EXHIBIT 4.2
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
REGISTERED REGISTERED
NO. 1 $412,371,150
CUSIP: 617446CV9
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 SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANY OTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
Morgan Stanley, Dean Witter, Discover & Co., a Delaware corporation
(together with its successors and assigns, the "ISSUER"), for value received,
hereby promises to pay to The Bank of New York, as Property Trustee (the
"PROPERTY TRUSTEE," which term includes any successor Property Trustee for MSDW
Capital Trust I) for MSDW Capital Trust I, a statutory business trust formed
under the laws of the State of Delaware (the "Issuer Trust"), or registered
assignees, the principal sum of $412, 371,150 (UNITED STATES DOLLARS FOUR
HUNDRED AND TWELVE MILLION, THREE HUNDRED SEVENTY-ONE THOUSAND, ONE HUNDRED AND
FIFTY) on February 28, 2038, such date, as it may be advanced as set forth
below, the "STATED MATURITY," and to pay interest thereon at the annual rate of
7.10% from and including March 12, 1998, until the principal hereof is paid or
duly made available for payment (except as provided below) payable quarterly in
arrears on the 28th day of February and the 30th day of May, August and
November of each year (each an "INTEREST PAYMENT DATE"), commencing May 30,
1998.
Interest on this Debenture 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 March 12,
1998, until, but excluding the date the principal hereof has been paid or duly
made available for payment. 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 person in whose name this Debenture (or one or
more predecessor Debentures) is registered at the close of business on the 15th
calendar day (whether or not a Business Day) next preceding such Interest
Payment Date (each such date a "RECORD DATE"). As used herein, "BUSINESS DAY"
means any day, other than a Saturday or Sunday, that is not a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to remain closed. A Holder of U.S. $1,000,000 or more in
aggregate principal amount of Debentures having the same Interest Payment Date,
the interest on which is payable in U.S. dollars, shall be entitled to receive
payments of interest, other than interest due at maturity or on any date of
redemption or repayment, by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received by the Paying Agent in
writing not less than 15 calendar days prior to the applicable Interest Payment
Date.
Reference is hereby made to the further provisions of this Debenture set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place, including, without
limitation, the provisions relating to the subordination of this Debenture to
the Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Debenture shall not be entitled to any benefit
under the Junior Subordinated Indenture, as defined on the reverse hereof, or be
valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this Debenture to be duly executed.
DATED: March 12, 1998 MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
By:
---------------------------------------
Name: Alexander C. Frank
Title: Assistant Treasurer
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Debentures referred
to in the within-mentioned
Junior Subordinated Indenture.
DATED: March 12, 1998
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------
Authorized Signatory
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[REVERSE OF SECURITY]
This debenture is one of a duly authorized issue of 7.10% Junior Subordinated
Debentures due February 28, 2038 (the "DEBENTURES") of the Issuer. The
Debentures are issuable under a Junior Subordinated Indenture, dated as of March
1, 1998, between Morgan Stanley, Dean Witter, Discover & Co. (the "ISSUER") and
The Bank of New York, as Trustee (the "TRUSTEE," which term includes any
successor trustee under the Junior Subordinated Indenture) (the "JUNIOR
SUBORDINATED INDENTURE"), to which Junior Subordinated Indenture 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 Debentures
and the terms upon which the Debentures are, and are to be, authenticated and
delivered. The Issuer has appointed The Bank of New York 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 Debentures. To the extent not inconsistent herewith, the
terms of the Junior Subordinated Indenture are hereby incorporated by reference
herein. Capitalized terms not otherwise defined herein have the meaning given
to such terms in the Junior Subordinated Indenture.
This Debenture will not be subject to any sinking fund and, except as
provided below, will not be redeemable or subject to repayment at the option of
the holder prior to its Stated Maturity.
