EXHIBIT 4-aa
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL SENIOR BULL NOTE
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES
OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO
OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO
A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN
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1 Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
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.
2
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Bull Note)
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
MATURITY DATE: INTEREST RATE: INTEREST PAYMENT PERIOD:
EUROCLEAR NO.: INITIAL REDEMPTION DATE: CALCULATION AGENT:
CEDELBANK NO.: INITIAL REDEMPTION SPECIFIED CURRENCY:
PERCENTAGE:
COMMON CODE: ANNUAL REDEMPTION INDEX CURRENCY:
PERCENTAGE REDUCTION:
ISIN: OPTIONAL REPAYMENT EXCHANGE RATE AGENT:
DATES(S):
REPORTING SERVICE: REDEMPTION PRICE: INDEX MATURITY:
PRINCIPAL AMOUNT: FINAL REDEMPTION PRICE: EXCHANGE FOR REGISTERED
NOTES [NO]3:
MINIMUM DENOMINATIONS: APPLICABILITY OF MODIFIED
PAYMENT UPON ACCELERATION OR
REDEMPTION
OTHER PROVISIONS: REDEMPTION NOTICE
PERIOD:4 IF YES STATE ISSUE PRICE:
Morgan Stanley Dean Witter & Co., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the Final Redemption Price
based on the principal amount as specified in [Schedule A hereto]5 [Schedule
A-1 hereto]6, on the Maturity Date specified above (except to the extent
previously redeemed or repaid) and to pay interest thereon at the Interest
Rate per annum specified above from and including the Interest Accrual Date
specified above until but excluding the date the Final Redemption Price is
paid or duly made available for payment (except as provided below) weekly,
monthly, quarterly, semi-annually or annually in arrears on the Interest
Payment Dates specified above, and at maturity (or on any redemption or
repayment date); provided, however, that if the Interest Accrual Date occurs
fifteen days or less prior to the first Interest Payment Date occurring
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3 Unless explicitly stated otherwise in term sheet, MSDW practice has been
to exclude this option.
4 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank
if a shorter redemption notice is requested, to a minimum of ten days.
5 Applies if this Note is not issued as part of, or in relation to, a Unit.
6 Applies if this Note is issued as part of, or in relation to, a Unit.
3
after the Interest Accrual Date, interest payments will commence on the second
Interest Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for,
or, if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the Final Redemption Price
is paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the
reverse of this Note) or at the office or agency of such other paying agents
outside the United States as the Issuer may determine for that purpose (each,
a "Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest
due at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as
provided on the reverse hereof. If this Note is denominated in U.S. dollars,
any payment of the principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Such payments on this Note will be made either by a check mailed to an address
outside the United States furnished by the payee or, at the option of the
payee and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States if
appropriate wire transfer instructions have been received by the Paying Agent
not less than 15 calendar days prior to the applicable payment date.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents would
be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the United States, if such paying agency, under applicable law and
regulations, would be able to make such payment. If this Note is denominated
in a Specified Currency other than U.S. dollars, then, except as provided on
the reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the payee
and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
5
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Authorized Officer
6
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, the "Senior Indenture"), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered. The
Issuer has appointed The Chase Manhattan Bank, London Branch, as its principal
paying agent for the Notes (the "Principal Paying Agent," which term includes
any additional or successor Principal Paying Agent appointed by the Issuer).
The terms of individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or otherwise, all as
provided in the Senior Indenture. To the extent not inconsistent herewith, the
terms of the Senior Indenture are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents
that it is not an authorized institution (for purposes of the United Kingdom
Banking Act 1987) nor a European authorized institution as defined by
Regulation 3 of the Banking Co-ordination (Second Council Directive)
Regulations 1992 and repayment of the principal of, and payment of any
interest or premium on, this Note has not been guaranteed, that it has
complied with its obligations under the listing rules of the London Stock
Exchange Limited (the "Rules") and that, since the last publication in
compliance with the Rules of information about it, it, having made all
reasonable inquiries, has not become aware of any change in circumstances
which could reasonably be regarded as significantly and adversely affecting
its ability to meet its obligations in respect of the Notes as they fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except
as set forth below, will not be redeemable or subject to repayment at the
option of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in
whole or in part at the option of the Issuer on or after the Initial
Redemption Date specified on the face hereof on the terms set forth on the
face hereof, together with interest accrued and unpaid hereon to the date of
redemption (except as indicated below). If this Note is subject to "Annual
Redemption Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the principal
amount hereof, together with interest accrued and unpaid hereon to the date of
redemption (except as provided below). Notice of redemption shall be mailed to
the holders of the Notes designated for redemption who have filed their names
and addresses with the Principal Paying Agent, not less than 30 nor more than
60 days prior to the date fixed for redemption or within the Redemption Notice
7
Period specified on the face hereof, subject to all the conditions and
provisions of the Senior Indenture. Notice of redemption to all other holders
of Notes shall be given in the manner set forth in "Notices" as defined below,
and, if by publication, shall be given once in each of the three successive
calendar weeks, the first publication to be not less than 30 nor more than 60
days prior to the date set for redemption or within the Redemption Notice
Period specified on the face hereof. In the event of redemption of this Note
in part only, the Principal Paying Agent shall cause Schedule A of this Note
to be endorsed to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of this Note so redeemed, whereupon
the principal amount hereof shall be reduced for all purposes by the amount so
redeemed and noted.
