SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date
of report (Date of earliest event reported): January 4,
2008
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MORGAN
STANLEY
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(Exact
Name of Registrant
as
Specified in Charter)
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DELAWARE
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(State
or Other Jurisdiction of Incorporation)
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1-11758
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36-3145972
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(Commission
File Number)
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(IRS
Employer Identification No.)
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1585
Broadway, New York, New York
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10036
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
(212)
761-4000
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Not
Applicable
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(Former
Name or Former Address, if Changed Since Last Report)
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Check
the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
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Written
communications pursuant to Rule 425 under the Securities Act (17
CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR
240.14d-2(b))
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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item
8.01 Other Events.
Morgan
Stanley, a Delaware corporation (the “Company”), has entered into a Second
Supplemental Senior Indenture between the Company and The Bank of New York
(the
“Second Supplemental Senior Indenture”), dated as of January 4, 2008, amending
the terms of the Senior Indenture between the Company and The Bank of New York
(as successor to JPMorgan Chase Bank N.A. (formerly known as JPMorgan Chase
Bank)) (the “Senior Indenture”), dated as of November 1, 2004, to allow for the
issuance by the Company of the Company’s Global Medium-Term Senior Bearer Notes,
Series G and H, in the form required by the European Central Bank for debt
securities to be eligible to be pledged as collateral in Eurosystem operations
(“NGN form”), and to amend certain trustee notification provisions in the Senior
Indenture. In connection therewith, the Company has also entered into
an amended and restated Euro Distribution Agreement between the Company and
Morgan Stanley & Co. International plc (the “Amended and Restated Euro
Distribution Agreement”), dated as of January 4, 2008, for the purpose of
including provisions relating to the issuance by the Company of the Company’s
Global Medium-Term Senior Bearer Notes, Series G and H, in NGN
form.
On
January
4, 2008, the Company approved the following forms of notes that may be issued
in
NGN form under the Senior Indenture (as so amended): (i) a form of Temporary
Global Floating Rate Senior Bearer Note (the “Form of Temporary Global Floating
Rate Senior Bearer Note”), (ii) a form of Permanent Global Floating Rate Senior
Bearer Note (the “Form of Permanent Global Floating Rate Senior Bearer Note”),
(iii) a form of Temporary Global Fixed Rate Senior Bearer Note (the “Form of
Temporary Global Fixed Rate Senior Bearer Note”) and (iv) a form of Permanent
Global Fixed Rate Senior Bearer Note (the “Form of Permanent Global Fixed Rate
Senior Bearer Note”).
On
January
8, 2008, the Company filed a new Prospectus Supplement dated January
4, 2008 relating to its Global Medium Term Notes, Series G and H and Global
Units, Series G and H.
Copies
of
the Amended and Restated Euro Distribution Agreement, the Second Supplemental
Senior Indenture, the Form of Temporary Global Floating Rate Senior Bearer
Note,
the Form of Permanent Global Floating Rate Senior Bearer Note, the Form of
Temporary Global Fixed Rate Senior Bearer Note and the Form of Permanent Global
Fixed Rate Senior Bearer Note are attached as exhibits hereto.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
The
following exhibits are part of this
Report on Form 8-K:
1.1
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Amended
and Restated Euro Distribution Agreement between the Company and
Morgan
Stanley & Co. International plc dated as of January 4,
2008.
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4.1
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Second
Supplemental Senior Indenture between the Company and The Bank of
New York
dated as of January 4, 2008.
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4.2
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Form
of Temporary Global Floating Rate Senior Bearer
Note.
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4.3
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Form
of Permanent Global Floating Rate Senior Bearer
Note.
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4.4
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Form
of Temporary Global Fixed Rate Senior Bearer
Note.
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4.5
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Form
of Permanent Global Fixed Rate Senior Bearer
Note.
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5.1
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Legality
Opinion of Davis Polk & Wardwell relating to debt securities issued
under the Senior Indenture, as amended, including the Global Medium-Term
Senior Bearer Notes, Series G and
H.
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23.1
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Consent
of Davis Polk & Wardwell (included in Exhibit
5.1).
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant
has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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MORGAN
STANLEY
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Date:
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January
10, 2008
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By:
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/s/
W. Gary Beeson
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Name:
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W.
Gary Beeson
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Title:
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Assistant
Secretary
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EXHIBIT
1.1
MORGAN
STANLEY
Global
Medium-Term Notes, Series G and Series H
Global
Units, Series G and Series H
AMENDED
AND RESTATED EURO DISTRIBUTION AGREEMENT
January
4,
2008
Morgan
Stanley & Co. International plc
25
Cabot
Square
Canary
Wharf London E14 4QA
United
Kingdom
Dear
Sirs:
Morgan
Stanley, a Delaware corporation (the “
Company
”), confirms its
agreement with you with respect to the issue and sale from time to time by
the
Company primarily outside the United States of up to $125,452,274,876 (or the
equivalent thereof in one or more currencies other than U.S. dollars) aggregate
initial public offering price, as such amount may be increased from time to
time
upon due authorization by the Company, of its Global Medium-Term Notes, Series
G
and Series H, each due more than nine months from the date of issue (the
“
Notes
”) and its Global Units, Series G and Series H (the
“
Units
” and together with the Notes, and any other
securities
that may be offered by post-effective amendment to the Registration Statement
referred to below, the “
Program Securities
”), in each case
subject to reduction result of the sale of the Company’s (i) Global Medium-Term
Notes, Series F, to be sold primarily inside the United States, (ii) Global
Units, Series F, to be sold primarily inside the United States, and (iii) the
sale of certain of the Company’s other debt securities, warrants, common stock,
preferred stock, purchase contracts and units and of capital securities of
certain Morgan Stanley Capital Trusts. The Series G Notes are
intended to be admitted to listing on the Official List of the United Kingdom
Financial Services Authority (the “
UK Listing Authority
”) in
its capacity as United Kingdom competent authority for the purposes of Directive
2003/71/EC (the “
Prospectus Directive
”) and relevant
implementing measures in the United Kingdom, and to trading on the gilt edged
and fixed income market of the London Stock Exchange plc (the “
London
Stock Exchange
”) or admitted to listing, trading and/or quotation by
any other listing authority, stock exchange and/or quotation system, if so
required by Section 3(j) hereof. Application may, in certain
circumstances described in the Prospectus Supplement (as defined below), be
made
to admit the Series G Units to the Official List of the UK Listing Authority
and
to trading on the gilt edged and fixed income market of the London Stock
Exchange. The Series H Notes and the Series H Units will not be listed on any
stock exchange.
The
Notes
may be issued as senior indebtedness (the “
Senior Notes
”) or as
subordinated indebtedness (the “
Subordinated Notes
”) of the
Company. The Senior Notes will be issued, either alone or as part of
a Unit, pursuant to the provisions of a senior indenture dated as of November
1,
2004, between the Company and The Bank of New York (successor to JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank)), as trustee (the
“
Senior Debt Trustee
”) (as supplemented by the First
Supplemental Senior Indenture dated as of September 4, 2007 and the Second
Supplemental Senior Indenture dated as of January 4, 2008 and as may be further
supplemented or amended from time to time, the “
Senior Debt
Indenture
”). The Subordinated Notes will be issued pursuant
to the provisions of a subordinated indenture dated as of October 1, 2004,
between the Company and The Bank of New York (as successor to J.P. Morgan Trust
Company, National Association), as trustee (the “
Subordinated Debt
Trustee
”) (as may be supplemented or amended from time to time, the
“
Subordinated Debt Indenture
”). The Senior Debt
Indenture and the Subordinated Debt Indenture are sometimes hereinafter referred
to individually as an “
Indenture
” and collectively as the
“
Indentures,
” and the Senior Debt Trustee and the Subordinated
Debt Trustee are sometimes hereinafter referred to individually as a
“
Trustee
” and collectively as the
“
Trustees.
” Purchase contracts (“
Purchase
Contracts
”) that require holders to satisfy their obligations
thereunder when such Purchase Contracts are issued are referred to as
“
Pre-paid Purchase Contracts.
” Pre-paid Purchase Contracts that
settle in cash (“
Cash-settled Pre-paid Purchase Contracts
”)
generally will be issued under an Indenture. Pre-paid Purchase
Contracts that do not settle in cash (“
Physically-settled Pre-paid
Purchase Contracts
”) generally will be issued under the Unit Agreement
or the Unit Agreement Without Holders’ Obligations (each as defined
below).
The
Units
will be issued either pursuant to the Unit Agreement dated as of November 1,
2004, among the Company, The Bank of New York (as successor to JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank)), as Unit Agent, as
Collateral Agent, as Trustee and Paying Agent under the Indenture referred
to
therein, and as Warrant Agent under the Warrant Agreement referred to therein,
and the holders from time to time of the Units described therein (as may be
amended from time to time, the “
Unit Agreement
”) or, if the
Units do not include Purchase Contracts (or include only Pre-paid Purchase
Contracts), pursuant to a Unit Agreement among the Company and The Bank of
New
York (as successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan
Chase Bank)), as Unit Agent, as Trustee and Paying Agent under the Indenture
referred to therein, and as Warrant Agent under the Warrant Agreement referred
to therein, in the form of such agreement filed as an exhibit to the
Registration Statement referred to below (each such agreement, a “
Unit
Agreement Without Holders’ Obligations
”).
1
Units may include one or
more (i)
Senior Notes, (ii) warrants (“
Warrants
”) entitling the holders
thereof to purchase or sell (a) securities issued by the Company or by an entity
not affiliated with the Company (or securities issued by an entity affiliated
with the Company in the case of Series H Units), a basket of such securities,
an
index or indices of such securities or any other property, (b) currencies,
(c)
commodities or (d) any combination of the foregoing, (iii) Purchase Contracts,
including Pre-paid Purchase Contracts, requiring the holders thereof to purchase
or sell (a) securities issued by the Company or by an entity not affiliated
with
the Company (or securities issued by an entity affiliated with the
____________________________
1
The Unit Agreement
Without Holders’ Obligations shall include additional provisions to allow for
the issuance of Pre-paid Purchase Contracts that are not issued under the
Indentures.
Company
in
the case of Series H Units), a basket of such securities, an index or indices
of
such securities or any other property, (b) currencies, (c) commodities or (d)
any combination of the foregoing or (iv) any combination thereof. The
applicable supplement to the Prospectus referred to below will specify whether
Notes, Warrants and Purchase Contracts comprised by a Unit may or may not be
separated from any series of Units. Warrants issued as part of a Unit
will be issued pursuant to the Warrant Agreement dated as of November 1, 2004
(as may be amended from time to time, the “
Warrant Agreement
”)
between the Company and The Bank of New York (as successor to JPMorgan Chase
Bank, N.A. (formerly known as JPMorgan Chase Bank)), as Warrant
Agent. Purchase Contracts, other than Pre-paid Purchase Contracts
(“
Non-Pre-paid Purchase Contracts
”), entered into by the
Company and the holders thereof will be governed by the Unit
Agreement.
The
Notes,
whether issued alone or as part of a Unit, will have the maturities, interest
rates, redemption provisions, if any, and other terms as set forth in the
Prospectus referred to below and any Term Sheets (as defined in Section 3(m)
below) referred to below. The Warrants will have the exercise prices,
exercise dates, expiration dates and other terms as set forth in the Prospectus
and any Term Sheets. The Purchase Contracts will have the closing
dates, purchase or sale prices and other terms as set forth in the Prospectus
and any Term Sheets. Program Securities other than Notes and Units or
any combination thereof, whether issued alone or as part of a Unit, will have
the terms as set forth the Prospectus and any Term Sheets.
The
Company has initially appointed (i) The Bank of New York, London Branch (as
successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank),
London Branch), at its principal office in London, as principal paying agent
for
the Senior Notes (in such capacity, the “
Senior Principal Paying
Agent
”) and (ii) the Subordinated Debt Trustee (acting through The Bank
of New York, London Branch (as successor to JPMorgan Chase Bank, N.A. (formerly
known as JPMorgan Chase Bank), London Branch), at its principal office in
London, as its sub-agent) as principal paying agent for the Subordinated Notes
(in such capacity, the “
Subordinated Principal Paying
Agent
”). References herein to the “
Principal Paying
Agent
” are to the Senior Principal Paying Agent (in the case of duties
relating to the Senior Notes) or to the Subordinated Principal Paying Agent
(in
the case of duties relating to the Subordinated Notes).
The
Notes
will be issued in bearer form or in definitive registered form without coupons
(the “
Registered Notes
”), the Units will be issued in bearer
form or in definitive registered form (the “
Registered Units
”)
and the securities included in a Unit will be in the form of such
Unit. The Program Securities issued in bearer form will be
represented initially by, in the case of the Notes, a temporary global Note
and,
in the case of the Units, a temporary global Unit. In addition,
global bearer Notes will be issued in either Classic Global Note
(“
CGN
”) form or in New Global Note (“
NGN
”)
form. Temporary global bearer Notes issued in CGN form and temporary
global Units will be delivered to a common depositary located outside the United
States for Euroclear Bank S.A./N.V., as operator of the Euroclear System (the
“
Euroclear Operator
”), Clearstream Banking,
société
anonyme
(“
Clearstream
”), or any other relevant clearing
system. Temporary global Notes issued in NGN form will be delivered
to a common safe-keeper (“
CSK
”) located outside the United
States for the Euroclear Operator and Clearstream. Beneficial
interests in a temporary global Note or a temporary global Unit will be
exchangeable for beneficial interests in, in the case of a temporary global
Note, a permanent
global
Note and, in the case of a temporary global Unit, a permanent global
Unit. Beneficial interests in a permanent global Note will be
exchangeable in whole, in the case of a permanent global Note in CGN form,
or in
whole or from time to time in part, in the case of a permanent global Note
in
NGN form, for a definitive Note or Notes in bearer form, with interest coupons
attached, upon receipt by the Principal Paying Agent of an initial request
in
relation to a permanent global Note in CGN form, or any request in relation
to a
permanent global Note in NGN form, to so exchange by any holder of a beneficial
interest in such permanent global Note (such temporary global Note, permanent
global Note and definitive Notes in bearer form are collectively referred to
as
the “
Bearer Notes
”), and Bearer Notes, if the applicable
Pricing Supplement so specifies, will be exchangeable in whole or in part for
Registered Notes. Beneficial interests in a permanent global Unit
(including an interest in the securities included in such Unit) will be
exchangeable in whole, but not in part, for definitive Units in bearer form
upon
receipt by the Unit Agent of an initial request to so exchange by any holder
of
a beneficial interest in such permanent global Unit (such temporary global
Unit,
permanent global Unit and definitive Units in bearer form are collectively
referred to as the “
Bearer Units
”) and Bearer Units, if the
applicable Pricing Supplement so specifies, will be exchangeable in whole or
in
part for Registered Units. As used in this Agreement, the term
“
Note
” includes any temporary global Note or permanent global
Note issued pursuant to the Indentures and the term “
Unit
”
includes any temporary global Unit or permanent global Unit
issued pursuant to
the Unit Agreement.
The
Company hereby appoints you as its exclusive agent for the purpose of soliciting
and receiving offers to purchase Program Securities from the Company by others
and, on the basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, you agree to use
reasonable efforts to solicit and receive offers to purchase Program Securities
upon terms acceptable to the Company at such times and in such amounts as the
Company shall from time to time specify. In addition, you may also
purchase Program Securities as principal pursuant to the terms of a terms
agreement relating to such sale (in the case of Notes, a “
Notes Terms
Agreement
” and, in the case of Units, a “
Units Terms
Agreement
”) in accordance with the provisions of Section 2(b)
hereof.
The
Company has filed with the Securities and Exchange Commission (the
“
Commission
”) a registration statement, including a prospectus,
relating to the Program Securities. Such registration statement as
amended at the Commencement Date (as hereinafter defined), including the
documents incorporated therein by reference and the information (if any) deemed
to be part of the registration statement at the time of effectiveness pursuant
to Rule 430B of the Securities Act, as amended (the “
Securities
Act
”) is hereinafter referred to as the “
Registration
Statement.
” The Company proposes to file with the Commission
from time to time, pursuant to Rule 424 under the Securities Act, supplements
to
the prospectus relating to the Program Securities included in the Registration
Statement that will describe certain terms of the Program
Securities. The prospectus covering the Program Securities in the
form first used to confirm each sale of Program Securities (or in the form
first
made available to the agents by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as
the
“
Basic Prospectus.
” The Basic Prospectus, as
supplemented by a prospectus supplement and/or one or more product supplements
and/or pricing supplements setting forth the terms of the Program Securities,
in
the form first used to confirm each sale of Program Securities (or in the form
first made available to the agents by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act), is hereinafter referred to
as
the
“
Prospectus
”. The term “
preliminary
prospectus
” means any preliminary form of the
Prospectus. The term “
free writing prospectus
” has
the meaning set forth in Rule 405 under the Securities Act. The term
“
Time of Sale
” in respect of Program Securities means any time
at or prior to the confirmation of any sales of any such Program
Security. The term “
Time of Sale Prospectus
” means
the Basic Prospectus, each preliminary prospectus and/or Term Sheet, if any,
and
each free writing prospectus, if any, that has been prepared by or on behalf
of
the Company relating to such Program Securities as of such Time of
Sale. The term “
broadly available road show
” means a
“
bona fide electronic road show
” as defined in Rule 433(h)(5)
under the Securities Act that has been made available without restriction to
any
person. As used herein, the terms “
Registration
Statement
,” “
Basic Prospectus
,”
“
Prospectus
,” “
preliminary prospectus
” and
“
Time
of Sale Prospectus
” shall include the documents, if any,
incorporated by reference therein. The terms
“
supplement,
” “
amendment
” and
“
amend
” as used herein with respect
to the Registration
Statement, the Basic Prospectus, any preliminary prospectus, the Time of Sale
Prospectus or free writing prospectus shall include all documents subsequently
filed by the Company with the Commission pursuant to the Securities Exchange
Act
of 1934, as amended (the “
Exchange Act
”), that are deemed to be
incorporated by reference therein.