This Debenture may be redeemed at the option of the Issuer (i) on or after
March 12, 2003 in whole at any time or in part from time to time and (ii) prior
to March 12, 2003, in whole (but not in part) at any time within 90 days
following the occurrence and continuation of a Tax Event or an Investment
Company Event (the "90-DAY PERIOD"), in each case at a redemption price equal to
the accrued and unpaid interest on the Debentures so redeemed to the date fixed
for redemption, plus 100% of the principal amount thereof (the "REDEMPTION
PRICE"). Notice of redemption shall be mailed to the registered holders of the
Debentures designated for redemption at their addresses as the same shall appear
on the Debenture register not less than 30 nor more than 60 days prior to the
date fixed for redemption, subject to all the conditions and provisions of the
Junior Subordinated Indenture. In the event of redemption of this Debenture in
part only, a new Debenture or Debentures for the amount of the unredeemed
portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
The Issuer's right to redeem the Debentures under clause (ii) of the
preceding paragraph shall be subject to the condition that if at the time there
is available to the Issuer or MSDW Capital Trust I (the "ISSUER TRUST," the
terms of which have been established pursuant to the Amended and Restated Trust
Agreement dated as of March 12, 1998, among the Issuer, as depositor, The Bank
of New York, as Property Trustee, The Bank of New York (Delaware), as Delaware
Trustee and the Administrators, the "TRUST AGREEMENT") the opportunity to
eliminate, within the 90-Day Period, the Tax Event or Investment Company Event
by taking some ministerial action ("MINISTERIAL ACTION"), such as filing a form
or making an election, or pursuing some other similar reasonable measure that
will have no adverse effect on the Issuer, the Issuer Trust or the holders of
the securities issued by the Issuer Trust and will involve no material cost, the
Issuer shall pursue such measures in lieu of redemption; provided further, that
the Issuer shall have no right to redeem the Debentures
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while the Issuer Trust is pursuing any Ministerial Action pursuant to the Trust
Agreement. The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or such earlier time as the Issuer
determines; provided, that the Issuer shall deposit with the Trustee an amount
sufficient to pay the Redemption Price prior to the redemption date.
In addition, if a Tax Event occurs, then the Issuer will have the right prior
to the termination of the Issuer Trust, to advance the Stated Maturity of this
Debenture to the minimum extent required in order to allow for the payments of
interest in respect this Debenture to continue to be tax deductible, but in no
event shall the resulting maturity of this Debenture be less than 15 years from
the date of original issuance thereof. The Stated Maturity shall be advanced
only if, in the opinion of counsel to the Issuer, experienced in such matters,
(a) after advancing the Stated Maturity, interest paid on this Debenture will be
deductible for United States federal income tax purposes and (b) advancing the
Stated Maturity will not result in a taxable event to the holders of the Capital
Securities.
The term "TAX EVENT" means the receipt by the Issuer Trust of an opinion of
counsel to the Issuer experienced in such matters, who shall not be an officer
or employee of the Issuer or any of its affiliates, to the effect that, as a
result of any amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or as a result of
any official or administrative pronouncement or action or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or which pronouncement, action or decision is announced on or after
the date of issuance of Capital Securities of the Issuer Trust, there is more
than an insubstantial risk that (i) the Issuer Trust is, or will be within 90
days of the delivery of such opinion, subject to United States federal income
tax with respect to income received or accrued on the Debentures, (ii) interest
payable by the Issuer on the Debentures is not, or within 90 days of the
delivery of such opinion will not be, deductible by the Issuer, in whole or in
part, for United States federal income tax purposes or (iii) the Issuer Trust
is, or will be within 90 days of the delivery of the opinion, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
"INVESTMENT COMPANY EVENT" means the receipt by the Issuer Trust of an opinion
of counsel to the Issuer experienced in such matters, who shall not be an
officer or employee of the Issuer or any of its affiliates, to the effect that,
as a result of the occurrence of a change in law or regulation or a written
change (including any announced prospective change) in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority, there is more than an insubstantial risk that
the Issuer Trust is or will be considered an "investment company" that is
required to be registered under the Investment Company Act of 1940, as amended
(the "Investment Company Act"), which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date of
the issuance of the Capital Securities of the Issuer Trust.
