A-2
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
------------------------
Name:
Title:
MORGAN STANLEY BANK AG
By:
------------------------
Name:
Title:
MORGAN STANLEY S.A.
By:
------------------------
Name:
Title:
BANK MORGAN STANLEY AG
By:
------------------------
Name:
Title:
Accepted:
MORGAN STANLEY DEAN WITTER
& CO.
By:
--------------------------------------------------
Name:
Title:
A-3
EXHIBIT A-1
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated May 6, 1999
(the "Euro Distribution Agreement")
The undersigned agrees to purchase your Global Units, Series
[D/E], [specified designation] having the following terms:
----------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
A-1-2
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ___________.
A-1-3
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
------------------------
Name:
Title:
MORGAN STANLEY BANK AG
By:
------------------------
Name:
Title:
MORGAN STANLEY S.A.
By:
------------------------
Name:
Title:
BANK MORGAN STANLEY AG
By:
------------------------
Name:
Title:
Accepted:
MORGAN STANLEY DEAN WITTER
& CO.
By:
-----------------------------
Name:
Title:
EXHIBIT B
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
GLOBAL UNITS, SERIES D AND SERIES E
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific
terms of the offering of (i) Global Medium-Term Notes, Series D (the "Series D
Notes"), (ii) Global Medium-Term Notes, Series E (the "Series E Notes" and
together with the Series D Notes, the "Notes"), (iii) Global Units, Series D
(the "Series D Units") and (iv) Global Units, Series E (the "Series E Units"
and together with the Series D Units, the "Units", and the Units together with
the Notes, the "Program Securities"), on a continuous basis by Morgan Stanley
Dean Witter & Co. (the "Company") pursuant to the Euro Distribution Agreement
dated May 6, 1999 (as may be amended from time to time, the "Distribution
Agreement") among the Company, Morgan Stanley & Co. International Limited,
Morgan Stanley Bank AG, Morgan Stanley S.A. and Bank Morgan Stanley AG
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, in registered form without
coupons ("Registered Notes"), in bearer form with or without coupons ("Bearer
Notes") or in any combination of Registered Notes and Bearer Notes. The Units
may be issued in registered form ("Registered Units"), in bearer form ("Bearer
Units") or in any combination of Registered Units and Bearer Units. The
securities comprised by a Unit will be issued in the same form as such Unit.
Bearer Notes and Bearer Units initially will be represented by, in the case of
Bearer Notes, a Temporary Global Note and, in the case of Bearer Units, a
Temporary Global Unit. Such Temporary Global Note and Temporary Global Unit
will subsequently be represented by, in the case of the Temporary Global Note,
a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Interests in a Permanent Global Note may be exchanged,
in whole, for individual definitive Bearer Notes. Definitive Bearer Notes may
be exchanged, if the applicable Pricing Supplement so specifies, in whole or
in part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive
Bearer Units may be exchanged, if the applicable Pricing Supplement so
specifies, in whole or in part, for Registered Units.
The Notes may be issued, either alone or as part of a Unit, as
senior indebtedness (the "Senior Notes") or subordinated indebtedness (the
"Subordinated Notes") of the Company, and as used herein the term "Notes"
includes the Senior Notes and the Subordinated Notes. The Senior Notes will be
issued, either alone or as part of a Unit, pursuant to the provisions of an
amended and restated senior indenture, dated May 1, 1999 (as it may be
supplemented or amended from time to time, the "Senior Debt Indenture"),
between the Company and The Chase Manhattan Bank as trustee (the "Senior Debt
Trustee"). The Subordinated Notes will be issued pursuant to the provisions
of an amended and restated subordinated indenture, dated as of May 1, 1999 (as
it may be supplemented or amended from time to time, the "Subordinated Debt
Indenture"), between the Company and The First National Bank of Chicago, as
trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." Purchase Contracts that require holders to
satisfy their obligations thereunder when such Purchase Contracts are issued
("Pre-paid Purchase Contracts") will be issued under an Indenture.
Unless otherwise specified in the applicable Pricing Supplement,
the Units will be issued (1) pursuant to the Unit Agreement dated as of May 6,
1999, among the Company, The Chase Manhattan Bank, as Unit Agent, as Collateral
Agent, as Trustee under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein and the holders from time to
time of the Units described therein (as may be amended from time to time, the
"Unit Agreement") or (ii) if Units do not include Purchase Contracts (other than
Pre-paid Purchase Contracts), pursuant to a unit agreement among the Company,
The Chase Manhattan Bank, as Unit Agent, as Trustee under the Indenture referred
to therein, and as Warrant Agent under the Warrant Agreement referred to therein
in the form of such agreement filed as an exhibit to the Registration Statement
(each such agreement, a "Unit Agreement Without Holders' Obligations"). Units
may include one or more (i) Series D & E Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies or
(c) commodities, (iii) purchase contracts ("Purchase Contracts"), including
Pre-paid Purchase Contracts, requiring the holders thereof to purchase or sell
(a) securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or (c) commodities or (iv) any combination thereof. The
applicable Pricing Supplement will specify whether or not any Notes, Universal
Warrants and Purchase Contracts comprised by a Unit may or may not be separated
from the Unit. Universal Warrants issued as part of a Unit will be issued
pursuant to the Universal Warrant Agreement dated as of May 6, 1999, between the
Company and The Chase
Manhattan Bank, as Warrant Agent (as may be amended from time to time, the
"Universal Warrant Agreement"). Purchase Contracts, other than Pre-paid Purchase
Contracts, entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use
reasonable efforts to solicit purchases of the Notes and the Units, and the
administrative procedures explained below will govern the issuance and
settlement of any Notes or Units sold through the Agent, as agent of the
Company. The Agent, as principal, may also purchase Notes or Units for its
own account, and if requested by the Agent, the Company and the Agent will
enter into a terms agreement (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement"), as contemplated by the
Distribution Agreement. The administrative procedures explained below will
govern the issuance and settlement of any Notes or Units purchased by the
Agent, as principal, unless otherwise specified in the applicable Notes Terms
Agreement or Units Terms Agreement.
Chase has initially been appointed the (i) Calculation Agent,
Authenticating Agent and Principal Paying Agent for the Notes, (ii) the Unit
Agent for the Units, (iii) the Warrant Agent for the Universal Warrants and
(iv) the Registrar for the Registered Notes, and will perform the duties
specified herein. As used herein, the term "Principal Paying Agent" shall
mean Chase acting through its London office in connection with the
authentication and delivery of the Notes, whether issued alone or as part of a
Unit, pursuant to the terms of the Indentures and the term "Unit Agent" shall
mean Chase acting through its London office in connection with the completion
and delivery of the Units (including, as applicable, countersigning and
delivering any Universal Warrants, as Warrant Agent, and countersigning,
executing and delivering any Purchase Contracts, as Unit Agent, includable in
such Unit), pursuant to the terms of the Unit Agreements. "Warrant Agent"
shall mean Chase acting through its London office. The Series D Notes and the
Series D Units are intended to be listed on The London Stock Exchange Limited
(the "London Stock Exchange"). Application may, in certain circumstances
described in the Prospectus Supplement relating to the Notes and the Units
(the "Prospectus Supplement"), be made to list Series D Notes and Series D
Units on the Bourse de Paris (the "Paris Bourse"). The Series E Notes and the
Series E Units will not be listed on any stock exchange. The Company has
appointed Morgan Stanley & Co. International Limited as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the London
Stock Exchange and has appointed Morgan Stanley S.A. as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the Paris
Bourse.
B-3
Each Bearer Note and each Bearer Unit (including each security
comprised by such Bearer Unit) initially will be represented by, in the case
of a Bearer Note, a Temporary Global Note and, in the case of a Bearer Unit, a
Temporary Global Unit, each of which will be delivered to a common depositary
located outside the United States (the "Depositary") for Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System (the
"Euroclear Operator"), Cedelbank and/or any other relevant clearing system
(including Societe Interprofessionalle pour la Compensation des Valeures
Mobilieres ("SICOVAM")). Such Temporary Global Note and Temporary Global Unit
will subsequently be represented by, in the case of the Temporary Global Note,
a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Upon the first request by any beneficial owner to
exchange any interest in a Permanent Global Note to a definitive Bearer Note,
or if any Note represented by such Permanent Global Note is accelerated
following an event of default with respect to such Note or if either
Euroclear, Cedelbank or any other relevant clearing system is closed for
business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so, then all (and not less than all) interests in such Permanent
Global Note shall be exchanged for definitive Bearer Notes; provided that, if
the applicable Pricing Supplement so specifies, nothing herein shall prevent
the further exchange of definitive Bearer Notes for Registered Notes. Upon the
first request by any beneficial owner to exchange any interest in a Permanent
Global Unit to a definitive Bearer Unit, or if any Note comprised by such
Permanent Global Note is accelerated following an event of default with
respect to such Note or if either Euroclear, Cedelbank or any other relevant
clearing system is closed for business for a continuous period of fourteen
days (other than by reason of public holidays) or announces an intention to
cease business permanently or in fact does so, then all (and not less than
all) interests in such Permanent Global Unit shall be exchanged for definitive
Bearer Units; provided that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the further exchange of definitive
Bearer Units for Registered Units.
Unless otherwise defined herein, terms defined in the
Indentures, the Unit Agreement, the Unit Agreement Without Holders'
Obligations, the Universal Warrant Agreement, the Notes, the Units, the
Universal Warrants, the Purchase Contracts or any Prospectus Supplement
relating to the Notes and Units shall be used herein as therein defined.
The Company will advise the Agent in writing of the employees
of the Company with whom the Agent is to communicate regarding offers to
purchase Notes and Units, and the related settlement details.
B-4
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether
issued alone or as part of a Unit, will be
dated as of its Original Issue Date. Each
Bearer Note will bear an Original Issue
Date, which will be (i) with respect to a
Temporary Global Note (or any portion
thereof), the date of its original issue as
specified in such Temporary Global Note or
(ii) with respect to any Permanent Global
Note or any definitive Bearer Note (or any
portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in
lieu of a destroyed, lost or stolen Bearer
Note (a "Replacement Bearer Note"), the
Original Issue Date of the predecessor
Bearer Note, regardless of the date of
authentication of such subsequently issued
Bearer Note.
Registered Notes. Each Registered Note,
whether issued alone or as part of a Unit,
will be dated as of the date of its
authentication by Chase. Each Registered
Note will also bear an Original Issue Date,
which will be (i) with respect to an
original Registered Note (an "Original
Registered Note") (or any portion
thereof), its original issuance date
(which will be the settlement date) and
(ii) with respect to any Registered Note
(or portion thereof) issued subsequently
upon transfer or exchange of a Registered
Note or in lieu of a destroyed, lost or
stolen Registered Note (a "Replacement
Registered Note"), the original issuance
date of the predecessor Registered Note,
regardless of the date of authentication
of such subsequently issued Registered
Note.
B-5
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form)
will be deemed to be dated as of the
Original Issue Date of the Bearer Note
comprised by such Unit or, if there is no
such underlying Bearer Note, the date of
the other securities comprised thereby in
accordance with the procedures described
above.
Registered Units. Each Registered Unit
will be deemed to be dated as of the
Original Issue Date of the Registered Note
comprised by such Unit or, if there is no
such underlying Registered Note, as of the
date of the other securities comprised
thereby in accordance with the procedures
described above.
Denominations: Bearer Notes. Unless otherwise specified
in the applicable Pricing Supplement,
Bearer Notes, whether issued alone or as
part of a Unit, will be issued only in
denominations of $1,000 (or, in the case
of Bearer Notes not denominated in U.S.
dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or
any amount in excess thereof which is an
integral multiple of $1,000 (or, in the
case of Bearer Notes not denominated in
U.S. dollars, 1,000 units of the Specified
Currency).
Registered Notes. Unless otherwise
specified in the applicable Pricing
Supplement, Registered Notes will be
issued, either alone or as part of a Unit,
only in denominations of $1,000 (or, in
the case of Registered Notes not
denominated in U.S. dollars, the
equivalent thereof in the Specified
Currency, rounded to the nearest 1,000
units of the Specified Currency) or any
amount in excess thereof which is an
integral multiple of $1,000 (or, in the
case of
B-6
Registered Notes not denominated
in U.S. dollars, 1,000 units of the
Specified Currency).
Bearer Units. Unless otherwise specified
in the applicable Pricing Supplement,
Bearer Units will be issued only in
denominations of a single Unit and any
integral multiple thereof, with face
amounts in denominations as indicated in
the applicable Pricing Supplement,
generally corresponding to the
denominations of any Notes or other
securities comprised by such Units.
Registered Units. Unless otherwise
specified in the applicable Pricing
Supplement, Registered Units will be issued
only in denominations of a single Unit and
any integral multiple thereof, with face
amounts in denominations as indicated in
the applicable Pricing Supplement,
generally corresponding to the
denominations of any Notes or other
securities comprised by such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined
below) with respect to an issuance of
Bearer Notes has occurred, such Notes,
together with all other Bearer Notes that
have the same terms (other than their
respective principal amounts) (all such
Notes herein referred to collectively as a
"Note Tranche"), will be represented by a
single Temporary Global Note in bearer
form without interest coupons. The
Company shall execute, and upon Company
instructions the Principal Paying Agent
shall complete and authenticate, such
Temporary Global Note upon the same
conditions and in substantially the same
manner, and with the same effect, as an
individual definitive Bearer Note. On or
B-7
prior to the settlement date (which will
normally be the Original Issue Date) with
respect to such Notes, the Principal
Paying Agent shall deposit the Temporary
Global Note with the Depositary in the
manner specified below under "Settlement
Procedures; Bearer Notes and Bearer
Units". The interest of each beneficial
owner of Notes represented by such
Temporary Global Note will be credited to
the appropriate account with Cedelbank,
the Euroclear Operator or any other
relevant clearing system.
On or after the date (the "Exchange Date")
that is the 40th day following the date on
which the Company receives the proceeds of
the sale of a Temporary Global Note (the
"Closing Date"), or if such Note is held by
the Agent as part of an unsold allotment or
subscription more than 40 days after the
Closing Date for such Note, on or after the
day after the date such Note is sold by the
Agent, all as notified by the Agent in
writing to Chase, the interest of the
beneficial owners of the Notes represented
by the Temporary Global Note shall be
canceled and such interests shall
thereafter be represented by a Permanent
Global Note in bearer form without
interest coupons held in London by the
Depositary; provided that Final
Certification (as described below) has
occurred. The interest of each beneficial
owner of Notes represented by such
Permanent Global Note will be credited to
the appropriate account with Cedelbank, the
Euroclear Operator or any other relevant
clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any
time, upon 30 days' written notice to the
Principal Paying Agent given by such
B-8
beneficial owner through either Cedelbank,
the Euroclear Operator or any other
relevant clearing system, as the case may
be, or if any Note represented by such
Permanent Global Note is accelerated
following an event of default with respect
to such Note or if either Euroclear,
Cedelbank or any other relevant clearing
system is closed for business for a
continuous period of fourteen days (other
than by reason of public holidays) or
announces an intention to cease business
permanently or in fact does so, such
Permanent Global Note shall be exchanged
for one or more definitive Bearer Notes
with coupons attached, if appropriate, or,
if the applicable Pricing Supplement so
specifies, one or more Registered Notes in
authorized denominations equal in
aggregate principal amount to such
beneficial interest; provided that any
such exchange of an interest in a
Permanent Global Note for a definitive
Bearer Note shall result in the exchange of
all (and not less than all) interests in
such Permanent Global Note for definitive
Bearer Notes; provided further, that, if
the applicable Pricing Supplement so
specifies, nothing herein shall prevent
the further exchange of definitive Bearer
Notes for Registered Notes. To effect
such exchange, the interest of such
beneficial owner in such Permanent Global
Note shall be canceled and one or more
definitive Bearer Notes or Registered
Notes, as the case may be, shall be issued
to such beneficial owner, through the
Euroclear Operator or Cedelbank or any
other relevant clearing system, as the case
may be.