If so indicated on the face of this Note, this Note will be subject
to repayment at the option of the holder on the Optional Repayment Date or
Dates specified on the face hereof on the terms set forth herein. On any
Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 or, if this Note is denominated in a Specified Currency
other than U.S. dollars, in increments of 1,000 units of such Specified
Currency (provided that any remaining principal amount hereof shall not be
less than the minimum authorized denomination hereof) at the option of the
holder hereof at a price equal to 100% of the principal amount to be repaid,
together with interest accrued and unpaid hereon to the date of repayment
(except as provided below). For this Note to be repaid at the option of the
holder hereof, the Principal Paying Agent must receive at its office in
London, at least 15 but not more than 30 days prior to the date of repayment,
this Note with the form entitled "Option to Elect Repayment" below duly
completed or a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange, or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States, Western Europe or Japan setting forth the principal amount of the
Note, the principal amount of the Note to be repaid, the certificate number or
a description of the tenor and terms of this Note, a statement that the Option
to Elect Repayment is being exercised and a guarantee that this Note to be
repaid, together with the duly completed form entitled Option to Elect
Repayment, will be received by the principal paying agent not later than the
fifth Business Day (as defined below) after the date of that telegram, telex,
facsimile transmission or letter. However, the telegram, telex, facsimile
transmission or letter shall only be effective if this Note and an Option to
Elect Repayment form duly completed are received by the Paying Agent by the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter. Exercise of such repayment option by the holder hereof
shall be irrevocable. In the event of repayment of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal
8
otherwise payable on such date need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the Interest Payment Date or on the Maturity Date (or any redemption or
repayment date), and no interest on such payment shall accrue for the period
from and after the Interest Payment Date or the Maturity Date (or any
redemption or repayment date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured
and unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without interest
coupons attached (a "Global Bearer Note"). The beneficial owner of all or a
portion of this Note may exchange its interest in this Note upon not less than
30 days' written notice to the Principal Paying Agent through the relevant
clearing system, in whole, for Notes in bearer form with interest coupons, if
any, attached (the "Definitive Bearer Notes," and, together with the Global
Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this
Note, at the beneficial owner's option, in whole or from time to time in part,
for Notes in fully registered form without coupons (the "Registered Notes"),
in each case, in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of 1,000 units of the
Specified Currency set forth on the face hereof. Interests in this Note shall
also be exchanged by the Issuer in whole, but not in part, for Definitive
Bearer Notes, which shall be serially numbered, with coupons, if any, attached
(or, if indicated on the face of this Note, at the beneficial owner's option,
for Registered Notes), of any authorized denominations if (i) this Note is
accelerated following an Event of Default or (ii) either Euroclear or
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.
The Issuer shall give notice to the Principal Paying Agent promptly following
any such acceleration or upon learning of any such closure. Any exchanges
referred to above shall be made at the office of the Principal Paying Agent,
or, in the case of Registered Notes, at the office of the transfer agent for
the Registered Notes in London, which transfer agent will initially be The
Chase Manhattan Bank, London Branch, upon compliance with any procedures set
forth in, or established pursuant to, the Senior Indenture; provided, however,
that the Issuer shall not be required (i) to exchange this Note for a period
of fifteen calendar days preceding the first publication or other
transmission, if applicable, of a notice of redemption of all or any portion
hereof or (ii) to exchange any portion of this Note selected for redemption or
surrendered for optional repayment, except that such portion of this Note may
be exchanged for a Registered Note of like tenor; provided that such
Registered Note shall be simultaneously surrendered for redemption or
repayment, as the case may be; and provided, further, that if a Registered
Note is issued in exchange for any portion of this Note after the close of
business at the office of the Principal Paying Agent on any record date
(whether or not a Business Day) for the payment of interest on such Registered
Note and before the opening of business at such office on the relevant
Interest Payment Date, any interest will not be payable on such Interest
Payment Date in respect of such Registered Note, but will be payable on such
Interest Payment Date only to the holder of this Note. Upon exchange of this
Note in whole for a Definitive Bearer Note or Definitive
9
Bearer Notes, or in whole or in part for a Registered Note or Registered
Notes, the Principal Paying Agent shall cause Schedule A of this Note to be
endorsed to reflect the reduction of the principal amount hereof by an amount
equal to the aggregate principal amount of such Definitive Bearer Note or
Definitive Bearer Notes, or such Registered Note or Registered Notes,
whereupon the principal amount hereof shall be reduced for all purposes by the
amount so exchanged and noted. All such exchanges of Notes will be free of
service charge, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The date of any Note delivered upon any exchange of this Note shall be such
that no gain or loss of interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged
for Definitive Bearer Notes in accordance with the procedures set forth in the
following two sentences as soon as practicable after (i) the first beneficial
owner of an interest in this Note exchanges its interest for a Definitive
Bearer Note, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or 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. In the event of
any exchange of interests in this Note for a Definitive Bearer Note, a common
depositary located outside the United States (the "common depositary") holding
this Note for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System (the "Euroclear Operator"), Cedelbank and/or
any other relevant clearing system (including "Societe Interprofessionelle
pour la Compensation des Valeurs Mobilieres ("SICOVAM")) shall instruct the
Principal Paying Agent regarding the aggregate principal amount of Definitive
Bearer Notes and the denominations of such Definitive Bearer Notes that must
be authenticated and delivered to each relevant clearing system in exchange
for this Note. Thereafter, the Principal Paying Agent, acting solely in
reliance on such instructions, shall, upon surrender to it of this Note and
subject to the conditions in the preceding paragraph, authenticate and deliver
Definitive Bearer Notes in exchange for this Note in accordance with such
instructions and shall cause Schedule A of this Note to be endorsed to reflect
the reduction of its principal amount by an amount equal to the aggregate
principal amount of this Note. Nothing in this paragraph shall prevent the
further exchange of Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that
this Note may be transferred only to a common depositary outside the United
States for the Euroclear Operator, Cedelbank and/or any other relevant
clearing system or to a nominee of such a depositary.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, the Issuer in its discretion may execute a new Note
of like tenor will be issued by the Issuer in exchange for this Note, but, in
the case of any destroyed or lost or stolen Note, only upon receipt of
evidence satisfactory to the Trustee and the Issuer that this such Note was
destroyed or lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges associated
with procuring such indemnity and with the
10
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
This Note may be redeemed, as a whole, at the option of the Issuer at
any time prior to maturity, upon the giving of a notice of redemption as
described below, at the Redemption Price, as specified on the face hereof,
together with accrued interest to the date fixed for redemption (except that
if this Note is subject to "Modified Payment upon Acceleration or Redemption,"
such redemption price would be limited to the aggregate principal amount
hereof multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the date
of redemption, which amortization shall be calculated using the "interest
method" (computed in accordance with generally accepted accounting principles
in effect on the date of redemption) (the "Amortized Amount")), if the Issuer
determines that, as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of the United States or of any
political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
becomes effective on or after the Original Issue Date hereof, the Issuer has
or will become obligated to pay Additional Amounts (as defined below) with
respect to this Note as described below. Prior to the giving of any Notice of
redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee
(i) a certificate stating that the Issuer is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer to so redeem have occurred, and (ii) an
