Exhibit 4-ll
FORM OF PRE-PAID PURCHASE CONTRACT
REGISTERED REGISTERED
No. [ ] _________ Purchase Contracts
(each Purchase Contract
having an issue price of
$---------).
CUSIP:
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Purchase
Contracts in definitive registered form, this Purchase Contract may not be
transferred except as a whole by the Depositary to the nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.]1
------------
1 Applies to global purchase contracts
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL PRE-PAID PURCHASE CONTRACT SETTLING ________________
This Pre-paid Purchase Contract is one of the Pre-Paid Purchase
Contracts Settling ____________ (the "Purchase Contracts"), initially issued as
part of a [Separable] Unit Mandatorily Exchangeable for ______________ (a
"Unit") consisting of [(i) one Purchase Contract and (ii) one ________ Warrant
Settling ______________ (a "_______ Warrant")]. The Units are governed by a Unit
Agreement dated as of ____________ between the Issuer and The Chase Manhattan
Bank as Unit Agent under the Unit Agreement, Trustee and Paying Agent under the
Senior Indenture and Warrant Agent (the "Warrant Agent") under the Warrant
Agreement dated __________. [Prior to ___________ (the "[Automatic] Separation
Date"), the Purchase Contracts and the _______ Warrants may be purchased and
transferred only as Units. On the Automatic Separation Date, the Units will
automatically separate into their constituent Purchase Contracts and Put
Warrants (which will thereafter trade under separate CUSIP numbers), and the
Units will cease to exist.] Any holder of a Purchase Contract by his acceptance
thereof agrees to (in the absence of any applicable administrative ruling or
judicial determination to the contrary) treat the Purchase Contracts and
Warrants initially comprising Units as separate securities and to file all
United States federal, state and local tax returns consistent with the treatment
of such Units as constituted by separate securities.
Purchase Contract Property................
Amount of Purchase Contract Property
Deliverable Per Purchase Contract..........
Settlement.................................
Contract Settlement Date...................
[Determination Dates]......................
Calculation Agent.......................... Morgan Stanley & Co. Incorporated.
Other Provisions...........................
2
Morgan Stanley Dean Witter & Co., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to ________ [CEDE & CO.]2, or registered assignees, the amount of
Purchase Contract Property, as determined in accordance with the provisions set
forth under "Settlement" above, due with respect to _________ PURCHASE CONTRACTS
on the Contract Settlement Date (including as a result of acceleration or
otherwise) specified above.
Reference is hereby made to the further provisions of this Purchase
Contract set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Purchase
Contract shall not be entitled to any benefit under the Senior Indenture or be
valid or obligatory for any purpose.
--------
2 Applies to global purchase contracts.
IN WITNESS WHEREOF, the Issuer has caused this Purchase Contract to be
duly executed.
DATED: [ ] MORGAN STANLEY DEAN WITTER & CO.
By:
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the securities referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------------------
Authorized Officer
4
FORM OF REVERSE OF SECURITY
This Pre-paid Purchase Contract is one of a duly authorized issue of
Prepaid Purchase Contracts known as the Pre-paid Purchase Contracts Settling
_____________ (the "Purchase Contracts") of the Issuer. The Purchase Contracts
are issuable under an Amended and Restated Senior Indenture, dated as of May 1,
1999, between Morgan Stanley Dean Witter & Co. and The Chase Manhattan Bank, as
Trustee (the "Trustee,") (as further supplemented or amended 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 Purchase Contracts and the terms upon which the Purchase
Contracts are, and are to be, authenticated and delivered. The Issuer has
appointed The Chase Manhattan Bank (formerly known as Chemical Bank) at its
corporate trust office in The City of New York as the paying agent (the "Paying
Agent," which term includes any additional or successor Paying Agent appointed
by the Issuer) with respect to the Purchase Contracts. The terms of individual
Purchase Contracts may vary, all as provided in the Senior Indenture. To the
extent not inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
This Purchase Contract 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 Purchase Contract is not redeemable prior to maturity.]
This Purchase Contract, and any Purchase Contract or Purchase Contracts
issued upon transfer or exchange hereof, is issuable only in fully registered
form in minimum denominations of ______ Purchase Contracts and any integral
multiple of ______ Purchase Contracts in excess thereof.