In all events, Bearer Notes and coupons
will be delivered by the Principal Paying
Agent only outside the United States.
B-9
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined
below) has occurred with respect to an
issuance of Bearer Notes included in an
issuance of Bearer Units, such Units,
together with all other Bearer Units that
include securities that have the same
terms (other than their respective number
and face amounts) (all such Units herein
referred to collectively as a "Unit
Tranche"), will be represented by a single
Temporary Global Unit in bearer form
(which form shall include the corresponding
temporary global forms of each security
comprised by such Unit). The Company
shall execute, and upon Company
instructions, Chase, as Unit Agent, shall
complete such Temporary Global Unit
(including, as applicable, authenticating
any Temporary Global Note, as Principal
Paying Agent, countersigning and
delivering any Universal Warrants, as
Warrant Agent, and countersigning,
executing and delivering any Purchase
Contracts, as Unit Agent, includable in
such Unit) upon the same conditions and in
substantially the same manner, and with
the same effect, as an individual
definitive Bearer Unit. On or prior to
the settlement date (which will normally
be the Original Issue Date of the Note
comprised by a Unit or, if there is no
such underlying Note, the date of the other
securities comprised thereby) with respect
to such Units, the Unit Agent shall
deposit the Temporary Global Unit (with the
corresponding temporary global forms of
each security comprised by such Unit) with
the Depositary in the manner specified
below under "Settlement Procedures; Bearer
Notes and Bearer Units". The interest of
each beneficial owner of Units represented
by such Temporary Global Unit will be
credited to the appropriate account with
B-10
Cedelbank, the Euroclear Operator or any
other relevant clearing system.
On or after the Exchange Date of any
Temporary Global Note comprised by a
Temporary Global Unit, the interest of the
beneficial owners of the Units represented
by the Temporary Global Unit shall be
canceled and such interests shall
thereafter be represented by a Permanent
Global Unit in bearer form (with the
corresponding temporary global forms of
each security comprised by such Unit) held
in London by the Depositary; provided that
Final Certification (as described below)
of any Notes comprised by such Unit has
occurred. The interest of each beneficial
owner of Units represented by such
Permanent Global Unit will be credited to
the appropriate account with Cedelbank,
the Euroclear Operator or any other
relevant clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any
time, upon 30 days' written notice to the
Unit Agent given by such beneficial owner
through either Cedelbank, the Euroclear
Operator or any other relevant clearing
system, as the case may be, or if any Note
comprised by such Permanent Global Note
is accelerated following an event of
default with respect to such Note or if
either Euroclear, Cedelbank or any other
relevant clearing system is closed for
business for a continuous period of
fourteen days (other than by reason of
public holidays) or announces an intention
to cease business permanently or in fact
does so, such Permanent Global Unit shall
be exchanged for one or more definitive
Bearer Units or, if the applicable Pricing
Supplement so specifies, one or more
Registered Units in authorized
B-11
denominations equal in aggregate number
and aggregate face amount to such
beneficial interest; provided that any
such exchange any an interest in a
Permanent Global Unit for a definitive
Bearer Unit shall result in the exchange
of all (and not less than all) interests
in such Permanent Global Unit for
definitive Bearer Units; provided further,
that, if the applicable Pricing Supplement
so specifies, nothing herein shall prevent
the further exchange of definitive Bearer
Units for Registered Units. To effect
such exchange, the interest of such
beneficial owner in such Permanent Global
Unit shall be canceled and one or more
definitive Bearer Units or Registered
Units, as the case may be, shall be issued
to such beneficial owner, through the
Euroclear Operator or Cedelbank or any
other relevant clearing system, as the
case may be.
In all events, Bearer Units will be
delivered by the Unit Agent only outside
the United States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part
of a Unit) purchased in connection with
their original issuance by or on behalf of
a U.S. Person (as defined in the
Distribution Agreement) (other than a
branch of a United States financial
institution (as defined in the applicable
United States Treasury Regulation section)
located outside the United States
purchasing for its own account or for
resale (a "Qualifying Foreign Branch") or
other permitted U.S. purchasers as
provided in the Prospectus Supplement that
satisfies the conditions for receiving
Bearer Notes as described under "Final
Certification" below) will be issued only
as Registered Notes and any Units
B-12
comprising such Notes will be issued only
as Registered Units.
Final Certification: Final Certification with respect to a
Temporary Global Note (whether issued
alone or as part of a Unit) shall mean the
delivery by the Euroclear Operator,
Cedelbank or any other relevant clearing
system, as the case may be, to the
Principal Paying Agent of a signed
certificate (each a "Clearance System
Certificate") in the form set forth in
Appendix 1 hereto with respect to the
Notes being exchanged, dated no earlier
than the Exchange Date for such Notes, to
the effect that the Euroclear Operator,
Cedelbank or any other relevant clearing
system, as the case may be, has received
certificates in writing, by tested telex
or by electronic transmission from the
account holders appearing on its records as
entitled to such Notes ("Ownership
Certificates") in the form set forth in
Appendix 2 hereto with respect to each of
such Notes, which Ownership Certificates
shall be dated no earlier than ten days
before the Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security
is accepted by or on behalf of the Company,
the Company will prepare a pricing
supplement (a "Pricing Supplement")
reflecting the terms of such Program
Security, will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of
such Pricing Supplement with the
Commission in accordance with the
applicable paragraph of Rule 424(b) under
the Act and will, as soon as possible and
in any event not later than the date on
which such Pricing Supplement is filed
with the Commission, deliver the number of
copies of such Pricing Supplement to the
B-13
Agent as the Agent shall request. The
Agent will cause such Pricing Supplement
to be delivered to the purchaser of the
Program Security.
In each instance that a Pricing Supplement
is prepared, the Agent will affix the
Pricing Supplement to Prospectuses prior
to their use. Outdated Pricing
Supplements, and the Prospectuses to which
they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for (i) the
delivery of an authenticated Temporary
Global Note or a Temporary Global Unit
(including each security comprised by such
Unit) to the Depositary in the manner
described in "Settlement Procedures; Bearer
Notes and Bearer Units" below or (ii) the
delivery of an authenticated Registered
Note or a Registered Unit (including each
security comprised by such Unit) to the
Agent shall constitute "settlement" with
respect to such Note or Unit. All offers
accepted by the Company will be settled on
the fifth Business Day next succeeding the
date of acceptance pursuant to the
timetable for settlement set forth below,
unless the Company and the purchaser agree
to settlement on another day, which shall
be no earlier than the next Business Day.
Settlement
Procedures;
Bearer Notes
and Bearer Units: Procedures with regard to each Bearer Note
or Bearer Unit sold by the Company to or
through the Agent (unless otherwise
specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement)
shall be as follows:
B-14
A. In the case of a Bearer Note (whether
issued alone or as part of a Unit),
the Agent will advise the Company by
telephone that such Note, is
initially a Bearer Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate
Bearer Note, whether such Note
is an Amortizing Note, and, if
so, the amortization schedule,
or, in the case of a Floating
Rate Bearer Note, the Initial
Interest Rate (if known at
such time), Interest Payment
Period, Calculation Agent,
Base Rate, Index Maturity,
Index Currency, Interest Reset
Period, Initial Interest Reset
Date, Interest Reset Dates,
Spread or Spread Multiplier
(if any), Minimum Interest
Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread
(if any).
5. Redemption or repayment
provisions, if any.
6. Ranking.
7. Settlement date and time
(Original Issue Date).
8. Interest Accrual Date.
B-15
9. Price.
10. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
11. Specified Currency.
12. Whether the Note is an
Original Issue Discount Note
(an "OID Note"), and if it is
an OID Note, the applicability
of Modified Payment upon
Acceleration (and, if so, the
Issue Price).
13. Agent's account number at
Cedelbank, the Euroclear
Operator or any other relevant
clearing system.
14. Whether such Note is a Series
D Note or a Series E Note.
15. Any other applicable
provisions.
B. In the case of a Bearer Unit, the
Agent will advise the Company by
telephone that such Unit is
initially a Bearer Unit, of the
information set forth in Settlement
Procedures; Bearer Notes and Bearer
Units "A" above with respect to
Bearer Notes that constitute a part
of such Bearer Unit and of the
following information:
1. Settlement date and time.
2. Face Amount.
B-16
3. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
4. Designation of the Securities
comprised by such Units:
a. Notes (See "Settlement
Procedures; Bearer Notes
and Bearer Units" "A" );
b. Universal Warrants, if
any; and
c. Purchase Contracts, if
any.
5. Whether, and the terms under
which, the Securities
comprised by such Unit will
be separately tradeable.
6. Any other provisions
applicable to the Unit (other
than those provisions
applicable to the securities
comprised by such Unit).
7. If the Bearer Unit comprises
Bearer Universal Warrants:
a. Designation of the
Series of Universal
Warrants: [Call] [Put]
Universal Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
B-17
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.
B-18
o. Any other applicable
provisions.
8. If the Bearer Unit comprises
Bearer Purchase Contracts:
a. Purchase Contract
Property: Quantity;
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of Settlement
Payment;
h. Authorized Number of
Purchase Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions;
and
j. Any other applicable
provisions.
B-19
C. The Company will advise Chase as the
Principal Paying Agent for the Notes
or as the Unit Agent for the Units
by telephone or electronic
transmission (confirmed in writing at
any time on the same date) of the
information set forth in "Settlement
Procedures; Bearer Notes and Bearer
Units" "A" or "B", above, as
applicable, and shall give the
Principal Paying Agent or the Unit
Agent, as the case may be, written
instructions (substantially in the
form set out in Appendix 3 and
Appendix 4, as applicable) to
prepare a Temporary Global Note for
each Note Tranche or a Temporary
Global Unit (with the corresponding
temporary global forms of each
security comprised by such Unit) for
each Unit Tranche, as the case may
be, which the Company has agreed to
sell. The Company will send a copy
of such instructions to the Agent and
the relevant Trustee.
The Principal Paying Agent or the
Unit Agent shall telephone each of
the Euroclear Operator, Cedelbank or
any other relevant clearing system
with a request for a security code
for each Note Tranche or Unit Tranche
(and, if applicable, a security code
for each security comprised by the
Units of such Unit Tranche) agreed
to be issued and shall notify the
Company and the Agent of such
security code or codes as soon as
practicable.
D. In accordance with instructions
received from the Company, (i) the
Principal Paying Agent shall
B-20
authenticate and deliver a Temporary
Global Note for each Note Tranche
or Unit Tranche, as applicable, which
the Company has agreed to sell and
(ii) the Unit Agent shall prepare a
Temporary Global Unit for each Unit
Tranche for which the Company has
agreed to sell (including, as
applicable, by countersigning and
delivering any Universal Warrants
includable in such Unit, by
countersigning, executing and
delivering and Purchase Contracts
includable in such Unit and by
obtaining from the Principal Paying
Agent any Notes to be included in
such Units, authenticated in
accordance with clause (i) above).
The settlement of each of the Note
Tranche and the Unit Tranche is to
occur on the relevant settlement
date. All such Temporary Global
Notes and all such Temporary Global
Units (including all of the
securities included in such Units)
will then be delivered to the
Depositary. The Principal Paying
Agent or the Unit Agent, as the case
may be, will also give instructions
to the Euroclear Operator, Cedelbank
or any other relevant clearing
system to credit the Notes or Units
represented by such Temporary Global
Note or Temporary Global Unit
delivered to such Depositary to, in
the case of the Notes, the Principal
Paying Agent's distribution account
and, in the case of the Units, the
Unit Agent's distribution account,
at the Euroclear Operator, Cedelbank
or any other relevant clearing
system. At settlement of any Note
Tranche, the Principal Paying Agent
will instruct the Euroclear
B-21
Operator, Cedelbank or any other
relevant clearing system to debit,
on the settlement date, from the
distribution account of the
Principal Paying Agent the principal
amount of Notes of each Note
Tranche, with respect to which the
Agent has solicited an offer to
purchase and to credit, on the
settlement date, such principal
amount to the account of the Agent
with the Euroclear Operator,
Cedelbank or any other relevant
clearing system against payment of
the purchase payment price of such
Notes. At settlement of any Unit
Tranche, the Unit Agent will instruct
the Euroclear Operator, Cedelbank or
any other relevant clearing system to
debit, on the settlement date, from
the distribution account of the Unit
Agent the number and face amount of
Units of each Unit Tranche, with
respect to which the Agent has
solicited an offer to purchase and to
credit, on the settlement date, such
number and face amount to the
account of the Agent with the
Euroclear Operator, Cedelbank or any
other relevant clearing system
against payment of the purchase
payment price of such Units. In the
case of the Notes and the Units, the
Agent shall give corresponding
instructions to the Euroclear
Operator, Cedelbank or any other
relevant clearing system.
E. The Euroclear Operator, Cedelbank
and any other relevant clearing
system shall debit and credit
accounts in accordance with
instructions received from the
B-22
Principal Paying Agent and the
Agent, in the case of Notes and the
Unit Agent and the Agent, in the
case of Units.
Each of the Principal Paying Agent
and the Unit Agent shall pay the
Company the aggregate net proceeds
received by it in immediately
available funds via a transfer of
funds to the U.S. dollar account of
the Company with a bank in New York
City (or, with respect to Notes and
Units payable in a Specified
Currency other than U.S. dollars, to
an account maintained at a bank
selected by the Company, which bank
shall be located outside the United
Kingdom in the case of Notes and
Units payable in a Specified
Currency other than pounds sterling
that mature not later than five years
from and including the date of issue
thereof) designated by the Company
in writing.
Settlement Procedures
Timetable; Bearer Notes
and Bearer Units: For sales by the Company of Bearer Notes or
of Bearer Units to or through the Agent,
"Settlement Procedures; Bearer Notes and
Bearer Units" "A" through "E" above shall
be completed on or before the respective
times set forth below:
B-23
Settlement
Procedure;
Bearer Notes
and Bearer Units Time
A 12:00 P.M. (NYC time) three days
before settlement date
B 12:00 P.M. (NYC time) three days
before settlement date
C 9:00 A.M. (London time) two days
before settlement date
D 3:45 P.M. (London time) one day
before settlement date
E 5:00 P.M. (NYC time) on
settlement date
Settlement Procedures;
Registered Notes and
Registered Units: Settlement Procedures with regard to each
Registered Note and Registered Unit sold by
the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) shall
be as follows:
AA. In the case of a Registered Note
(whether issued alone or as part of a
Unit), the Agent will advise the
Company by telephone that such Note is
a Registered Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note
Owner").
2. Address of the Registered Note
Owner and address for payment of
principal and interest.
B-24
3. Taxpayer identification number
of the Registered Note Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate
Registered Note, the Interest
Rate, whether such Note is an
Amortizing Note and, if so, the
amortization schedule, or, in the
case of a Floating Rate
Registered Note, the Initial
Interest Rate (if known at such
time), Interest Payment Period,
Calculation Agent, Base Rate,
Index Maturity, Index Currency,
Interest Reset Period, Initial
Interest Reset Date, Interest
Reset Dates, Spread or Spread
Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if
any).