opinion of independent counsel satisfactory to the Trustee to such effect
based on such statement of facts; provided that no such notice of redemption
shall be given earlier than 60 days prior to the earliest date on which the
Issuer would be obligated to pay such Additional Amounts if a payment in
respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, which date and the applicable redemption
price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the
United States by the Issuer or any Paying Agent of principal, premium or
interest due in respect of this Note would, under any present or future laws
or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined below)
(other than such a requirement (a) that would not be applicable to a payment
made by the Issuer or any Paying Agent (i) directly to the beneficial owner or
(ii) to a custodian, nominee or other agent of the beneficial owner, or (b)
that can be satisfied by such custodian, nominee or other agent certifying to
the effect that such beneficial owner is a United States Alien; provided that
in each case referred to in clauses (a)(ii) and (b) payment by such custodian,
nominee or agent to such beneficial owner is not otherwise subject to any such
requirement), the Issuer shall redeem this Note, as a whole, at the Redemption
Price, as specified on the face hereof (except that if this Note is subject to
"Modified Payment upon Acceleration or Redemption," such redemption price
would be
11
calculated on the basis of the aggregate principal amount hereof multiplied by
the sum of the Issue Price specified on the face hereof (expressed as a
percentage of the aggregate principal amount) plus the Amortized Amount),
together with accrued interest to the date fixed for redemption, or, at the
election of the Issuer if the conditions of the next succeeding paragraph are
satisfied, pay the additional amounts specified in such paragraph. The Issuer
shall make such determination and election as soon as practicable, shall
promptly notify the Trustee thereof and shall publish (or transmit, as
applicable) prompt notice thereof (the "Determination Notice") stating the
effective date of such certification, identification or other information
reporting requirements, whether the Issuer will redeem this Note or has
elected to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of this
Note must take place, as provided in the next succeeding sentence. If the
Issuer redeems this Note, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Issuer shall elect by notice to the Trustee at least 60 days prior to the date
fixed for redemption or at least 30 days prior to the last day of the
Redemption Notice Period specified on the face hereof. Notice of such
redemption of this Note will be given to the holder of this Note not more than
60 nor less than 30 days prior to the date fixed for redemption or within the
Redemption Notice Period as specified on the face hereof. Such redemption
notice shall include a statement as to the last date by which this Note to be
redeemed may be exchanged for Registered Notes. Notwithstanding the foregoing,
the Issuer shall not so redeem this Note if the Issuer shall subsequently
determine, not less than 30 days prior to the date fixed for redemption or
prior to the last day of the Redemption Notice Period specified on the face
hereof, that subsequent payments would not be subject to any such
certification, identification or other information reporting requirement, in
which case the Issuer shall publish (or transmit, as applicable) prompt notice
of such determination and any earlier redemption notice shall be revoked and
of no further effect. The right of the holder of this Note to exchange this
Note for Registered Notes pursuant to the provisions of this paragraph will
terminate at the close of business of the Principal Paying Agent on the
fifteenth day prior to the date fixed for redemption, and no further exchanges
of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as
12
a whole at any time pursuant to the applicable provisions of the immediately
preceding paragraph and the redemption price of this Note will not be reduced
for applicable withholding taxes. If the Issuer elects to pay additional
amounts pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Issuer will
redeem this Note as a whole, pursuant to the applicable provisions of the
immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set
forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
that every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount
provided for in this Note to be then due and payable. The Issuer will not,
however, be required to make any payment of Additional Amounts to any such
holder for or on account of:
(a) any such tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States and its possessions, including,
without limitation, such holder (or such fiduciary, settlor,
beneficiary, member or shareholder) being or having been a citizen or
resident thereof or being or having been engaged in a trade or
business or present therein or having, or having had, a permanent
establishment therein or (ii) the presentation by the holder of this
Note for payment on a date more than 15 days after the date on which
such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment of principal of, or
interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
13
(f) any tax, assessment or other governmental charge that would
not have been imposed but for the failure to comply with
certification, information or other reporting requirements
concerning the nationality, residence or identity of the holder or
beneficial owner of this Note, if such compliance is required by
statute or by regulation of the United States or of any political
subdivision or taxing authority thereof or therein as a precondition
to relief or exemption from such tax, assessment or other
governmental charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
this Note.
The Final Redemption Price or the Redemption Price shall be
determined by the Calculation Agent not later than the close of business on
the date that is two (2) London Banking Days prior to the Maturity Date or
date of redemption as the case may be (the "Interest Determination Date"). For
the purpose of determining the Final Redemption Price or the Redemption Price
LIBOR shall be determined as follows:
(i) As of the Interest Determination Date, LIBOR shall be either:
(a) if "LIBOR Reuters" is specified as the Reporting Service on the
face hereof, the arithmetic mean of the offered rates for deposits in
the Index Currency having the Index Maturity designated on the face
hereof, commencing on the second London Banking Day immediately
following that Interest Determination Date, that appear on the
Designated LIBOR Page, as defined below, as of 11:00 a.m., London
time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the
specified Designated LIBOR Page, by its terms provides only for a
single rate, that single rate shall be used; or (b) if "LIBOR
Telerate" is specified as the Reporting Service on the face hereof,
the rate for deposits in the Index Currency having the Index Maturity
designated on the face hereof, commencing on the second London
Banking Day immediately following that Interest Determination Date
or, if pounds sterling is the Index Currency, commencing on that
Interest Determination Date, that appears on the Designated LIBOR
Page at approximately 11:00 a.m., London time, on that Interest
Determination Date.
14
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters
is specified on the face hereof, or (b) no rate appears and the face
hereof specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and
the Designated LIBOR Page by its terms provides only for a single
rate, then the Calculation Agent shall request the principal London
offices of each of four major reference banks in the London interbank
market, as selected by the Calculation Agent (after consultation with
the Issuer) to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the
Index Maturity specified on the face hereof commencing on the second
London Banking Day immediately following the Interest Determination
Date or, if pounds sterling is the Index Currency, commencing on that
Interest Determination Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on that Interest
Determination Date and in a principal amount that is representative
of a single transaction in that Index Currency in that market at that
time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of
those quotations. If fewer than two quotations are provided, LIBOR
shall be determined the arithmetic mean of the rates quoted at
approximately 11:00 a.m., London time, or some other time specified
on the face hereof, in the applicable principal financial center for
the country of the Index Currency on that Interest Reset Date, by
three major banks in that principal financial center selected by the
Calculation Agent (after consultation with the Issuer) for loans in
the Index Currency to leading European banks, having the Index
Maturity specified on the face hereof and in a principal amount that
is representative of a single transaction in that Index Currency in
that market at that time.
The "Index Currency" means the currency specified on the face hereof
as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified on the face hereof, the Index Currency shall be U.S.
dollars.
"Designated LIBOR Page" means either: (a) if LIBOR Reuters is
designated as the Reporting Service on the face hereof, the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency or its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that service, for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S.
dollar is the Index Currency, as if Page 3750, had been specified.