Interest payments on this Debenture will include interest accrued to but
excluding the Interest Payment Dates or the Stated Maturity (or any earlier
redemption or repayment date), as the case may be. Interest payments for this
Debenture will be computed and paid on the basis of a 360-day year
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of twelve 30-day months and the actual days elapsed in a partial month in such
period. The amount of interest payable for any full interest period will be
computed by dividing the rate per annum by four. Accrued interest that is not
paid on the applicable Interest Payment Date will bear additional interest on
the amount thereof at the rate per annum of 7.10% (the "COUPON RATE"),
compounded quarterly and computed on the basis of a 360-day year of twelve 30-
day months and the actual days elapsed in a partial month in such period. The
amount of additional interest payable for any full interest period will be
computed by dividing the rate per annum by four. The term "interest' as used
herein includes quarterly interest payments, interest on quarterly interest
payments not paid on the applicable Interest Payment Date and Additional Sums
(as defined below), as applicable.
If any Interest Payment Date or the Stated Maturity (or any redemption or
repayment date) does not fall on a Business Day, payment of interest, premium,
if any, or principal 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 at the Stated Maturity
(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 Stated
Maturity (or any redemption or repayment date) to such next succeeding Business
Day.
The Junior Subordinated Indenture provides that, (a) if an Event of Default
(as defined in the Junior Subordinated Indenture) due to the default in payment
of principal of, premium, if any, or interest on, any series of debt securities
issued under the Junior Subordinated Indenture, including the series of
Debentures of which this Debenture 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 Junior Subordinated 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 Junior Subordinated Indenture applicable to all
outstanding debt securities issued thereunder, including this Debenture, or due
to certain events of bankruptcy, insolvency and reorganization of the Issuer,
shall have occurred and be continuing, either the Trustee or the holders of not
less than 25% in principal amount of all debt securities issued under the Junior
Subordinated 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. Deferral of any due date for the payment of interest
in connection with an Extension Period (as defined herein) does not constitute
an Event of Default.
So long as no Event of Default has occurred and is continuing, the Issuer
shall have the right at any time, and from time to time, during the term of the
Debentures to defer payments of interest by extending the interest payment
period of this Debenture for a period not exceeding 20 consecutive quarters (the
"EXTENSION PERIOD"), during which Extension Period no interest shall be due and
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payable; provided, that no Extension Period may extend beyond the Stated
Maturity. Interest, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this paragraph, will bear
interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extension Period and computed on the basis of a 360-day year of twelve 30-day
months and the actual days elapsed in a partial month in such period
("ADDITIONAL INTEREST"). The Coupon Rate payable for any full interest period
will be computed by dividing the rate per annum by four. At the end of the
Extension Period, the Issuer shall pay all interest accrued and unpaid on this
Debenture, including any Additional Sums and Additional Interest (together,
"DEFERRED INTEREST") that shall be payable to the Holders of this Debenture in
whose names this Debenture is registered in the Securities Register on the first
Record Date after the end of the Extension Period. Before the termination of any
Extension Period, the Issuer may further extend such period; provided, that such
period together with all such further extensions thereof shall not exceed 20
consecutive quarters, or extend beyond the Stated Maturity. In the event that
the Stated Maturity is advanced to a date prior to the end of an Extension
Period, such Extension Period shall be deemed to end on such date or such
earlier date as may be determined by the Issuer. In the event that any
Debentures are called for redemption on a date prior to the end of an Extension
Period, with respect to such Debentures, such Extension Period shall be deemed
to end on such date or such earlier date as may be determined by the Issuer.
Upon the termination of any Extension Period and upon the payment of all
Deferred Interest then due, the Issuer may commence a new Extension Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extension Period, except at the end thereof, but the Issuer may prepay
at any time all or any portion of the interest accrued during an Extension
Period.
If the Property Trustee (as defined in the Trust Agreement) is the only
Holder of the Debentures at the time the Issuer selects an Extension Period, the
Issuer shall give written notice to the Issuer Trustees (as defined in the Trust
Agreement) of its selection of such Extension Period at least 30 calendar days
prior to the date the Distributions (as defined in the Trust Agreement) on the
Trust Securities (as defined in the Trust Agreement) would have been payable but
for the election to begin such Extension Period.