8. Redemption or repayment
provisions (if any).
9. Ranking.
10. Settlement date and time
(Original Issue Date).
11. Interest Accrual Date.
12. Price.
B-25
13. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note,
and if it is an OID Note, and the
applicability of Modified Payment
upon Acceleration (and if so, the
Issue Price).
17. Whether such Note is a Series D
Note or a Series E Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the
Agent will advise the Company by
telephone that such Unit is a Registered
Unit, of the information set forth in
"Settlement Procedures; Registered
Notes and Registered Units" "A" above
with respect to any Registered Notes
that constitute a part of such
Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit
Owner").
2. Address of the Registered Unit
Owner.
3. Taxpayer identification number
of the Registered Unit Owner (if
available).
4. Denominations.
5. Settlement date and time.
B-26
6. Number of Units (and Face Amount).
7. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
8. Designation of the Securities
comprised by such Units:
a. Notes, if any (See
"Settlement Procedures;
Registered Notes and
Registered Units" "A" );
b. Universal Warrants, if any;
and
c. Purchase Contracts, if any.
9. Any other provisions applicable
to the Unit (other than those
provisions applicable to the
securities comprised by such
Unit).
10. If the Registered Unit comprises
Registered Universal Warrants:
a. Designation of the Series
of Universal Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise
Price;
B-27
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by
any holder on any day;
j. Maximum number of Universal
Warrants exercisable on any
day: [In the aggregate]
[By any beneficial owner];
k. Formula for determining
Cash Settlement Value;
l. Exchange Rate (or method of
calculation); and
m. Whether the Company or the
holder is the writer of the
warrant.
n. Any other applicable
provisions.
11. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract
Property: Quantity;
b. Purchase Price;
B-28
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of Settlement
Payment;
h. Authorized Number of
Purchase Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable
provisions.
CC. The Company will advise Chase as
Principal Paying Agent for the Notes or
as Unit Agent for the Units, by
telephone or electronic transmission
(confirmed in writing at any time on
the same date) of the information set
forth in "Settlement Procedures;
Registered Notes and Registered Units"
"AA" and "BB" above, as applicable.
DD. The Company will have delivered to
Chase as Principal Paying Agent for the
Notes, or as Unit Agent for the Units, a
B-29
pre-printed four-ply packet for such
Note or such Unit, as the case may be,
which packet will contain the following
documents in forms that have been
approved by the Company, the Agent and
Chase, as Principal Paying Agent for
the Notes, or as Unit Agent for the
Units:
1. Note or Unit, as the case may be,
with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. Chase will (i) authenticate and deliver
any Note (whether issued alone or as
part of a Unit) through the Principal
Paying Agent if necessary, with the
confirmation and Stubs One and Two to
the Agent, and (ii) complete and deliver
the Unit (including by countersigning
and delivering any Universal Warrant
includable in such Unit, by
countersigning, executing and delivering
any Purchase Contract includable in such
Unit and by obtaining from the Principal
Paying Agent any Notes to be included
in such Units, authenticated in
accordance with clause (i) above) with
the confirmation and Stubs One and Two
to the Agent. The Agent will
acknowledge receipt of the Note or the
Unit, as the case may be, by stamping or
otherwise marking Stub One and
returning it to Chase, through the
Principal Paying Agent, in the case of
the Notes, if necessary. Such delivery
will be made only against such
acknowledgment of receipt and evidence
that instructions have been given by the
B-30
Agent, with respect to Program
Securities denominated in U.S. dollars,
for payment to the account of the
Company at Chase, New York, New York
(or, with respect to Program Securities
payable in a Specified Currency other
than U.S. dollars, to an account
maintained at a bank selected by the
Company, which bank shall be located
outside the United Kingdom in the case
of Program Securities payable in a
Specified Currency other than pounds
sterling that mature not later than five
years from and including the date of
issue thereof), in immediately available
funds, of an amount equal to the
purchase price of such Program
Securities less the Agent's commission
(if any). In the event that the
instructions given by the Agent for
payment to the account of the Company
are revoked, the Company will as
promptly as possible wire transfer to
the account of the Agent an amount of
immediately available funds equal to the
amount of such payment made.
The Principal Paying Agent and the Unit
Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a
transfer of funds to the U.S. dollar
account of the Company with Chase in
New York City (or, with respect to
Program Securities payable in a
Specified Currency other than U.S.
dollars, to an account maintained at a
bank selected by the Company which bank
shall be located outside the United
Kingdom in the case of Program
Securities payable in a Specified
Currency other than pounds sterling that
B-31
mature not later than five years
including the date of issue thereof).
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will
deliver (with confirmation) such
Program Securities to the customer
against payment in immediately
available funds. The Agent will obtain
the acknowledgment of receipt of such
Program Securities by retaining Stub
Two.
GG. In the case of all Program Securities,
Chase will send Stub Three to the
Company by first-class mail.
Settlement Procedures
Timetable; Registered Notes
and Registered Units: For sales by the Company of Registered Notes
or Registered Units to or through the Agent,
"Settlement Procedures; Registered Notes and
Registered Units" "AA" through "GG" set forth
above shall be completed on or before the
respective times (London time) set forth
below:
Settlement Procedure;
Registered Notes
and Registered Units Time
AA 2:00 P.M. on second day
before settlement date
BB 2:00 P.M. on second day
before settlement date
CC 3:00 P.M. on second day
before settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
Failure to Settle: Bearer Notes and Bearer Units. If the Agent
shall have advanced its own funds for payment
against subsequent receipt of funds from the
B-32
purchaser and if a purchaser shall fail to
make payment for a Note or a Unit, the Agent
will promptly notify, in the case of a Note,
the Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator,
Cedelbank and any other relevant clearing
system, and, in the case of the Unit, the
Company, the Unit Agent, the Depositary, and
the Euroclear Operator, Cedelbank and any
other relevant clearing system, in each case
by telephone, promptly confirmed in writing
(but no later than the next Business Day).
In such event, the Company shall promptly
instruct the Principal Paying Agent, in the
case of the Note, and the Unit Agent, in the
case of the Unit, to cancel the purchaser's
interest in the appropriate Temporary Global
Note representing such Note or the
appropriate Temporary Global Unit
representing such Unit. Upon (i) confirmation
from the Principal Paying Agent or the Unit
Agent in writing (which may be given by telex
or telecopy) that the Principal Paying Agent
or the Unit Agent has canceled such
purchaser's interest in such Temporary Global
Note or Temporary Global Unit, as the case
may be, and (ii) confirmation from the Agent
in writing (which may be given by telex or
telecopy) that the Agent has not received
payment from the purchaser for the Note or
the Unit, the Company will promptly pay to
the Agent an amount in immediately available
funds equal to the amount previously paid by
the Agent in respect of such Bearer Note or
Bearer Unit. Such payment will be made on
the settlement date, if possible, and in any
event not later than 12 noon (New York City
time) on the Business Day following the
settlement date. The Principal Paying Agent
or the Unit Agent, as the case may be, and the
Depositary will make or cause to be made such
revisions to such Temporary Global Note or
Temporary Global Unit as are necessary to
reflect the cancellation of such portion of
B-33
such Temporary Global Note or Temporary Global
Unit.
If a purchaser shall fail to make payment for
the Note or Unit for any reason other than a
default by the Agent in the performance of its
obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for
the Agent's loss of the use of funds during
the period when they were credited to the
account of the Company, the Principal Paying
Agent or the Unit Agent, as applicable.
Immediately upon such cancellation, the
Principal Paying Agent or the Unit Agent, as
the case may be, will make appropriate
entries in its records to reflect the fact
that a settlement did not occur with respect
to such Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
Chase, as Registrar of the Registered Notes
or as Unit Agent, by telephone and return
such Note or Unit to Chase through the
Principal Paying Agent, in the case of the
Notes or the Unit Agent, in the case of the
Units, if necessary. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an
amount equal to the amount previously
credited to the Company's account in respect
of such Note or Unit. Such wire transfer
will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date.
If the failure shall have occurred for any
reason other than a default by the Agent in
the performance of its obligations hereunder
and under the Distribution Agreement, then
the Company will reimburse the Agent on an
equitable basis for its loss of the use of
the funds during the period when they were
B-34
credited to the account of the Company or
Chase. Immediately upon receipt of the
Registered Note or Registered Unit in respect
of which such failure occurred, Chase will
mark such Note or Unit "canceled," make
appropriate entries in Chase's records and
send such Note or Unit to the Company.
Notice of Issuance
London Stock Exchange: The Sponsoring Member Firm will provide
information with respect to the issuance of
each Series D Note and Series D Unit to the
London Stock Exchange or the Paris Bourse, as
the case may be, and will advise the Company
in writing as to the effectiveness of the
listing of such Series D Note and Series D
Unit by the close of business on the related
settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the London Stock Exchange or
the Paris Bourse, as the case may be with such
information regarding Series D Notes and
Series D Units issued and outstanding as such
exchange may require.
B-35
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDELBANK AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley Dean Witter & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof, [U.S.$]
__________ principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, any estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust
if both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined
in the applicable U.S. Treasury Regulations section) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States persons who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or
(b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the U.S. Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to
the further effect that United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i)
or (ii)) have certified that they have not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, seeking to collect principal or
interest with respect to) any portion of the temporary global Security
representing the above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) that as of the date hereof we
have not received any notification from any of our Member Organizations to the
effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith (or, if relevant, with respect to
which principal or interest is being requested) are no longer true and cannot
be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
2
Dated: _______________, 19__
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euroclear
System]
[CEDELBANK]
[Other]
By_____________________
3
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR AND CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley Dean Witter & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations, any estate the income of
which is subject to United States Federal income taxation regardless of its
source or a trust if both (x) a court within the United States is able to
exercise primary supervision over the administration of the trust and (y) one
or more United States persons have the authority to control all substantial
decisions of the trust ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in the applicable U.S. Treasury Regulations section)
("financial institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise the Issuer
or the Issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period
(as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and
in addition if the owner of the Securities is a United States or foreign
financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)) such financial institution has not acquired
the Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to [U.S.$]
__________ of such interest in the above Securities in respect of which we are
not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection
of any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________, 19__
[To be dated no earlier than
the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[Name of Account Holder]
By_______________________
(Authorized Signatory)
Name:
Title:
2
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
To: The Chase Manhattan Bank,
London Office
Attention:_____________________
_____________________
and with a copy to:
[The Chase Manhattan Bank, as Senior Debt Trustee]
[The First National Bank of Chicago, as
Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated May 6, 1999
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro
Distribution Agreement and to give instructions to the Euroclear Operator,
Cedelbank and/or any other relevant clearing system in order for you to:
(4) Credit account of [Name of Agent] with
[Euroclear/Cedelbank/Other](5) with the following
Bearer Notes:
----------
(4) Separate instructions are to be sent in respect of each offer accepted by
the Company. Repeat this information (numbering consecutively)
if Bearer Notes of more than one Note Tranche are to be issued
to an Agent.
(5) Delete as appropriate.
2
against payment of [ ].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By:_________________________________
_________________________________
3
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
To: The Chase Manhattan Bank,
Attention:__________________
__________________
Re: Euro Distribution Agreement
dated May 6, 1999
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms
Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Cedelbank and/or
any other relevant clearing system in order for you to:
(1) Credit account of [Name of Agent] with
[Euroclear/Cedelbank/Other](2) with the following Bearer Units:
----------
(1) Separate instructions are to be sent in respect of each offer accepted by
the Company. Repeat this information (numbering consecutively)
if Bearer Units of more than one Unit Tranche are to be issued
to an Agent.
(2) Delete as appropriate.
2
against payment of [ ].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By:________________________________
________________________________
4
MORGAN STANLEY DEAN WITTER & CO.
Global Medium-Term Notes, Series D and Series E
Global Units, Series D and Series E
EURO DISTRIBUTION AGREEMENT
May 6, 1999
Morgan Stanley & Co. International Limited
Morgan Stanley Bank AG
Morgan Stanley S.A.
Bank Morgan Stanley AG
c/o Morgan Stanley & Co. International
Limited
25 Cabot Square
Canary Wharf London E14 4QA
England
Dear Sirs:
Morgan Stanley Dean Witter & Co., a Delaware corporation (the
"Company"), confirms its agreement with you with respect to the issue and sale
from time to time by the Company primarily outside the United States of up to
$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
D and Series E, each due more than 9 months from the date of issue (the "Notes")
and its Global Units, Series D and Series E (the "Units" and together with the
Notes, "Program Securities"), in each case subject to reduction as a result of
the sale of the Company's (i) Global Medium-Term Notes, Series C, to be sold
primarily inside the United States, (ii) Global Units, Series C, to be sold
primarily inside the United States, and (iii) the sale of certain of the
Company's other debt securities, warrants, preferred stock, purchase contracts
and units. The Series D Notes are intended to be listed on the London Stock
Exchange Limited (the "London Stock Exchange") or on another stock exchange or
exchanges, if so required by Section hereof. Application may, in certain
circumstances described in the Prospectus Supplement (as defined below), be made
to list Series D Units on the London Stock Exchange. The Series E Notes and the
Series E Units will not be listed on any stock exchange.
The Notes may be issued as senior indebtedness (the "Senior Notes") or
as subordinated indebtedness (the "Subordinated Notes") of the Company. The
Senior Notes will be issued, either alone or as part of a Unit, pursuant to the
provisions of an amended and restated senior indenture, dated as of May 1, 1999,
between the Company and The Chase Manhattan Bank, as trustee (the "Senior Debt
Trustee") (as may be supplemented or amended from time to time, the "Senior Debt
Indenture"). The Subordinated Notes will be issued pursuant to the provisions of
an amended and restated subordinated indenture, dated as of dated as of May 1,
1999 between the Company and The First National Bank of Chicago, as trustee (the
"Subordinated Debt Trustee") (as may be supplemented or amended from time to
time, the "Subordinated Debt Indenture"). The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an "Indenture" and collectively as the "Indentures," and the Senior Debt
Trustee and the Subordinated Debt Trustee are sometimes hereinafter referred to
individually as a "Trustee" and collectively as the "Trustees." Purchase
contracts ("Purchase Contracts") that require holders to satisfy their
obligations thereunder when such Purchase Contracts are issued ("Pre-paid
Purchase Contracts") will be issued under the Indentures.
The Units will be issued pursuant to the Unit Agreement dated as of May
6, 1999, among the Company, The Chase Manhattan Bank, as Unit Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture referred to
therein, and as Warrant Agent under the Warrant Agreement referred to therein
and the holders from time to time of the Units described therein (as may be
amended from time to time, the "Unit Agreement") or, if the Units do not include
Purchase Contracts (other than Pre-paid Purchase Contracts), pursuant to a Unit
Agreement between the Company and The Chase Manhattan Bank, as Unit Agent, as
Trustee and Paying Agent under the Indenture referred to therein, and as Warrant
Agent under the Warrant Agreement referred to therein in the form of such
agreement filed as an exhibit to the Registration Statement referred to below
(each such agreement, a "Unit Agreement Without Holders' Obligations"). Units
may include one or more (i) Senior Notes, (ii) warrants ("Universal Warrants")
entitling the holders thereof to purchase or sell (a) securities of an entity
unaffiliated with the Company, a basket of such securities, an index or indices
of such securities or any combination of the above, (b) currencies or (c)
commodities, (iii) Purchase Contracts, including Pre-paid Purchase Contracts,
requiring the holders thereof to purchase or sell (a) securities of an entity
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
2
Manhattan Bank, as Warrant Agent. Purchase Contracts, other than Pre-paid
Purchase Contracts ("Non-pre-paid Purchase Contracts") entered into by the
Company and the holders thereof will be governed by the Unit Agreement.