The Senior Indenture provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal
of, premium, if any, or interest on, any series
15
of debt securities issued under the Senior Indenture, including the series of
Senior Global Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of the
Issuer applicable to the debt securities of such series but not applicable to
all outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy or insolvency of the Issuer, shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of all debt securities issued under the Senior Indenture then
outstanding (treated as one class) may declare the principal of all such debt
securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults
may be waived (except a continuing default in payment of principal (or
premium, if any) or interest on such debt securities) by the holders of a
majority in principal amount of the debt securities of all affected series
then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms thereof), or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate (as defined below) on the date of such payment or, if
the Market Exchange Rate is not available on such date, as of the most recent
practicable date provided, however, that if the euro has been
16
substituted for such Specified Currency, the Issuer may at its option (or
shall, if so required by applicable law) without the consent of the holder of
this Note effect the payment of principal of, premium, if any, or interest on,
any Note denominated in such Specified Currency in euro in lieu of such
Specified Currency in conformity with legally applicable measures taken
pursuant to, or by virtue of, the treaty establishing the European Community
(the "EC"), as amended by the treaty on European Union (as so amended, the
"Treaty"). Any payment made under such circumstances in U.S. dollars or euro
where the required payment is in an unavailable Specified Currency will not
constitute an Event of Default. If such Market Exchange Rate is not then
available to the Issuer or is not published for a particular Specified
Currency, the Market Exchange Rate will be based on the highest bid quotation
in The City of New York received by the Exchange Rate Agent (as defined below)
at approximately 11:00 a.m., New York City time, on the second Business Day
preceding the date of such payment from three recognized foreign exchange
dealers (the "Exchange Dealers") for the purchase by the quoting Exchange
Dealer of the Specified Currency for U.S. dollars for settlement on the
payment date, in the aggregate amount of the Specified Currency payable to
those holders or beneficial owners of Notes and at which the applicable
Exchange Dealer commits to execute a contract. One of the Exchange Dealers
providing quotations may be the Exchange Rate Agent unless the Exchange Rate
Agent is an affiliate of the Issuer. If those bid quotations are not
available, the Exchange Rate Agent shall determine the market exchange rate at
its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided. If this Note is
listed on the London Stock Exchange Limited and such Exchange so requires, the
Issuer shall maintain a Paying Agent in London. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places outside the United States (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease, without, however,
limiting in any
17
way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder of this Note as the owner hereof for all purposes,
whether or not this Note be overdue, and none of the Issuer, the Trustee or
any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) The term "Business Day" means any day, other than a Saturday
or Sunday, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated
in Australian dollars, in Sydney and (b) if this Note is denominated
in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day").
( b) the term "London Banking Day" means any day on which dealings
in deposits in the Index Currency (as defined herein) are transacted
in the London interbank market.
(c) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof as published for
customs purposes by the Federal Reserve Bank of New York;
(d) the term "Notices" refers to notices to the holders of the
Notes to be given by publication in an authorized newspaper in the
English language and of general circulation
18
in the Borough of Manhattan, The City of New York, and London or, if
publication in London is not practical, in an English language
newspaper with general circulation in Western Europe; provided that
notice may be made, at the option of the Issuer, through the
customary notice provisions of the clearing system or systems through
which beneficial interests in this Note are owned. Such Notices will
be deemed to have been given on the date of such publication (or
other transmission, as applicable) or, if published in such
newspapers on different dates, on the date of the first such
publication;
(e) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(f) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership one or more of the
members of which is a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or
trust.
All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
19
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid: ;
and specify the denomination or denominations (which shall not be less than
the minimum authorized denomination) of the Notes to be issued to the holder
for the portion of the within Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid): ___________________________.
Dated:
------------------------------------- ----------------------------------
20
[SCHEDULE A7]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is __________. The following
(A) exchanges of (i) portions of this Note for Definitive Bearer Notes or
Registered Notes and (ii) portions of a Temporary Global Bearer Note for an
interest in this Note or (B) (x) redemptions at the option of the Issuer or
(y) repayments at the option of the holder have been made:
[SCHEDULE A-1]8
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")]9, (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")]10 for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
--------
8 This Schedule A-1 needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note is attached to a Unit.
10 Applies only if this Note has been separated from a Unit.
2
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL SENIOR BULL NOTE
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.]1
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING
ACT 1987.]2
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES
OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO
OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO
A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN
--------
1 Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue Date.
2 Applies only if this Note is denominated in pounds sterling and
matures more than one year from and including the Original Issue Date.
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.
2
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Bull Note)
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
MATURITY DATE: INTEREST RATE: INTEREST PAYMENT PERIOD:
EUROCLEAR NO.: INITIAL REDEMPTION DATE: CALCULATION AGENT:
CEDELBANK NO.: INITIAL REDEMPTION SPECIFIED CURRENCY:
PERCENTAGE:
COMMON CODE: ANNUAL REDEMPTION INDEX CURRENCY:
PERCENTAGE REDUCTION:
ISIN: OPTIONAL REPAYMENT EXCHANGE RATE AGENT:
DATES(S):
REPORTING SERVICE: REDEMPTION PRICE: INDEX MATURITY:
PRINCIPAL AMOUNT: FINAL REDEMPTION PRICE: EXCHANGE FOR REGISTERED
NOTES [NO]3:
MINIMUM DENOMINATIONS: APPLICABILITY OF MODIFIED
PAYMENT UPON ACCELERATION OR
REDEMPTION
OTHER PROVISIONS: REDEMPTION NOTICE
PERIOD:4 IF YES STATE ISSUE PRICE:
Morgan Stanley Dean Witter & Co., a Delaware corporation (together
with its successors and assigns, the "Issuer"), for value received, hereby
promises to pay to bearer, upon surrender hereof, the Final Redemption Price
based on the principal amount as specified in [Schedule A hereto]5 [Schedule
A-1 hereto]6, on the Maturity Date specified above (except to the extent
previously redeemed or repaid) and to pay interest thereon at the Interest
Rate per annum specified above from and including the Interest Accrual Date
specified above until but excluding the date the Final Redemption Price is
paid or duly made available for payment (except as provided below) weekly,
monthly, quarterly, semi-annually or annually in arrears on the Interest
Payment Dates specified above, and at maturity (or on any redemption or
repayment date); provided, however, that if the Interest Accrual Date occurs
fifteen days or less prior to the first Interest Payment Date occurring
--------
3 Unless explicitly stated otherwise in term sheet, MSDW practice has been
to exclude this option.
4 Applicable if other than 30-60 days. Consult with Euroclear or Cedelbank
if a shorter redemption notice is requested, to a minimum of ten days.
5 Applies if this Note is not issued as part of, or in relation to, a Unit.
6 Applies if this Note is issued as part of, or in relation to, a Unit.
3
after the Interest Accrual Date, interest payments will commence on the second
Interest Payment Date succeeding the Interest Accrual Date.