1.
Representations
and Warranties.
The Company represents and warrants to and
agrees with you as of the Commencement Date, as of each date on which you
solicit offers to purchase Program Securities, as of each date on which the
Company accepts an offer to purchase Program Securities (including any purchase
by you as principal pursuant to a Notes Terms Agreement or a Units Terms
Agreement), as of each date the Company issued and delivers Program Securities
and as of each date the Registration Statement or the Basic Prospectus is
amended or supplemented, as follows (it being understood that such
representations, warranties and agreements shall be deemed to relate to the
Registration Statement, the Basic Prospectus and the Prospectus, each as amended
or supplemented to each such date):
(a)
The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings
for
such purpose are pending before or threatened by the Commission. If
the Registration Statement is an automatic shelf registration statement as
defined in Rule 405 under the Securities Act, the Company is a well-known
seasoned issuer (as defined in Rule 405 under the Securities Act) eligible
to
use the Registration Statement as an automatic shelf registration statement
and
the Company has not received notice that the Commission objects to the use
of
the Registration Statement as an automatic shelf registration
statement.
(b)
(i) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus
complied or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission thereunder,
(ii)
each part of the Registration Statement, when such part became effective, did
not contain and each such part, as amended or supplemented, if applicable,
will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) the Registration Statement does not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of
a material fact or omit to state a material fact required
to
be
stated therein or necessary to make the statements therein not misleading,
(iv)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder (v) the Time of Sale Prospectus, as then amended or supplemented
by
the Company, if applicable, at each Time of Sale of Program Securities in
connection with the offering thereof when the Prospectus is not yet available
to
prospective purchasers and at each date on which the Company issues and delivers
Program Securities, will not contain any untrue statement of a material fact
or
omit to state a material fact necessary to make the statements therein, in
the
light of the circumstances under which they were made, not misleading,
(vi) each broadly available road show, if any, when considered together
with the applicable Time of Sale Prospectus, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements therein, in the light of the circumstances under which they
were
made, not misleading, and (vii) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in
this
paragraph do not apply to (A) statements or omissions in the Registration
Statement, the Time of Sale Prospectus or the Prospectus based upon information
relating to you furnished to the Company in writing by you expressly for use
therein or (B) those parts of the Registration Statement that constitute the
Statements of Eligibility (Forms T-1) under the Trust Indenture Act of 1939,
as
amended (the “
Trust Indenture Act
”), of the Trustees and (2)
the representations and warranties set forth in clauses (iv) and (vii) above,
when made as of the Commencement Date or as of any date on which you solicit
offers to purchase Program Securities or on which the Company accepts an offer
to purchase Program Securities, shall be deemed not to cover information
concerning an offering of particular Program Securities to the extent such
information will be set forth in a supplement to the Basic
Prospectus.
(c)
The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d) under
the Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing
prospectus that the Company has filed, or is required to file, pursuant to
Rule
433(d) under the Securities Act or that was prepared by or behalf of or used
or
referred to by the Company complies or will comply in all material respects
with
the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder. Except for any free writing
prospectuses and electronic road shows each furnished to you before first use,
the Company has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing
prospectus.
(d)
The
Company has been duly incorporated, is validly existing as a corporation in
good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in
the
Prospectus
and the Time of Sale Prospectus, if applicable, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in
good standing would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(e)
Each
subsidiary of the Company has been duly incorporated, is validly existing as
a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to
conduct its business as described in the Prospectus and the Time of Sale
Prospectus, if applicable, and is duly qualified to transact business and is
in
good standing in each jurisdiction in which the conduct of its business or
its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have
a material adverse effect on the Company and its consolidated subsidiaries,
taken as a whole; all of the issued shares of capital stock of each consolidated
subsidiary of the Company have been duly and validly authorized and issued,
are
fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims.
(f)
Each
of this Agreement and any applicable Written Notes Terms Agreement or Written
Units Terms Agreement (each as hereinafter defined) has been duly authorized,
executed and delivered by the Company.
(g)
Each
Indenture has been duly qualified under the Trust Indenture Act and each of
the
Senior Indenture, the Subordinated Indenture, the Unit Agreement, the Warrant
Agreement and the International Central Securities Depositaries Agreement dated
January 4, 2008 among the Company, the Euroclear Operator and Clearstream (the
“
ICSD Agreement
”) has been duly authorized, executed and
delivered by, and is a valid and binding agreement of, the Company, enforceable
in accordance with its terms subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability.
(h)
The
form of Unit Agreement Without Holders’ Obligations has been duly authorized by
the Company and, when a Unit Agreement Without Holders’ Obligations has been
duly executed and delivered by the Company, the Unit Agreement Without Holders’
Obligations will be a valid and binding agreement of the Company, enforceable
in
accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally and equitable principles of
general applicability.
(i)
The
forms of Notes (including the form of Cash-settled Pre-paid Purchase Contracts),
whether issued alone or as part of a Unit, have been duly authorized and
established in conformity with the provisions of the relevant Indenture and,
when the Notes (and the Cash-settled Pre-paid Purchase Contracts) have been
executed and authenticated in accordance with the provisions of the relevant
Indenture (and, if the Notes are issued in NGN form and are not physically
delivered to the CSK, have been
duly
effectuated by the relevant CSK) and delivered to and duly paid for by the
purchasers thereof, the Notes (and the Cash-settled Pre-paid Purchase Contracts)
will be entitled to the benefits of such Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability.
(j)
The
forms of Units under the Unit Agreement, including the forms of Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts, have been duly authorized and established in conformity with the
provisions of (i) in the case of such Units, Physically-settled Pre-paid
Purchase Contracts and Non-Pre-paid Purchase Contracts, the Unit Agreement
and
(ii) in the case of Warrants, the Warrant Agreement. When such Units
have been delivered to and duly paid for by the purchasers thereof and (A)
any
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts included in such Units have been executed by the Company and
countersigned by the Unit Agent and (B) any Warrants included in such Units
have
been executed by the Company and countersigned by the Warrant Agent, such Units
(including any such Physically-settled Pre-paid Purchase Contracts, Non-Pre-paid
Purchase Contracts or Warrants contained therein) will be entitled to the
benefits of the Unit Agreement and, in the case of the Warrants, the Warrant
Agreement and will be valid and binding obligations of the Company, enforceable
in accordance with their respective terms subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability.
(k)
When
a Unit Agreement Without Holders’ Obligations has been executed and delivered by
the Company, the Units to be issued thereunder will have been duly authorized
and when such Units have been established in conformity with the provisions
of
the Unit Agreement Without Holders’ Obligations and delivered to and duly paid
for by the purchasers thereof, and any Warrants included in such Units have
been
executed by the Company and countersigned by the Warrant Agent, such Units
(including any such Warrants contained therein) will be entitled to the benefits
of the Unit Agreement Without Holders’ Obligations and will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability.
(l)
The
execution and delivery by the Company of this Agreement, the Notes and Pre-paid
Purchase Contracts (whether issued alone or as part of a Unit), the Units
(including any Purchase Contracts and Warrants included therein), the
Indentures, the Unit Agreement, any Unit Agreement Without Holders’ Obligations,
the Warrant Agreement, the ICSD Agreement and any applicable Written Notes
Terms
Agreement or Written Units Terms Agreement and the performance by the Company
of
its obligations under this Agreement, the Notes, the Pre-paid Purchase
Contracts, the Units (including any Purchase Contracts or Warrants included
therein), the Indentures, the Unit Agreement, any Unit Agreement Without
Holders’ Obligations, the Warrant Agreement, the ICSD Agreement and any
applicable Notes Terms Agreement or Units
Terms
Agreement will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its consolidated subsidiaries, taken as a whole, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Company or any of its consolidated subsidiaries, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under this Agreement, the Notes, the Pre-paid Purchase Contracts, the Units
(including any Purchase Contracts or Warrants included therein), the Indentures,
the Unit Agreement, any Unit Agreement Without Holders’ Obligations, the Warrant
Agreement, the ICSD Agreement and any applicable Notes Terms Agreement or Units
Terms Agreement, except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the Program
Securities;
provided
,
however
, that no representation is made
as to whether the purchase of the Program Securities constitutes a “prohibited
transaction” under Section 406 of the Employee Retirement Income Security Act of
1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended.
(m)
There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations
of
the Company and its subsidiaries, taken as a whole, from that set forth in
the
Prospectus and the Time of Sale Prospectus, if applicable.
(n)
There
are no legal or governmental proceedings pending or threatened to which the
Company or any of its consolidated subsidiaries is a party or to which any
of
the properties of the Company or any of its consolidated subsidiaries is subject
(i) other than proceedings accurately described in all material respects in
the
Prospectus and the Time of Sale Prospectus, if applicable, and proceedings
that
would not have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under this Agreement, the Indenture or the Program
Securities or to consummate the transactions contemplated by the Prospectus
or
(ii) that are required to be described in the Registration Statement or the
Prospectus and are not so described and there are no statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(o)
The
Company is not, and after giving effect to the offering and sale of the Program
Securities and the application of the proceeds thereof as described in the
Prospectus will not be, required to register as, an “investment
company” as such term is defined in the Investment Company Act of 1940, as
amended.
(p)
Each
of the Company and its consolidated subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and
has
made all declarations and filings with, all federal, state, local and
other
governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Prospectus and the Time
of
Sale Prospectus, if applicable, except to the extent that the failure to obtain
or file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
(q)
Morgan
Stanley & Co. Incorporated is registered as a broker-dealer and investment
adviser with the Commission, is registered with the Commodity Futures Trading
Commission as a futures commission merchant and is a member of the New York
Stock Exchange, Inc. and the Financial Industry Regulatory Authority,
Inc.
(r)
If
the Notes are issued in NGN form and are not physically delivered to the CSK,
the Notes will have been properly effectuated by the CSK.
Notwithstanding
the foregoing, it is understood and agreed that the representations and
warranties set forth in Section 1(b)(iii), 1(b)(iv), 1(b)(v), 1(b)(vi) and
1(b)(vii), 1(i) (except as to due authorization of the Notes and Cash-settled
Pre-paid Purchase Contracts), 1(j) (except as to due authorization of the Units,
Warrants, Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid
Purchase Contracts), 1(k) (except as to due authorization of the Units and
Warrants) and 1(l), when made as of the Commencement Date, or as of any date
on
which you solicit offers to purchase Program Securities, with respect to any
Program Securities the payments of principal or interest on which, or any other
payments with respect to which, will be determined by reference to one or more
currency exchange rates, commodity prices, securities of entities affiliated
or
unaffiliated with the Company, baskets of such securities, equity indices or
other factors, shall be deemed not to address the application of the Commodity
Exchange Act, as amended, or the rules, regulations or interpretations of the
Commodity Futures Trading Commission.
2.
Solicitations
as Agents; Purchases as Principals
.
(a)
Solicitations
as Agents
. In connection with your actions as agent hereunder,
you agree to use reasonable efforts to solicit offers to purchase Program
Securities upon the terms and conditions set forth in the Prospectus as then
amended or supplemented.
The
Company reserves the right, in its sole discretion, to instruct you to suspend
at any time, for any period of time or permanently, the solicitation of offers
to purchase Program Securities. Upon receipt of at least one business
day’s prior notice from the Company, you will forthwith suspend solicitations of
offers to purchase Program Securities from the Company until such time as the
Company has advised you that such solicitation may be resumed. While
such solicitation is suspended, the Company shall not be required to deliver
any
certificates, opinions or letters in accordance with Sections 5(a), 5(b) and
5(c);
provided
,
however
, that if the Registration Statement or
Prospectus is amended or supplemented during the period of suspension (other
than by an amendment or supplement providing solely for (i) in the case of
Notes
issued alone or as part of a Unit, a change in the interest rates, redemption
provisions, amortization schedules or maturities offered on the Notes, (ii)
in
the case of Units, a change in the exercise price, exercise date or period
or
expiration of an underlying Warrant or a change in
the
settlement date or purchase or sale price of an underlying Purchase Contract
or
(iii) for a change you deem to be immaterial), you shall not be required to
resume soliciting offers to purchase Program Securities until the Company has
delivered such certificates, opinions and letters as you may
request.
The
Company agrees to pay to you, as consideration for the sale of each Program
Security resulting from a solicitation made or an offer to purchase received
by
you, a commission in the form of a discount from the purchase price of such
Program Security equal to between .125% and .750% (depending upon such Note’s
maturity or, in the case of Units, any underlying Note’s maturity or the terms
of the Units and of the securities comprised by such Units) of the principal
amount of such Note or, in the case of Units, the face amount of such Unit
(provided that the commission for Notes having, or Units including Notes or
other securities having, a maturity of 30 years or greater will be negotiated)
or such other discount as may be specified in the Prospectus Supplement relating
to such Note or Unit.
You
shall
communicate to the Company, orally or in writing, each offer to purchase Program
Securities received by you as agent that in your judgment should be considered
by the Company. The Company shall have the sole right to accept
offers to purchase Program Securities and may reject any offer in whole or
in
part. You shall have the right to reject any offer to purchase
Program Securities that you consider to be unacceptable, and any such rejection
shall not be deemed a breach of your agreements contained herein. The
procedural details relating to the issue and delivery of Program Securities
sold
by you as agent and the payment therefor shall be as set forth in the
Administrative Procedures (as hereinafter defined).
(b)
Purchases
as Principals
. Each sale of Program Securities to you as
principals shall be made in accordance with the terms of this
Agreement. In connection with each such sale, the Company will enter
into a Notes Terms Agreement or Units Terms Agreement that will provide for
the
sale of such Program Securities to and the purchase thereof by
you. Each Notes Terms Agreement or Units Terms Agreement will take
the form of either (i) a written agreement between you and the Company, which
may be substantially in the form of Exhibit A or Exhibit A-1 (as applicable)
hereto (in the case of Notes, a “
Written Notes Terms
Agreement,
” and in the case of Units, a “
Written Units Terms
Agreement
”), or (ii) an oral agreement between you and the Company
confirmed in writing by you to the Company.
Your
commitment to purchase Program Securities as principal pursuant to a Notes
Terms
Agreement or Units Terms Agreement shall be deemed to have been made on the
basis of the representations and warranties of the Company herein contained
and
shall be subject to the terms and conditions herein set forth. Each
(i) Notes Terms Agreement shall specify the principal amount of Notes to be
purchased by you pursuant thereto, the maturity date of such Notes, the price
to
be paid to the Company for such Notes, the interest rate and interest rate
formula, if any, applicable to such Notes and any other terms of such Notes
and
(ii) Units Terms Agreement shall specify (a) the information set forth in (i)
above with respect to any Notes issued as part of a Unit, (b) with respect
to
any Warrants issued as part of a Unit, the exercise price, the exercise date
or
period, the expiration date and any other terms of such Warrants and (c) with
respect to any Purchase Contracts issued as part of a Unit, the settlement
date,
the purchase or sale price or any other terms of such Purchase
Contracts. Each such Notes Terms Agreement or Units Terms Agreement
may also specify any requirements for officers’ certificates, opinions of
counsel and
letters
from the independent auditors of the Company pursuant to Section 4
hereof. A Notes Terms Agreement and a Unit Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes or Units,
as
the case may be, by you.
Each
Notes
Terms Agreement and each Units Terms Agreement shall specify the time and place
of delivery of and payment for such Notes or Units, as the case may
be. Unless otherwise specified in a Notes Terms Agreement or a Units
Terms Agreement, the procedural details relating to the issue and delivery
of
Notes or Units, as the case may be, purchased by you as principal and
the payment therefor shall be as set forth in the Administrative
Procedures. Each date of delivery of and payment for Program
Securities to be purchased by you as principal pursuant to a Notes Terms
Agreement or a Units Terms Agreement, as the case may be, is referred to herein
as a “
Settlement Date.
”
Unless
otherwise specified in a Notes Terms Agreement or a Units Terms Agreement,
if
you are purchasing Program Securities as principal you may resell such Program
Securities to other dealers. Any such sales may be at a discount,
which shall not exceed the amount set forth in the Time of Sale Prospectus
and
Prospectus relating to such Notes or Units.
(c)
Administrative
Procedures
. You and the Company agree to perform the respective
duties and obligations specifically provided to be performed in the Global
Medium Term Notes, Series G and Series H and Global Units, Series G and Series
H, Administrative Procedures (attached hereto as Exhibit B) (the
“
Administrative Procedures
”), as amended from time to
time. The Administrative Procedures may be amended only by written
agreement of the Company and you.
(d)
Delivery
. The
documents required to be delivered by Section 4 of this Agreement as a condition
precedent to your obligation to begin soliciting offers to purchase Program
Securities as agent of the Company shall be delivered at the office of Sidley
Austin llp, your counsel, not later than 4:00 p.m., New York City time, on
the
date hereof, or at such other time and/or place as you and the Company may
agree
upon in writing, but in no event later than the day prior to the earlier of
(i)
the date on which you begin soliciting offers to purchase Program Securities
and
(ii) the first date on which the Company accepts any offer by you to purchase
Program Securities as principal. The date of delivery of such
documents is referred to herein as the “
Commencement
Date.
”
(e)
Free
Writing Prospectuses
. In connection with your actions hereunder,
you represent and agree that, unless you obtain the prior consent of the
Company, you will not make any offer relating to the Program Securities that
would constitute an “issuer free writing prospectus,” as defined in Rule 433(h)
under the Securities Act, or that would otherwise constitute a free writing
prospectus required to be filed with the Commission.