The Notes, whether issued alone or as part of a Unit, will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below. The
Universal Warrants will have the exercise prices, exercise dates, expiration
dates and other terms as set forth in supplements to the Basic Prospectus. The
Purchase Contracts will have the closing dates, purchase or sale prices and
other terms as set forth in supplements to the Basic Prospectus. The Company has
initially appointed The Chase Manhattan Bank, London Branch, at its principal
office in London, as principal paying agent (the "Principal Paying Agent") for
the Notes.
The Notes will be issued in bearer form or in definitive registered
form without coupons (the "Registered Notes"), the Units will be issued in
bearer form or in definitive registered form (the "Registered Units") and the
securities included in a Unit will be in the form of such Unit. The Program
Securities issued in bearer form will be represented initially by, in the case
of the Notes, a temporary global Note and, in the case of the Units, a temporary
global Unit, each of which will be delivered to a common depositary outside the
United States for the operator of the Euroclear System (the "Euroclear
Operator"), Cedelbank or any other relevant clearing system. Beneficial
interests in a temporary global Note or a temporary global Unit will be
exchangeable for beneficial interests in, in the case of a temporary global
Note, a permanent global Note and, in the case of a temporary global Unit, a
permanent global Unit. Beneficial interests in a permanent global Note will be
exchangeable in whole, but not in part, for definitive Notes in bearer form,
with interest coupons attached upon receipt of the Principal Paying Agent of an
initial request to so exchange by any holder of a beneficial interest in such
permanent global Note (such temporary global Note, permanent global Note and
definitive Notes in bearer form are collectively referred to as the "Bearer
Notes"), or, if the applicable Pricing Supplement so specifies, for Registered
Notes. Beneficial interests in a permanent global Unit (including an interest in
the securities included in such Unit) will be exchangeable in whole, but not in
part, for definitive Units in bearer form upon receipt of the Unit Agent of an
initial request to so exchange by any holder of a beneficial interest in such
permanent global Unit (such temporary global Unit, permanent global Unit and
definitive Units in bearer form are collectively referred to as the "Bearer
Units") or, if the applicable Pricing Supplement so specifies, for Registered
Units. As used in this Agreement, the term "Note" includes any temporary global
Note or permanent global Note issued pursuant to the Indentures and the term
"Unit" includes any temporary global Unit or permanent global Unit issued
pursuant to the Unit Agreement.
3
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 hereof. Program Securities denominated, payable in or
indexed to Swiss Francs may only be offered and sold by the Company through Bank
Morgan Stanley AG on an agency or principal basis, and Bank Morgan Stanley AG
agrees to notify the Swiss National Bank prior to the issuance of any such
Program Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Program Securities. Such registration statement, including the exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file with
the Commission from time to time, pursuant to Rule 424 under the Securities Act
of 1933, as amended (the "Securities Act"), supplements to the prospectus
included in the Registration Statement that will describe certain terms of the
Program Securities. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus." The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "Prospectus Supplement") specifically relating
to the Program Securities, as filed with, or transmitted for filing to, the
Commission pursuant to Rule 424. As used herein, the terms "Basic Prospectus"
and "Prospectus" shall include in each case the documents, if any, incorporated
by reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
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
4
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, 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,
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 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 do not apply 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 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
5
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 may be limited by bankruptcy, insolvency, reorganization, liquidation,
moratorium and other similar laws affecting creditors' rights generally and 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 will be
entitled
6
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 in the case of
such Units and Non-pre-paid Purchase Contracts, the Unit Agreement and 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 any
Non-pre-paid Purchase Contracts included in such Units have been executed by the
Company and countersigned by the Unit Agent 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 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
7
Holders' Obligations, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance by
the Company of its obligations under this Agreement, the Notes, the Pre-paid
Purchase Contracts, the Units (including any Purchase Contracts or Universal
Warrants included therein), the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations, the Universal Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company or
any of its subsidiaries that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under this Agreement, the Notes, the Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Universal Warrants
included therein), the Indentures, the Unit Agreement, any Unit Agreement
Without Holders' Obligations, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement, except such as may be required
by the securities or Blue Sky laws of the various states in connection with the
offer and sale of the Program Securities; provided, however, that no
representation is made or warranty given as to whether the purchase of the
Program Securities constitutes a "prohibited transaction" under Section 406 of
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
8
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(i)
(except as to due authorization of the Notes and Pre-paid Purchase Contracts)
and 1(j), 1(k) (except as to due authorization of the Units, Universal Warrants
and Non-pre-paid Purchase Contracts), 1(j) (except as to due authorization of
the Units and the Universal Warrants) and 1(k), when made as of the Commencement
Date, or as of any date on which you solicit offers to purchase Program
Securities, with respect to any Program Securities the payments of principal or
interest on which, or any other payments with respect to which, will be
determined by reference to one or more currency exchange rates, commodity
prices, securities of entities unaffiliated with the Company, baskets of such
securities, equity indices or other factors, shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission.
9
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 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
10
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 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 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 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
11
principal pursuant to a Notes Terms Agreement or a Units Terms Agreement, as
the case may be, is referred to herein as a "Settlement Date."
Unless otherwise specified in a Notes Terms Agreement or a Units Terms
Agreement, if you are purchasing Program Securities, as principal you may resell
such Program Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the Prospectus Supplement
relating to such Notes or Units.
(c) Administrative Procedures. You and the Company agree to perform
the respective duties and obligations specifically provided to be performed in
the Global Medium-Term Notes, Series D and Series E and the Global Units, Series
D and Series E, Administrative Procedures (attached hereto as Exhibit B) (the
"Administrative Procedures"), as amended from time to time. The Administrative
Procedures may be amended only by written agreement of the Company and you.
(d) Delivery. The documents required to be delivered by Section 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 the date on which you begin soliciting offers to
purchase Program Securities and 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 of the filing of
any amendment or supplement to the Basic Prospectus, of the filing and
effectiveness of any amendment to the Registration Statement, of any request
12
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Basic Prospectus or for any additional
information, 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, of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Program
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose and of the issuance by any non-United States
regulatory authority of any request for information relating to the Program
Securities or suspension of the listing of the Program Securities on any stock
exchange on which the Program Securities are then listed. The Company will use
its best efforts to prevent the issuance of any such stop order or notice of
suspension of qualification or listing and, if issued, to obtain as soon as
possible the withdrawal thereof. If the Basic Prospectus is amended or
supplemented as a result of the filing under the Exchange Act of any document
incorporated by reference in the Prospectus, you shall not be obligated to
solicit offers to purchase Program Securities so long as you are not reasonably
satisfied with such document.
(b) If, at any time when a prospectus relating to the Program
Securities is required to be delivered under the Securities Act or made
available to purchasers of the Program Securities, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances when the Prospectus, as then amended or supplemented, is delivered
to a purchaser, not misleading, or if, in your opinion or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus, as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified by the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Company shall decide to
amend or supplement the Registration Statement or Prospectus, as then amended or
supplemented, it shall so advise you promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, satisfactory in all respects to
you, that will correct such statement or omission or effect such compliance and
will supply such amended or supplemented Prospectus to you in such quantities as
you may reasonably request. If any documents, certificates, opinions and letters
furnished to you pursuant to paragraph (e) below and Sections , and 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
13
Registration Statement, you will resume the solicitation of offers to purchase
Program Securities hereunder. Notwithstanding any other provision of this
Section , until the distribution of any Program Securities you may own as
principal has been completed, if any event described above in this paragraph (b)
occurs, the Company will, at its own expense, forthwith prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably request and shall
furnish to you pursuant to paragraph (e) below and Sections , and 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 The City of New York, without
charge, (i) to each Agent, a signed copy of the Registration Statement,
including exhibits and all amendments thereto, and as many copies of the
Prospectus, any documents incorporated by reference therein and any supplements
and amendments thereto as you may reasonably request and (ii) to each Agent that
purchases Program Securities pursuant to a Terms Agreement or solicits an offer
to purchase Program Securities that is accepted by the Company, prior to 10:00
a.m. New York City time on the business day next succeeding the date of such
Terms Agreement or the acceptance of such offer, as many copies of the
Prospectus, as then amended or supplemented (including the Prospectus Supplement
relating to the Program Securities to be purchased pursuant to such Terms
Agreement or accepted offer), as such Agent may reasonably request.
(e) During the term of this Agreement, the Company shall furnish to
you such relevant documents and certificates of officers of the Company relating
to the business, operations and affairs of the Company, the Registration
Statement, the Basic Prospectus, any amendments or supplements thereto, the
Indentures, the Unit Agreement, any Unit Agreement Without Holders' Obligations,
the Warrant Agreement, the Notes, the Units, the Universal Warrants, the
Purchase Contracts, this Agreement, the Administrative Procedures, any Notes
Terms Agreement or
14
Units Terms Agreement and the performance by the Company of its obligations
hereunder or thereunder as you may from time to time reasonably request.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or potential
downgrading or of any review for possible change that does not indicate the
direction of the possible change, in the rating accorded the Company or any of
the Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act.
(g) The Company will, whether or not any sale of Program Securities
is consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Notes Terms Agreement or Units Terms Agreement,
including: the preparation and filing of the Registration Statement and the
Prospectus and all amendments and supplements thereto, the preparation, issuance
and delivery of the Program Securities, the fees and disbursements of the
Company's counsel and accountants, of the Trustees and their counsel, of the
Unit Agent and its counsel, of the Warrant Agent and its counsel and of the
Principal Paying Agent and its counsel and any paying agents for the Program
Securities appointed by the Company, the fees and expenses incurred with respect
to listing the Series D Notes and, if listed, the Series D Units on the London
Stock Exchange or on another stock exchange or exchanges if so required by
Section 3(j), 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, the printing and
delivery to you of copies of the Indentures, the Unit Agreement, any Unit
Agreement Without Holders' Obligations and the Universal Warrant Agreement, any
fees charged by rating agencies for the rating of the Program Securities, the
fees and expenses, if any, incurred with respect to any filing with the National
Association of Securities Dealers, Inc., 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
any out-of-pocket expenses incurred by you; provided that any advertising
expenses incurred by you shall have been approved by the Company.
(h) During the period beginning on the date of any Notes Terms
Agreement or Units Terms Agreement relating to either Notes or Units, as the
case may be, and continuing to and including the Settlement Date with respect to
such Notes Terms Agreement or Units Terms Agreement, the Company will not,
without your prior consent, offer, sell, contract to sell or otherwise dispose
of 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 the
Notes that are to be sold pursuant to such Notes Terms Agreement, Notes
previously agreed to be sold by the Company and commercial paper issued in the
15
ordinary course of business) or in the case of Units, any securities
substantially similar to such Units (other than the Units that are sold pursuant
to such Units Terms Agreement or Units previously agreed to be sold by the
Company), in each case, except as may otherwise be provided in the applicable
Notes Terms Agreement or Units Terms Agreement.
(i) The Company will indemnify and hold you harmless against any
documentary, stamp or similar transfer or issue tax, including any interest and
penalties, on the issue of the Program Securities in accordance with the terms
of this Agreement, on the execution and delivery of this Agreement, any Written
Notes Terms Agreement or Written Units Terms Agreement and on the exchange of
any temporary global Notes for definitive Notes or permanent global Notes, of
any temporary global Units for definitive Units or permanent global Units, of
any permanent global bearer Notes for definitive bearer Notes or of any
permanent global bearer Units for definitive bearer Units, that are or may be
required to be paid under the laws of the United Kingdom, the United States or
any political subdivision or taxing authority thereof or therein.
(j) In connection with any application to list the Series D Notes
and Series D Units on the London Stock Exchange, the Company will furnish from
time to time any and all documents, instruments, information and undertakings
and publish all advertisements or other material that may be necessary in order
to effect such listing and will maintain such listing until, in the case of the
Notes, none of the Series D Notes is outstanding, either as part of a Unit or
otherwise, or until such time as payment of principal, premium, if any, and
interest in respect of all the Series D Notes, whether issued alone or as part
of a Unit, has been duly provided for, whichever is earlier and in the case of
the Units, none of the Series D Units is outstanding; provided, however, that if
the Company can no longer reasonably maintain such listing, it will use its best
efforts to obtain and maintain the quotation for, or listing of, the Series D
Notes and Series D Units on such other stock exchange or exchanges as you shall
reasonably request. In addition, for so long as the Series D Notes and Series D
Units are listed on a stock exchange and such exchange so requires, the Company
will maintain in London, or in such other place as the Series D Notes and Series
D Units are listed (if the Series D Notes and Series D Units are no longer
listed on the London Stock Exchange), a paying agent in respect of the Series D
Notes or Series D Units, as required.
4. Conditions of the Obligations of the Agents. Your obligation to
solicit offers to purchase Program Securities as agents of the Company, your
obligation to purchase Program Securities as principals pursuant to any Notes
Terms Agreement or Units Terms Agreement and the obligation of any other
purchaser to purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company's officers made in each certificate
furnished
16
pursuant to the provisions hereof and to the performance and observance by the
Company of all covenants and agreements herein contained on its part to be
performed and observed (in the case of your obligation to solicit offers to
purchase Program Securities, at the time of such solicitation, and, in the case
of your or any other purchaser's obligation to purchase Program Securities, at
the time the Company accepts the offer to purchase such Program Securities and
at the time of issuance and delivery) and (in each case) to the following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made, that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Program Securities on the terms
and in the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred such a change in national or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would in your view be likely
to prejudice materially the success of the offering and distribution
of the Program Securities or dealings in the Program Securities in
the secondary market; and
(iii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded 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.
17
(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;
18
(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 Prepaid 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;
19
(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;
20
(J) the execution and delivery by the Company of the Notes and Pre-paid
Purchase Contracts (whether issued alone or as part of a Unit), the Units
(including any Purchase Contract or Universal Warrant included therein),
the Indentures, the Unit Agreement, any Unit Agreement Without Holders'
Obligations, the Universal Warrant Agreement and any applicable Written
Notes Terms Agreement or Written Units Terms Agreement and the performance
by the Company of its obligations under this Agreement, the Notes, the
Units, the Indentures, the Unit Agreement, any Unit Agreement Without
Holders' Obligations, the Universal Warrant Agreement and any applicable
Notes Terms Agreement or Units Terms Agreement will not contravene any
provision of applicable law or the certificate of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge, any agreement
or other instrument binding upon the Company or any of its consolidated
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any U.S. governmental body,
agency or court having jurisdiction over the Company or any of its
consolidated subsidiaries, and no consent, approval, authorization or order
of or qualification with any U.S. governmental body or agency is required
for the performance by the Company of its obligations under this Agreement,
the Notes, the Pre-paid Purchase Contracts, the Units (including any
Purchase Contracts or Universal Warrants included therein), the Indentures,
the Unit Agreement, any Unit Agreement Without Holders' Obligations, the
Universal Warrant Agreement and any applicable Notes Terms Agreement or
Units Terms Agreement; provided, however, that no opinion is expressed on
whether the purchase of the Program Securities constitutes a "prohibited
transaction" under Section 406 of the Employee Retirement Income Security
Act of 1974, as amended, or Section 4975 of the Internal Revenue Code of
1986, as amended;
(K) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in the Prospectus
Supplement), "Description of Debt Securities" (in the Basic Prospectus),
"Description of Units" (in the Prospectus Supplement and in the Basic
Prospectus), "Plan of Distribution"
21
(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
22
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 , 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.