Interest on this Note will accrue from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for,
or, if no interest has been paid or duly provided for, from and including the
Interest Accrual Date, until but excluding the date the Final Redemption Price
is paid or duly made available for payment (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the
reverse of this Note) or at the office or agency of such other paying agents
outside the United States as the Issuer may determine for that purpose (each,
a "Paying Agent," which term shall include the Principal Paying Agent).
Payment of the principal of this Note, any premium and the interest
due at maturity (or on any redemption or repayment date) will be made upon
presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as
provided on the reverse hereof. If this Note is denominated in U.S. dollars,
any payment of the principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Such payments on this Note will be made either by a check mailed to an address
outside the United States furnished by the payee or, at the option of the
payee and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States if
appropriate wire transfer instructions have been received by the Paying Agent
not less than 15 calendar days prior to the applicable payment date.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents would
be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the United States, if such paying agency, under applicable law and
regulations, would be able to make such payment. If this Note is denominated
in a Specified Currency other than U.S. dollars, then, except as provided on
the reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the payee
and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
4
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
5
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:
-------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Authorized Officer
6
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series [D/E], having maturities more than nine months from
the date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and The Chase Manhattan Bank, as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) (as may be amended
or supplemented from time to time, the "Senior Indenture"), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for
a statement of the respective rights, limitations of rights, duties and
immunities of the Issuer, the Trustee and holders of the Notes and the terms
upon which the Notes are, and are to be, authenticated and delivered. The
Issuer has appointed The Chase Manhattan Bank, London Branch, as its principal
paying agent for the Notes (the "Principal Paying Agent," which term includes
any additional or successor Principal Paying Agent appointed by the Issuer).
The terms of individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or otherwise, all as
provided in the Senior Indenture. To the extent not inconsistent herewith, the
terms of the Senior Indenture are hereby incorporated by reference herein.
If this Note is denominated in pounds sterling, the Issuer represents
that it is not an authorized institution (for purposes of the United Kingdom
Banking Act 1987) nor a European authorized institution as defined by
Regulation 3 of the Banking Co-ordination (Second Council Directive)
Regulations 1992 and repayment of the principal of, and payment of any
interest or premium on, this Note has not been guaranteed, that it has
complied with its obligations under the listing rules of the London Stock
Exchange Limited (the "Rules") and that, since the last publication in
compliance with the Rules of information about it, it, having made all
reasonable inquiries, has not become aware of any change in circumstances
which could reasonably be regarded as significantly and adversely affecting
its ability to meet its obligations in respect of the Notes as they fall due.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except
as set forth below, will not be redeemable or subject to repayment at the
option of the holder prior to maturity.
If so indicated on the face hereof, this Note may be redeemed in
whole or in part at the option of the Issuer on or after the Initial
Redemption Date specified on the face hereof on the terms set forth on the
face hereof, together with interest accrued and unpaid hereon to the date of
redemption (except as indicated below). If this Note is subject to "Annual
Redemption Percentage Reduction," the Initial Redemption Percentage indicated
on the face hereof will be reduced on each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction specified on the
face hereof until the redemption price of this Note is 100% of the principal
amount hereof, together with interest accrued and unpaid hereon to the date of
redemption (except as provided below). Notice of redemption shall be mailed to
the holders of the Notes designated for redemption who have filed their names
and addresses with the Principal Paying Agent, not less than 30 nor more than
60 days prior to the date fixed for redemption or within the Redemption Notice
7
Period specified on the face hereof, subject to all the conditions and
provisions of the Senior Indenture. Notice of redemption to all other holders
of Notes shall be given in the manner set forth in "Notices" as defined below,
and, if by publication, shall be given once in each of the three successive
calendar weeks, the first publication to be not less than 30 nor more than 60
days prior to the date set for redemption or within the Redemption Notice
Period specified on the face hereof. In the event of redemption of this Note
in part only, the Principal Paying Agent shall cause Schedule A of this Note
to be endorsed to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of this Note so redeemed, whereupon
the principal amount hereof shall be reduced for all purposes by the amount so
redeemed and noted.
If so indicated on the face of this Note, this Note will be subject
to repayment at the option of the holder on the Optional Repayment Date or
Dates specified on the face hereof on the terms set forth herein. On any
Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 or, if this Note is denominated in a Specified Currency
other than U.S. dollars, in increments of 1,000 units of such Specified
Currency (provided that any remaining principal amount hereof shall not be
less than the minimum authorized denomination hereof) at the option of the
holder hereof at a price equal to 100% of the principal amount to be repaid,
together with interest accrued and unpaid hereon to the date of repayment
(except as provided below). For this Note to be repaid at the option of the
holder hereof, the Principal Paying Agent must receive at its office in
London, at least 15 but not more than 30 days prior to the date of repayment,
this Note with the form entitled "Option to Elect Repayment" below duly
completed or a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange, or the National Association of
Securities Dealers, Inc. or a commercial bank or trust company in the United
States, Western Europe or Japan setting forth the principal amount of the
Note, the principal amount of the Note to be repaid, the certificate number or
a description of the tenor and terms of this Note, a statement that the Option
to Elect Repayment is being exercised and a guarantee that this Note to be
repaid, together with the duly completed form entitled Option to Elect
Repayment, will be received by the principal paying agent not later than the
fifth Business Day (as defined below) after the date of that telegram, telex,
facsimile transmission or letter. However, the telegram, telex, facsimile
transmission or letter shall only be effective if this Note and an Option to
Elect Repayment form duly completed are received by the Paying Agent by the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter. Exercise of such repayment option by the holder hereof
shall be irrevocable. In the event of repayment of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified
on the face hereof, interest payments for this Note will be computed and paid
on the basis of a 360-day year of twelve 30-day months.
In the case where the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) does not fall on a Business Day, payment of
interest, premium, if any, or principal
8
otherwise payable on such date need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the Interest Payment Date or on the Maturity Date (or any redemption or
repayment date), and no interest on such payment shall accrue for the period
from and after the Interest Payment Date or the Maturity Date (or any
redemption or repayment date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured
and unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without interest
coupons attached (a "Global Bearer Note"). The beneficial owner of all or a
portion of this Note may exchange its interest in this Note upon not less than
30 days' written notice to the Principal Paying Agent through the relevant
clearing system, in whole, for Notes in bearer form with interest coupons, if
any, attached (the "Definitive Bearer Notes," and, together with the Global
Bearer Notes, the "Bearer Notes") or, if so indicated on the face of this
Note, at the beneficial owner's option, in whole or from time to time in part,
for Notes in fully registered form without coupons (the "Registered Notes"),
in each case, in the minimum denominations set forth on the face hereof or any
amount in excess thereof which is an integral multiple of 1,000 units of the
Specified Currency set forth on the face hereof. Interests in this Note shall
also be exchanged by the Issuer in whole, but not in part, for Definitive
Bearer Notes, which shall be serially numbered, with coupons, if any, attached
(or, if indicated on the face of this Note, at the beneficial owner's option,
for Registered Notes), of any authorized denominations if (i) this Note is
accelerated following an Event of Default or (ii) either Euroclear or
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.