3.
Agreements
. The
Company agrees with you that:
(a)
The
Company will furnish to you a copy of each proposed free writing prospectus
to
be prepared by or on behalf of, used by, or referred to by the Company relating
to the offering of the Program Securities and the Company will not use or refer
to any proposed free writing prospectus to which you reasonably
object.
(b)
The
Company will not take any action that would result in you or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by you or on your behalf
that
you otherwise would not have been required to file thereunder.
(c)
If
the Time of Sale Prospectus is being used to solicit offers to buy Program
Securities at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which
it
is necessary to amend or supplement the Time of Sale Prospectus in order to
make
the statements therein, in the light of the circumstances, not misleading,
or if
any event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration
Statement then on file, or if, in the opinion of your counsel, it is necessary
to amend or supplement the Time of Sale Prospectus to comply with applicable
law, the Company will forthwith prepare, file with the Commission and furnish,
at the Company’s own expense, to you and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements
in the Time of Sale Prospectus as so amended or supplemented will not, in the
light of the circumstances when delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or supplemented,
will no longer conflict with the Registration Statement, or so that the Time
of
Sale Prospectus, as amended or supplemented, will comply with applicable
law.
(d)
Prior
to the termination of the offering of the Program Securities pursuant to this
Agreement or pursuant to any Notes Terms Agreement or Units Terms Agreement,
the
Company will not file any Time of Sale Prospectus or prospectus supplement
(including any product supplement or pricing supplement) relating to the Program
Securities or any amendment to the Registration Statement relating to the
Program Securities unless the Company has previously furnished to you a copy
thereof for your review and will not file any such proposed supplement or
amendment to which you reasonably object;
provided
,
however
,
that the foregoing requirement shall not apply to any of the Company’s periodic
filings with the Commission required to be filed pursuant to Section 13(a),
13(c), 13(f), 14 or 15(d) of the Exchange Act, copies of which filings the
Company will cause to be delivered to you promptly after being transmitted
for
filing with the Commission. Subject to the foregoing sentence, the
Company will promptly cause each supplement to the Basic
Prospectus relating to the Program Securities (including any product
supplement or pricing supplement) to be filed with or transmitted for filing
to
the Commission in accordance with Rule 424(b) under the Securities
Act. The Company will promptly advise you (i) of the filing of any
amendment or supplement to the Basic Prospectus, (ii) of the filing and
effectiveness of any amendment to the Registration Statement, (iii) of any
request by the Commission for any amendment to the Registration Statement or
any
amendment or supplement to the Basic Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose, (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Program Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vi) of the
issuance
by
any
non-United States regulatory authority of any request for information relating
to the Program Securities or suspension of the listing, trading and/or quotation
of any Program Securities then admitted to listing, trading and/or quotation
by
any listing authority, stock exchange and/or quotation system. The
Company will use its best efforts to prevent the issuance of any such stop
order
or notice of suspension of qualification or listing and, if issued, to obtain
as
soon as possible the withdrawal thereof. If the Basic Prospectus is
amended or supplemented as a result of the filing under the Exchange Act of
any
document incorporated by reference in the Prospectus, you shall not be obligated
to solicit offers to purchase Program Securities so long as you are not
reasonably satisfied with such document.
(e)
If,
at any time when the Prospectus (or in lieu thereof the notice referred to
in
Rule 173(a) under the Securities Act) relating to the Program Securities is
required to be delivered under the Securities Act or made available to
purchasers of the Program Securities, any event occurs or condition exists
as a
result of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact, or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
when
the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under
the Securities Act), as then amended or supplemented, is delivered to a
purchaser, not misleading, or if, in your opinion or in the opinion of the
Company, it is necessary at any time to amend or supplement the Prospectus,
as
then amended or supplemented, to comply with applicable law, the Company will
immediately notify you by telephone (with confirmation in writing) to suspend
solicitation of offers to purchase Program Securities and, if so notified by
the
Company, you shall forthwith suspend such solicitation and cease using the
Prospectus, as then amended or supplemented. If the Company shall
decide to amend or supplement the Registration Statement or Prospectus, as
then
amended or supplemented, it shall so advise you promptly by telephone (with
confirmation in writing) and, at its expense, shall prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented, that
will
correct such statement or omission or effect such compliance and will supply
such amended or supplemented Prospectus to you in such quantities as you may
reasonably request. If any documents, certificates, opinions and
letters furnished to you pursuant to Section 3(i) and Sections 5(a), 5(b) and
5(c) in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to you, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, you will resume
the
solicitation of offers to purchase Program Securities
hereunder. Notwithstanding any other provision of this Section 3(e),
until the distribution of any Program Securities you may own as principal has
been completed, if any event described above in this paragraph Section 3(e)
occurs, the Company will, at its own expense, forthwith prepare and cause to
be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or Prospectus, as then amended or supplemented,
satisfactory in all respects to you, will supply such amended or supplemented
Prospectus to you in such quantities as you may reasonably request and shall
furnish to you pursuant to Section 3(i) below and Sections 5(a), 5(b) and 5(c)
such documents,
certificates,
opinions and letters as you may request in connection with the preparation
and
filing of such amendment or supplement.
(f)
The
Company will make generally available to its security holders and to you as
soon
as practicable earning statements that satisfy the provisions of Section 11(a)
of the Securities Act and the rules and regulations of the Commission thereunder
covering a period of at least twelve months beginning, in each case, not later
than the first day of the Company’s fiscal quarter next following the “effective
date” (as defined in Rule 158 under the Securities Act) of the Registration
Statement with respect to each sale of Program Securities.
(g)
The
Company will furnish in New York City, without charge, (i) to the Agent, a
signed copy of the Registration Statement, including exhibits and all amendments
thereto, and as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto as you may
reasonably request and (ii) to the Agent that purchases Program Securities
pursuant to a Notes Terms Agreement or Units Terms Agreement or solicits an
offer to purchase Program Securities that is accepted by the Company, prior
to
10:00 a.m. New York City time on the business day next succeeding the date
of
such Notes Terms Agreement or Units Terms Agreement or the acceptance of such
offer, as many copies of the Prospectus, as then amended or supplemented
(including the Time of Sale Prospectus and the Prospectus Supplement relating
to
the Program Securities to be purchased pursuant to such Notes Terms Agreement
or
Units Terms Agreement or accepted offer), as such Agent may reasonably
request.
(h)
During
the term of this Agreement, the Company shall furnish to you such relevant
documents and certificates of officers of the Company relating to the business,
operations and affairs of the Company, the Registration Statement, the Basic
Prospectus, any amendments or supplements thereto, any Time of Sale Prospectus,
the Indentures, the Unit Agreement, any Unit Agreement Without Holders’
Obligations, the Warrant Agreement, the ICSD Agreement, the Notes, the Units,
the Warrants, the Purchase Contracts, this Agreement, the Administrative
Procedures, any Notes Terms Agreement or Units Terms Agreement and the
performance by the Company of its obligations hereunder or thereunder as you
may
from time to time reasonably request.
(i)
The
Company shall notify you promptly in writing of any downgrading, or of its
receipt of any notice of any intended or potential downgrading or of any review
for possible change that does not indicate the direction of the possible change,
in the rating accorded the Company or any of the securities of the Company
or in
the rating outlook for the Company by any “nationally recognized statistical
rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(j)
Whether
or not any sale of Program Securities is consummated or this Agreement or any
Notes Terms Agreement or Units Terms Agreement is terminated, the Company will
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement and any Notes Terms Agreement or Units Terms
Agreement, including: (i) the fees, disbursements and expenses of the
Company’s
counsel
and the Company’s accountants, of the Trustees and their counsel, of the Unit
Agent and its counsel, of the Warrant Agent and its counsel and of the Principal
Paying Agent and its counsel and any paying agents for the Program Securities
appointed by the Company in connection with the registration and delivery of
the
Program Securities under the Securities Act and all other fees or expenses
in
connection with the preparation and filing of the Registration Statement, the
Prospectus, any preliminary prospectus, the Time of Sale Prospectus, any free
writing prospectus prepared by or on behalf of, used by, or referred to by
the
Company and amendments and supplements to any of the foregoing, including the
filing fees payable to the Commission relating to the Securities (within the
time required by Rule 456(b)(1), if applicable), all printing costs
associated therewith, and the mailing and delivering of copies thereof to you
and the dealers, in the quantities hereinabove specified, (ii) all costs
and expenses related to the transfer and delivery of the Program Securities
to
you, including any transfer or other taxes payable thereon, (iii) the fees
and expenses incurred with respect to the admission of the Series G Notes (and
the Series G Units, if application for such admission is made) to the Official
List of the UK Listing Authority and to trading on the London Stock Exchange
or
to listing, trading and/or quotation by any other listing authority, stock
exchange and/or quotation system if so required by Section 3(o) hereof, (iv)
all
filing fees and the reasonable fees and disbursements of your counsel, if any,
incurred in connection with the review and qualification of the offering of
the
Program Securities by the Financial Industry Regulatory Authority, Inc., (v)
any
fees charged by the rating agencies for the rating of the Program Securities,
(vi) all fees and expenses in connection with the preparation and filing of
any registration statement on Form 8-A relating to any Program Securities
and all costs and expenses incident to listing the Program Securities on any
national securities exchanges and foreign stock exchanges, (vii) the cost
of the preparation, issuance and delivery of the Program Securities,
(viii) the costs and charges of any trustee, transfer agent, registrar or
depositary, (ix) the costs and expenses of the Company relating to investor
presentations on any “road show” undertaken in connection with the marketing of
the offering of the Program Securities, including, without limitation, expenses
associated with the preparation or dissemination of any electronic road show,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with the
road
show, (x) the document production charges and expenses associated with
printing this Agreement, the Indentures, the Unit Agreement, any Unit Agreement
Without Holders’ Obligations, the Warrant Agreement, any Note Terms Agreement
and any Unit Terms Agreement, (xi) the fees and disbursements of your counsel
incurred in connection with the offering and sale of the Program Securities,
including any opinions to be rendered by such counsel hereunder, (xii) any
out-of-pocket expenses incurred by you (provided that any advertising expenses
incurred by you shall have been approved by the Company) and (xiii) all other
costs and expenses incident to the performance of the obligations of the Company
hereunder for which provision is not otherwise made in this
Section. It is understood, however, that except as provided in this
Section and Section 6 entitled “Indemnification and Contribution,” you will
pay all of your costs
and
expenses, including fees and disbursements of your counsel, transfer taxes
payable on resale of any of the Program Securities by you and any advertising
expenses connected with any offers you may make.
(k)
If
the third anniversary of the initial effective date of the Registration
Statement occurs during an offering of Program Securities before all of the
Program Securities then being offered have been sold by you, prior to the third
anniversary the Company will file a new shelf registration statement and take
any other action necessary to permit the public offering of the Program
Securities to continue without interruption; references herein to the
Registration Statement shall include the new registration statement declared
effective by the Commission.
(l)
During
the period beginning on the date of any Notes Terms Agreement or Units Terms
Agreement relating to either Notes or Units, as the case may be, and
continuing to and including the Settlement Date with respect to such Notes
Terms
Agreement or Units Terms Agreement, the Company will not, without your prior
consent, offer, sell, contract to sell or otherwise dispose of (i) in the case
of Notes, any debt securities of the Company substantially similar to the Notes
set forth in such Notes Terms Agreement (other than (A) the Notes that are
to be
sold pursuant to such Notes Terms Agreement, (B) Notes previously agreed to
be
sold by the Company and (C) commercial paper issued in the ordinary course
of
business) or (ii) in the case of Units, any securities substantially similar
to
such Units (other than (A) the Units that are sold pursuant to such Units Terms
Agreement or (B) Units previously agreed to be sold by the Company), in each
case, except as may otherwise be provided in the applicable Notes Terms
Agreement or Units Terms Agreement.
(m)
Unless
otherwise notified by you, the Company will prepare a final term sheet (a
“
Term Sheet
”) relating to each offering of the Program
Securities, containing only information that describes the final terms of the
Program Securities or the offering, in a form consented to by you, and will
file
such Term Sheet within the period required by Rule 433(d)(5)(ii) under the
Securities Act following the date the final terms have been established for
the
offering of the Program Securities.
(n)
The
Company will indemnify and hold you harmless against any documentary, stamp
or
similar transfer or issue tax, including any interest and penalties, on the
issue of the Program Securities in accordance with the terms of this Agreement,
on the execution and delivery of this Agreement, any Written Notes Terms
Agreement or Written Units Terms Agreement and on the exchange of any temporary
global Notes for definitive Notes or permanent global Notes, of any temporary
global Units for definitive Units or permanent global Units, of any permanent
global bearer Notes for definitive bearer Notes or of any permanent global
bearer Units for definitive bearer Units, that are or may be required to be
paid
under the laws of the United Kingdom, the United States or any political
subdivision or taxing authority thereof or therein.
(o)
In
connection with any application to admit the Series G Notes or Series G Units
to
the Official List of the UK Listing Authority and to trading on the gilt edged
and fixed income market of the London Stock Exchange, the Company will
furnish
from
time
to time any and all documents, instruments, information and undertakings and
publish all advertisements or other material that may be necessary in order
to
effect such listing and trading and will maintain such listing and trading
until, (i) in the case of the Notes, none of the Series G Notes is outstanding,
either as part of a Unit or otherwise, or until such time as payment of
principal, premium, if any, and interest in respect of all the Series G Notes,
whether issued alone or as part of a Unit, has been duly provided for, whichever
is earlier and (ii) in the case of the Units, none of the Series G Units is
outstanding;
provided
,
however
, that if the Company can no
longer reasonably maintain such listing and trading, including, but not limited
to, in circumstances where obtaining or the maintenance of such listing would
require preparation of financial statements in accordance with accounting
standards other than U.S. GAAP or where the proposed European Union Transparency
Obligations Directive (the “
Directive
”) is implemented in a
manner that, in the Company’s opinion, is burdensome, it will consider obtaining
and maintaining the quotation for, or listing and trading of, the Series G
Notes
and Series G Units by such other listing authority, stock exchange and/or
quotation system (in the case of a delisting in response to the Directive,
outside the European Union) as you shall reasonably request. However,
if such an alternative listing is not available to the Company or is, in the
Company’s opinion, burdensome, an alternative listing for the Series G Notes and
Series G Units need not be considered by the Company. In addition,
for so long as the Series G Notes and Series G Units are admitted to listing,
trading and/or quotation by a listing authority, stock exchange and/or quotation
system, and such listing authority, stock exchange and/or quotation system
so
requires, the Company will maintain in London, or in such other place as the
Series G Notes and Series G Units are listed (if the Series G Notes and Series
G
Units are no longer listed on the London Stock Exchange), a paying agent in
respect of the Series G Notes or Series G Units, as required.
(p)
In
respect of any Notes which have a maturity of less than one year where either
(a) the issue proceeds of such Notes are received by the Company in the United
Kingdom or (b) the activity of issuing such Notes is carried on from an
establishment maintained by the Company in the United Kingdom, the Company
will
issue such Notes only if the following conditions apply (or the Notes can
otherwise be issued without contravention of Section 19 of the Financial
Services and Markets Act 2000 (the “
FSMA
”)): (i) you represent,
warrant and agree in the terms relating to the Notes set out in Section 7(b)(i);
and (ii) the redemption value of each such Note is not less than ₤100,000 (or an
amount of equivalent value denominated wholly or partly in a currency other
than
sterling), and no part of any Note may be transferred unless the redemption
value of that part is not less than ₤100,000 (or such an equivalent
amount).
4.
Conditions
of the Obligations of the Agents
. Your obligation to solicit
offers to purchase Program Securities as agent of the Company, your obligation
to purchase Program Securities as principals pursuant to any Notes Terms
Agreement or Units Terms Agreement and the obligation of any other purchaser
to
purchase Program Securities will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of the Company’s officers made in each certificate
furnished pursuant to the provisions hereof and to the performance and
observance by the Company of all covenants and agreements herein contained
on
its part to be performed and observed (in the case of your
obligation
to solicit offers to purchase Program Securities, at the time of such
solicitation, and, in the case of your or any other purchaser’s obligation to
purchase Program Securities, at the time the Company accepts the offer to
purchase such Program Securities and at the time of issuance and delivery)
and
(in each case) to the following additional conditions precedent when and as
specified:
(a)
Prior
to such solicitation or purchase, as the case may be:
(i)
there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company and its consolidated subsidiaries, taken as a
whole, from that set forth in the Time of Sale Prospectus that, in your
judgment, is material and adverse and that makes it, in your judgment,
impracticable to market the Program Securities on the terms and in the manner
contemplated by the Time of Sale Prospectus;
(ii)
there
shall not have occurred such a change in national or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would in your view be likely to prejudice materially the success of the
offering and distribution of the Program Securities or dealings in the Program
Securities in the secondary market; and
(iii)
there
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change, in the rating
accorded the Company or any of the securities of the Company by any “nationally
recognized statistical rating organization,” as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act;
(A) except,
in each case described in paragraph (i), (ii) or (iii) above, as disclosed
to
you in writing by the Company prior to such solicitation or, in the case of
a
purchase of Program Securities, before the offer to purchase such Program
Securities was made or (B) unless in each case described in (ii) above, the
relevant event shall have occurred and been known to you prior to such
solicitation or, in the case of a purchase of Program Securities, before the
offer to purchase such Program Securities was made.