23
Notwithstanding the foregoing, the opinions described in subparagraphs
(G) (except as to due authorization of the Notes), (H) (except as to due
authorization of the Units, Universal Warrants and 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 , 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.
24
(c) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, you
shall have received a certificate, dated the Commencement Date or such
Settlement Date, as the case may be, and signed by an executive officer of the
Company to the effect set forth in subparagraph (a)(iii) above and to the effect
that the representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has complied
with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before such date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes Terms
Agreement or Units Terms Agreement, on the corresponding Settlement Date, the
Company's independent auditors shall have furnished to you a letter or letters,
dated as of the Commencement Date or such Settlement Date, as the case may be,
in form and substance satisfactory to you containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus, as
then amended or supplemented; provided that each letter so furnished shall use a
"cut-off date" no more than three business days prior to the date of such
letter.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to you such appropriate further information,
certificates and documents as you may reasonably request.
(f) On the Commencement Date, application to list the Series D Notes
and Series D Units on the London Stock Exchange shall have been made and, prior
to the issuance of the first Series D Note or Series D Unit offered pursuant to
this Agreement, such listing shall have been granted, subject to official notice
of issuance.
5. Additional Agreements of the Company. Each time the Registration
Statement or Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for 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, 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 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
25
you, of the same tenor as the certificate referred to in Section 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 (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 , 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 , 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. 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
26
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 the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or 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
27
(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 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 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
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.
28
(e) The Company and you agree that it would not be just or equitable
if contribution pursuant to this Section 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 , 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 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 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 any termination of this Agreement or any such
Notes Terms Agreement or Units Terms Agreement, 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 acceptance
of and payment for any of the Program Securities.
7. Offering Restrictions. You hereby represent to the Company and
agree with respect to the Program Securities that:
(a) (i) you have not offered or sold and will not offer or sell during
the Restricted Period (as defined below) Bearer Notes (whether offered
alone or as part of a Unit) (including any Note that is exchangeable for
Bearer Notes) directly or indirectly in the United States (as defined
below) or to or for the account of any United States person (as defined
below), other than to a Qualifying Foreign Branch (as defined below) or to
certain other persons as provided under United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and delivered and will not
deliver within the United States definitive Bearer Notes that are sold
during the Restricted Period;
(ii) you have, and throughout the Restricted Period will have, in
effect procedures reasonably designed to ensure that your employees or
agents who are directly engaged in selling Bearer Notes (whether offered
alone or as part of a Unit) are aware that such Bearer Notes may not be
offered or sold during the Restricted Period to a person who is within the
United States or to a United States person, except as permitted by Section
above;
29
(iii) if you are a United States person, you are acquiring the Bearer
Notes (whether offered alone or as part of a Unit) for purposes of resale
in connection with their original issuance and if you retain Bearer Notes
for your own account, you will only do so in accordance with the
requirements of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(6);
(iv) if you transfer to any affiliate Bearer Notes (whether offered
alone or as part of a Unit) for the purpose of offering or selling such
Bearer Notes during the Restricted Period, you will either obtain from such
affiliate for the benefit of the Company the representations and agreements
contained in clauses (i), (ii) and (iii) above or repeat and confirm the
representations and agreements contained in clauses (i), (ii) and (iii)
above on such affiliate's behalf and obtain from such affiliate the
authority to so obligate it; and
(v) you will obtain for the benefit of the Company the representations
and agreements contained in clauses (i), (ii), (iii) and (iv) above from
any person other than your affiliate with whom you enter into a written
contract, within the meaning of United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(4), for the offer or sale during the Restricted Period
of Bearer Notes (whether offered alone or as part of a Unit).
For purposes of this Section , an offer or sale will be considered to be made in
the United States if the offeror or seller of such Notes (whether offered alone
or as part of a Unit) has an address within the United States for the offeree or
purchaser of such Notes with respect to the offer or sale. As used in this
Section , "United States person" means a citizen or resident of the United
States, a corporation or partnership (including an entitly treated as a
corporation or partnership for United States federal income tax purposes)
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia, or an estate the income of which is subject
to United States federal income taxation regardless of its source or a trust if
both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust, "United States" means the United States (including the States and the
District of Columbia), its territories, its possessions and any other areas
subject to its jurisdiction; "Qualifying Foreign Branch" means a branch of a
United States financial institution, as defined in the applicable United States
Treasury Regulations, located outside the United States that is purchasing for
its own account or for resale and that has agreed, as a condition to purchase,
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended (the "Code"), and the
regulations thereunder; and "Restricted Period" with respect to each issuance
30
means the period which begins on the earlier of the date on which the Company
receives the proceeds of the sale of Notes with respect to such issuance or the
first date on which the Notes are offered to persons other than you, and which
ends 40 days after the date on which the Company receives the proceeds of the
sale of such Notes; provided that with respect to a Note held as part of an
unsold allotment or subscription, any offer or sale of such Note by the Company
or you shall be deemed to be during the Restricted Period.
(b)(i) In relation to Program Securities which have a maturity of one
year or more and which are to be listed on the London Stock Exchange, you have
not offered or sold and will not offer or sell any Program Securities to persons
in the United Kingdom prior to admission of such Program Securities to listing
in accordance with Part IV of the Financial Services Act 1986 (the "Act"),
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995 or the Act; in relation to
Program Securities which have a maturity of one year or more and which are not
to be listed on the London Stock Exchange, you have not offered or sold and,
prior to the expiry of the period of six months from the date of issue of such
Program Securities, will not offer or sell any such Program Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; you have complied with and will comply with all
applicable provisions of the Act with respect to anything done by you in
relation to the Program Securities in, from or otherwise involving the United
Kingdom; and you have only issued or passed on and will only issue or pass on in
the United Kingdom any document received by you in connection with the issue of
the Program Securities, other than any document which consists of or any part of
listing particulars, supplementary listing particulars or any other document
required or permitted to be published by the listing rules under Part IV of the
Act, to a person who is of a kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 (as
amended) or is a person to whom such document may otherwise lawfully be issued
or passed on.
(c) You will not offer or sell any Program Securities in any
jurisdiction if such offer or sale would not be in compliance with any
applicable law or regulation or if any consent, approval or permission is needed
for such offer or sale by you or for or on behalf of the Company unless such
consent, approval or permission has been previously obtained. Without prejudice
to the provisions of this Section above and subject to the obligations of the
Company set forth in
31
Section 3 of this Agreement, the Company shall have no responsibility for, and
you will obtain, any consent, approval or permission required by you for the
subscription, offer, sale or delivery by you of Program Securities under the
laws and regulations in force in any jurisdiction to which you are subject or in
or from which you make any subscription, offer, sale or delivery.
(d) [You will not offer or sell any Program Securities, directly or
indirectly, in Japan or to, or for the benefit of, any resident of Japan (which
term as used herein means any person resident in Japan including any corporation
or other entity organized under the laws of Japan) or to others for the
re-offering or re-sale, directly or indirectly, in Japan or to a resident of
Japan except pursuant to an exemption from the registration requirements of, and
otherwise in compliance with, the Securities and Exchange Law of Japan and other
relevant laws and regulations of Japan. Confirm.]
(e) [You will not offer and sell any Program Securities in the
Federal Republic of Germany other than in compliance with the provisions of the
German Sales Prospectus Act (Wertpapier-Verkaufsprospektgesetz) of December 13,
1990, as amended, and of any other laws applicable in the Federal Republic of
Germany governing the issue, offering and sale of securities. Confirm.]
(f) [You will not offer and sell any Program Securities denominated
or payable in or indexed to Swiss Francs other than in compliance with Swiss law
and the regulations of the Swiss National Bank in effect from time to time.
Confirm.]
(g) Each of the Agents and the Company represents and agrees that
Program Securities will be issued outside the Republic of France, that it will
not offer or sell any Program Securities in the Republic of France, in
connection with their initial distribution, and will not distribute or cause to
be distributed in the Republic of France the Prospectus or any other offering
material relating to Program Securities, except to (i) qualified investors
(investisseurs qualifies) or (ii) within a restricted circle of investors
(cercle restreint d'investisseurs), all as defined in Article 6 of Ordinance no
67-833 dated 28th September, 1967 (as amended) and Decree no 98-880 dated 1st
October, 1998.
8. Position of the Agent. In acting under this Agreement and in
connection with the sale of any Program Securities by the Company (other than
Program Securities sold to you pursuant to a Notes Terms Agreement or Units
Terms Agreement, as the case may be), you are acting solely as agent of the
Company and do not assume any obligation towards or relationship of agency or
trust with any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted by
the Company, but you shall not have any liability to the Company in the event
any
32
such purchase is not consummated for any reason. If the Company shall default in
its obligations to deliver Program Securities to a purchaser whose offer it has
accepted, the Company shall hold you harmless against any loss, claim, damage or
liability arising from or as a result of such default and shall, in particular,
pay to you the commission you would have received had such sale been
consummated.
9. Termination. This Agreement may be terminated at any time either
by the Company or by you upon the giving of written notice of such termination
to the other parties hereto, but without prejudice to any rights, obligations or
liabilities of the other parties hereto accrued or incurred prior to such
termination. The termination of this Agreement shall not require termination of
any Notes Terms Agreement or Units Terms Agreement, and the termination of any
such Notes Terms Agreement or Units Terms Agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), the last sentence of Section 3(b) and
Sections 3(c), 3(g), 3(i), 3(j), 6, 7, 8, and 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(h), 4 and 5 shall also survive until such
delivery has been made.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Morgan Stanley & Co. International
Limited, will be mailed, delivered or telefaxed and confirmed to Morgan
Stanley & Co. International Limited at 25 Cabot Square, Canary Wharf, London
E14 4QA, England, to the attention of Capital Markets - Debt Syndicate
(Telephone No.: 011-44-71-425-7750; Telecopy No.: 011-44-71-425-7999),
Morgan Stanley Bank AG, Rahmhofstrasse 2-4, 60313 Frankfurt am Main,
Federal Republic of Germany to the attention of Ron Lenihan (Telephone No.:
011-49-69-152-060; Telecopy No.: 011-49-69-597-6627), Morgan Stanley
S.A., 25 rue Balzac, 75008 Paris, France to the attention of Debt Capital
Markets (Telephone No.: 011-33-1-5377-7879 or 7300; Telecopy No.: 011-33-1-5377-
7899) or Bank Morgan Stanley AG, Bahnhofstrasse 92-3rd Floor, Ch-8023, Zurich,
Switzerland, to the attention of John Webley (Telephone No. 011-41-1-220-9111;
Telecopy No. 011-41-1-220-9800) or, if sent to the Company, will be mailed,
delivered or telefaxed and confirmed to the Company at 1585 Broadway, New York,
New York 10036, Attention: Secretary.
11. Successors. This Agreement and any Notes Terms Agreement or Units
Terms Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers, directors and
controlling persons referred to in Section 6 and the purchasers of Notes and
Units (to the extent expressly provided in Section 4), and no other person will
have any right or obligation hereunder.
33
12. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
34
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.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:___________________
Name:
Title:
MORGAN STANLEY BANK AG
By:___________________
Name:
Title:
MORGAN STANLEY S.A.
By:___________________
Name:
Title:
35
BANK MORGAN STANLEY AG
By:___________________
Name:
Title:
36
EXHIBIT A
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
NOTES TERMS AGREEMENT
_______________, 19__
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated May 6, 1999
(the "Euro Distribution Agreement")
The undersigned agrees to purchase your Global Medium-Term
Notes, Series [D/E], having the following terms:
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is so terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
A-2
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ________________.
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
------------------------
Name:
Title:
MORGAN STANLEY BANK AG
By:
------------------------
Name:
Title:
MORGAN STANLEY S.A.
By:
------------------------
Name:
Title:
BANK MORGAN STANLEY AG
By:
------------------------
Name:
Title:
Accepted:
MORGAN STANLEY DEAN WITTER
& CO.
By:
--------------------------------------------------
Name:
Title:
A-3
EXHIBIT A-1
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL UNITS, SERIES D AND SERIES E
UNITS TERMS AGREEMENT
_______________, 19 __
Morgan Stanley Dean Witter & Co.
1585 Broadway
New York, New York 10036
Attention:
Re: Euro Distribution Agreement dated May 6, 1999
(the "Euro Distribution Agreement")
The undersigned agrees to purchase your Global Units, Series
[D/E], [specified designation] having the following terms:
----------
(1) Applicable to Call Warrants
(2) Applicable to Put Warrants
(3) Applicable to Put Warrants only if such Put Warrants contemplate that the
holder deliver Warrant Property to settle Put Warrants
A-1-2
The provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and
10 through 14 of the Euro Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is also subject to termination on the terms
incorporated by reference herein. If this Agreement is terminated, the
provisions of Sections 3(g), 6, 10, 11 and 13 of the Euro Distribution
Agreement shall survive for the purposes of this Agreement.
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Euro Distribution Agreement will be
required: ___________.
A-1-3
MORGAN STANLEY & CO.
INTERNATIONAL LIMITED
By:
------------------------
Name:
Title:
MORGAN STANLEY BANK AG
By:
------------------------
Name:
Title:
MORGAN STANLEY S.A.
By:
------------------------
Name:
Title:
BANK MORGAN STANLEY AG
By:
------------------------
Name:
Title:
Accepted:
MORGAN STANLEY DEAN WITTER
& CO.
By:
-----------------------------
Name:
Title:
EXHIBIT B
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL MEDIUM-TERM NOTES, SERIES D AND SERIES E
GLOBAL UNITS, SERIES D AND SERIES E
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific
terms of the offering of (i) Global Medium-Term Notes, Series D (the "Series D
Notes"), (ii) Global Medium-Term Notes, Series E (the "Series E Notes" and
together with the Series D Notes, the "Notes"), (iii) Global Units, Series D
(the "Series D Units") and (iv) Global Units, Series E (the "Series E Units"
and together with the Series D Units, the "Units", and the Units together with
the Notes, the "Program Securities"), on a continuous basis by Morgan Stanley
Dean Witter & Co. (the "Company") pursuant to the Euro Distribution Agreement
dated May 6, 1999 (as may be amended from time to time, the "Distribution
Agreement") among the Company, Morgan Stanley & Co. International Limited,
Morgan Stanley Bank AG, Morgan Stanley S.A. and Bank Morgan Stanley AG
(collectively or individually the "Agent" as the context requires). The Notes
may be issued, either alone or as part of a Unit, in registered form without
coupons ("Registered Notes"), in bearer form with or without coupons ("Bearer
Notes") or in any combination of Registered Notes and Bearer Notes. The Units
may be issued in registered form ("Registered Units"), in bearer form ("Bearer
Units") or in any combination of Registered Units and Bearer Units. The
securities comprised by a Unit will be issued in the same form as such Unit.