The Issuer shall give notice to the Principal Paying Agent promptly following
any such acceleration or upon learning of any such closure. Any exchanges
referred to above shall be made at the office of the Principal Paying Agent,
or, in the case of Registered Notes, at the office of the transfer agent for
the Registered Notes in London, which transfer agent will initially be The
Chase Manhattan Bank, London Branch, upon compliance with any procedures set
forth in, or established pursuant to, the Senior Indenture; provided, however,
that the Issuer shall not be required (i) to exchange this Note for a period
of fifteen calendar days preceding the first publication or other
transmission, if applicable, of a notice of redemption of all or any portion
hereof or (ii) to exchange any portion of this Note selected for redemption or
surrendered for optional repayment, except that such portion of this Note may
be exchanged for a Registered Note of like tenor; provided that such
Registered Note shall be simultaneously surrendered for redemption or
repayment, as the case may be; and provided, further, that if a Registered
Note is issued in exchange for any portion of this Note after the close of
business at the office of the Principal Paying Agent on any record date
(whether or not a Business Day) for the payment of interest on such Registered
Note and before the opening of business at such office on the relevant
Interest Payment Date, any interest will not be payable on such Interest
Payment Date in respect of such Registered Note, but will be payable on such
Interest Payment Date only to the holder of this Note. Upon exchange of this
Note in whole for a Definitive Bearer Note or Definitive
9
Bearer Notes, or in whole or in part for a Registered Note or Registered
Notes, the Principal Paying Agent shall cause Schedule A of this Note to be
endorsed to reflect the reduction of the principal amount hereof by an amount
equal to the aggregate principal amount of such Definitive Bearer Note or
Definitive Bearer Notes, or such Registered Note or Registered Notes,
whereupon the principal amount hereof shall be reduced for all purposes by the
amount so exchanged and noted. All such exchanges of Notes will be free of
service charge, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
The date of any Note delivered upon any exchange of this Note shall be such
that no gain or loss of interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged
for Definitive Bearer Notes in accordance with the procedures set forth in the
following two sentences as soon as practicable after (i) the first beneficial
owner of an interest in this Note exchanges its interest for a Definitive
Bearer Note, (ii) the Issuer gives notice to the Principal Paying Agent of an
acceleration of the Note or (iii) either Euroclear or 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. In the event of
any exchange of interests in this Note for a Definitive Bearer Note, a common
depositary located outside the United States (the "common depositary") holding
this Note for Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System (the "Euroclear Operator"), Cedelbank and/or
any other relevant clearing system (including "Societe Interprofessionelle
pour la Compensation des Valeurs Mobilieres ("SICOVAM")) shall instruct the
Principal Paying Agent regarding the aggregate principal amount of Definitive
Bearer Notes and the denominations of such Definitive Bearer Notes that must
be authenticated and delivered to each relevant clearing system in exchange
for this Note. Thereafter, the Principal Paying Agent, acting solely in
reliance on such instructions, shall, upon surrender to it of this Note and
subject to the conditions in the preceding paragraph, authenticate and deliver
Definitive Bearer Notes in exchange for this Note in accordance with such
instructions and shall cause Schedule A of this Note to be endorsed to reflect
the reduction of its principal amount by an amount equal to the aggregate
principal amount of this Note. Nothing in this paragraph shall prevent the
further exchange of Definitive Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that
this Note may be transferred only to a common depositary outside the United
States for the Euroclear Operator, Cedelbank and/or any other relevant
clearing system or to a nominee of such a depositary.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, the Issuer in its discretion may execute a new Note
of like tenor will be issued by the Issuer in exchange for this Note, but, in
the case of any destroyed or lost or stolen Note, only upon receipt of
evidence satisfactory to the Trustee and the Issuer that this such Note was
destroyed or lost or stolen and, if required, upon receipt also of indemnity
satisfactory to each of them. All expenses and reasonable charges associated
with procuring such indemnity and with the
10
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
This Note may be redeemed, as a whole, at the option of the Issuer at
any time prior to maturity, upon the giving of a notice of redemption as
described below, at the Redemption Price, as specified on the face hereof,
together with accrued interest to the date fixed for redemption (except that
if this Note is subject to "Modified Payment upon Acceleration or Redemption,"
such redemption price would be limited to the aggregate principal amount
hereof multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the date
of redemption, which amortization shall be calculated using the "interest
method" (computed in accordance with generally accepted accounting principles
in effect on the date of redemption) (the "Amortized Amount")), if the Issuer
determines that, as a result of any change in or amendment to the laws (or any
regulations or rulings promulgated thereunder) of the United States or of any
political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
becomes effective on or after the Original Issue Date hereof, the Issuer has
or will become obligated to pay Additional Amounts (as defined below) with
respect to this Note as described below. Prior to the giving of any Notice of
redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee
(i) a certificate stating that the Issuer is entitled to effect such
redemption and setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer to so redeem have occurred, and (ii) an
opinion of independent counsel satisfactory to the Trustee to such effect
based on such statement of facts; provided that no such notice of redemption
shall be given earlier than 60 days prior to the earliest date on which the
Issuer would be obligated to pay such Additional Amounts if a payment in
respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
days prior to the date fixed for redemption or within the Redemption Notice
Period specified on the face hereof, which date and the applicable redemption
price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the
United States by the Issuer or any Paying Agent of principal, premium or
interest due in respect of this Note would, under any present or future laws
or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined below)
(other than such a requirement (a) that would not be applicable to a payment
made by the Issuer or any Paying Agent (i) directly to the beneficial owner or
(ii) to a custodian, nominee or other agent of the beneficial owner, or (b)
that can be satisfied by such custodian, nominee or other agent certifying to
the effect that such beneficial owner is a United States Alien; provided that
in each case referred to in clauses (a)(ii) and (b) payment by such custodian,
nominee or agent to such beneficial owner is not otherwise subject to any such
requirement), the Issuer shall redeem this Note, as a whole, at the Redemption
Price, as specified on the face hereof (except that if this Note is subject to
"Modified Payment upon Acceleration or Redemption," such redemption price
would be
11
calculated on the basis of the aggregate principal amount hereof multiplied by
the sum of the Issue Price specified on the face hereof (expressed as a
percentage of the aggregate principal amount) plus the Amortized Amount),
together with accrued interest to the date fixed for redemption, or, at the
election of the Issuer if the conditions of the next succeeding paragraph are
satisfied, pay the additional amounts specified in such paragraph. The Issuer
shall make such determination and election as soon as practicable, shall