The Trustee has been appointed registrar for the Purchase Contracts, and
the Trustee shall maintain at its office in The City of New York a register for
the registration and transfer of Purchase Contracts. This Purchase Contract may
be transferred at the aforesaid office of the Trustee by surrendering this
Purchase Contract for cancellation, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and duly executed by the registered
holder hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Purchase Contract or Purchase Contracts
having identical terms and provisions and having a like number of Purchase
Contracts in authorized denominations, subject to the terms and conditions set
forth herein. Purchase Contracts are exchangeable at said office for other
Purchase Contracts of other authorized denominations and having identical terms
and provisions. All such exchanges and transfers of Purchase Contracts shall be
free of charge, but the Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge in connection therewith. All Purchase
Contracts surrendered for exchange
5
shall be accompanied by a written instrument of transfer in form satisfactory to
the Trustee and executed by the registered holder in person or by the holder's
attorney duly authorized in writing.
In case any Purchase Contract shall at any time become mutilated,
defaced or be destroyed, lost or stolen and such Purchase Contract 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 Purchase Contract of like tenor in exchange for the Purchase
Contract so mutilated or defaced, or in lieu of the Purchase Contract so
destroyed or lost or stolen, but, if this Purchase Contract is destroyed, lost
or stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this Purchase Contract 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 preparation, authentication and delivery of a new Purchase Contract
shall be borne by the owner of the Purchase Contract mutilated, defaced,
destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of,
premium, if any, or interest on, any series of debt securities issued under the
Senior Indenture, including a default in payment of the Purchase Contract
Property (as defined on the face of this instrument) or any other amount due
with respect to the series of Prepaid Purchase Contracts of which this Purchase
Contract 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 Purchase Contract, 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.
For purposes of such default provisions and any other provisions of the
Senior Indenture that require a calculation of a percentage of the principal
amount of debt securities outstanding under the
6
Senior Indenture, such Purchase Contract shall be deemed to represent a
principal amount outstanding equal to [the purchase price of the Units including
such Purchase Contract at issuance].3
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 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.
So long as this Purchase Contract shall be outstanding, the Issuer
shall cause to be maintained an office or agency for the payment of the Purchase
Contract Property or any other amount due with respect to this Purchase Contract
as herein provided in the Borough of Manhattan, The City of New York, and an
office or agency in said Borough of Manhattan for the registration, transfer and
exchange as aforesaid of the Purchase Contracts. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places (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 Purchase Contract Property paid by the Issuer and held
by the Trustee or any Paying Agent for payment of any Purchase Contract that
remains unclaimed at the end of two years after such Purchase Contract shall
have become due and payable (whether on the Contract Settlement Date (as defined
on the face of this instrument) or as a result of acceleration or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Purchase
Contracts that such Purchase Contract Property shall be repaid to the Issuer and
any person claiming such Purchase Contract Property shall thereafter look only
to the Issuer for payment thereof and (ii) such Purchase Contract Property shall
be so repaid to the Issuer. Upon such repayment all liability of the Trustee or
such Paying Agent with respect to such Purchase Contract Property shall
thereupon cease.
-----------
3 Unless otherwise indicated in the Issuer Order.
7
No provision of this Purchase Contract or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the Purchase Contract Property on this Purchase Contract
at the time, place, and rate, and in the coin or currency, herein prescribed
unless otherwise agreed between the Issuer and the registered holder of this
Purchase Contract.
Prior to due presentment of this Purchase Contract for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder in whose name this Purchase Contract is registered as the owner
hereof for all purposes, whether or not this Purchase Contract 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 Purchase Contract
Property on this Purchase Contract, 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 Purchase Contract shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in this Purchase Contract which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - _________________ Custodian _________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act _______________________________
(State)
Additional abbreviations may also be used though not in the above list.
--------------------
9
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
---------------------------------------
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Purchase Contract and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such purchase
contract on the books of the Issuer, with full power of substitution in the
premises.
Dated:
------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Purchase Contract in every
particular without alteration or enlargement or any change
whatsoever.
10
FORM OF PRE-PAID PURCHASE CONTRACT
REGISTERED REGISTERED
No. [ ] _________ Purchase Contracts
(each Purchase Contract
having an issue price of
$---------).