Bearer Notes and Bearer Units initially will be represented by, in the case of
Bearer Notes, a Temporary Global Note and, in the case of Bearer Units, a
Temporary Global Unit. Such Temporary Global Note and Temporary Global Unit
will subsequently be represented by, in the case of the Temporary Global Note,
a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Interests in a Permanent Global Note may be exchanged,
in whole, for individual definitive Bearer Notes. Definitive Bearer Notes may
be exchanged, if the applicable Pricing Supplement so specifies, in whole or
in part, for Registered Notes. Interests in a Permanent Global Unit may be
exchanged, in whole, for individual definitive Bearer Units. Definitive
Bearer Units may be exchanged, if the applicable Pricing Supplement so
specifies, in whole or in part, for Registered Units.
The Notes may be issued, either alone or as part of a Unit, as
senior indebtedness (the "Senior Notes") or subordinated indebtedness (the
"Subordinated Notes") of the Company, and as used herein the term "Notes"
includes the Senior Notes and the Subordinated Notes. The Senior Notes will be
issued, either alone or as part of a Unit, pursuant to the provisions of an
amended and restated senior indenture, dated May 1, 1999 (as it may be
supplemented or amended from time to time, the "Senior Debt Indenture"),
between the Company and The Chase Manhattan Bank as trustee (the "Senior Debt
Trustee"). The Subordinated Notes will be issued pursuant to the provisions
of an amended and restated subordinated indenture, dated as of May 1, 1999 (as
it may be supplemented or amended from time to time, the "Subordinated Debt
Indenture"), between the Company and The First National Bank of Chicago, as
trustee. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." Purchase Contracts that require holders to
satisfy their obligations thereunder when such Purchase Contracts are issued
("Pre-paid Purchase Contracts") will be issued under an Indenture.
Unless otherwise specified in the applicable Pricing Supplement,
the Units will be issued (1) pursuant to the Unit Agreement dated as of May 6,
1999, among the Company, The Chase Manhattan Bank, as Unit Agent, as Collateral
Agent, as Trustee under the Indenture referred to therein, and as Warrant Agent
under the Warrant Agreement referred to therein and the holders from time to
time of the Units described therein (as may be amended from time to time, the
"Unit Agreement") or (ii) if Units do not include Purchase Contracts (other than
Pre-paid Purchase Contracts), pursuant to a unit agreement among the Company,
The Chase Manhattan Bank, as Unit Agent, as Trustee under the Indenture referred
to therein, and as Warrant Agent under the Warrant Agreement referred to therein
in the form of such agreement filed as an exhibit to the Registration Statement
(each such agreement, a "Unit Agreement Without Holders' Obligations"). Units
may include one or more (i) Series D & E Notes, (ii) warrants ("Universal
Warrants") entitling the holders thereof to purchase or sell (a) securities of
an entity unaffiliated with the Company, a basket of such securities, an index
or indices of such securities or any combination of the above, (b) currencies or
(c) commodities, (iii) purchase contracts ("Purchase Contracts"), including
Pre-paid Purchase Contracts, requiring the holders thereof to purchase or sell
(a) securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (b) currencies or (c) commodities or (iv) any combination thereof. The
applicable Pricing Supplement will specify whether or not any Notes, Universal
Warrants and Purchase Contracts comprised by a Unit may or may not be separated
from the Unit. Universal Warrants issued as part of a Unit will be issued
pursuant to the Universal Warrant Agreement dated as of May 6, 1999, between the
Company and The Chase
Manhattan Bank, as Warrant Agent (as may be amended from time to time, the
"Universal Warrant Agreement"). Purchase Contracts, other than Pre-paid Purchase
Contracts, entered into by the Company and the holders thereof will be governed
by the Unit Agreement.
In the Distribution Agreement, the Agent has agreed to use
reasonable efforts to solicit purchases of the Notes and the Units, and the
administrative procedures explained below will govern the issuance and
settlement of any Notes or Units sold through the Agent, as agent of the
Company. The Agent, as principal, may also purchase Notes or Units for its
own account, and if requested by the Agent, the Company and the Agent will
enter into a terms agreement (in the case of Notes, a "Notes Terms Agreement"
and, in the case of Units, a "Units Terms Agreement"), as contemplated by the
Distribution Agreement. The administrative procedures explained below will
govern the issuance and settlement of any Notes or Units purchased by the
Agent, as principal, unless otherwise specified in the applicable Notes Terms
Agreement or Units Terms Agreement.
Chase has initially been appointed the (i) Calculation Agent,
Authenticating Agent and Principal Paying Agent for the Notes, (ii) the Unit
Agent for the Units, (iii) the Warrant Agent for the Universal Warrants and
(iv) the Registrar for the Registered Notes, and will perform the duties
specified herein. As used herein, the term "Principal Paying Agent" shall
mean Chase acting through its London office in connection with the
authentication and delivery of the Notes, whether issued alone or as part of a
Unit, pursuant to the terms of the Indentures and the term "Unit Agent" shall
mean Chase acting through its London office in connection with the completion
and delivery of the Units (including, as applicable, countersigning and
delivering any Universal Warrants, as Warrant Agent, and countersigning,
executing and delivering any Purchase Contracts, as Unit Agent, includable in
such Unit), pursuant to the terms of the Unit Agreements. "Warrant Agent"
shall mean Chase acting through its London office. The Series D Notes and the
Series D Units are intended to be listed on The London Stock Exchange Limited
(the "London Stock Exchange"). Application may, in certain circumstances
described in the Prospectus Supplement relating to the Notes and the Units
(the "Prospectus Supplement"), be made to list Series D Notes and Series D
Units on the Bourse de Paris (the "Paris Bourse"). The Series E Notes and the
Series E Units will not be listed on any stock exchange. The Company has
appointed Morgan Stanley & Co. International Limited as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the London
Stock Exchange and has appointed Morgan Stanley S.A. as the listing agent for
purposes of listing the Series D Notes and the Series D Units on the Paris
Bourse.
B-3
Each Bearer Note and each Bearer Unit (including each security
comprised by such Bearer Unit) initially will be represented by, in the case
of a Bearer Note, a Temporary Global Note and, in the case of a Bearer Unit, a
Temporary Global Unit, each of which will be delivered to a common depositary
located outside the United States (the "Depositary") for Morgan Guaranty Trust
Company of New York, Brussels office, as operator of the Euroclear System (the
"Euroclear Operator"), Cedelbank and/or any other relevant clearing system
(including Societe Interprofessionalle pour la Compensation des Valeures
Mobilieres ("SICOVAM")). Such Temporary Global Note and Temporary Global Unit
will subsequently be represented by, in the case of the Temporary Global Note,
a Permanent Global Note and, in the case of the Temporary Global Unit, a
Permanent Global Unit. Upon the first request by any beneficial owner to
exchange any interest in a Permanent Global Note to a definitive Bearer Note,
or if any Note represented by such Permanent Global Note is accelerated
following an event of default with respect to such Note or if either
Euroclear, Cedelbank or any other relevant clearing system is closed for
business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so, then all (and not less than all) interests in such Permanent
Global Note shall be exchanged for definitive Bearer Notes; provided that, if
the applicable Pricing Supplement so specifies, nothing herein shall prevent
the further exchange of definitive Bearer Notes for Registered Notes. Upon the
first request by any beneficial owner to exchange any interest in a Permanent
Global Unit to a definitive Bearer Unit, or if any Note comprised by such
Permanent Global Note is accelerated following an event of default with
respect to such Note or if either Euroclear, Cedelbank or any other relevant
clearing system is closed for business for a continuous period of fourteen
days (other than by reason of public holidays) or announces an intention to
cease business permanently or in fact does so, then all (and not less than
all) interests in such Permanent Global Unit shall be exchanged for definitive
Bearer Units; provided that, if the applicable Pricing Supplement so
specifies, nothing herein shall prevent the further exchange of definitive
Bearer Units for Registered Units.
Unless otherwise defined herein, terms defined in the
Indentures, the Unit Agreement, the Unit Agreement Without Holders'
Obligations, the Universal Warrant Agreement, the Notes, the Units, the
Universal Warrants, the Purchase Contracts or any Prospectus Supplement
relating to the Notes and Units shall be used herein as therein defined.
The Company will advise the Agent in writing of the employees
of the Company with whom the Agent is to communicate regarding offers to
purchase Notes and Units, and the related settlement details.
B-4
ADMINISTRATIVE PROCEDURES FOR
BEARER NOTES, REGISTERED NOTES,
BEARER UNITS AND REGISTERED UNITS
Issuance: Bearer Notes. Each Bearer Note, whether
issued alone or as part of a Unit, will be
dated as of its Original Issue Date. Each
Bearer Note will bear an Original Issue
Date, which will be (i) with respect to a
Temporary Global Note (or any portion
thereof), the date of its original issue as
specified in such Temporary Global Note or
(ii) with respect to any Permanent Global
Note or any definitive Bearer Note (or any
portion thereof) issued subsequently upon
transfer or exchange of a Bearer Note or in
lieu of a destroyed, lost or stolen Bearer
Note (a "Replacement Bearer Note"), the
Original Issue Date of the predecessor
Bearer Note, regardless of the date of
authentication of such subsequently issued
Bearer Note.
Registered Notes. Each Registered Note,
whether issued alone or as part of a Unit,
will be dated as of the date of its
authentication by Chase. Each Registered
Note will also bear an Original Issue Date,
which will be (i) with respect to an
original Registered Note (an "Original
Registered Note") (or any portion
thereof), its original issuance date
(which will be the settlement date) and
(ii) with respect to any Registered Note
(or portion thereof) issued subsequently
upon transfer or exchange of a Registered
Note or in lieu of a destroyed, lost or
stolen Registered Note (a "Replacement
Registered Note"), the original issuance
date of the predecessor Registered Note,
regardless of the date of authentication
of such subsequently issued Registered
Note.
B-5
Bearer Units. Each Bearer Unit (whether in
temporary, permanent or definitive form)
will be deemed to be dated as of the
Original Issue Date of the Bearer Note
comprised by such Unit or, if there is no
such underlying Bearer Note, the date of
the other securities comprised thereby in
accordance with the procedures described
above.
Registered Units. Each Registered Unit
will be deemed to be dated as of the
Original Issue Date of the Registered Note
comprised by such Unit or, if there is no
such underlying Registered Note, as of the
date of the other securities comprised
thereby in accordance with the procedures
described above.
Denominations: Bearer Notes. Unless otherwise specified
in the applicable Pricing Supplement,
Bearer Notes, whether issued alone or as
part of a Unit, will be issued only in
denominations of $1,000 (or, in the case
of Bearer Notes not denominated in U.S.
dollars, the equivalent thereof in the
Specified Currency, rounded to the nearest
1,000 units of the Specified Currency) or
any amount in excess thereof which is an
integral multiple of $1,000 (or, in the
case of Bearer Notes not denominated in
U.S. dollars, 1,000 units of the Specified
Currency).
Registered Notes. Unless otherwise
specified in the applicable Pricing
Supplement, Registered Notes will be
issued, either alone or as part of a Unit,
only in denominations of $1,000 (or, in
the case of Registered Notes not
denominated in U.S. dollars, the
equivalent thereof in the Specified
Currency, rounded to the nearest 1,000
units of the Specified Currency) or any
amount in excess thereof which is an
integral multiple of $1,000 (or, in the
case of
B-6
Registered Notes not denominated
in U.S. dollars, 1,000 units of the
Specified Currency).
Bearer Units. Unless otherwise specified
in the applicable Pricing Supplement,
Bearer Units will be issued only in
denominations of a single Unit and any
integral multiple thereof, with face
amounts in denominations as indicated in
the applicable Pricing Supplement,
generally corresponding to the
denominations of any Notes or other
securities comprised by such Units.
Registered Units. Unless otherwise
specified in the applicable Pricing
Supplement, Registered Units will be issued
only in denominations of a single Unit and
any integral multiple thereof, with face
amounts in denominations as indicated in
the applicable Pricing Supplement,
generally corresponding to the
denominations of any Notes or other
securities comprised by such Units.
Global Notes and
Definitive Bearer
and Registered Notes: Until Final Certification (as defined
below) with respect to an issuance of
Bearer Notes has occurred, such Notes,
together with all other Bearer Notes that
have the same terms (other than their
respective principal amounts) (all such
Notes herein referred to collectively as a
"Note Tranche"), will be represented by a
single Temporary Global Note in bearer
form without interest coupons. The
Company shall execute, and upon Company
instructions the Principal Paying Agent
shall complete and authenticate, such
Temporary Global Note upon the same
conditions and in substantially the same
manner, and with the same effect, as an
individual definitive Bearer Note. On or
B-7
prior to the settlement date (which will
normally be the Original Issue Date) with
respect to such Notes, the Principal
Paying Agent shall deposit the Temporary
Global Note with the Depositary in the
manner specified below under "Settlement
Procedures; Bearer Notes and Bearer
Units". The interest of each beneficial
owner of Notes represented by such
Temporary Global Note will be credited to
the appropriate account with Cedelbank,
the Euroclear Operator or any other
relevant clearing system.
On or after the date (the "Exchange Date")
that is the 40th day following the date on
which the Company receives the proceeds of
the sale of a Temporary Global Note (the
"Closing Date"), or if such Note is held by
the Agent as part of an unsold allotment or
subscription more than 40 days after the
Closing Date for such Note, on or after the
day after the date such Note is sold by the
Agent, all as notified by the Agent in
writing to Chase, the interest of the
beneficial owners of the Notes represented
by the Temporary Global Note shall be
canceled and such interests shall
thereafter be represented by a Permanent
Global Note in bearer form without
interest coupons held in London by the
Depositary; provided that Final
Certification (as described below) has
occurred. The interest of each beneficial
owner of Notes represented by such
Permanent Global Note will be credited to
the appropriate account with Cedelbank, the
Euroclear Operator or any other relevant
clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any
time, upon 30 days' written notice to the
Principal Paying Agent given by such
B-8
beneficial owner through either Cedelbank,
the Euroclear Operator or any other
relevant clearing system, as the case may
be, or if any Note represented by such
Permanent Global Note is accelerated
following an event of default with respect
to such Note or if either Euroclear,
Cedelbank or any other relevant clearing
system is closed for business for a
continuous period of fourteen days (other
than by reason of public holidays) or
announces an intention to cease business
permanently or in fact does so, such
Permanent Global Note shall be exchanged
for one or more definitive Bearer Notes
with coupons attached, if appropriate, or,
if the applicable Pricing Supplement so
specifies, one or more Registered Notes in
authorized denominations equal in
aggregate principal amount to such
beneficial interest; provided that any
such exchange of an interest in a
Permanent Global Note for a definitive
Bearer Note shall result in the exchange of
all (and not less than all) interests in
such Permanent Global Note for definitive
Bearer Notes; provided further, that, if
the applicable Pricing Supplement so
specifies, nothing herein shall prevent
the further exchange of definitive Bearer
Notes for Registered Notes. To effect
such exchange, the interest of such
beneficial owner in such Permanent Global
Note shall be canceled and one or more
definitive Bearer Notes or Registered
Notes, as the case may be, shall be issued
to such beneficial owner, through the
Euroclear Operator or Cedelbank or any
other relevant clearing system, as the case
may be.
In all events, Bearer Notes and coupons
will be delivered by the Principal Paying
Agent only outside the United States.