(b)
On
the Commencement Date and, if called for by any Notes Terms Agreement or Units
Terms Agreement, on the corresponding Settlement Date, you shall have
received:
(i)
The
opinion, dated as of such date, of Davis Polk & Wardwell, special counsel to
the Company, or of other counsel satisfactory to you and who may be an officer
of the Company, to the following effect that:
(A)
the
Company has been duly incorporated, is validly existing as a corporation in
good
standing under the laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus, as amended or
supplemented,
and the Time of Sale Prospectus, if applicable, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in
good standing would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole;
(B)
each
of Morgan Stanley & Co. Incorporated and Morgan Stanley International
Holdings Inc. (each a “
Material Subsidiary
”) has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus, as amended or supplemented, and the Time of Sale Prospectus, if
applicable, and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership
or
leasing of property requires such qualification, except to the extent that
the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole;
(C)
each
of the Company and its Material Subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and
has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self regulatory organizations and all courts
and
other tribunals, to own, lease, license and use its properties and assets and
to
conduct its business in the manner described in the Prospectus, as amended
or
supplemented, and the Time of Sale Prospectus, if applicable, except to the
extent that the failure to obtain or file would not have a material adverse
effect on the Company and its consolidated subsidiaries, taken as a
whole;
(D)
each
of this Agreement and any applicable Written Notes Terms Agreement or Written
Units Terms Agreement has been duly authorized, executed and delivered by the
Company;
(E)
each
Indenture has been duly qualified under the Trust Indenture Act and each of
the
Senior Indenture, the Subordinated Indenture, the Unit Agreement, the Warrant
Agreement and the ICSD Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability;
(F)
the
Unit Agreement Without Holders’ Obligations, if any, has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of
the Company, enforceable in accordance
with
its
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability;
(G)
the
forms of Notes (including the form of Cash-settled Pre-paid Purchase Contracts),
whether issued alone or as part of a Unit, have been duly authorized and
established in conformity with the provisions of the relevant Indenture and,
if
the Notes and the Cash-settled Pre-paid Purchase Contracts had been executed
by
the Company and authenticated by the relevant Trustee or its duly appointed
agent in accordance with the provisions of the relevant Indenture and, if the
Notes were issued in NGN form and not physically delivered to the CSK, had
been
properly effectuated by the CSK, and delivered to and duly paid for by the
purchasers thereof on the date of such opinion, such Notes and the Cash-settled
Pre-paid Purchase Contracts would be entitled to the benefits of such Indenture
and would be valid and binding obligations of the Company, enforceable in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors’ rights generally and equitable
principles of general applicability;
(H)
the
forms of Units under the Unit Agreement, including the forms of Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts, have been duly authorized and established in conformity with the
provisions of (i) in the case of Units under the Unit Agreement,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts, the Unit Agreement and (ii) in the case of the Warrants, the Warrant
Agreement. If such Units (including the Warrants, the
Physically-settled Pre-paid Purchase Contracts and the Non-Pre-paid Purchase
Contracts) had been delivered to and duly paid for by the purchasers thereof
(and any Purchase Contracts included therein had been executed by the Company
and countersigned by the Unit Agent and any Warrants included therein had been
executed by the Company and countersigned by the Warrant Agent) on the date
of
such opinion, such Units (including the Physically-settled Pre-paid Purchase
Contracts, the Non-pre-paid Purchase Contracts and the Warrants contained
therein) would be entitled to the benefits of the Unit Agreement and, in the
case of the Warrants, the Warrant Agreement, and would be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally and equitable principles of general
applicability;
(I)
the
Units under the Unit Agreement Without Holders’ Obligations have been duly
authorized (and the forms of any Warrants included therein have been duly
authorized and established in conformity with the provisions of the Warrant
Agreement), and if such Units (including any such Warrants included therein)
had
been delivered to and
duly
paid
for by the purchasers thereof (and any Warrants included therein had been
executed by the Company and countersigned by the Warrant Agent) on the date
of
such opinion, such Units (including the Warrants contained therein) would be
entitled to the benefits of the Unit Agreement Without Holders’ Obligations and
in the case of the Warrants, the Warrant Agreement, and would be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency and similar
laws
affecting creditors’ rights generally and equitable principles of general
applicability;
(J)
the
execution and delivery by the Company of the Notes and Cash-settled Pre-paid
Purchase Contracts (whether issued alone or as part of a Unit), the Units
(including any Purchase Contract or Warrant included therein), the Indentures,
the Unit Agreement, any Unit Agreement Without Holders’ Obligations, the Warrant
Agreement and any applicable Written Notes Terms Agreement or Written
Units Terms Agreement and the performance by the Company of its obligations
under this Agreement, the Notes, the Units, the Indentures, the Unit Agreement,
any Unit Agreement Without Holders’ Obligations, the Warrant Agreement and any
applicable Notes Terms Agreement or Units Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by laws
of the Company or, to the best of such counsel’s knowledge, any agreement or
other instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its consolidated subsidiaries, taken as a whole,
or,
to the best of such counsel’s knowledge, any judgment, order or decree of any
U.S. governmental body, agency or court having jurisdiction over the Company
or
any of its consolidated subsidiaries, and no consent, approval, authorization
or
order of or qualification with any U.S. governmental body or agency is required
for the performance by the Company of its obligations under this Agreement,
the
Notes, the Cash-settled Pre-paid Purchase Contracts, the Units (including any
Purchase Contracts or Warrants included therein), the Indentures, the Unit
Agreement, any Unit Agreement Without Holders’ Obligations, the Warrant
Agreement and any applicable Notes Terms Agreement or Units Terms Agreement;
provided
,
however
, that no opinion is expressed on whether the
purchase of the Program Securities constitutes a “prohibited transaction” under
Section 406 of the Employee Retirement Income Security Act of 1974, as amended,
or Section 4975 of the Internal Revenue Code of 1986, as amended;
(K)
the
statements relating to legal matters, documents or proceedings included in
(1)
the Prospectus, as then amended or supplemented, and the Time of Sale
Prospectus, if applicable, under the captions “Description of Notes” (in the
Prospectus Supplement), “Description of Debt Securities” (in the Basic
Prospectus), “Description of Units” (in the Prospectus Supplement and in the
Basic Prospectus), “Plan
of
Distribution” (in the Prospectus Supplement and in the Basic Prospectus),
“Description of Purchase Contracts” (in the Basic Prospectus) and “Description
of Warrants” (in the Basic Prospectus), (2) in the Registration Statement, as
then amended or supplemented, under Item 15, (3) in “Item 3. Legal Proceedings”
of the most recent annual report on Form 10-K incorporated by reference in
the
Prospectus and the Time of Sale Prospectus, if applicable, and (4) in “Item 1.
Legal Proceedings” of Part II of the quarterly reports on Form 10-Q, if any,
filed since such annual report and incorporated by reference in the Prospectus
and the Time of Sale Prospectus, if applicable, in each case fairly summarize
in
all material respects such matters, documents or proceedings;
(L)
after
due inquiry, such counsel does not know of any legal or governmental proceedings
pending or threatened to which the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the Company or
any
of its consolidated subsidiaries is subject that are required to be described
in
the Registration Statement or the Prospectus, as then amended or supplemented,
and are not so described or of any U.S. federal or state statutes, regulations,
contracts or other documents governed by U.S. federal or state law that are
required to be described in the Registration Statement or the Prospectus, as
then amended or supplemented, or to be filed or incorporated by reference as
exhibits to such Registration Statement that are not described, filed or
incorporated by reference as required;
(M)
the
Company is not, and after giving effect to the offering and sale of the Program
Securities and the application of the proceeds thereof as described in the
Prospectus, will not be, required to register as an “investment company” as such
term is defined in the Investment Company Act of 1940, as amended;
and
(N)
(1)
in the opinion of such counsel (A) each document filed pursuant to the Exchange
Act and incorporated by reference in the Registration Statement and the
Prospectus, as then amended or supplemented, and the Time of Sale Prospectus,
if
applicable (except for the financial statements and financial schedules and
other financial and statistical data included therein, as to which such counsel
need not express any opinion), appeared on its face to be appropriately
responsive as of its filing date in all material respects to the requirements
of
the Exchange Act and the applicable rules and regulations of the Commission
thereunder and (B) the Registration Statement and the Prospectus, as then
amended or supplemented, if applicable (except for the financial statements
and
financial schedules and other financial and statistical data included therein
and except for those parts of the Registration Statement that constitute the
Forms T-1, as to which such counsel need not express any opinion), appear on
their face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the applicable rules and
regulations
of the Commission thereunder, and (2) nothing has come to the attention of
such
counsel that causes such counsel to believe that (A) any part of the
Registration Statement, as then amended, if applicable, when such part became
effective (except for the financial statements and financial schedules and
other
financial and statistical data included therein and except for those parts
of
the Registration Statement that constitute Forms T-1, as to which such counsel
need not express any belief) contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (B) the Registration Statement
or
the Prospectus (except for the financial statements and financial schedules
and
other financial and statistical data included therein and except for those
parts
of the Registration Statement that constitute Forms T-1, as to which such
counsel need not express any belief) as of the date the opinion is delivered,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (C) the Time of Sale Prospectus (except for the financial
statements and financial schedules and other financial and statistical data
included therein, as to which such counsel need not express any belief), if
any,
as amended or supplemented, if applicable, as of the Time of Sale contains
any
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under
which they were made not misleading or (D) the Prospectus (except for the
financial statements and financial schedules and other financial and statistical
data included therein, as to which such counsel need not express any belief),
as
amended or supplemented, if applicable, as of the date the opinion is delivered
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided
that
in the case of an opinion delivered on the Commencement Date or pursuant to
Section 5(b), the opinion and belief set forth in clauses 1(B), 2(B) (with
respect to the Prospectus only) and 2(C) above shall be deemed not to cover
information concerning an offering of particular Notes or Units to the extent
such information will be set forth in a supplement to the Basic
Prospectus.
(ii)
The
opinion, dated as of such date, of Sidley Austin llp, your special counsel,
covering the matters in subparagraphs (D), (E), (F), (G), (H), (I) and (K)
(with
respect to statements in the Prospectus and the Time of Sale Prospectus, if
applicable, as then amended or supplemented, under the captions “Description of
Notes” (in the Prospectus Supplement), “Description of Debt Securities” (in the
Basic Prospectus), “Description of Units” (in the Prospectus Supplement and the
Basic Prospectus), “Plan of Distribution” (in the Prospectus Supplement and in
the Basic Prospectus), “Description of Purchase Contracts” (in the Basic
Prospectus) and “Description of Warrants” (in the Basic
Prospectus))
and
clauses 4(b)(i)(N)(2)(A), 4(b)(i)(N)(2)(B), 4(b)(i)(N)2(C) and 4(b)(i)(N)(2)(D)
above.
The
opinions described in subparagraphs (F) and (I) need only be contained in an
opinion delivered on a Settlement Date related to an offering of Units under
a
Unit Agreement Without Holders’ Obligations to be executed on or prior to such
Settlement Date.
Notwithstanding
the foregoing, the opinions described in Sections 4(b)(i)(G) (except as to
due
authorization of the Notes and Cash-settled Pre-paid Purchase Contracts),
4(b)(i)(H) (except as to due authorization of the Units, Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid Purchase
Contracts), 4(b)(i)(I) (except as to due authorization of the Units and
Warrants), 4(b)(i)(J), 4(b)(i)(K)(1) and 4(b)(i)(N)(2)(B), 4(b)(i)(N)(2)(C)
and
4(b)(i)(N)(2)(D), when contained in an opinion delivered on the Commencement
Date or pursuant to Section 5(b), shall be deemed not to address the application
of the Commodity Exchange Act, as amended, or the rules, regulations or
interpretations of the Commodity Futures Trading Commission to Program
Securities the payments of principal or interest on which, or any other payments
with respect to which, will be determined by reference to one or more currency
exchange rates, commodity prices, securities of entities affiliated or
unaffiliated with the Company, baskets of such securities, equity indices or
other factors.
With
respect to Section 4(b)(i)(N) above, if such opinion is given by counsel who
is
also an officer of the Company, such counsel may state that his or her opinions
and beliefs are based upon his or her participation, or the
participation of someone under his or her supervision, in the preparation of
the
Registration Statement, the Time of Sale Prospectus and the Prospectus and
any
amendments or supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification, except as
specified. With respect to Section 4(b)(i)(N) above, Sidley Austin
llp and, if Davis Polk & Wardwell is giving such opinion, Davis Polk &
Wardwell may state that their opinions and beliefs are based upon their
participation in the preparation of the Registration Statement, the Time of
Sale
Prospectus, the Prospectus, the preliminary prospectus supplement, if any,
any
identified free writing prospectuses (but not including documents incorporated
therein by reference) and upon review and discussion of the contents of the
Registration Statement, the Time of Sale Prospectus and the Prospectus
(including documents incorporated therein by reference), but are without
independent check or verification, except as specified, and (ii) need express
no
opinion or belief as to the conveyance of the Time of Sale Prospectus or the
information contained therein to investors.
(iii)
The
opinion, dated as of such date, of Davis Polk & Wardwell, special counsel to
the Company, to the effect that the statements set forth under the caption
“United States Federal Taxation” in the Basic Prospectus and the Prospectus
Supplement and under the caption “Forms of Securities—Limitations on Issuance of
Bearer Securities” in the Basic Prospectus, insofar as such statements relate to
statements of law or legal conclusions under the laws of the United States
or
matters of United States law, fairly present the information called for and
fairly summarize the matters referred to therein.
The
opinion of Davis Polk & Wardwell described in Section 4(b)(iii) and in
Section 4(b)(i), if such opinion is given by Davis Polk & Wardwell, shall be
rendered to you at the request of the Company and shall so state
therein.
(c)
On
the Commencement Date and, if called for by any Notes Terms Agreement or Units
Terms Agreement, on the corresponding Settlement Date, you shall have received
a
certificate, dated the Commencement Date or such Settlement Date, as the case
may be, and signed by an officer of the Company to the effect set forth in
Section 4(a)(iii) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct
as of
such date and that the Company has complied with all of the agreements and
satisfied all of the conditions required on its part to be performed or
satisfied on or before such date.
The
officer signing and delivering such certificate may rely upon the best of his
knowledge as to proceedings threatened.
(d)
On
the Commencement Date and, if called for by any Notes Terms Agreement or Units
Terms Agreement, on the corresponding Settlement Date, the Company’s public
accountants shall have furnished to you a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, in form and
substance satisfactory to you containing statements and information of the
type
ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement, the Time of
Sale Prospectus and the Prospectus, as then amended or supplemented;
provided
that each letter so furnished shall use a “cut-off date” no
more than three business days prior to the date of such letter.
(e)
On
the Commencement Date and on each Settlement Date, the Company shall have
furnished to you such appropriate further information, certificates and
documents as you may reasonably request.
(f)
On
the Commencement Date, application to admit the Series G Notes issued by the
Company during the twelve months following the date of the approval of such
application to listing on the Official List of the UK Listing Authority and
to
trading on the London Stock Exchange shall have been made and, prior to the
issuance of the first Series G Note offered pursuant to this Agreement, such
admission to listing and to trading shall have been granted, subject to official
notice of issuance.
5.
Additional
Agreements of the Company
. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than
by
an amendment or supplement providing solely for (i) in the case of Notes, a
change in the interest rates, redemption provisions, amortization schedules
or
maturities offered on the Notes issued alone or as part of a Unit, (ii) in
the
case of Units, (x) a change in the exercise price, exercise date or period
or
expiration of an underlying Warrant or (y) a change in the settlement date
or
purchase or sale price of an underlying Purchase Contract or (iii) a change
you
deem to be immaterial), the Company will deliver or cause to be delivered
forthwith to you a certificate signed by an
executive
officer of the Company, dated the date of such amendment or supplement, as
the
case may be, in form reasonably satisfactory to you, of the same tenor as the
certificate referred to in Section 4(c) relating to the Registration
Statement or the Prospectus as amended or supplemented to the time of delivery
of such certificate.
(b)
Each
time the Company furnishes a certificate pursuant to Section 5(a) (other than
any amendment or supplement to the Registration Statement or Prospectus caused
by the filing of a Current Report on Form 8-K unless you shall reasonably
request based on disclosure included or omitted from such Report), the Company
will furnish or cause to be furnished forthwith to you a written opinion of
counsel for the Company. Any such opinion shall be dated the date of
such amendment or supplement, as the case may be, shall be in a form
satisfactory to you and shall be of the same tenor as the opinions referred
to
in Section 4(b), but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
opinion. In lieu of such opinion, counsel last furnishing such an
opinion to you may furnish to you a letter to the effect that you may rely
on
such last opinion to the same extent as though it were dated the date of such
letter (except that statements in such last opinion will be deemed to relate
to
the Registration Statement and the Prospectus as amended or supplemented to
the
time of delivery of such letter).
(c)
Each
time the Registration Statement or the Prospectus is amended or supplemented
to
set forth amended or supplemental financial information or such amended or
supplemental information is incorporated by reference in the Prospectus, the
Company shall cause its independent auditors forthwith to furnish you with
a
letter, dated the date of such amendment or supplement, as the case may be,
in
form satisfactory to you, of the same tenor as the letter referred to in Section
4(d), with regard to the amended or supplemental financial information included
or incorporated by reference in the Registration Statement or the Prospectus
as
amended or supplemented to the date of such letter;
provided
that each
letter so furnished shall use a “cut-off date” no more than three business days
prior to the date of such letter.
6.
Indemnification
and Contribution
. (a) The Company agrees to indemnify
and hold harmless you and each person, if any, who controls you within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act and each of your affiliates within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus as defined in Rule 433(h) under the Securities Act, any Company
information that the Company has filed, or is required to file, pursuant to
Rule
433(d) under the Securities Act, or the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto),
or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement
or
omission
based
upon
information relating to you furnished to the Company in writing by you expressly
for use therein.
(b)
You
agree, severally and not jointly, to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and each person,
if any, who controls the Company within the meaning of either Section 15 of
the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to you, but only with reference to
information relating to you furnished to the Company in writing by you expressly
for use in the Registration Statement, any preliminary prospectus, the Time
of
Sale Prospectus, any issuer free writing prospectus or the Prospectus or any
amendments or supplements thereto.