CUSIP:
[Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for Purchase
Contracts in definitive registered form, this Purchase Contract may not be
transferred except as a whole by the Depositary to the nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.]1
------------
1 Applies to global purchase contracts
MORGAN STANLEY DEAN WITTER & CO.
GLOBAL PRE-PAID PURCHASE CONTRACT SETTLING ________________
This Pre-paid Purchase Contract is one of the Pre-Paid Purchase
Contracts Settling ____________ (the "Purchase Contracts"), initially issued as
part of a [Separable] Unit Mandatorily Exchangeable for ______________ (a
"Unit") consisting of [(i) one Purchase Contract and (ii) one ________ Warrant
Settling ______________ (a "_______ Warrant")]. The Units are governed by a Unit
Agreement dated as of ____________ between the Issuer and The Chase Manhattan
Bank as Unit Agent under the Unit Agreement, Trustee and Paying Agent under the
Senior Indenture and Warrant Agent (the "Warrant Agent") under the Warrant
Agreement dated __________. [Prior to ___________ (the "[Automatic] Separation
Date"), the Purchase Contracts and the _______ Warrants may be purchased and
transferred only as Units. On the Automatic Separation Date, the Units will
automatically separate into their constituent Purchase Contracts and Put
Warrants (which will thereafter trade under separate CUSIP numbers), and the
Units will cease to exist.] Any holder of a Purchase Contract by his acceptance
thereof agrees to (in the absence of any applicable administrative ruling or
judicial determination to the contrary) treat the Purchase Contracts and
Warrants initially comprising Units as separate securities and to file all
United States federal, state and local tax returns consistent with the treatment
of such Units as constituted by separate securities.
Purchase Contract Property................
Amount of Purchase Contract Property
Deliverable Per Purchase Contract..........
Settlement.................................
Contract Settlement Date...................
[Determination Dates]......................
Calculation Agent.......................... Morgan Stanley & Co. Incorporated.
Other Provisions...........................
2
Morgan Stanley Dean Witter & Co., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to ________ [CEDE & CO.]2, or registered assignees, the amount of
Purchase Contract Property, as determined in accordance with the provisions set
forth under "Settlement" above, due with respect to _________ PURCHASE CONTRACTS
on the Contract Settlement Date (including as a result of acceleration or
otherwise) specified above.
Reference is hereby made to the further provisions of this Purchase
Contract set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Purchase
Contract shall not be entitled to any benefit under the Senior Indenture or be
valid or obligatory for any purpose.
--------
2 Applies to global purchase contracts.
IN WITNESS WHEREOF, the Issuer has caused this Purchase Contract to be
duly executed.
DATED: [ ] MORGAN STANLEY DEAN WITTER & CO.
By:
-------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the securities referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
-----------------------------------
Authorized Officer
4
FORM OF REVERSE OF SECURITY
This Pre-paid Purchase Contract is one of a duly authorized issue of
Prepaid Purchase Contracts known as the Pre-paid Purchase Contracts Settling
_____________ (the "Purchase Contracts") of the Issuer. The Purchase Contracts
are issuable under an Amended and Restated Senior Indenture, dated as of May 1,
1999, between Morgan Stanley Dean Witter & Co. and The Chase Manhattan Bank, as
Trustee (the "Trustee,") (as further supplemented or amended 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 Purchase Contracts and the terms upon which the Purchase
Contracts are, and are to be, authenticated and delivered. The Issuer has
appointed The Chase Manhattan Bank (formerly known as Chemical Bank) at its
corporate trust office in The City of New York as the paying agent (the "Paying
Agent," which term includes any additional or successor Paying Agent appointed
by the Issuer) with respect to the Purchase Contracts. The terms of individual
Purchase Contracts may vary, all as provided in the Senior Indenture. To the
extent not inconsistent herewith, the terms of the Senior Indenture are hereby
incorporated by reference herein.
This Purchase Contract 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 Purchase Contract is not redeemable prior to maturity.]
This Purchase Contract, and any Purchase Contract or Purchase Contracts
issued upon transfer or exchange hereof, is issuable only in fully registered
form in minimum denominations of ______ Purchase Contracts and any integral
multiple of ______ Purchase Contracts in excess thereof.