B-9
Global Units and
Definitive Bearer
and Registered Units: Until Final Certification (as defined
below) has occurred with respect to an
issuance of Bearer Notes included in an
issuance of Bearer Units, such Units,
together with all other Bearer Units that
include securities that have the same
terms (other than their respective number
and face amounts) (all such Units herein
referred to collectively as a "Unit
Tranche"), will be represented by a single
Temporary Global Unit in bearer form
(which form shall include the corresponding
temporary global forms of each security
comprised by such Unit). The Company
shall execute, and upon Company
instructions, Chase, as Unit Agent, shall
complete such Temporary Global Unit
(including, as applicable, authenticating
any Temporary Global Note, as Principal
Paying Agent, countersigning and
delivering any Universal Warrants, as
Warrant Agent, and countersigning,
executing and delivering any Purchase
Contracts, as Unit Agent, includable in
such Unit) upon the same conditions and in
substantially the same manner, and with
the same effect, as an individual
definitive Bearer Unit. On or prior to
the settlement date (which will normally
be the Original Issue Date of the Note
comprised by a Unit or, if there is no
such underlying Note, the date of the other
securities comprised thereby) with respect
to such Units, the Unit Agent shall
deposit the Temporary Global Unit (with the
corresponding temporary global forms of
each security comprised by such Unit) with
the Depositary in the manner specified
below under "Settlement Procedures; Bearer
Notes and Bearer Units". The interest of
each beneficial owner of Units represented
by such Temporary Global Unit will be
credited to the appropriate account with
B-10
Cedelbank, the Euroclear Operator or any
other relevant clearing system.
On or after the Exchange Date of any
Temporary Global Note comprised by a
Temporary Global Unit, the interest of the
beneficial owners of the Units represented
by the Temporary Global Unit shall be
canceled and such interests shall
thereafter be represented by a Permanent
Global Unit in bearer form (with the
corresponding temporary global forms of
each security comprised by such Unit) held
in London by the Depositary; provided that
Final Certification (as described below)
of any Notes comprised by such Unit has
occurred. The interest of each beneficial
owner of Units represented by such
Permanent Global Unit will be credited to
the appropriate account with Cedelbank,
the Euroclear Operator or any other
relevant clearing system.
If the beneficial owner of an interest in a
Permanent Global Note requests, at any
time, upon 30 days' written notice to the
Unit Agent given by such beneficial owner
through either Cedelbank, the Euroclear
Operator or any other relevant clearing
system, as the case may be, or if any Note
comprised by such Permanent Global Note
is accelerated following an event of
default with respect to such Note or if
either Euroclear, Cedelbank or any other
relevant clearing system is closed for
business for a continuous period of
fourteen days (other than by reason of
public holidays) or announces an intention
to cease business permanently or in fact
does so, such Permanent Global Unit shall
be exchanged for one or more definitive
Bearer Units or, if the applicable Pricing
Supplement so specifies, one or more
Registered Units in authorized
B-11
denominations equal in aggregate number
and aggregate face amount to such
beneficial interest; provided that any
such exchange any an interest in a
Permanent Global Unit for a definitive
Bearer Unit shall result in the exchange
of all (and not less than all) interests
in such Permanent Global Unit for
definitive Bearer Units; provided further,
that, if the applicable Pricing Supplement
so specifies, nothing herein shall prevent
the further exchange of definitive Bearer
Units for Registered Units. To effect
such exchange, the interest of such
beneficial owner in such Permanent Global
Unit shall be canceled and one or more
definitive Bearer Units or Registered
Units, as the case may be, shall be issued
to such beneficial owner, through the
Euroclear Operator or Cedelbank or any
other relevant clearing system, as the
case may be.
In all events, Bearer Units will be
delivered by the Unit Agent only outside
the United States.
Notes or Units Purchased
by U.S. Persons: All Notes (whether issued alone or as part
of a Unit) purchased in connection with
their original issuance by or on behalf of
a U.S. Person (as defined in the
Distribution Agreement) (other than a
branch of a United States financial
institution (as defined in the applicable
United States Treasury Regulation section)
located outside the United States
purchasing for its own account or for
resale (a "Qualifying Foreign Branch") or
other permitted U.S. purchasers as
provided in the Prospectus Supplement that
satisfies the conditions for receiving
Bearer Notes as described under "Final
Certification" below) will be issued only
as Registered Notes and any Units
B-12
comprising such Notes will be issued only
as Registered Units.
Final Certification: Final Certification with respect to a
Temporary Global Note (whether issued
alone or as part of a Unit) shall mean the
delivery by the Euroclear Operator,
Cedelbank or any other relevant clearing
system, as the case may be, to the
Principal Paying Agent of a signed
certificate (each a "Clearance System
Certificate") in the form set forth in
Appendix 1 hereto with respect to the
Notes being exchanged, dated no earlier
than the Exchange Date for such Notes, to
the effect that the Euroclear Operator,
Cedelbank or any other relevant clearing
system, as the case may be, has received
certificates in writing, by tested telex
or by electronic transmission from the
account holders appearing on its records as
entitled to such Notes ("Ownership
Certificates") in the form set forth in
Appendix 2 hereto with respect to each of
such Notes, which Ownership Certificates
shall be dated no earlier than ten days
before the Exchange Date.
Preparation of
Pricing Supplement: If any offer to purchase a Program Security
is accepted by or on behalf of the Company,
the Company will prepare a pricing
supplement (a "Pricing Supplement")
reflecting the terms of such Program
Security, will arrange to file an
electronic format document, in the manner
prescribed by the EDGAR Filer Manual, of
such Pricing Supplement with the
Commission in accordance with the
applicable paragraph of Rule 424(b) under
the Act and will, as soon as possible and
in any event not later than the date on
which such Pricing Supplement is filed
with the Commission, deliver the number of
copies of such Pricing Supplement to the
B-13
Agent as the Agent shall request. The
Agent will cause such Pricing Supplement
to be delivered to the purchaser of the
Program Security.
In each instance that a Pricing Supplement
is prepared, the Agent will affix the
Pricing Supplement to Prospectuses prior
to their use. Outdated Pricing
Supplements, and the Prospectuses to which
they are attached (other than those
retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for (i) the
delivery of an authenticated Temporary
Global Note or a Temporary Global Unit
(including each security comprised by such
Unit) to the Depositary in the manner
described in "Settlement Procedures; Bearer
Notes and Bearer Units" below or (ii) the
delivery of an authenticated Registered
Note or a Registered Unit (including each
security comprised by such Unit) to the
Agent shall constitute "settlement" with
respect to such Note or Unit. All offers
accepted by the Company will be settled on
the fifth Business Day next succeeding the
date of acceptance pursuant to the
timetable for settlement set forth below,
unless the Company and the purchaser agree
to settlement on another day, which shall
be no earlier than the next Business Day.
Settlement
Procedures;
Bearer Notes
and Bearer Units: Procedures with regard to each Bearer Note
or Bearer Unit sold by the Company to or
through the Agent (unless otherwise
specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement)
shall be as follows:
B-14
A. In the case of a Bearer Note (whether
issued alone or as part of a Unit),
the Agent will advise the Company by
telephone that such Note, is
initially a Bearer Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. Interest Payment Date(s).
4. In the case of a Fixed Rate
Bearer Note, whether such Note
is an Amortizing Note, and, if
so, the amortization schedule,
or, in the case of a Floating
Rate Bearer Note, the Initial
Interest Rate (if known at
such time), Interest Payment
Period, Calculation Agent,
Base Rate, Index Maturity,
Index Currency, Interest Reset
Period, Initial Interest Reset
Date, Interest Reset Dates,
Spread or Spread Multiplier
(if any), Minimum Interest
Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread
(if any).
5. Redemption or repayment
provisions, if any.
6. Ranking.
7. Settlement date and time
(Original Issue Date).
8. Interest Accrual Date.
B-15
9. Price.
10. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
11. Specified Currency.
12. Whether the Note is an
Original Issue Discount Note
(an "OID Note"), and if it is
an OID Note, the applicability
of Modified Payment upon
Acceleration (and, if so, the
Issue Price).
13. Agent's account number at
Cedelbank, the Euroclear
Operator or any other relevant
clearing system.
14. Whether such Note is a Series
D Note or a Series E Note.
15. Any other applicable
provisions.
B. In the case of a Bearer Unit, the
Agent will advise the Company by
telephone that such Unit is
initially a Bearer Unit, of the
information set forth in Settlement
Procedures; Bearer Notes and Bearer
Units "A" above with respect to
Bearer Notes that constitute a part
of such Bearer Unit and of the
following information:
1. Settlement date and time.
2. Face Amount.
B-16
3. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
4. Designation of the Securities
comprised by such Units:
a. Notes (See "Settlement
Procedures; Bearer Notes
and Bearer Units" "A" );
b. Universal Warrants, if
any; and
c. Purchase Contracts, if
any.
5. Whether, and the terms under
which, the Securities
comprised by such Unit will
be separately tradeable.
6. Any other provisions
applicable to the Unit (other
than those provisions
applicable to the securities
comprised by such Unit).
7. If the Bearer Unit comprises
Bearer Universal Warrants:
a. Designation of the
Series of Universal
Warrants: [Call] [Put]
Universal Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
B-17
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.
B-18
o. Any other applicable
provisions.
8. If the Bearer Unit comprises
Bearer Purchase Contracts:
a. Purchase Contract
Property: Quantity;
b. Purchase Price;
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of Settlement
Payment;
h. Authorized Number of
Purchase Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions;
and
j. Any other applicable
provisions.
B-19
C. The Company will advise Chase as the
Principal Paying Agent for the Notes
or as the Unit Agent for the Units
by telephone or electronic
transmission (confirmed in writing at
any time on the same date) of the
information set forth in "Settlement
Procedures; Bearer Notes and Bearer
Units" "A" or "B", above, as
applicable, and shall give the
Principal Paying Agent or the Unit
Agent, as the case may be, written
instructions (substantially in the
form set out in Appendix 3 and
Appendix 4, as applicable) to
prepare a Temporary Global Note for
each Note Tranche or a Temporary
Global Unit (with the corresponding
temporary global forms of each
security comprised by such Unit) for
each Unit Tranche, as the case may
be, which the Company has agreed to
sell. The Company will send a copy
of such instructions to the Agent and
the relevant Trustee.
The Principal Paying Agent or the
Unit Agent shall telephone each of
the Euroclear Operator, Cedelbank or
any other relevant clearing system
with a request for a security code
for each Note Tranche or Unit Tranche
(and, if applicable, a security code
for each security comprised by the
Units of such Unit Tranche) agreed
to be issued and shall notify the
Company and the Agent of such
security code or codes as soon as
practicable.
D. In accordance with instructions
received from the Company, (i) the
Principal Paying Agent shall
B-20
authenticate and deliver a Temporary
Global Note for each Note Tranche
or Unit Tranche, as applicable, which
the Company has agreed to sell and
(ii) the Unit Agent shall prepare a
Temporary Global Unit for each Unit
Tranche for which the Company has
agreed to sell (including, as
applicable, by countersigning and
delivering any Universal Warrants
includable in such Unit, by
countersigning, executing and
delivering and Purchase Contracts
includable in such Unit and by
obtaining from the Principal Paying
Agent any Notes to be included in
such Units, authenticated in
accordance with clause (i) above).
The settlement of each of the Note
Tranche and the Unit Tranche is to
occur on the relevant settlement
date. All such Temporary Global
Notes and all such Temporary Global
Units (including all of the
securities included in such Units)
will then be delivered to the
Depositary. The Principal Paying
Agent or the Unit Agent, as the case
may be, will also give instructions
to the Euroclear Operator, Cedelbank
or any other relevant clearing
system to credit the Notes or Units
represented by such Temporary Global
Note or Temporary Global Unit
delivered to such Depositary to, in
the case of the Notes, the Principal
Paying Agent's distribution account
and, in the case of the Units, the
Unit Agent's distribution account,
at the Euroclear Operator, Cedelbank
or any other relevant clearing
system. At settlement of any Note
Tranche, the Principal Paying Agent
will instruct the Euroclear
B-21
Operator, Cedelbank or any other
relevant clearing system to debit,
on the settlement date, from the
distribution account of the
Principal Paying Agent the principal
amount of Notes of each Note
Tranche, with respect to which the
Agent has solicited an offer to
purchase and to credit, on the
settlement date, such principal
amount to the account of the Agent
with the Euroclear Operator,
Cedelbank or any other relevant
clearing system against payment of
the purchase payment price of such
Notes. At settlement of any Unit
Tranche, the Unit Agent will instruct
the Euroclear Operator, Cedelbank or
any other relevant clearing system to
debit, on the settlement date, from
the distribution account of the Unit
Agent the number and face amount of
Units of each Unit Tranche, with
respect to which the Agent has
solicited an offer to purchase and to
credit, on the settlement date, such
number and face amount to the
account of the Agent with the
Euroclear Operator, Cedelbank or any
other relevant clearing system
against payment of the purchase
payment price of such Units. In the
case of the Notes and the Units, the
Agent shall give corresponding
instructions to the Euroclear
Operator, Cedelbank or any other
relevant clearing system.
E. The Euroclear Operator, Cedelbank
and any other relevant clearing
system shall debit and credit
accounts in accordance with
instructions received from the
B-22
Principal Paying Agent and the
Agent, in the case of Notes and the
Unit Agent and the Agent, in the
case of Units.
Each of the Principal Paying Agent
and the Unit Agent shall pay the
Company the aggregate net proceeds
received by it in immediately
available funds via a transfer of
funds to the U.S. dollar account of
the Company with a bank in New York
City (or, with respect to Notes and
Units payable in a Specified
Currency other than U.S. dollars, to
an account maintained at a bank
selected by the Company, which bank
shall be located outside the United
Kingdom in the case of Notes and
Units payable in a Specified
Currency other than pounds sterling
that mature not later than five years
from and including the date of issue
thereof) designated by the Company
in writing.
Settlement Procedures
Timetable; Bearer Notes
and Bearer Units: For sales by the Company of Bearer Notes or
of Bearer Units to or through the Agent,
"Settlement Procedures; Bearer Notes and
Bearer Units" "A" through "E" above shall
be completed on or before the respective
times set forth below:
B-23
Settlement
Procedure;
Bearer Notes
and Bearer Units Time
A 12:00 P.M. (NYC time) three days
before settlement date
B 12:00 P.M. (NYC time) three days
before settlement date
C 9:00 A.M. (London time) two days
before settlement date
D 3:45 P.M. (London time) one day
before settlement date
E 5:00 P.M. (NYC time) on
settlement date
Settlement Procedures;
Registered Notes and
Registered Units: Settlement Procedures with regard to each
Registered Note and Registered Unit sold by
the Company to or through the Agent (unless
otherwise specified pursuant to a Notes Terms
Agreement or a Units Terms Agreement) shall
be as follows:
AA. In the case of a Registered Note
(whether issued alone or as part of a
Unit), the Agent will advise the
Company by telephone that such Note is
a Registered Note and of the following
settlement information:
1. Name in which such Note is to be
registered ("Registered Note
Owner").
2. Address of the Registered Note
Owner and address for payment of
principal and interest.
B-24
3. Taxpayer identification number
of the Registered Note Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. Interest Payment Date(s)
7. In the case of a Fixed Rate
Registered Note, the Interest
Rate, whether such Note is an
Amortizing Note and, if so, the
amortization schedule, or, in the
case of a Floating Rate
Registered Note, the Initial
Interest Rate (if known at such
time), Interest Payment Period,
Calculation Agent, Base Rate,
Index Maturity, Index Currency,
Interest Reset Period, Initial
Interest Reset Date, Interest
Reset Dates, Spread or Spread
Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if
any).
8. Redemption or repayment
provisions (if any).
9. Ranking.
10. Settlement date and time
(Original Issue Date).