(c)
In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either Section 6(a) or 6(b), such person (the “
indemnified
party
”) shall promptly notify the person against whom such indemnity
may be sought (the “
indemnifying party
”) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and
shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention
of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as
they are incurred. Such firm shall be designated in writing by you,
in the case of parties indemnified pursuant to Section 6(a), and by the Company,
in the case of parties indemnified pursuant to Section 6(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees
to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of
counsel as contemplated by the second and third sentences of this paragraph,
the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of
the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any
indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d)
To
the extent the indemnification provided for in Section 6(a) or 6(b) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein in connection with any
offering of Program Securities, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one
hand and you on the other hand from the offering of such Program Securities
or
(ii) if the allocation provided by clause 6(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 6(d)(i) above but also the relative
fault of the Company on the one hand and you on the other hand in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and you on the other hand in connection with the offering of such
Program Securities shall be deemed to be in the same respective proportions
as
the total net proceeds from the offering of such Program Securities (before
deducting expenses) received by the Company bear to the total discounts and
commissions received by you in respect thereof as set forth in the
Prospectus. The relative fault of the Company on the one hand and of
you on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by you and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement
or
omission. Your obligations to contribute pursuant to this Section 6
are several in proportion to the respective principal amounts of Program
Securities you have purchased in any offering of Program Securities hereunder,
and not joint.
(e)
The
Company and you agree that it would not be just or equitable if contribution
pursuant to this Section 6 were determined by
pro rata
allocation or by
any other method of allocation that does not take account of the equitable
considerations referred to in Section 6(d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
and
liabilities referred to in Section 6(d) shall be deemed to include, subject
to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any
such
action or claim. Notwithstanding the provisions of this Section 6,
you shall not be required to contribute any amount in excess of the amount
by
which the total price at which the Program Securities referred to in Section
6(d) above that were offered and sold to the public through you exceeds the
amount of any damages that you have otherwise been required to pay by reason
of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled
to
contribution
from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise
be
available to any indemnified party at law or in equity.
(f)
The
indemnity and contribution provisions contained in this Section 6 and the
representations, warranties and other statements of the Company, its officers
and you contained in or made pursuant to this Agreement or any Notes Terms
Agreement or Units Terms Agreement will remain operative and in full force
and
effect regardless of (i) any termination of this Agreement or any such Notes
Terms Agreement or Units Terms Agreement, (ii) any investigation made by or
on
behalf of you or any person controlling you, any of your affiliates or by or
on
behalf of the Company, its officers or directors or any person controlling
the
Company and (iii) acceptance of and payment for any of the Program
Securities.
7.
Offering
Restrictions
. You hereby represent to the Company and agree with
respect to the Program Securities that:
(a)
(i) you
have not (A) offered, sold or delivered and will not offer, sell or deliver
during the Restricted Period (as defined below) Bearer Notes (whether offered
alone or as part of a Unit) (including any Note that is exchangeable for Bearer
Notes) directly or indirectly in the United States (as defined below) or to
or
for the account of any United States person (as defined below), other than
to a
Qualifying Foreign Branch (as defined below) or to certain other persons as
provided under United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(1)(iii)(B) and (C); and (B) delivered and will not deliver
within the United States definitive Bearer Notes that are sold during the
Restricted Period;
(ii)
you
have, and throughout the Restricted Period will have, in effect procedures
reasonably designed to ensure that your employees or agents who are directly
engaged in selling Bearer Notes (whether offered alone or as part of a Unit)
are
aware that such Bearer Notes may not be offered or sold during the Restricted
Period to a person who is within the United States or to a United States person,
except as permitted by Section 7(a)(i)(A) above;
(iii)
if
you are a United States person, you are acquiring the Bearer Notes (whether
offered alone or as part of a Unit) for purposes of resale in connection with
their original issuance and if you retain Bearer Notes for your own account,
you
will only do so in accordance with the requirements of United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(6);
(iv)
if
you transfer to any affiliate Bearer Notes (whether offered alone or as part
of
a Unit) for the purpose of offering or selling such Bearer Notes during the
Restricted Period, you will either (A) obtain from such affiliate for the
benefit of the Company the representations and agreements contained in clauses
(i), (ii) and (iii) above or (B) repeat and confirm the representations and
agreements
contained in clauses (i), (ii) and (iii) above on such affiliate’s behalf and
obtain from such affiliate the authority to so obligate it;
(v)
you
will obtain for the benefit of the Company the representations and agreements
contained in clauses (i), (ii), (iii) and (iv) above from any person other
than
your affiliate with whom you enter into a written contract, within the meaning
of United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(4), for the
offer or sale during the Restricted Period of Bearer Notes (whether offered
alone or as part of a Unit); and
(vi)
you
will comply with or observe any other restrictions or limitations set forth
in
the Prospectus on persons to whom, or the jurisdictions in which, or the manner
in which, the Bearer Notes (whether offered alone or as part of a Unit) may
be
offered, sold, resold or delivered.
For
purposes of this Section 7(a), an offer or sale will be considered to be made
in
the United States if the offeror or seller of such Notes (whether offered alone
or as part of a Unit) has an address within the United States for the offeree
or
purchaser of such Notes with respect to the offer or sale. As used in
this Section 7(a), “
United States person
” means a citizen or
resident of the United States, a corporation or partnership (including an entity
treated as a corporation or partnership for United States federal income tax
purposes) created or organized in or under the laws of the United States, any
State thereof or the District of Columbia, an estate the income of which is
subject to United States federal income taxation regardless of its source or
a
trust if both (x) a court within the United States is able to exercise primary
supervision over the administration of the trust and (y) one or more United
States persons have the authority to control all substantial decisions of the
trust; “
United States
” means the United States (including the
States and the District of Columbia), its territories, its possessions and
any
other areas subject to its jurisdiction; “
Qualifying Foreign
Branch
” means a branch of a United States financial institution, as
defined in the applicable United States Treasury Regulations, located outside
the United States that is purchasing for its own account or for resale and
that
has agreed, as a condition to purchase, to comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code
of
1986, as amended (the “
Code
”), and the regulations thereunder;
and “
Restricted Period
” with respect to each issuance means the
period which begins on the earlier of the date on which the Company receives
the
proceeds of the sale of Notes with respect to such issuance or the first date
on
which the Notes are offered to persons other than you, and which ends 40 days
after the date on which the Company receives the proceeds of the sale of such
Notes;
provided
that with respect to a Note held as part of an unsold
allotment or subscription, any offer or sale of such Note by the Company or
you
shall be deemed to be during the Restricted Period.
(b)
With
respect to Program Securities to be offered or sold in the United
Kingdom:
(i)
in
relation to any Program Securities that have a maturity of less than one year,
(x) you are a person whose ordinary activities involve you in acquiring,
holding, managing or disposing of investments (as principal or
agent)
for
the
purposes of your business and (y) you have not offered or sold and will not
offer or sell any Program Securities other than to persons:
(A)
whose
ordinary activities involve them in acquiring, holding, managing or disposing
of
investments (as principal or as agent) for the purposes of their businesses;
or
(B)
who
it is reasonable to expect will acquire, hold, manage or dispose of investments
(as principal or agent) for the purposes of their businesses
where
the
issue of the Program Securities would otherwise constitute a contravention
of
Section 19 of the FSMA by the Company;
(ii)
you
have only communicated or caused to be communicated and will only communicate
or
cause to be communicated an invitation or inducement to engage in investment
activity (within the meaning of Section 21 of the FSMA) received by you in
connection with the issue or sale of any Program Securities in circumstances
in
which Section 21(1) of the FSMA does not apply to the Company; and
(iii)
you
have complied and will comply with all applicable provisions of the FSMA with
respect to anything done by you in relation to any Program Securities in, from
or otherwise involving the United Kingdom.
(c)
You
will not purchase, deliver, offer or sell any Program Securities or possess
or
distribute offering material in relation to such Program Securities in any
jurisdiction if such purchase, delivery, offer or sale or the possession or
distribution of such offering material would not be in compliance with any
applicable law or regulation or if any consent, approval or permission is needed
for such purchase, delivery, offer or sale or the possession or distribution
by
you or for or on behalf of the Company unless such consent, approval or
permission has been previously obtained. Without prejudice to the
provisions of this Section 7 above and subject to the obligations of the Company
set forth in Section 3 of this Agreement, the Company shall have no
responsibility for, and you will obtain, any consent, approval or permission
required by you for the subscription, offer, sale or delivery by you of Program
Securities, or the possession or distribution of any offering materials, under
the laws and regulations in force in any jurisdiction to which you are subject
or in or from which you make any subscription, offer, sale or
delivery.
(d)
You
will not offer or sell any Program Securities, directly or indirectly, in Japan
or to, or for the benefit of, any resident of Japan (which term as used herein
means any person resident in Japan including any corporation or other entity
organized under the laws of Japan) or to others for the re-offering or re-sale,
directly or indirectly, in Japan or to a resident of Japan except pursuant
to an
exemption from the registration requirements of, and otherwise in compliance
with, the Securities and Exchange Law of Japan and other relevant laws and
regulations of Japan.
(e)
The
Agent and the Company represents and agrees that Program Securities will be
issued outside the Republic of France, that it will not offer or sell any
Program Securities in the Republic of France and will not distribute or cause
to
be distributed in the Republic of France the Prospectus or any other offering
material relating to Program Securities, except to qualified investors
(
investisseurs qualifiés
) as defined in and in accordance with Articles
L.411-2 and D.411-1 of the
Code Monétaire et Financier
.
(f)
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “
Relevant Member
State
”), with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the
“
Relevant Implementation Date
”) you have not made and will not
make an offer of Program Securities to the public in that Relevant Member State
except that you may, with effect from and including the Relevant Implementation
Date, make an offer of Program Securities to the public in that Relevant Member
State:
(i)
if
the Prospectus Supplement in relation to such Program Securities specifies
that
an offer of those Program Securities may be made other than pursuant to Article
3(2) of the Prospectus Directive in that Relevant Member State (a
“
Non-exempt Offer
”), following the date of
publication of a prospectus in relation to such Program Securities which has
been approved by the competent authority in that Relevant Member State or,
where
appropriate, approved in another Relevant Member State and notified to the
competent authority in that Relevant Member State, provided that any such
prospectus has subsequently been completed by the Prospectus Supplement
contemplating such Non-exempt Offer, in accordance with the Prospectus
Directive, in the period beginning and ending on the dates specified in such
prospectus or Prospectus Supplement, as applicable;
(ii)
at
any time to legal entities which are authorized or regulated to operate in
the
financial markets or, if not so authorized or regulated, whose corporate purpose
is solely to invest in securities;
(iii)
at
any time to any legal entity which has two or more of (1) an average of at
least
250 employees during the last financial year; (2) a total balance sheet of
more
than €43,000,000; and (3) an annual net turnover of more than €50,000,000, as
shown in its last annual or consolidated accounts;
(iv)
at
any time to fewer than 100 natural or legal persons (other than qualified
investors as defined in the Prospectus Directive) subject to obtaining the
prior
consent of the relevant agent, underwriter or dealer nominated by Morgan Stanley
for any such offer; or
(v)
at
any time in any other circumstances falling within Article 3(2) of the
Prospectus Directive,
provided
that no such offer of Program Securities referred to in (ii) to (v) above shall
require Morgan Stanley or any agent, underwriter and dealer to publish a
prospectus pursuant to Article 3 of the Prospectus Directive or supplement
a
prospectus pursuant to Article 16 of the Prospectus Directive.
For
the
purposes of this Section 7(f), the expression an "offer of Program Securities
to
the public" in relation to any Program Securities in any Relevant Member State
means the communication in any form and by any means of sufficient information
on the terms of the offer and the Program Securities to be offered so as to
enable an investor to decide to purchase or subscribe the Program Securities,
as
the same may be varied in that Member State by any measure implementing the
Prospectus Directive in that Member State and the expression "Prospectus
Directive" means Directive 2003/71/EC and includes any relevant implementing
measure in each Relevant Member State.
8.
Position
of the Agent
. In acting under this Agreement and in connection
with the sale of any Program Securities by the Company (other than Program
Securities sold to you pursuant to a Notes Terms Agreement or Units Terms
Agreement, as the case may be), you are acting solely as agent of the Company
and do not assume any obligation towards or relationship of agency or trust
with
any purchaser of Program Securities. You shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Program Securities has been solicited by you and accepted
by
the Company, but you shall not have any liability to the Company in the event
any such purchase is not consummated for any reason. If the Company
shall default in its obligations to deliver Program Securities to a purchaser
whose offer it has accepted, the Company shall hold you harmless against any
loss, claim, damage or liability arising from or as a result of such default
and
shall, in particular, pay to you the commission you would have received had
such
sale been consummated.
9.
Termination
. This
Agreement may be terminated at any time either by the Company or by you upon
the
giving of written notice of such termination to the other parties hereto, but
without prejudice to any rights, obligations or liabilities of the other parties
hereto accrued or incurred prior to such termination. The termination
of this Agreement shall not require termination of any Notes Terms Agreement
or
Units Terms Agreement, and the termination of any such Notes Terms Agreement
or
Units Terms Agreement shall not require termination of this
Agreement. If this Agreement is terminated, the provisions of the
third paragraph of Section 2(a), the last sentence of Section 3(e) and Sections
3(f), 3(h), 3(j), 3(k), 6, 7, 8, 10, 11 and 13 shall survive;
provided
that if at the time of termination an offer to purchase Program Securities
has
been accepted by the Company but the time of delivery to the purchaser or its
agent of such Program Securities has not occurred, the provisions of Sections
1,
2(b), 2(c), 3(d), 3(g), 3(h), 3(f), 3(i), 4 and 5 shall also survive until
such
delivery has been made.
10.
Notices
. All
communications hereunder will be in writing and effective only on receipt,
and
(a) if sent to Morgan Stanley & Co. International plc, will be mailed,
delivered or telefaxed and confirmed to Morgan Stanley & Co. International
plc, 25 Cabot Square, Canary Wharf, London E14 4QA, United Kingdom, to the
attention of Global Capital Markets – Head of Transaction Management Group
(Telephone No.: +44-20-7677-7799; Telecopy
No.: +44-20-7677-7999)
and (b) if sent to the
Company, will be mailed, delivered or telefaxed and confirmed
to
Morgan
Stanley, 750 Seventh Ave, New York NY 10019, Attention: Treasurer (Telecopy
No.:
212-762-0337) (or to such other address as the Company may
designate).
11.
Successors
. This
Agreement and any Notes Terms Agreement or Units Terms Agreement will inure
to
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to
in
Section 6 and the purchasers of Notes and Units (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
12.
Counterparts
. This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
13.
Applicable
Law
. This Agreement will be governed by and construed in
accordance with the internal laws of the State of New York.
14.
Headings
. The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed a part of this Agreement.
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and
your
acceptance shall represent a binding agreement between the Company and
you.
Very
truly yours,
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MORGAN
STANLEY
|
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By:
|
/s/
Daniel Park
|
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Name:
|
Daniel
Park
|
|
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Title:
|
Assistant
Treasurer
|
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The
foregoing Agreement is
hereby
confirmed and accepted as
of
the
date first above written.
MORGAN
STANLEY & CO.
INTERNATIONAL
PLC
By:
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/s/
James Walter
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Name:
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James
Walter
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Title:
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Executive
Director
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EXHIBIT
A
MORGAN
STANLEY
GLOBAL
MEDIUM-TERM NOTES, SERIES G AND SERIES H
NOTES
TERMS AGREEMENT
_____________,
200_
Morgan
Stanley
1585
Broadway
New
York,
New York 10036
Attention:
|
Re:
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Amended
and Restated Euro Distribution Agreement dated January 4,
2008
|
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(the
“
Euro Distribution
Agreement
”)
|
The
undersigned agrees to purchase your Global Medium-Term Notes, Series G/H,
[specific designation] having the terms set forth below. The offering
of the Notes will be made pursuant to a Prospectus dated January 25, 2006,
as
amended by a Prospectus Supplement dated January 4, 2008[,] [and] [Pricing
Supplement No. [ ] which we expect to be dated on or about
[ ]][,] [and] [a free writing prospectus which we
expect to be dated on or about [ ]][,] [and] [a Term Sheet
which we expect to be dated on or about [ ]] (collectively, the
“
Time of Sale Prospectus
”). The Notes are expected
to have the terms set forth below, but the final terms of the Notes will be
those set forth in the Time of Sale Prospectus.
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Principal
Amount:
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|
Interest
Rate:
|
|
Base
Rate:
|
Purchase
Price:
|
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Applicability
of Modified Payment upon Acceleration:
|
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Index
Maturity:
|
Price
to Public:
|
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If
yes, state issue price:
|
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Spread
(Plus or Minus):
|
Settlement
Date and Time:
|
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Amortization
Schedule:
|
|
Spread
Multiplier:
|
Place
of Delivery:
|
|
Applicability
of Annual Interest Payments:
|
|
Alternate
Rate Event Spread:
|
Specified
Currency:
|
|
Denominated
Currency (if any):
|
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Initial
Interest Rate:
|
Original
Issue Date:
|
|
Indexed
Currency or Currencies (if any):
|
|
Initial
Interest Reset Date:
|
|
|
|
|
|
Interest
Accrual Date:
|
|
Payment
Currency (if any):
|
|
Interest
Reset Dates:
|
Interest
Payment Date(s):
|
|
Exchange
Rate Agent (if any):
|
|
Interest
Reset Period:
|
Interest
Payment Period:
|
|
Reference
Dealers:
|
|
Maximum
Interest Rate:
|
Maturity
Date:
|
|
Face
Amount (if any):
|
|
Minimum
Interest Rate:
|
Optional
Repayment Date(s):
|
|
Fixed
Amount of each Indexed Currency (if any):
|
|
Calculation
Agent:
|
Optional
Redemption Date(s):
|
|
Aggregate
Fixed Amount of each Indexed Currency (if any):
|
|
Reporting
Service:
|
Initial
Redemption Date:
|
|
|
|
Index
Currency:
|
Initial
Redemption Percentage:
|
|
|
|
Designated
CMT Telerate Page:
|
Annual
Redemption Percentage Reduction:
|
|
|
|
Designated
CMT Maturity Index:
|
Redemption
Percentage at Maturity:
|
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|
|
Ranking:
|
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Series:
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Minimum
Denominations:
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Form:
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New
Global Note (“NGN”): [Yes/No]
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If
the Notes are NGNs, are they intended to be held in a manner
that would
allow eligibility as collateral for Eurosystem intra-day credit
and
monetary policy operations?