If the Property Trustee is not the only Holder, or is not itself the Holder,
of the Debentures at the time the Issuer selects an Extension Period, the Issuer
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extension Period at least 10 Business Days before the earlier
of the next succeeding Interest Payment Date or the date the Issuer is required
to give notice of the record or payment date of such interest payment to Holders
of the Debentures.
The Issuer covenants that it will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Issuer's capital stock or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Issuer that rank pari passu in all respects with or
junior in interest to the Debentures (other than (a) repurchases, redemptions or
other acquisitions of shares of capital stock of the Issuer (1) in connection
with any employment contract, benefit plan or other similar arrangement with or
for the benefit of any one or more employees, officers, directors or
consultants, (2) in connection with a dividend reinvestment or stockholder stock
purchase plan or
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(3) in connection with the issuance of capital stock of the Issuer (or
securities convertible into or exercisable for such capital stock) as
consideration in an acquisition transaction entered into prior to the applicable
Extension Period or other event referred to below, (b) as a result of an
exchange, redemption or conversion of any class or series of the Issuer's
capital stock (or any capital stock of a subsidiary of the Issuer) for any class
or series of the Issuer's capital stock or of any class or series of the
Issuer's indebtedness for any class or series of the Issuer's capital stock, (c)
the purchase of fractional interests in shares of the Issuer's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged, (d) any declaration of a dividend in
connection with any stockholder's rights plan, or the issuance of rights, stock
or other property under any stockholder's rights plan, or the redemption or
repurchase of rights pursuant thereto, (e) payments under the Guarantee executed
and delivered by the Issuer and The Bank of New York, as trustee, for the
benefit of the holders of any Capital Securities (as defined in the Trust
Agreement), as amended from time to time (the "GUARANTEE") or (f) any dividend
in the form of stock, warrants, options or other rights where the dividend stock
or the stock issuable upon exercise of such warrants, options or other rights is
the same stock as that on which the dividend is being paid or ranks pari passu
with or junior to such stock), if at such time (i) there has occurred any event
(a) of which the Issuer has actual knowledge that with the giving of notice or
the lapse of time, or both, would constitute an Event of Default and (b) that
the Issuer has not taken reasonable steps to cure, (ii) if the Debentures are
held by the Issuer Trust, the Issuer is in default with respect to its payment
of any obligations under the Guarantee or (iii) the Issuer has given notice of
its election of an Extension Period as provided in the Junior Subordinated
Indenture and has not rescinded such notice, or such Extension Period, or any
extension thereof, is continuing.
If an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Issuer to pay any amounts payable in respect
of the Debentures on the date such amounts are otherwise payable, a registered
holder of Capital Securities may institute a legal proceeding directly against
the Issuer for enforcement of payment to such registered holder of an amount
equal to the amount payable in respect of Debentures having a principal amount
equal to the aggregate Liquidation Amount (as defined in the Trust Agreement) of
the Capital Securities held by such registered holder (a "Direct Action"). The
Issuer shall have the right to set off any payment made to such registered
holder of Capital Securities by the Issuer in connection with a Direct Action.
As long as any Debentures are held by the Issuer Trust, the Issuer covenants
(i) to continue to hold, directly or indirectly, 100% of the Common Securities
(as defined in the Trust Agreement), provided that certain successors that are
permitted pursuant to the Junior Subordinated Indenture may succeed to the
Issuer's ownership of the Common Securities, (ii) as holder of the Common
Securities, not to voluntarily dissolve, windup or liquidate the Issuer Trust,
other than (a) in connection with a distribution of Debentures to the holders of
the Capital Securities in liquidation of the Issuer Trust or (b) in connection
with certain mergers, consolidations or amalgamations permitted by the Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms and
provisions of the Trust Agreement, to cause the Issuer Trust to continue not to
be taxable as a corporation for United States federal income tax purposes.
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If, and for so long as, (i) the Issuer Trust is the holder of all the
Debentures and (ii) the Issuer Trust is required to pay any additional taxes,
duties or other governmental charges as a result of a Tax Event, the Issuer will
pay as additional sums on the Debentures ("ADDITIONAL SUMS") such amounts as may
be required so that the Distributions (as defined in the Trust Agreement) paid
by the Issuer Trust will not be reduced as a result of any such additional
taxes, duties or other governmental charges.