promptly notify the Trustee thereof and shall publish (or transmit, as
applicable) prompt notice thereof (the "Determination Notice") stating the
effective date of such certification, identification or other information
reporting requirements, whether the Issuer will redeem this Note or has
elected to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of this
Note must take place, as provided in the next succeeding sentence. If the
Issuer redeems this Note, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Issuer shall elect by notice to the Trustee at least 60 days prior to the date
fixed for redemption or at least 30 days prior to the last day of the
Redemption Notice Period specified on the face hereof. Notice of such
redemption of this Note will be given to the holder of this Note not more than
60 nor less than 30 days prior to the date fixed for redemption or within the
Redemption Notice Period as specified on the face hereof. Such redemption
notice shall include a statement as to the last date by which this Note to be
redeemed may be exchanged for Registered Notes. Notwithstanding the foregoing,
the Issuer shall not so redeem this Note if the Issuer shall subsequently
determine, not less than 30 days prior to the date fixed for redemption or
prior to the last day of the Redemption Notice Period specified on the face
hereof, that subsequent payments would not be subject to any such
certification, identification or other information reporting requirement, in
which case the Issuer shall publish (or transmit, as applicable) prompt notice
of such determination and any earlier redemption notice shall be revoked and
of no further effect. The right of the holder of this Note to exchange this
Note for Registered Notes pursuant to the provisions of this paragraph will
terminate at the close of business of the Principal Paying Agent on the
fifteenth day prior to the date fixed for redemption, and no further exchanges
of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as
12
a whole at any time pursuant to the applicable provisions of the immediately
preceding paragraph and the redemption price of this Note will not be reduced
for applicable withholding taxes. If the Issuer elects to pay additional
amounts pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Issuer will
redeem this Note as a whole, pursuant to the applicable provisions of the
immediately preceding paragraph.
The Issuer will, subject to certain exceptions and limitations set
forth below, pay such additional amounts (the "Additional Amounts") to the
holder of this Note who is a United States Alien as may be necessary in order
that every net payment of the principal of and interest on this Note and any
other amounts payable on this Note, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed upon or as a
result of such payment by the United States (or any political subdivision or
taxing authority thereof or therein), will not be less than the amount
provided for in this Note to be then due and payable. The Issuer will not,
however, be required to make any payment of Additional Amounts to any such
holder for or on account of:
(a) any such tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States and its possessions, including,
without limitation, such holder (or such fiduciary, settlor,
beneficiary, member or shareholder) being or having been a citizen or
resident thereof or being or having been engaged in a trade or
business or present therein or having, or having had, a permanent
establishment therein or (ii) the presentation by the holder of this
Note for payment on a date more than 15 days after the date on which
such payment became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment of principal of, or
interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
13
(f) any tax, assessment or other governmental charge that would
not have been imposed but for the failure to comply with
certification, information or other reporting requirements
concerning the nationality, residence or identity of the holder or
beneficial owner of this Note, if such compliance is required by
statute or by regulation of the United States or of any political
subdivision or taxing authority thereof or therein as a precondition
to relief or exemption from such tax, assessment or other
governmental charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power
of all classes of stock entitled to vote of the Issuer or as a direct
or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or (g);
nor shall Additional Amounts be paid with respect to any payment on this Note
to a United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of such payment to the extent such payment would be
required by the laws of the United States (or any political subdivision
thereof) to be included in the income, for tax purposes, of a beneficiary or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to the Additional Amounts
had such beneficiary, settlor, member or beneficial owner been the holder of
this Note.
The Final Redemption Price or the Redemption Price shall be
determined by the Calculation Agent not later than the close of business on
the date that is two (2) London Banking Days prior to the Maturity Date or
date of redemption as the case may be (the "Interest Determination Date"). For
the purpose of determining the Final Redemption Price or the Redemption Price
LIBOR shall be determined as follows:
(i) As of the Interest Determination Date, LIBOR shall be either:
(a) if "LIBOR Reuters" is specified as the Reporting Service on the
face hereof, the arithmetic mean of the offered rates for deposits in
the Index Currency having the Index Maturity designated on the face
hereof, commencing on the second London Banking Day immediately
following that Interest Determination Date, that appear on the
Designated LIBOR Page, as defined below, as of 11:00 a.m., London
time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the
specified Designated LIBOR Page, by its terms provides only for a
single rate, that single rate shall be used; or (b) if "LIBOR
Telerate" is specified as the Reporting Service on the face hereof,
the rate for deposits in the Index Currency having the Index Maturity
designated on the face hereof, commencing on the second London
Banking Day immediately following that Interest Determination Date
or, if pounds sterling is the Index Currency, commencing on that
Interest Determination Date, that appears on the Designated LIBOR
Page at approximately 11:00 a.m., London time, on that Interest
Determination Date.
14
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters
is specified on the face hereof, or (b) no rate appears and the face
hereof specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and
the Designated LIBOR Page by its terms provides only for a single
rate, then the Calculation Agent shall request the principal London
offices of each of four major reference banks in the London interbank
market, as selected by the Calculation Agent (after consultation with
the Issuer) to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the
Index Maturity specified on the face hereof commencing on the second
London Banking Day immediately following the Interest Determination
Date or, if pounds sterling is the Index Currency, commencing on that
Interest Determination Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on that Interest
Determination Date and in a principal amount that is representative
of a single transaction in that Index Currency in that market at that
time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of
those quotations. If fewer than two quotations are provided, LIBOR
shall be determined the arithmetic mean of the rates quoted at
approximately 11:00 a.m., London time, or some other time specified
on the face hereof, in the applicable principal financial center for
the country of the Index Currency on that Interest Reset Date, by
three major banks in that principal financial center selected by the
Calculation Agent (after consultation with the Issuer) for loans in
the Index Currency to leading European banks, having the Index
Maturity specified on the face hereof and in a principal amount that
is representative of a single transaction in that Index Currency in
that market at that time.
The "Index Currency" means the currency specified on the face hereof
as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified on the face hereof, the Index Currency shall be U.S.
dollars.