[Yes]
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The
provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through 14 of
the
Euro Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if
set
forth in full herein.
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is so terminated, the provisions of
Sections 3(j), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive
for the purposes of this Agreement.
The
following information, opinions, certificates, letters and documents referred
to
in Section 4 of the Euro Distribution Agreement will be
required: ________________.
Accepted:
MORGAN
STANLEY
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By:
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Name:
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Title:
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EXHIBIT
A-1
MORGAN
STANLEY
GLOBAL
UNITS, SERIES G AND SERIES H
UNITS
TERMS AGREEMENT
_______________,
200_
Morgan
Stanley
1585
Broadway
New
York,
New York 10036
Attention:
|
Re:
|
Amended
and Restated Euro Distribution Agreement dated January 4,
2008
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|
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(the
“
Euro Distribution
Agreement
”)
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The
undersigned agrees to purchase your Global Units, Series G/H, [specified
designation] having the terms set forth below. The offering of the
Units will be made pursuant to a Prospectus dated January 25, 2006, as amended
by a Prospectus Supplement dated January 4, 2008[,] [and] [Pricing Supplement
No. [ ] which we expect to be dated on or about
[ ]][,] [and] [a free writing prospectus which we
expect to be dated on or about [ ]][,] [and] [a Term Sheet
which we expect to be dated on or about [ ]] (collectively, the
“
Time of Sale Prospectus
”). The Units are expected
to have the terms set forth below, but the final terms of the Units will be
those set forth in the Time of Sale Prospectus.
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Warrants
Issued as Part of a Unit:
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Purchase
Contracts Issued as Part of a Unit:
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Settlement
Date and Time:
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Price:
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Price:
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Number
(Face Amount):
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Designation
of the Series of Warrants: [Call] [Put] Warrants
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Designation
of the Series of Purchase Contracts: [Purchase][Sale] Purchase
Contracts
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Purchase
Price:
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Warrant
Property:
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Aggregate
Number of Purchase Contracts:
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Specified
Currency:
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Aggregate
Number of Warrants:
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Purchase
Contract Property:
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Severability:
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Date(s)
upon which Warrants
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Quantity
per Purchase
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Warrants
Issued as Part of a Unit:
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Purchase
Contracts Issued as Part of a Unit:
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may
be exercised:
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Contract:
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Other
Terms:
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Currency
in which exercise payments shall be made:
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[Purchase]
[Sale] Price:
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Exchange
Rate (or method of calculation:
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Settlement
Date:
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Expiration
Date:
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Payment
Location:
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Form
of Settlement:
[Call
Price:]
1
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Method
of Settlement:
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[Formula
for determining Cash Settlement Value:]
2
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Currency
of Settlement Payment:
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[Amount
of Warrant Property Salable per Warrant:]
3
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Contract
Fees, if any:
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[Put
Price for such specified amount of Warrant Property per Warrant:]
2
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Corporation
Acceleration:
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[Method
of delivery of any Warrant Property to be delivered for sale
upon exercise
of Warrants:]
3
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Holders’
Acceleration:
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Other
Terms:
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Redemption
Provisions:
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Other
Terms:
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_________________
1
Applicable to Call
Warrants
2
Applicable to Put
Warrants
3
Applicable to Put
Warrants only if such Put Warrants contemplate that the holder deliver
Warrant
Property to settle Put Warrants
All
Notes Issued as Part of a Unit:
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Fixed
Rate Notes Issued as Part of a Unit:
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Floating
Rate Notes Issued as Part of a Unit:
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Principal
Amount:
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Interest
Rate:
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Base
Rate:
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Purchase
Price:
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Applicability
of Modified Payment upon Acceleration:
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Index
Maturity:
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Price
to Public:
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If
yes, state issue price:
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Spread
(Plus or Minus):
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Settlement
Date and Time:
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Amortization
Schedule:
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Spread
Multiplier:
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Place
of Delivery:
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Applicability
of Annual Interest Payments:
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Alternate
Rate Event Spread:
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Specified
Currency:
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Denominated
Currency (if any):
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Initial
Interest Rate:
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Original
Issue Date:
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Indexed
Currency or Currencies (if any):
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Initial
Interest Reset Date:
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Interest
Accrual Date:
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Payment
Currency (if any):
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Interest
Reset Dates:
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Interest
Payment Date(s):
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Exchange
Rate Agent (if any):
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Interest
Reset Period:
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Interest
Payment Period:
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Reference
Dealers:
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Maximum
Interest Rate:
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Maturity
Date:
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Face
Amount (if any):
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Minimum
Interest Rate:
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Optional
Repayment Date(s):
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Fixed
Amount of each Indexed Currency (if any):
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Calculation
Agent:
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Optional
Redemption Date(s):
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Aggregate
Fixed Amount of each Indexed Currency (if any):
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Reporting
Service:
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Initial
Redemption Date:
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Index
Currency:
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Initial
Redemption Percentage:
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Designated
CMT Telerate Page:
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Annual
Redemption Percentage Reduction:
|
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Designated
CMT Maturity Index:
|
Ranking:
|
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All
Notes Issued as Part of a Unit:
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Fixed
Rate Notes Issued as Part of a Unit:
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Floating
Rate Notes Issued as Part of a Unit:
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Series:
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Minimum
Denominations:
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Other
Terms:
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The
provisions of Sections 1, 2(b) and 2(c) and 3 through 7 and 10 through 14 of
the
Euro Distribution Agreement and the related definitions are incorporated by
reference herein and shall be deemed to have the same force and effect as if
set
forth in full herein.
4
This
Agreement is also subject to termination on the terms incorporated by reference
herein. If this Agreement is terminated, the provisions of Sections
3(j), 6, 10, 11 and 13 of the Euro Distribution Agreement shall survive for
the
purposes of this Agreement.
The
following information, opinions, certificates, letters and documents referred
to
in Section 4 of the Euro Distribution Agreement will be required:
___________.
Accepted:
MORGAN
STANLEY
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By:
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Name:
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Title:
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EXHIBIT
B
MORGAN
STANLEY
GLOBAL
MEDIUM TERM NOTES, SERIES G AND SERIES H
GLOBAL
UNITS, SERIES G AND SERIES H
ADMINISTRATIVE
PROCEDURES
Explained
below are the administrative procedures and specific terms of the offering
of
(i) Global Medium-Term Notes, Series G (the “
Series G Notes
”),
(ii) Global Medium Term Notes, Series H (the “
Series H Notes
”
and together with the Series G Notes, the “
Notes
”), (iii)
Global Units, Series G (the “
Series G Units
”) and (iv) Global
Units, Series H (the “
Series H Units
” and together with the
Series G Units, the “
Units
”, and the Units together with the
Notes, the “
Program Securities
”), on a continuous basis by
Morgan Stanley (the “
Company
”) pursuant to the Amended and
Restated Euro Distribution Agreement dated January 4, 2008 (as may be amended
from time to time, the “
Distribution Agreement
”) between the
Company and Morgan Stanley & Co. International plc (the
“
Agent
”). The Notes may be issued, either alone or
as part of a Unit, in registered form without coupons (“
Registered
Notes
”), in bearer form with or without coupons (“
Bearer
Notes
”) or in any combination of Registered Notes and Bearer
Notes. The Units may be issued in registered form
(“
Registered Units
”), in bearer form (“
Bearer
Units
”) or in any combination of Registered Units and Bearer
Units. The securities comprised by a Unit will be issued in the same
form as such Unit. Bearer Notes and Bearer Units initially will be
represented by, in the case of Bearer Notes, a Temporary Global Note and, in
the
case of Bearer Units, a Temporary Global Unit. Such Temporary Global
Note and Temporary Global Unit will subsequently be represented by, in the
case
of the Temporary Global Note, a Permanent Global Note and, in the case of the
Temporary Global Unit, a Permanent Global Unit. Global Bearer Notes
will be issued either in Classic Global Note (“CGN”) form or in New Global Note
(“NGN”) form. Interests in a Permanent Global Note may be exchanged,
in whole or, if such Permanent Global Note is a Global Bearer Note issued in
NGN
form, in whole or from time to time in part, for individual definitive Bearer
Notes with or without coupons attached. Definitive Bearer Notes may
be exchanged, if the applicable Pricing Supplement so specifies, in whole or
in
part, for Registered Notes. Interests in a Permanent Global Unit may
be exchanged, in whole, for individual definitive Bearer
Units. Definitive Bearer Units may be exchanged, if the applicable
Pricing Supplement so specifies, in whole or in part, for Registered
Units.
The
Notes
may be issued as senior indebtedness (the “
Senior Notes
”) or
subordinated indebtedness (the “
Subordinated Notes
”) of the
Company, and as used herein the term “
Notes
” includes the
Senior Notes and the Subordinated Notes. The Senior Notes will be
issued, either alone or as part of a Unit, pursuant to the provisions of a
senior indenture dated November 1, 2004 (as supplemented by the First
Supplemental Senior Indenture dated as of September 4,
2007
and
the Second Supplemental Senior Indenture dated as of January 4, 2008 and as
may
be further supplemented or amended from time to time, the “
Senior Debt
Indenture
”), between the Company and The Bank of New York (as successor
to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)), as
trustee (the “
Senior Debt Trustee
”). The
Subordinated Notes will be issued pursuant to the provisions of a subordinated
indenture, dated as of October 1, 2004 (as may be supplemented or amended from
time to time, the “
Subordinated Debt Indenture
”), between the
Company and The Bank of New York (as successor to J.P. Morgan Trust Company,
National Association), as trustee. The Senior Debt Indenture and the
Subordinated Debt Indenture are sometimes hereinafter referred to individually
as an “
Indenture
” and collectively as the
“
Indentures.
” Purchase contracts (“
Purchase
Contracts
”) that require holders to satisfy their obligations
thereunder when such Purchase Contracts are issued are referred to as
“
Pre-paid Purchase Contracts.
” Pre-paid Purchase
Contracts that settle in cash (“
Cash-settled Pre-paid Purchase
Contracts
”) generally will be issued under the
Indentures. Pre-paid Purchase Contracts that do not settle in cash
(“
Physically-settled Pre-paid Purchase Contracts
”) generally
will be issued under the Unit Agreement or the Unit Agreement Without Holders’
Obligations (each as defined below).
Unless
otherwise specified in any applicable free writing prospectus, Term Sheet or
Pricing Supplement, the Units will be issued (i) pursuant to the Unit Agreement
dated as of November 1, 2004, among the Company, The Bank of New York (as
successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)),
as Unit Agent, as Collateral Agent, as Trustee and Paying Agent under the
Indenture referred to therein, and as Warrant Agent under the Warrant Agreement
referred to therein, and the holders from time to time of the Units described
therein (as may be amended from time to time, the “
Unit
Agreement
”) or (ii) if Units do not include Purchase Contracts (or
include only Pre-paid Purchase Contracts), pursuant to a unit agreement among
the Company and The Bank of New York (as successor to JPMorgan Chase Bank,
N.A.
(formerly known as JPMorgan Chase Bank)), as Unit Agent, as Trustee and Paying
Agent under the Indenture referred to therein, and as Warrant Agent under the
Warrant Agreement referred to therein, in the form of such agreement filed
as an
exhibit to the Registration Statement (each such agreement, a “
Unit
Agreement Without Holders’ Obligations
”).
1
Units
may include one or more (i) Series G & H Senior Notes, (ii) warrants
(“
Warrants
”) entitling the holders thereof to purchase or sell
(a) securities issued by the Company or by an entity not affiliated with the
Company (or securities issued by an entity affiliated with the Company in the
case of Series H Units), a basket of such securities, an index or indices of
such securities or any other property, (b) currencies, (c) commodities or (d)
any combination of the foregoing, (iii) purchase contracts (“
Purchase
Contracts
”), including Pre-paid Purchase Contracts, requiring the
holders thereof to purchase or sell (a) securities issued by the Company or
by
an entity not affiliated with the Company (or securities issued by an entity
affiliated with the Company in the case of Series H Units), a basket of such
securities, an index or indices of such securities or any other property, (b)
currencies, (c) commodities or (d) any combination of the foregoing, (iv) any
combination thereof. The applicable Term Sheet, if applicable, and
Pricing Supplement will specify whether or not any Notes, Warrants and Purchase
Contracts comprised by a Unit may or may not be separated from the
Unit. Warrants
1
The Unit Agreement Without Holders’ Obligations shall include provisions to
allow for the issuance of Pre-paid Purchase Contracts that are not issued
under
the Indentures.
issued
as
part of a Unit will be issued pursuant to the Warrant Agreement dated as of
November 1, 2004, between the Company and The Bank of New York (as successor
to
JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)), as Warrant
Agent (as may be amended from time to time, the “
Warrant
Agreement
”). Purchase Contracts, other than Pre-paid
Purchase Contracts, entered into by the Company and the holders thereof will
be
governed by the Unit Agreement.
In
the
Distribution Agreement, the Agent has agreed to use reasonable efforts to
solicit purchases of the Notes and the Units, and the administrative procedures
explained below will govern the issuance and settlement of any Notes or Units
sold through the Agent, as agent of the Company. The Agent, as
principal, may also purchase Notes or Units for its own account, and the Company
and the Agent will enter into a terms agreement (in the case of Notes, a
“
Notes Terms Agreement
” and, in the case of Units, a
“
Units Terms Agreement
”), as contemplated by the Distribution
Agreement. The administrative procedures explained below will govern
the issuance and settlement of any Notes or Units purchased by the Agent, as
principal, unless otherwise specified in the applicable Notes Terms Agreement
or
Units Terms Agreement.
The
Bank
of New York, London Branch (as successor to JPMorgan Chase Bank, N.A. (formerly
known as JPMorgan Chase Bank)), (“
The Bank of New York
”), has
initially been appointed the (i) Calculation Agent and Principal Paying Agent
for the Senior Notes (and any Cash-settled Pre-Paid Purchase Contracts), (ii)
the Unit Agent for the Units and Purchase Contracts (other than Cash-settled
Pre-Paid Purchase Contracts), (iii) the Warrant Agent for the Warrants and
(iv)
the Registrar for the Senior Registered Notes, and will perform the duties
specified herein. The Bank of New York (as successor to J.P. Morgan
Trust Company, National Association) has initially been appointed the (x)
Calculation Agent and Principal Paying Agent for the Subordinated Notes and
(y)
the Registrar for the Subordinated Registered Notes, and will perform the duties
specified herein. As used herein, the term “
Principal Paying
Agent
” shall mean (i) The Bank of New York, London Branch, in
connection with the authentication and delivery of the Senior Notes and (ii)
The
Bank of New York, London Branch, in connection with the authentication and
delivery of the Subordinated Notes, in each case whether issued alone or as
part
of a Unit, (and any Cash-settled Pre-Paid Purchase Contracts) pursuant to the
terms of the Indentures, and the term “
Unit Agent
” shall mean
The Bank of New York, London Branch, in connection with the completion and
delivery of the Units (including, as applicable, countersigning and delivering
any Warrants, as Warrant Agent, and countersigning, executing and delivering
any
Purchase Contracts (other than Cash-settled Pre-Paid Purchase Contracts), as
Unit Agent, includable in such Unit), pursuant to the terms of the Unit
Agreements. “
Warrant Agent
” shall mean The Bank of
New York, London Branch. The Series G Notes are intended to be, and
the Series G Units, in certain circumstances described in the Prospectus
Supplement (as such term is defined in the Distribution Agreement), may be,
admitted to the Official List of the United Kingdom Financial Services Authority
(the “
UK Listing Authority
”) in its capacity as the United
Kingdom competent authority for the purposes of Directive 2003/71/EC (the
“
Prospectus Directive
”) and relevant implementing measures in
the United Kingdom, and to trading on the gilt edged and fixed income market
of
the London Stock Exchange plc (the “
London Stock
Exchange
”). Series H Notes and the Series H Units will not
be listed on any stock exchange. The Company has appointed Morgan
Stanley & Co. International plc as the authorized adviser for purposes of
applications to admit the Series G Notes and the Series G Units, if it is
determined that Series G Units are to be so admitted, to the Official List
of
the UK
Listing
Authority and to trading on the gilt edged and fixed income market of the London
Stock Exchange.