The Issuer, as borrower, agrees to pay all debts and other obligations (other
than with respect to the Capital Securities issued by the Issuer Trust) and all
costs and expenses of the Issuer Trust (including costs and expenses relating to
the organization of the Issuer Trust, the fees and expenses of the Issuer
Trustees (as defined in the Trust Agreement) for the Issuer Trust and the costs
and expenses relating to the operation of the Issuer Trust) and to pay any and
all taxes and all costs and expenses with respect thereto (other than United
States withholding taxes) to which the Issuer Trust might become subject. The
foregoing obligations of the Issuer under the Debentures owned by the Issuer
Trust are for the benefit of, and shall be enforceable by, any person to whom
any such debts, obligations, costs, expenses and taxes are owed (a "CREDITOR")
whether or not such Creditor has received notice thereof. Any such Creditor may
enforce such obligations of the Issuer directly against the Issuer, and the
Issuer irrevocably waives any right or remedy to require that any such Creditor
take any action against the Issuer Trust or any other person before proceeding
against the Issuer. The Issuer agrees to execute any additional agreements as
may be necessary or desirable to give full effect to the foregoing.
The provisions of Section 3.04 and Section 10.01 of the Junior Subordinated
Indenture relating to discharge, defeasance and covenant defeasance are not
applicable to this Debenture.
This Debenture and all other obligations of the Issuer hereunder will
constitute part of the junior subordinated debt of the Issuer, will be issued
under the Junior Subordinated Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the Junior
Subordinated Indenture, to all "Senior Indebtedness" of the Issuer. The Junior
Subordinated Indenture defines "SENIOR INDEBTEDNESS" as obligations issued under
the Senior Indenture between Morgan Stanley (as predecessor to the Issuer) and
The Chase Manhattan Bank (formerly known as Chemical Bank), as trustee, dated
April 15, 1989, as supplemented by a First Supplemental Senior Indenture dated
as of May 15, 1991 and a Second Supplemental Indenture, dated as of April 15,
1996 and a Third Supplemental Indenture dated as of June 1, 1997, between the
Issuer and The Chase Manhattan Bank, as trustee, or the Senior Subordinated
Indenture between Morgan Stanley (as predecessor to the Issuer) and The First
National Bank of Chicago, as trustee, dated as of April 15, 1989, as
supplemented by a First Supplemental Subordinated Indenture dated as of May 15,
1991 and a Second Supplemental Subordinated Indenture dated as of April 15, 1996
and by a Third Supplemental Subordinated Indenture dated as of June 1, 1997
between the Issuer and The First National Bank of Chicago, as trustee, and any
other obligations (other than non-recourse obligations, the debt securities,
including this Debenture, issued under the Junior Subordinated Indenture or any
other obligations specifically designated as being subordinate in right of
payment to Senior Indebtedness) of, or guaranteed or assumed by, the Issuer for
borrowed money or evidenced by
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bonds, debentures or other similar instruments, and amendments, renewals,
extensions, modifications and refundings of any such indebtedness or obligation.
This Debenture, and any Debenture or Debentures issued upon transfer or
exchange hereof, is issuable only in fully registered form, without coupons, and
is issuable only in denominations of U.S. $25 and any integral multiple of U.S.
$25 in excess thereof, unless otherwise indicated on the face thereof.