"Designated LIBOR Page" means either: (a) if LIBOR Reuters is
designated as the Reporting Service on the face hereof, the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency or its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that service, for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S.
dollar is the Index Currency, as if Page 3750, had been specified.
The Senior Indenture provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal
of, premium, if any, or interest on, any series
15
of debt securities issued under the Senior Indenture, including the series of
Senior Global Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of the
Issuer applicable to the debt securities of such series but not applicable to
all outstanding debt securities issued under the Senior Indenture shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of the debt securities of each affected series (voting
as a single class) may then declare the principal of all debt securities of
all such series and interest accrued thereon to be due and payable immediately
and (b) if an Event of Default due to a default in the performance of any
other of the covenants or agreements in the Senior Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due to
certain events of bankruptcy or insolvency of the Issuer, shall have occurred
and be continuing, either the Trustee or the holders of not less than 25% in
principal amount of all debt securities issued under the Senior Indenture then
outstanding (treated as one class) may declare the principal of all such debt
securities and interest accrued thereon to be due and payable immediately, but
upon certain conditions such declarations may be annulled and past defaults
may be waived (except a continuing default in payment of principal (or
premium, if any) or interest on such debt securities) by the holders of a
majority in principal amount of the debt securities of all affected series
then outstanding.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of
the holders of each series so affected; provided that the Issuer and the
Trustee may not, without the consent of the holder of each outstanding debt
security affected thereby, (a) extend the final maturity of any such debt
security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption or repayment thereof, or change the currency of payment thereof, or
modify or amend the provisions for conversion of any currency into any other
currency, or modify or amend the provisions for conversion or exchange of the
debt security for securities of the Issuer or other entities (other than as
provided in the antidilution provisions or other similar adjustment provisions
of the debt securities or otherwise in accordance with the terms thereof), or
impair or affect the rights of any holder to institute suit for the payment
thereof without the consent of the holder of each debt security so affected;
or (b) reduce the aforesaid percentage in principal amount of debt securities
the consent of the holders of which is required for any such supplemental
indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking
community, then the Issuer will be entitled to satisfy its obligations to the
holder of this Note by making such payments in U.S. dollars on the basis of
the Market Exchange Rate (as defined below) on the date of such payment or, if
the Market Exchange Rate is not available on such date, as of the most recent
practicable date provided, however, that if the euro has been
16
substituted for such Specified Currency, the Issuer may at its option (or
shall, if so required by applicable law) without the consent of the holder of
this Note effect the payment of principal of, premium, if any, or interest on,
any Note denominated in such Specified Currency in euro in lieu of such
Specified Currency in conformity with legally applicable measures taken
pursuant to, or by virtue of, the treaty establishing the European Community
(the "EC"), as amended by the treaty on European Union (as so amended, the
"Treaty"). Any payment made under such circumstances in U.S. dollars or euro
where the required payment is in an unavailable Specified Currency will not
constitute an Event of Default. If such Market Exchange Rate is not then
available to the Issuer or is not published for a particular Specified
Currency, the Market Exchange Rate will be based on the highest bid quotation
in The City of New York received by the Exchange Rate Agent (as defined below)
at approximately 11:00 a.m., New York City time, on the second Business Day
preceding the date of such payment from three recognized foreign exchange
dealers (the "Exchange Dealers") for the purchase by the quoting Exchange
Dealer of the Specified Currency for U.S. dollars for settlement on the
payment date, in the aggregate amount of the Specified Currency payable to
those holders or beneficial owners of Notes and at which the applicable
Exchange Dealer commits to execute a contract. One of the Exchange Dealers
providing quotations may be the Exchange Rate Agent unless the Exchange Rate
Agent is an affiliate of the Issuer. If those bid quotations are not
available, the Exchange Rate Agent shall determine the market exchange rate at
its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to
be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided. If this Note is
listed on the London Stock Exchange Limited and such Exchange so requires, the
Issuer shall maintain a Paying Agent in London. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places outside the United States (subject to applicable laws and
regulations) as the Issuer may decide. So long as there shall be such an
agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease, without, however,
limiting in any
17
way any obligation that the Issuer may have to pay the principal of or
interest or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder of this Note as the owner hereof for all purposes,
whether or not this Note be overdue, and none of the Issuer, the Trustee or
any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Senior Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein:
(a) The term "Business Day" means any day, other than a Saturday
or Sunday, (a) that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation
to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars,
Australian dollars or euro, in the principal financial center of the
country of the Specified Currency, or (z) if this Note is denominated
in Australian dollars, in Sydney and (b) if this Note is denominated
in euro, that is also a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day").
( b) the term "London Banking Day" means any day on which dealings
in deposits in the Index Currency (as defined herein) are transacted
in the London interbank market.
(c) the term "Market Exchange Rate" means the noon U.S. dollar
buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof as published for
customs purposes by the Federal Reserve Bank of New York;
(d) the term "Notices" refers to notices to the holders of the
Notes to be given by publication in an authorized newspaper in the
English language and of general circulation
18
in the Borough of Manhattan, The City of New York, and London or, if
publication in London is not practical, in an English language
newspaper with general circulation in Western Europe; provided that
notice may be made, at the option of the Issuer, through the
customary notice provisions of the clearing system or systems through
which beneficial interests in this Note are owned. Such Notices will
be deemed to have been given on the date of such publication (or
other transmission, as applicable) or, if published in such
newspapers on different dates, on the date of the first such
publication;
(e) the term "United States" means the United States of America
(including the States and the District of Columbia), its territories,
its possessions and other areas subject to its jurisdiction; and
(f) the term "United States Alien" means any person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership one or more of the
members of which is a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or
trust.
All other terms used in this Note which are defined in the Senior
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Senior Indenture.
19
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid: ;
and specify the denomination or denominations (which shall not be less than
the minimum authorized denomination) of the Notes to be issued to the holder
for the portion of the within Note not being repaid (in the absence of any
such specification, one such Note will be issued for the portion not being
repaid): ___________________________.
Dated:
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20
[SCHEDULE A7]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is __________. The following
(A) exchanges of (i) portions of this Note for Definitive Bearer Notes or
Registered Notes and (ii) portions of a Temporary Global Bearer Note for an
interest in this Note or (B) (x) redemptions at the option of the Issuer or
(y) repayments at the option of the holder have been made:
[SCHEDULE A-1]8
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")]9, (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")]10 for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
--------
8 This Schedule A-1 needed only if this Note is issued as part of, or in
relation to, a Unit.
9 Applies only if this Note is attached to a Unit.
10 Applies only if this Note has been separated from a Unit.
2