Each
Bearer Note and each Bearer Unit (including each security comprised by such
Bearer Unit) initially will be represented by, in the case of a Bearer Note,
a
Temporary Global Note and, in the case of a Bearer Unit, a Temporary Global
Unit. Temporary Global Bearer Notes will be issued in either CGN form
or in NGN form. Temporary Global Bearer Notes issued in CGN form and
Temporary Global Units will be delivered to a common depositary located outside
the United States (the “Depositary”) for Euroclear Bank S.A./N.V., as operator
of the Euroclear System (the “
Euroclear Operator
”), Clearstream
Banking,
société anonyme
(“
Clearstream
”), and/or any
other relevant clearing system (including Euroclear
France). Temporary Global Bearer Notes issued in NGN form will be
delivered to a common safe-keeper (a “
CSK
”) located outside the
United States for the Euroclear Operator and Clearstream. In either
case, such Temporary Global Note and Temporary Global Unit will subsequently
be
represented by, in the case of the Temporary Global Note, a Permanent Global
Note and, in the case of the Temporary Global Unit, a Permanent Global
Unit. Upon the first request by any beneficial owner to exchange any
interest in a Permanent Global Bearer Note issued in CGN form to a definitive
Bearer Note, or if any Note represented by a Permanent Global Note is
accelerated following an event of default with respect to such Note or if either
the Euroclear Operator, Clearstream or any other relevant clearing system is
closed for business for a continuous period of fourteen days (other than by
reason of public holidays) or announces an intention to cease business
permanently or in fact does so, then all (and not less than all) interests
in
such Permanent Global Note shall be exchanged for definitive Bearer Notes;
provided that
, if the applicable Pricing Supplement so specifies,
nothing herein shall prevent the further exchange of definitive Bearer Notes
for
Registered Notes. Upon any request by a beneficial owner to exchange
all or a portion of its beneficial interest in a Permanent Global Bearer Note
issued in NGN form for a definitive Bearer Note or Notes, that portion of such
beneficial owner’s beneficial interest shall be exchanged for definitive Bearer
Notes, with coupons attached, if appropriate, or, if the applicable Pricing
Supplement so specifies, one or more Registered Notes in authorized
denominations and the Principal Paying Agent shall instruct the Euroclear
Operator and Clearstream to make entries in their records to reflect the
reduction in the issue outstanding amount (the “
IOA
”) of such
Permanent Global Bearer Note by an amount equal to the aggregate principal
amount of such definitive Bearer Note or Notes or Registered Note or Notes
so
exchanged. Upon the first request by any beneficial owner to exchange
any interest in a Permanent Global Unit to a definitive Bearer Unit, or if
any
Note comprised by such Permanent Global Note is accelerated following an event
of default with respect to such Note or if either the Euroclear Operator,
Clearstream or any other relevant clearing system is closed for business for
a
continuous period of fourteen days (other than by reason of public holidays)
or
announces an intention to cease business permanently or in fact does so, then
all (and not less than all) interests in such Permanent Global Unit shall be
exchanged for definitive Bearer Units;
provided that
, if the applicable
Pricing Supplement so specifies, nothing herein shall prevent the further
exchange of definitive Bearer Units for Registered Units.
Unless
otherwise defined herein, terms defined in the Indentures, the Unit Agreement,
the Unit Agreement Without Holders’ Obligations, the Warrant Agreement, the
Notes, the Units, the Warrants, the Purchase Contracts or any Prospectus
Supplement relating to the Notes and Units shall be used herein as therein
defined.
The
Company will advise the Agent in writing of the employees of the Company with
whom the Agent is to communicate regarding offers to purchase Notes and Units
and the related settlement details.
ADMINISTRATIVE
PROCEDURES FOR
BEARER
NOTES, REGISTERED NOTES,
BEARER
UNITS AND REGISTERED UNITS
Issuance:
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Bearer
Notes
. Each Bearer Note, whether issued alone or as part of
a Unit, will be dated as of its Original Issue Date. Each
Bearer Note will bear an Original Issue Date, which will be (i) with
respect to a Temporary Global Note (or any portion thereof), the
date of
its original issue as specified in such Temporary Global Note or
(ii) with
respect to any Permanent Global Note or any definitive Bearer Note
(or any
portion thereof) issued subsequently upon transfer or exchange of
a Bearer
Note or in lieu of a destroyed, lost or stolen Bearer Note (a
“
Replacement Bearer Note
”), the Original Issue Date of
the predecessor Bearer Note, regardless of the date of authentication
of
such subsequently issued Bearer Note.
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Registered
Notes
. Each Registered Note, whether issued alone or as
part of a Unit, will be dated as of the date of its
authentication by The Bank of New York. Each Registered Note
will also bear an Original Issue Date, which will be (i) with respect
to
an original Registered Note (an “
Original Registered
Note
”) (or any portion thereof), its original issuance date
(which will be the settlement date) and (ii) with respect to any
Registered Note (or portion thereof) issued subsequently upon transfer
or
exchange of a Registered Note or in lieu of a destroyed, lost or
stolen
Registered Note or upon exchange of a Bearer Note (a “
Replacement
Registered Note
”), the original issuance date of the predecessor
Registered Note or Bearer Note, as the case may be, regardless of
the date
of authentication of such subsequently issued Registered
Note.
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Bearer
Units
. Each Bearer Unit (whether in temporary, permanent or
definitive form) will be deemed to be dated as of the Original Issue
Date
of the Bearer Note comprised by such Unit or, if there is no such
underlying Bearer Note, the date of the other securities comprised
thereby
in accordance with the procedures described above.
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Registered
Units
. Each Registered Unit will be deemed to be dated as
of the Original Issue Date of the Registered Note comprised by such
Unit
or, if there is no such underlying Registered Note, as of the date
of the
other securities comprised thereby in accordance with the procedures
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described
above.
|
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|
Denominations:
|
|
Bearer
Notes
. Unless otherwise specified in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, Bearer Notes,
whether issued alone or as part of a Unit, will be issued only in
denominations of $1,000 (or, in the case of Bearer Notes not denominated
in U.S. dollars, the equivalent thereof in the Specified Currency,
rounded
to the nearest 1,000 units of the Specified Currency) or any amount
in
excess thereof which is an integral multiple of $1,000 (or, in the
case of
Bearer Notes not denominated in U.S. dollars, 1,000 units of the
Specified
Currency).
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Registered
Notes
. Unless otherwise specified in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, Registered
Notes
will be issued, either alone or as part of a Unit, only in denominations
of $1,000 (or, in the case of Registered Notes not denominated in
U.S.
dollars, the equivalent thereof in the Specified Currency, rounded
to the
nearest 1,000 units of the Specified Currency) or any amount in excess
thereof which is an integral multiple of $1,000 (or, in the case
of
Registered Notes not denominated in U.S. dollars, 1,000 units
of the Specified Currency).
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Bearer
Units
. Unless otherwise specified in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, Bearer Units
will
be issued only in denominations of a single Unit and any integral
multiple
thereof, with face amounts in denominations as indicated in any applicable
free writing prospectus, Term Sheet and Pricing Supplement, generally
corresponding to the denominations of any Notes or other securities
comprised by such Units.
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Registered
Units
. Unless otherwise specified in any applicable free
writing prospectus, Term Sheet and Pricing Supplement, Registered
Units
will be issued only in denominations of a single Unit and any integral
multiple thereof, with face amounts in denominations as indicated
in the
applicable Pricing Supplement, generally corresponding to the
denominations of any Notes or other securities comprised by such
Units.
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|
Global
Notes and Definitive Bearer and Registered Notes:
|
|
Until
Final Certification (as defined below) with respect to an issuance
of
Bearer Notes has occurred, such Notes, together with all other Bearer
Notes that have the same terms (other than their respective principal
amounts) (all such Notes herein
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|
referred
to collectively as a “
Note Tranche
”), will be represented
by a single Temporary Global Note in bearer form without interest
coupons. The Company shall execute, and upon Company
instructions the Principal Paying Agent shall complete and authenticate,
such Temporary Global Note upon the same conditions and in substantially
the same manner, and with the same effect, as an individual definitive
Bearer Note. On or prior to the settlement date (which will
normally be the Original Issue Date) with respect to such Notes,
the
Principal Paying Agent shall deposit the Temporary Global Note with
the
Depositary or, if such Temporary Global Note is a Temporary Global
Bearer
Note issued in the NGN form, the CSK, in the manner specified below
under
“
Settlement Procedures; Bearer Notes and Bearer Units
”
and, in the case of Notes issued in NGN form and that are not physically
delivered to the CSK, shall instruct the CSK to effectuate the
Note. The interest of each beneficial owner of Notes
represented by such Temporary Global Note will be credited to the
appropriate account with the Euroclear Operator, Clearstream or any
other
relevant clearing system and, in the case of Notes issued in NGN
form, the
Principal Paying Agent shall instruct the Euroclear Operator and
Clearstream to make the appropriate entries into their records to
reflect
the initial IOA of the Note.
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|
On
or after the date (the “
Exchange Date
”) that is the 40th
day following the date on which the Company receives the proceeds
of the
sale of a Temporary Global Note (the “
Closing Date
”), or
if such Note is held by the Agent as part of an unsold allotment
or
subscription more than 40 days after the Closing Date for such Note,
on or
after the day after the date such Note is sold by the Agent, all
as
notified by the Agent in writing to The Bank of New York, the interest
of
the beneficial owners of the Notes represented by the Temporary Global
Note shall be canceled and such interests shall thereafter be represented
by a Permanent Global Note in bearer form without interest coupons
held in
London by the Depositary or the CSK, as applicable;
provided
that
Final Certification (as described below) has occurred. The
interest of each beneficial owner of Notes represented by such Permanent
Global Note will be credited to the appropriate account with the
Euroclear
Operator, Clearstream or any other relevant clearing system and,
in the
case of Notes issued in NGN form, the Principal Paying Agent shall
instruct the Euroclear Operator and Clearstream to make the appropriate
entries in their records to reflect such cancellation and
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exchange.
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|
If
the beneficial owner of an interest in a Permanent Global Note issued
in
NGN form requests to exchange all or a portion of its beneficial
interest
in the Permanent Global Note for Definitive Bearer Notes or Registered
Notes, at any time upon 30 days’ written notice to the Principal Paying
Agent given by such beneficial owner through either the Euroclear
Operator, Clearstream or any other relevant clearing system, as the
case
may be, that portion of such beneficial owner’s beneficial interest shall
be canceled and one or more Definitive Bearer Notes, with coupons
attached, if appropriate, or, if the applicable Pricing Supplement
so
specifies, one or more Registered Notes in authorized denominations
equal
in aggregate principal amount to that portion of such beneficial
interest
so requested to be exchanged shall be issued to such beneficial owner,
through the Euroclear Operator, Clearstream or any other relevant
clearing
system, as the case may be, and the Principal Paying Agent shall
instruct
the Euroclear Operator and Clearstream to make appropriate entries
in
their records to reflect such exchange.
If
the beneficial owner of an interest in a Permanent Global Bearer
Note
issued in CGN form or a Permanent Global Registered Note requests,
at any
time, upon 30 days’ written notice to the Principal Paying Agent given by
such beneficial owner through either the Euroclear Operator, Clearstream
or any other relevant clearing system, as the case may be, or if
any Note
represented by a Permanent Global Bearer Note or a Permanent Global
Registered Note is accelerated following an event of default with
respect
to such Note or if either the Euroclear Operator, Clearstream or
any other
relevant clearing system is closed for business for a continuous
period of
fourteen days (other than by reason of public holidays) or announces
an
intention to cease business permanently or in fact does so, such
Permanent
Global Bearer Note or such Permanent Global Registered Note, as
applicable, shall be exchanged for one or more definitive Bearer
Notes
with coupons attached, if appropriate, or, if the applicable Pricing
Supplement so specifies, one or more Registered Notes in authorized
denominations equal in aggregate principal amount to such beneficial
interest;
provided that
any such exchange of an interest in a
Permanent Global Bearer Note issued in CGN form or a Permanent Global
Registered Note for a definitive Bearer Note as a result of a request
by a
beneficial owner, and any such exchange of an interest in a Permanent
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Bearer
Note for a definitive Bearer Note or in a Permanent Global Registered
Note
for a definitive Registered Note resulting from the acceleration
of such
Note or the closure of the Euroclear Operator, Clearstream or any
other
relevant clearing system as set out above, shall result in the exchange
of
all (and not less than all) interests in such Permanent Global Note
for
definitive Bearer Notes;
provided further
, that, if the
applicable Pricing Supplement so specifies, nothing herein shall
prevent
the further exchange of definitive Bearer Notes for Registered
Notes. To effect such exchange, the interest of such beneficial
owner in such Permanent Global Bearer Note or such Permanent Global
Registered Note shall be canceled and one or more definitive Bearer
Notes
or Registered Notes, as the case may be, shall be issued to such
beneficial owner, through the Euroclear Operator, Clearstream or
any other
relevant clearing system, as the case may be.
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In
all events, Bearer Notes and coupons will be delivered by the Principal
Paying Agent only outside the United States.
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|
Global
Units and Definitive Bearer and Registered Units:
|
|
Until
Final Certification (as defined below) has occurred with respect
to an
issuance of Bearer Notes included in an issuance of Bearer Units,
such
Units, together with all other Bearer Units that include securities
that
have the same terms (other than their respective number and face
amounts)
(all such Units herein referred to collectively as a “
Unit
Tranche
”), will be represented by a single Temporary Global Unit
in bearer form (which form shall include the corresponding temporary
global forms of each security comprised by such Unit). The
Company shall execute, and upon Company instructions, The Bank of
New
York, as Unit Agent, shall complete, such Temporary Global Unit
(including, as applicable, authenticating any Temporary Global Note
or
Cash-settled Pre-paid Purchase Contracts, as Principal Paying Agent,
countersigning and delivering any Warrants, as Warrant Agent, and
countersigning, executing and delivering any Purchase Contracts (other
than Cash-settled Pre-paid Purchase Contracts), as Unit Agent, includable
in such Unit) upon the same conditions and in substantially the same
manner, and with the same effect, as an individual definitive Bearer
Unit. On or prior to the settlement date (which will normally
be the Original Issue Date of the Note comprised by a Unit or, if
there is
no such underlying Note, the date of the other securities comprised
thereby) with respect to such Units, the Unit Agent shall deposit
the
Temporary Global Unit (with
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the
corresponding temporary global forms of each security comprised by
such
Unit) with the Depositary in the manner specified below under
“
Settlement Procedures; Bearer Notes and Bearer
Units.
” The interest of each beneficial owner of Units
represented by such Temporary Global Unit will be credited to the
appropriate account with the Euroclear Operator, Clearstream or any
other
relevant clearing system.
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|
On
or after the Exchange Date of any Temporary Global Note comprised
by a
Temporary Global Unit, the interest of the beneficial owners of the
Units
represented by the Temporary Global Unit shall be canceled and such
interests shall thereafter be represented by a Permanent Global Unit
in
bearer form (with the corresponding permanent global forms of each
security comprised by such Unit) held in London by the Depositary;
provided that
Final Certification (as described below) of any
Notes comprised by such Unit has occurred. The interest of each
beneficial owner of Units represented by such Permanent Global Unit
will
be credited to the appropriate account with the Euroclear Operator,
Clearstream or any other relevant clearing system.
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|
If
the beneficial owner of an interest in a Permanent Global Unit requests,
at any time, upon 30 days’ written notice to the Unit Agent given by such
beneficial owner through either the Euroclear Operator, Clearstream
or any
other relevant clearing system, as the case may be, or if any Note
comprised by such Permanent Global Note is accelerated following
an event
of default with respect to such Note or if either the Euroclear Operator,
Clearstream or any other relevant clearing system is closed for business
for a continuous period of fourteen days (other than by reason of
public
holidays) or announces an intention to cease business permanently
or in
fact does so, such Permanent Global Unit shall be exchanged for one
or
more definitive Bearer Units or, if any applicable free writing
prospectus, Term Sheet and Pricing Supplement so specifies, one or
more
Registered Units in authorized denominations equal in aggregate number
and
aggregate face amount to such beneficial interest;
provided that
any such exchange in any interest in a Permanent Global Unit for
a
definitive Bearer Unit shall result in the exchange of all (and not
less
than all) interests in such Permanent Global Unit for definitive
Bearer
Units;
provided further
, that, if any applicable free writing
prospectus, Term Sheet and Pricing Supplement so specifies, nothing
herein
shall prevent the further exchange of definitive Bearer Units for
Registered Units. To effect such exchange, the interest of such
beneficial owner in such Permanent
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Global
Unit shall be canceled and one or more definitive Bearer Units or
Registered Units, as the case may be, shall be issued to such beneficial
owner, through the Euroclear Operator, Clearstream or any other relevant
clearing system, as the case may be.
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|
In
all events, Bearer Units will be delivered by the Unit Agent only
outside
the United States.
|
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|
Notes
or Units Purchased by U.S. Persons:
|
|
All
Notes (whether issued alone or as part of a Unit) purchased in connection
with their original issuance by or on behalf of a United States person
(as
defined in the Distribution Agreement) (other than a branch of a
United
States financial institution (as defined in the applicable United
States
Treasury Regulation) located outside the United States purchasing
for its
own account or for resale (a “
Qualifying Foreign Branch
”)
or other permitted U.S. purchasers as provided in the Prospectus
Supplement that satisfies the conditions for receiving Bearer Notes
as
described under “
Final Certification
” below) will be
issued only as Registered Notes and any Units comprising such Notes
will
be issued only as Registered Units.
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|
Final
Certification:
|
|
Final
Certification with respect to a Temporary Global Note (whether issued
alone or as part of a Unit) shall mean the delivery by the Euroclear
Operator, Clearstream or any other relevant clearing system, as the
case
may be, to the Principal Paying Agent of a signed certificate (each
a
“
Clearance System Certificate
”) in the form set forth in
Appendix 1 hereto with respect to the Notes being exchanged, dated
no
earlier than the Exchange Date for such Notes, to the effect that
the
Euroclear Operator, Clearstream or any other relevant clearing system,
as
the case may be, has received certificates in writing, by tested
telex or
by electronic transmission from the account holders appearing on
its
records as entitled to such Notes (“
Ownership
Certificates
”) in the form set forth in Appendix 2 hereto with
respect to each of such Notes, which Ownership Certificates shall
be dated
no earlier than ten days before the Exchange Date.