The Bank of New York has been appointed registrar for the Debentures (the
"REGISTRAR," which term includes any successor registrar appointed by the
Issuer), and the Registrar will maintain at its office in The City of New York a
register for the registration and transfer of Debentures. This Debenture may be
transferred at the aforesaid office of the Registrar by surrendering this
Debenture for cancellation, accompanied by a written instrument of transfer in
form satisfactory to the Registrar and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing, and
thereupon the Registrar shall issue in the name of the transferee or
transferees, in exchange herefor, a new Debenture or Debentures having identical
terms and provisions and having a like aggregate principal amount in authorized
denominations, subject to the terms and conditions set forth herein; provided,
however, that the Registrar will not be required (i) to register the transfer of
or exchange any Debenture that has been called for redemption in whole or in
part, except the unredeemed portion of Debentures being redeemed in part or (ii)
to register the transfer of or exchange Debentures to the extent and during the
period so provided in the Junior Subordinated Indenture with respect to the
redemption of Debentures. Debentures are exchangeable at said office for other
Debentures of other authorized denominations of equal aggregate principal amount
having identical terms and provisions. All such exchanges and transfers of
Debentures will 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 Debentures surrendered for exchange shall be accompanied by a
written instrument of transfer in form satisfactory to the Registrar and
executed by the registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Debenture delivered upon
any exchange or transfer of Debentures shall be such that no gain or loss of
interest results from such exchange or transfer.
In case this Debenture shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Debenture 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 Registrar, a new Debenture of like tenor will be issued by the
Issuer in exchange for this Debenture, but, if this Debenture has been
destroyed, lost or stolen, only upon receipt of evidence satisfactory to the
Registrar and the Issuer that such Debenture 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 Debenture shall be
borne by the owner of the Debenture mutilated, defaced, destroyed, lost or
stolen.
The Junior Subordinated 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
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series issued under the Junior Subordinated 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 and the
prior written consent of each registered holder of Capital Securities, to the
extent that the Debentures are held by a MSDW Capital Trust, (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,
except as otherwise provided herein or in the Junior Subordinated Indenture, or
reduce any amount payable on redemption or repayment thereof, or change the
currency of payment thereof, or impair or affect the rights of any holder to
institute suit for the payment thereof without the consent of the holder of each
debt security so affected or (b) reduce the aforesaid percentage in principal
amount of debt securities the consent of the holders of which is required for
any such supplemental indenture; provided, however, that neither this Debenture
nor the Junior Subordinated Indenture may be amended to alter the subordination
provisions hereof or thereof without the written consent of each holder of
Senior Indebtedness then outstanding that would be adversely affected thereby.
In addition, so long as any of the Capital Securities remain outstanding, no
such modification may be made that adversely affects the holders of such Capital
Securities in any material respect, and no termination of the Junior
Subordinated Indenture may occur, and no waiver of any Event of Default or
compliance with any covenant under the Junior Subordinated Indenture may be
effective, without the prior consent of the holders of at least a majority of
the aggregate Liquidation Amount of the outstanding Capital Securities unless
and until the principal of (and premium, if any, on) the Debentures and all
accrued and unpaid interest thereon have been paid in full and certain other
conditions are satisfied. So long as the Issuer acts in accordance with the
terms of the Debentures, the Issuer may shorten the Stated Maturity of and defer
interest payable on the Debentures, in each case in accordance with the terms
hereof without the consent of the Issuer Trust or the holders of Capital
Securities. However, the Issuer may not amend this Debenture or the Junior
Subordinated Indenture to remove the rights of registered holders of Capital
Securities to institute a Direct Action without the prior written consent of all
the registered holders of Capital Securities of the Trust.
So long as this Debenture 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 Debenture 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
Debentures. 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 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 Debentures 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 Debentures 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)
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such moneys shall be so repaid to the Issuer. Upon such repayment all liability
of the Trustee or such Paying Agent with respect to such moneys shall thereupon
cease, without, however, limiting in any way any obligation that the Issuer may
have to pay the principal of or interest or premium, if any, on this Debenture
as the same shall become due.
No provision of this Debenture or of the Junior Subordinated 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
Debenture 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 Debenture.
Prior to due presentment of this Debenture 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 Debenture is registered as the owner hereof for all
purposes, whether or not this Debenture 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 Debenture, for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Junior Subordinated
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 Debenture shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
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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
_______________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing such person attorney to transfer such Debenture 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 Debenture in every particular
without alteration or enlargement or any change whatsoever.
Signature Guaranty: ________________________
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the [Registrar],
which requirements include membership or participation in
the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be
determined by the [Registrar] in addition to, or in
substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
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