The Trustee has been appointed registrar for the Purchase Contracts, and
the Trustee shall maintain at its office in The City of New York a register for
the registration and transfer of Purchase Contracts. This Purchase Contract may
be transferred at the aforesaid office of the Trustee by surrendering this
Purchase Contract for cancellation, accompanied by a written instrument of
transfer in form satisfactory to the Trustee and duly executed by the registered
holder hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Trustee shall issue in the name of the transferee or
transferees, in exchange herefor, a new Purchase Contract or Purchase Contracts
having identical terms and provisions and having a like number of Purchase
Contracts in authorized denominations, subject to the terms and conditions set
forth herein. Purchase Contracts are exchangeable at said office for other
Purchase Contracts of other authorized denominations and having identical terms
and provisions. All such exchanges and transfers of Purchase Contracts shall be
free of charge, but the Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge in connection therewith. All Purchase
Contracts surrendered for exchange
5
shall be accompanied by a written instrument of transfer in form satisfactory to
the Trustee and executed by the registered holder in person or by the holder's
attorney duly authorized in writing.
In case any Purchase Contract shall at any time become mutilated,
defaced or be destroyed, lost or stolen and such Purchase Contract 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 Purchase Contract of like tenor in exchange for the Purchase
Contract so mutilated or defaced, or in lieu of the Purchase Contract so
destroyed or lost or stolen, but, if this Purchase Contract is destroyed, lost
or stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this Purchase Contract 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 preparation, authentication and delivery of a new Purchase Contract
shall be borne by the owner of the Purchase Contract mutilated, defaced,
destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of,
premium, if any, or interest on, any series of debt securities issued under the
Senior Indenture, including a default in payment of the Purchase Contract
Property (as defined on the face of this instrument) or any other amount due
with respect to the series of Prepaid Purchase Contracts of which this Purchase
Contract 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 Purchase Contract, 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.
For purposes of such default provisions and any other provisions of the
Senior Indenture that require a calculation of a percentage of the principal
amount of debt securities outstanding under the
6
Senior Indenture, such Purchase Contract shall be deemed to represent a
principal amount outstanding equal to [the purchase price of the Units including
such Purchase Contract at issuance].3
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 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.
So long as this Purchase Contract shall be outstanding, the Issuer
shall cause to be maintained an office or agency for the payment of the Purchase
Contract Property or any other amount due with respect to this Purchase Contract
as herein provided in the Borough of Manhattan, The City of New York, and an
office or agency in said Borough of Manhattan for the registration, transfer and
exchange as aforesaid of the Purchase Contracts. The Issuer may designate other
agencies for the payment of said principal, premium and interest at such place
or places (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 Purchase Contract Property paid by the Issuer and held
by the Trustee or any Paying Agent for payment of any Purchase Contract that
remains unclaimed at the end of two years after such Purchase Contract shall
have become due and payable (whether on the Contract Settlement Date (as defined
on the face of this instrument) or as a result of acceleration or otherwise),
(i) the Trustee or such Paying Agent shall notify the holders of such Purchase
Contracts that such Purchase Contract Property shall be repaid to the Issuer and
any person claiming such Purchase Contract Property shall thereafter look only
to the Issuer for payment thereof and (ii) such Purchase Contract Property shall
be so repaid to the Issuer. Upon such repayment all liability of the Trustee or
such Paying Agent with respect to such Purchase Contract Property shall
thereupon cease.
-----------
3 Unless otherwise indicated in the Issuer Order.
7
No provision of this Purchase Contract or of the Senior Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the Purchase Contract Property on this Purchase Contract
at the time, place, and rate, and in the coin or currency, herein prescribed
unless otherwise agreed between the Issuer and the registered holder of this
Purchase Contract.
Prior to due presentment of this Purchase Contract for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder in whose name this Purchase Contract is registered as the owner
hereof for all purposes, whether or not this Purchase Contract 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 Purchase Contract
Property on this Purchase Contract, 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 Purchase Contract shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in this Purchase Contract which are defined in the
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT - _________________ Custodian _________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act _______________________________
(State)
Additional abbreviations may also be used though not in the above list.
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
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[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
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[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Purchase Contract and all rights thereunder, hereby irrevocably
constituting and appointing such person attorney to transfer such purchase
contract on the books of the Issuer, with full power of substitution in the
premises.
Dated:
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NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Purchase Contract in every
particular without alteration or enlargement or any change
whatsoever.
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