11. Interest Accrual Date.
12. Price.
B-25
13. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
14. Denominations.
15. Specified Currency.
16. Whether the Note is an OID Note,
and if it is an OID Note, and the
applicability of Modified Payment
upon Acceleration (and if so, the
Issue Price).
17. Whether such Note is a Series D
Note or a Series E Note.
18. Any other applicable provisions.
BB. In the case of a Registered Unit, the
Agent will advise the Company by
telephone that such Unit is a Registered
Unit, of the information set forth in
"Settlement Procedures; Registered
Notes and Registered Units" "A" above
with respect to any Registered Notes
that constitute a part of such
Registered Unit and of the following
information:
1. Name in which such Unit is to be
registered ("Registered Unit
Owner").
2. Address of the Registered Unit
Owner.
3. Taxpayer identification number
of the Registered Unit Owner (if
available).
4. Denominations.
5. Settlement date and time.
B-26
6. Number of Units (and Face Amount).
7. Agent's commission, if any,
determined as provided in the
Distribution Agreement.
8. Designation of the Securities
comprised by such Units:
a. Notes, if any (See
"Settlement Procedures;
Registered Notes and
Registered Units" "A" );
b. Universal Warrants, if any;
and
c. Purchase Contracts, if any.
9. Any other provisions applicable
to the Unit (other than those
provisions applicable to the
securities comprised by such
Unit).
10. If the Registered Unit comprises
Registered Universal Warrants:
a. Designation of the Series
of Universal Warrants:
[Call][Put] Warrants;
b. Warrant Property;
c. Aggregate Number of
Universal Warrants;
d. Price to Public;
e. Universal Warrant Exercise
Price;
B-27
f. Dates upon which Universal
Warrants may be exercised;
g. Expiration Date;
h. Currency in which exercise
payments shall be made;
i. Minimum number of Universal
Warrants exercisable by
any holder on any day;
j. Maximum number of Universal
Warrants exercisable on any
day: [In the aggregate]
[By any beneficial owner];
k. Formula for determining
Cash Settlement Value;
l. Exchange Rate (or method of
calculation); and
m. Whether the Company or the
holder is the writer of the
warrant.
n. Any other applicable
provisions.
11. If the Registered Unit comprises
Registered Purchase Contracts:
a. Purchase Contract
Property: Quantity;
b. Purchase Price;
B-28
c. Settlement Date;
d. Payment Location;
e. Method of Settlement;
f. Method of Computing
Settlement Amount;
g. Currency of Settlement
Payment;
h. Authorized Number of
Purchase Contracts;
i. Aggregate Purchase Price;
j. Contract Fees;
k. Corporation Acceleration;
h. Holders' Acceleration;
i. Redemption Provisions; and
j. Any other applicable
provisions.
CC. The Company will advise Chase as
Principal Paying Agent for the Notes or
as Unit Agent for the Units, by
telephone or electronic transmission
(confirmed in writing at any time on
the same date) of the information set
forth in "Settlement Procedures;
Registered Notes and Registered Units"
"AA" and "BB" above, as applicable.
DD. The Company will have delivered to
Chase as Principal Paying Agent for the
Notes, or as Unit Agent for the Units, a
B-29
pre-printed four-ply packet for such
Note or such Unit, as the case may be,
which packet will contain the following
documents in forms that have been
approved by the Company, the Agent and
Chase, as Principal Paying Agent for
the Notes, or as Unit Agent for the
Units:
1. Note or Unit, as the case may be,
with customer confirmation.
2. Stub One - For Chase.
3. Stub Two - For the Agent.
4. Stub Three - For the Company.
EE. Chase will (i) authenticate and deliver
any Note (whether issued alone or as
part of a Unit) through the Principal
Paying Agent if necessary, with the
confirmation and Stubs One and Two to
the Agent, and (ii) complete and deliver
the Unit (including by countersigning
and delivering any Universal Warrant
includable in such Unit, by
countersigning, executing and delivering
any Purchase Contract includable in such
Unit and by obtaining from the Principal
Paying Agent any Notes to be included
in such Units, authenticated in
accordance with clause (i) above) with
the confirmation and Stubs One and Two
to the Agent. The Agent will
acknowledge receipt of the Note or the
Unit, as the case may be, by stamping or
otherwise marking Stub One and
returning it to Chase, through the
Principal Paying Agent, in the case of
the Notes, if necessary. Such delivery
will be made only against such
acknowledgment of receipt and evidence
that instructions have been given by the
B-30
Agent, with respect to Program
Securities denominated in U.S. dollars,
for payment to the account of the
Company at Chase, New York, New York
(or, with respect to Program Securities
payable in a Specified Currency other
than U.S. dollars, to an account
maintained at a bank selected by the
Company, which bank shall be located
outside the United Kingdom in the case
of Program Securities payable in a
Specified Currency other than pounds
sterling that mature not later than five
years from and including the date of
issue thereof), in immediately available
funds, of an amount equal to the
purchase price of such Program
Securities less the Agent's commission
(if any). In the event that the
instructions given by the Agent for
payment to the account of the Company
are revoked, the Company will as
promptly as possible wire transfer to
the account of the Agent an amount of
immediately available funds equal to the
amount of such payment made.
The Principal Paying Agent and the Unit
Agent shall pay the Company the
aggregate net proceeds received by it in
immediately available funds via a
transfer of funds to the U.S. dollar
account of the Company with Chase in
New York City (or, with respect to
Program Securities payable in a
Specified Currency other than U.S.
dollars, to an account maintained at a
bank selected by the Company which bank
shall be located outside the United
Kingdom in the case of Program
Securities payable in a Specified
Currency other than pounds sterling that
B-31
mature not later than five years
including the date of issue thereof).
FF. Unless the Agent purchased such Program
Securities as principal, the Agent will
deliver (with confirmation) such
Program Securities to the customer
against payment in immediately
available funds. The Agent will obtain
the acknowledgment of receipt of such
Program Securities by retaining Stub
Two.
GG. In the case of all Program Securities,
Chase will send Stub Three to the
Company by first-class mail.
Settlement Procedures
Timetable; Registered Notes
and Registered Units: For sales by the Company of Registered Notes
or Registered Units to or through the Agent,
"Settlement Procedures; Registered Notes and
Registered Units" "AA" through "GG" set forth
above shall be completed on or before the
respective times (London time) set forth
below:
Settlement Procedure;
Registered Notes
and Registered Units Time
AA 2:00 P.M. on second day
before settlement date
BB 2:00 P.M. on second day
before settlement date
CC 3:00 P.M. on second day
before settlement date
DD-EE 2:15 P.M. on settlement date
FF 3:00 P.M. on settlement date
GG 5:00 P.M. on settlement date
Failure to Settle: Bearer Notes and Bearer Units. If the Agent
shall have advanced its own funds for payment
against subsequent receipt of funds from the
B-32
purchaser and if a purchaser shall fail to
make payment for a Note or a Unit, the Agent
will promptly notify, in the case of a Note,
the Company, the Principal Paying Agent, the
Depositary and the Euroclear Operator,
Cedelbank and any other relevant clearing
system, and, in the case of the Unit, the
Company, the Unit Agent, the Depositary, and
the Euroclear Operator, Cedelbank and any
other relevant clearing system, in each case
by telephone, promptly confirmed in writing
(but no later than the next Business Day).
In such event, the Company shall promptly
instruct the Principal Paying Agent, in the
case of the Note, and the Unit Agent, in the
case of the Unit, to cancel the purchaser's
interest in the appropriate Temporary Global
Note representing such Note or the
appropriate Temporary Global Unit
representing such Unit. Upon (i) confirmation
from the Principal Paying Agent or the Unit
Agent in writing (which may be given by telex
or telecopy) that the Principal Paying Agent
or the Unit Agent has canceled such
purchaser's interest in such Temporary Global
Note or Temporary Global Unit, as the case
may be, and (ii) confirmation from the Agent
in writing (which may be given by telex or
telecopy) that the Agent has not received
payment from the purchaser for the Note or
the Unit, the Company will promptly pay to
the Agent an amount in immediately available
funds equal to the amount previously paid by
the Agent in respect of such Bearer Note or
Bearer Unit. Such payment will be made on
the settlement date, if possible, and in any
event not later than 12 noon (New York City
time) on the Business Day following the
settlement date. The Principal Paying Agent
or the Unit Agent, as the case may be, and the
Depositary will make or cause to be made such
revisions to such Temporary Global Note or
Temporary Global Unit as are necessary to
reflect the cancellation of such portion of
B-33
such Temporary Global Note or Temporary Global
Unit.
If a purchaser shall fail to make payment for
the Note or Unit for any reason other than a
default by the Agent in the performance of its
obligations hereunder and under the
Distribution Agreement, then the Company will
reimburse the Agent on an equitable basis for
the Agent's loss of the use of funds during
the period when they were credited to the
account of the Company, the Principal Paying
Agent or the Unit Agent, as applicable.
Immediately upon such cancellation, the
Principal Paying Agent or the Unit Agent, as
the case may be, will make appropriate
entries in its records to reflect the fact
that a settlement did not occur with respect
to such Note or Unit.
Registered Notes and Registered Units. If a
purchaser fails to accept delivery of and make
payment for any Registered Note or Registered
Unit, the Agent will notify the Company and
Chase, as Registrar of the Registered Notes
or as Unit Agent, by telephone and return
such Note or Unit to Chase through the
Principal Paying Agent, in the case of the
Notes or the Unit Agent, in the case of the
Units, if necessary. Upon receipt of such
notice, the Company will immediately wire
transfer to the account of the Agent an
amount equal to the amount previously
credited to the Company's account in respect
of such Note or Unit. Such wire transfer
will be made on the settlement date, if
possible, and in any event not later than the
Business Day following the settlement date.
If the failure shall have occurred for any
reason other than a default by the Agent in
the performance of its obligations hereunder
and under the Distribution Agreement, then
the Company will reimburse the Agent on an
equitable basis for its loss of the use of
the funds during the period when they were
B-34
credited to the account of the Company or
Chase. Immediately upon receipt of the
Registered Note or Registered Unit in respect
of which such failure occurred, Chase will
mark such Note or Unit "canceled," make
appropriate entries in Chase's records and
send such Note or Unit to the Company.
Notice of Issuance
London Stock Exchange: The Sponsoring Member Firm will provide
information with respect to the issuance of
each Series D Note and Series D Unit to the
London Stock Exchange or the Paris Bourse, as
the case may be, and will advise the Company
in writing as to the effectiveness of the
listing of such Series D Note and Series D
Unit by the close of business on the related
settlement date.
Listing: The Sponsoring Member Firm will, on a regular
basis, provide the London Stock Exchange or
the Paris Bourse, as the case may be with such
information regarding Series D Notes and
Series D Units issued and outstanding as such
exchange may require.
B-35
APPENDIX 1
[FORM OF CERTIFICATE TO BE GIVEN BY
THE EUROCLEAR OPERATOR, CEDELBANK AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley Dean Witter & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in Appendix 2 to Exhibit B to the Euro
Distribution Agreement relating to such Notes, as of the date hereof, [U.S.$]
__________ principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, any estate the income of which is subject
to United States Federal income taxation regardless of its source or a trust
if both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust ("United States persons"), (ii) is owned by United States persons that
are (a) foreign branches of United States financial institutions (as defined
in the applicable U.S. Treasury Regulations section) ("financial
institutions") purchasing for their own account or for resale, or (b) United
States persons who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or
(b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer or the Issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the U.S. Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) is owned by United States or foreign
financial institutions for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to
the further effect that United States or foreign financial institutions
described in clause (iii) above (whether or not also described in clause (i)
or (ii)) have certified that they have not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, seeking to collect principal or
interest with respect to) any portion of the temporary global Security
representing the above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) that as of the date hereof we
have not received any notification from any of our Member Organizations to the
effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith (or, if relevant, with respect to
which principal or interest is being requested) are no longer true and cannot
be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
2
Dated: _______________, 19__
[To be dated no earlier than
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, BRUSSELS
OFFICE, as Operator of the Euroclear
System]
[CEDELBANK]
[Other]
By_____________________
3
APPENDIX 2
[FORM OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER OF THE EUROCLEAR OPERATOR AND CEDELBANK
AND/OR ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
_________________________________________
Morgan Stanley Dean Witter & Co.
Global Medium-Term Notes, Series [D/E]
Represented by Temporary Global Note No __.
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations, any estate the income of
which is subject to United States Federal income taxation regardless of its
source or a trust if both (x) a court within the United States is able to
exercise primary supervision over the administration of the trust and (y) one
or more United States persons have the authority to control all substantial
decisions of the trust ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States financial
institutions (as defined in the applicable U.S. Treasury Regulations section)
("financial institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise the Issuer
or the Issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period
(as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and
in addition if the owner of the Securities is a United States or foreign
financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)) such financial institution has not acquired
the Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to [U.S.$]
__________ of such interest in the above Securities in respect of which we are
not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection
of any principal or interest) cannot be made until we do so certify.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the
United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________, 19__
[To be dated no earlier than
the 10th day before
[insert date of Interest Payment Date prior to Exchange Date]
[insert date of Redemption Date prior to Exchange Date]
[insert Exchange Date]]
[Name of Account Holder]
By_______________________
(Authorized Signatory)
Name:
Title:
2
APPENDIX 3
FORM OF COMPANY'S NOTICE TO PRINCIPAL PAYING AGENT
To: The Chase Manhattan Bank,
London Office
Attention:_____________________
_____________________
and with a copy to:
[The Chase Manhattan Bank, as Senior Debt Trustee]
[The First National Bank of Chicago, as
Subordinated Debt Trustee]
Re: Euro Distribution Agreement
dated May 6, 1999
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete, authenticate
and issue a Temporary Global Note in accordance with the terms of the [Notes
Terms Agreement dated _______,] Administrative Procedures and Euro
Distribution Agreement and to give instructions to the Euroclear Operator,
Cedelbank and/or any other relevant clearing system in order for you to:
(4) Credit account of [Name of Agent] with
[Euroclear/Cedelbank/Other](5) with the following
Bearer Notes:
----------
(4) Separate instructions are to be sent in respect of each offer accepted by
the Company. Repeat this information (numbering consecutively)
if Bearer Notes of more than one Note Tranche are to be issued
to an Agent.
(5) Delete as appropriate.
2
against payment of [ ].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By:_________________________________
_________________________________
3
APPENDIX 4
FORM OF COMPANY'S NOTICE TO UNIT AGENT
To: The Chase Manhattan Bank,
Attention:__________________
__________________
Re: Euro Distribution Agreement
dated May 6, 1999
Terms defined in the Administrative Procedures relating to the above Euro
Distribution Agreement have the same meanings herein.
We hereby confirm our telephone instruction to prepare, complete and issue a
Temporary Global Unit in accordance with the terms of the [Units Terms
Agreement dated _______,] Administrative Procedures and Euro Distribution
Agreement and to give instructions to the Euroclear Operator, Cedelbank and/or
any other relevant clearing system in order for you to:
(1) Credit account of [Name of Agent] with
[Euroclear/Cedelbank/Other](2) with the following Bearer Units:
----------
(1) Separate instructions are to be sent in respect of each offer accepted by
the Company. Repeat this information (numbering consecutively)
if Bearer Units of more than one Unit Tranche are to be issued
to an Agent.
(2) Delete as appropriate.
2
against payment of [ ].
Date:
MORGAN STANLEY DEAN WITTER & CO.
By:________________________________
________________________________
4