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Preparation
of Pricing Supplement:
|
|
If
any offer to purchase a Program Security is accepted by or on behalf
of
the Company, the Company will prepare a free writing prospectus and/or
Term Sheet, if applicable, and a pricing supplement (a “
Pricing
Supplement
”) reflecting the terms of such Program
Security. The Company (i) will
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arrange
to file with the Commission an electronic format document, in the
manner
prescribed by the EDGAR Filer Manual, of such Term Sheet and Pricing
Supplement in accordance with, in the case of any free writing prospectus
and/or Term Sheet, Rule 433 under the Securities Act and, in the
case of
the Pricing Supplement, the applicable paragraph of Rule 424(b) under
the
Securities Act and (ii) will, with respect to each of the free writing
prospectus and/or Term Sheet, if applicable, and the Pricing Supplement,
as soon as possible and in any event not later than the date on which
the
applicable document is filed with the Commission, deliver the number
of
copies of such Pricing Supplement to the Agent as the Agent shall
request. The Agent will cause the free writing prospectus
and/or Term Sheet, if applicable, and the Pricing Supplement to be
delivered or otherwise made available, to the purchaser of the Program
Security.
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In
each instance that a Pricing Supplement is prepared, the Agent will
affix
the Pricing Supplement to Prospectuses prior to their
use. Outdated free writing prospectuses, Term Sheets, Pricing
Supplements, and the Prospectuses to which they are attached (other
than
those retained for files), will be destroyed.
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Settlement:
|
|
The
receipt by the Company of immediately available funds in exchange
for (i)
the delivery of an authenticated Temporary Global Note or a Temporary
Global Unit (including each security comprised by such Unit) to the
Depositary or the CSK, as applicable, and, in the case of Notes issued
in
NGN form, the effectuation, if applicable, of such Temporary Global
Note
by the CSK in the manner described in “
Settlement Procedures;
Bearer Notes and Bearer Units
” below or (ii) the delivery of an
authenticated Registered Note or a Registered Unit (including each
security comprised by such Unit) to the Agent shall constitute
“
settlement
” with respect to such Note or
Unit. All offers accepted by the Company will be settled on the
fifth Business Day next succeeding the date of acceptance pursuant
to the
timetable for settlement set forth below, unless the Company and
the
purchaser agree to settlement on another day, which shall be no earlier
than the next Business Day.
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Settlement
Procedures; Bearer Notes and Bearer Units:
|
|
Procedures
with regard to each Bearer Note or Bearer Unit sold by the Company
to or
through the Agent (unless otherwise specified pursuant to a Notes
Terms
Agreement or a
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Units
Terms Agreement) shall be as
follows:
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A.
|
In
the case of a Bearer Note (whether issued alone or as part of
a Unit), the
Agent will advise the Company by telephone that such Note is
initially a
Bearer Note and of the following settlement
information:
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|
1.
|
Principal
amount.
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|
2.
|
Maturity
Date.
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|
3.
|
Interest
Payment Date(s).
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|
4.
|
In
the case of a Fixed Rate Bearer Note, the Interest Rate and
whether such
Note is an Amortizing Note, and, if so, the amortization schedule,
or, in
the case of a Floating Rate Bearer Note, the Initial Interest
Rate (if
known at such time), Interest Payment Period, Calculation Agent,
Base
Rate, Index Maturity, Index Currency, Interest Reset Period,
Initial
Interest Reset Date, Interest Reset Dates, Spread or Spread
Multiplier (if
any), Minimum Interest Rate (if any), Maximum Interest Rate
(if any) and
the Alternate Rate Event Spread (if any).
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5.
|
Redemption
or repayment provisions, if any.
|
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|
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|
6.
|
Ranking.
|
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|
|
|
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|
7.
|
Settlement
date and time (Original Issue Date).
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|
8.
|
Interest
Accrual Date.
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9.
|
Price.
|
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|
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|
10.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
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|
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|
11.
|
Specified
Currency.
|
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|
|
|
|
|
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|
12.
|
Whether
the Note is an Original Issue Discount Note (an “
OID
Note
”), and if it is an OID Note, the applicability of
Modified
Payment upon Acceleration (and, if so, the Issue
Price).
|
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|
13.
|
Agent’s
account number at the Euroclear Operator, Clearstream or any other
relevant clearing system.
|
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|
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|
14.
|
Whether
such Note is a Series G Note or a Series H Note.
|
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|
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|
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|
15.
|
Whether
such Bearer Note will be issued in NGN form.
|
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|
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|
16.
|
If
issued in NGN form, whether such Bearer Note is intended to be
held in a
manner that would allow eligibility as collateral for Eurosystem
intra-day
credit and monetary policy operations and whether effectuation
will be
required.
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|
17.
|
Any
other applicable provisions.
|
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B.
|
In
the case of a Bearer Unit, the Agent will advise the Company
by telephone
that such Unit is initially a Bearer Unit, of the information
set forth in
Settlement Procedures; Bearer Notes and Bearer Units “
A
”
above with respect to Bearer Notes that constitute a part
of such Bearer
Unit and of the following
information:
|
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|
1.
|
Settlement
date and time.
|
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|
|
|
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|
2.
|
Face
Amount.
|
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|
3.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
|
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|
|
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|
|
4.
|
Designation
of the Securities comprised by such Units:
|
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|
|
|
|
|
|
|
a.
|
Notes
(See “
Settlement Procedures; Bearer Notes and Bearer
Units
” “
A
”);
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b.
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c.
|
Purchase
Contracts, if any.
|
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|
|
|
|
|
|
|
5.
|
Whether,
and the terms under which, the Securities comprised by
such Unit will be
separately tradeable.
|
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|
6.
|
Any
other provisions applicable to the Unit (other than those
provisions
applicable to the securities comprised by such Unit).
|
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|
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|
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|
|
7.
|
If
the Bearer Unit comprises Bearer Warrants:
|
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|
|
|
|
|
|
|
a.
|
Designation
of the Series of Warrants: [Call] [Put]
Warrants;
|
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|
|
|
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|
|
b.
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|
|
|
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|
c.
|
Aggregate
Number of Warrants;
|
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|
|
|
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|
d.
|
Price
to Public;
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|
|
|
|
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|
e.
|
Warrant
Exercise Price;
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|
|
|
|
|
|
|
|
f.
|
Dates
upon which Warrants may be exercised;
|
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|
|
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|
|
g.
|
Expiration
Date;
|
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|
|
|
|
|
|
|
|
h.
|
Form;
|
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|
|
|
|
|
|
|
|
i.
|
Currency
in which exercise payments shall be made;
|
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|
|
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|
j.
|
Minimum
number of Warrants exercisable by any holder on any
day;
|
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|
|
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|
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|
k.
|
Maximum
number of Warrants exercisable on any day: [In the aggregate]
[By any beneficial owner];
|
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|
|
|
|
|
|
|
|
l.
|
Formula
for determining Cash Settlement Value;
|
|
|
|
|
|
|
|
|
|
|
m.
|
Exchange
Rate (or method of calculation);
|
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|
|
|
|
|
|
|
|
n.
|
Whether
the Company or the holder is the writer of the Warrant;
and
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|
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|
o.
|
Any
other applicable provisions.
|
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|
|
|
|
|
|
|
8.
|
If
the Bearer Unit comprises Bearer Purchase Contracts:
|
|
|
|
|
|
|
|
|
|
|
a.
|
Purchase
Contract
Property;
|
|
|
|
|
b.
|
|
|
|
|
|
|
|
|
|
|
|
c.
|
Settlement
Date;
|
|
|
|
|
|
|
|
|
|
|
d.
|
|
|
|
|
|
|
|
|
|
|
|
e.
|
Method
of Settlement;
|
|
|
|
|
|
|
|
|
|
|
f.
|
Method
of Computing Settlement Amount;
|
|
|
|
|
|
|
|
|
|
|
g.
|
Currency
of Settlement Payment;
|
|
|
|
|
|
|
|
|
|
|
h.
|
Authorized
Number of Purchase Contracts;
|
|
|
|
|
|
|
|
|
|
|
i.
|
[Purchase]
[Sale] Price of Purchase Contract Property;
|
|
|
|
|
|
|
|
|
|
|
j.
|
Contract
Fees;
|
|
|
|
|
|
|
|
|
|
|
k.
|
Corporation
Acceleration;
|
|
|
|
|
|
|
|
|
|
|
l.
|
Holders’
Acceleration;
|
|
|
|
|
|
|
|
|
|
|
m.
|
Redemption
Provisions; and
|
|
|
|
|
|
|
|
|
|
|
n.
|
Any
other applicable provisions.
|
|
|
|
|
|
|
|
|
C.
|
The
Company will advise The Bank of New York, as the Principal
Paying Agent
for the Notes or as the Unit Agent for the Units, by telephone
or
electronic transmission (confirmed in writing at any time
on the same
date) of the information set forth in “
Settlement Procedures;
Bearer Notes and Bearer
Units
”
“
A
” or
“
B
”, above, as applicable, and shall give
the Principal
Paying Agent or the Unit Agent, as the case may be, written
instructions
(substantially in the form set out in Appendix 3 and Appendix
4, as
applicable) to prepare a Temporary Global Note for each
Note (and, in the
case of any Note issued in NGN form which will not be physically
delivered
to the CSK, to instruct the CSK to effectuate such Note)
or a Temporary
Global Unit (with the corresponding temporary global forms
of each
security comprised by such Unit) for each Unit Tranche,
as the case may
be, which the Company has agreed to sell. The Company will send
a copy of such instructions to the Agent and the relevant
Trustee,
such
|
|
|
|
instructions
to the Agent and the relevant Trustee, such instructions to
contain a
representation as to the aggregate principal amount of Program
Securities
permitted to be issued hereunder after such issuance.
|
|
|
|
|
|
|
|
The
Principal Paying Agent or the Unit Agent shall telephone each
of the
Euroclear Operator, Clearstream or any other relevant clearing
system with
a request for a security code for each Note Tranche or Unit
Tranche (and,
if applicable, a security code for each security comprised
by the Units of
such Unit Tranche) agreed to be issued and shall notify the
Company and
the Agent of such security code or codes as soon as
practicable.
|
|
|
|
|
|
|
D.
|
In
accordance with instructions received from the Company, (i)
the Principal
Paying Agent shall authenticate and deliver a Temporary Global
Note (and,
in the case of any Note issued in NGN form which will not be
physically
delivered to the CSK, instruct the CSK to effectuate such Note)
or
Cash-settled Pre-paid Purchase Contract for each Note Tranche
or Unit
Tranche, as applicable, which the Company has agreed to sell
and (ii) the
Unit Agent shall prepare a Temporary Global Unit for each Unit
Tranche
which the Company has agreed to sell (including, as applicable,
by
countersigning and delivering any Warrants includable in such
Unit, by
countersigning, executing and delivering any Purchase Contracts
(other
than Cash-settled Pre-Paid Purchase Contracts) includable in
such Unit and
by obtaining from the Principal Paying Agent any Notes or Cash-settled
Pre-paid Purchase Contracts to be included in such Units, authenticated
in
accordance with clause (i) above). The settlement of each of
the Note Tranche and the Unit Tranche is to occur on the relevant
settlement date. All such Temporary Global Notes and all such
Temporary Global Units (including all of the securities included
in such
Units) will then be delivered to the Depositary or the CSK,
as
applicable. The Principal Paying Agent or the Unit Agent, as
the case may be, will also give instructions to the Euroclear
Operator,
Clearstream or any other relevant clearing system to credit
the Notes or
Units represented by such Temporary Global Note or Temporary
Global Unit
delivered to such Depositary or CSK, as applicable, to, in
the case of the
Notes, the Principal Paying Agent’s distribution account and, in the case
of the Units, the Unit Agent’s distribution account, at the Euroclear
Operator, Clearstream or any
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other
relevant clearing system. In the case of a Note issued in NGN
form, the Principal Paying Agent shall also instruct the Euroclear
Operator and Clearstream to make the appropriate entries in
their records
of the relevant initial IOA of the Temporary Global Bearer
Note so
delivered. At settlement of any Note Tranche, the Principal
Paying Agent will instruct the Euroclear Operator, Clearstream
or any
other relevant clearing system to debit, on the settlement
date, from the
distribution account of the Principal Paying Agent the principal
amount of
Notes of each Note Tranche, with respect to which the Agent
has solicited
an offer to purchase and to credit, on the settlement date,
such principal
amount to the account of the Agent with the Euroclear Operator,
Clearstream or any other relevant clearing system against payment
of the
purchase payment price of such Notes. At settlement of any Unit
Tranche, the Unit Agent will instruct the Euroclear Operator,
Clearstream
or any other relevant clearing system to debit, on the settlement
date,
from the distribution account of the Unit Agent the number
and face amount
of Units of each Unit Tranche, with respect to which the Agent
has
solicited an offer to purchase and to credit, on the settlement
date, such
number and face amount to the account of the Agent with the
Euroclear
Operator, Clearstream or any other relevant clearing system
against
payment of the purchase payment price of such Units. In the
case of the Notes and the Units, the Agent shall give corresponding
instructions to the Euroclear Operator, Clearstream or any
other relevant
clearing system.
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E.
|
The
Euroclear Operator, Clearstream and any other relevant clearing
system
shall debit and credit accounts in accordance with instructions
received
from the Principal Paying Agent and the Agent, in the case
of Notes and
the Unit Agent and the Agent, in the case of Units.
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Each
of the Principal Paying Agent and the Unit Agent shall pay
the Company the
aggregate net proceeds received by it in immediately available
funds via a
transfer of funds to the U.S. dollar account of the Company
with a bank in
New York City (or, with respect to Notes and Units payable
in a Specified
Currency other than U.S. dollars, to an account maintained
at a bank
selected by the Company, which
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which
bank shall be located outside the United Kingdom in the case
of Notes and
Units payable in a Specified Currency other than pounds sterling
that
mature not later than five years from and including the date
of issue
thereof) designed by the Company in writing.
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Settlement
Procedures
Timetable;
Bearer Notes
and
Bearer Units:
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For
sales by the Company of Bearer Notes or of Bearer Units to
or through the
Agent, “
Settlement Procedures; Bearer Notes and Bearer
Units
” “
A
” through “
E
” above
shall be completed on or before the respective times set forth
below:
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Settlement
Procedure;
Bearer
Notes
and
Bearer Units
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A
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12:00
P.M. (NYC time) three days before settlement date
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B
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12:00
P.M. (NYC time) three days before settlement date
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C
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9:00
A.M. (London time) two days before settlement date
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D
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3:45
P.M. (London time) one day before settlement date
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E
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5:00
P.M. (NYC time) on settlement date
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Settlement
Procedures; Registered Notes and Registered Units:
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Settlement
Procedures with regard to each Registered Note and Registered Unit
sold by
the Company to or through the Agent (unless otherwise specified pursuant
to a Notes Terms Agreement or a Units Terms Agreement) shall be as
follows:
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AA.
|
In
the case of a Registered Note (whether issued alone or as part
of a Unit),
the Agent will advise the Company by telephone that such Note
is a
Registered Note and of the following settlement
information:
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1.
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Name
in which such Note is to be registered (“
Registered Note
Owner
”).
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2.
|
Address
of the Registered Note Owner and address for payment of principal
and
interest.
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3.
|
Taxpayer
identification number of the Registered Note Owner (if
available).
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4.
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5.
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6.
|
Interest
Payment Date(s).
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7.
|
In
the case of a Fixed Rate Registered Note, the Interest Rate,
whether such
Note is an Amortizing Note and, if so, the amortization schedule,
or, in
the case of a Floating Rate Registered Note, the Initial Interest
Rate (if
known at such time), Interest Payment Dates, Interest Payment
Period,
Calculation Agent, Base Rate, Index Maturity, Index Currency,
Interest
Reset Period, Initial Interest Reset Date, Interest Reset Dates,
Spread or
Spread Multiplier (if any), Minimum Interest Rate (if any),
Maximum
Interest Rate (if any) and the Alternate Rate Event Spread
(if
any).
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8.
|
Redemption
or repayment provisions (if any).
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9.
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10.
|
Settlement
date and time (Original Issue Date).
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11.
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12.
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13.
|
Agent’s
commission (if any) determined as provided in the Distribution
Agreement.
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14.
|
Denominations.
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15.
|
Specified
Currency.
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16.
|
Whether
the Note is an OID Note, and if it is an OID Note, and the applicability
of Modified Payment upon Acceleration (and if so, the Issue
Price).
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17.
|
Whether
such Note is a Series G Note or a Series H Note.
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18.
|
Any
other applicable provisions.
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BB.
|
In
the case of a Registered Unit, the Agent will advise the Company
by
telephone that such Unit is a Registered Unit, of the information
set
forth in “
Settlement Procedures; Registered Notes and Registered
Units
”
“
A
” above with
respect to any Registered Notes that constitute a part of such
Registered
Unit and of the following information:
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1.
|
Name
in which such Unit is to be registered (“
Registered Unit
Owner
”).
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2.
|
Address
of the Registered Unit Owner.
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3.
|
Taxpayer
identification number of the Registered Unit Owner (if
available).
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4.
|
Denominations.
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5.
|
Settlement
date and time.
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6.
|
Number
of Units (and Face Amount).
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7.
|
Agent’s
commission, if any, determined as provided in the Distribution
Agreement.
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8.
|
Designation
of the Securities comprised by such Units:
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a.
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Notes,
if any (See “
Settlement Procedures; Registered Notes
and
Registered Units
”
“
A
”);
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b.
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c.
|
Purchase
Contracts, if any.
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9.
|
Whether,
and the terms under which, the Securities comprised by such
Unit will be
separately tradeable.
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10.
|
Any
other provisions applicable to the Unit (other than those
provisions
applicable to the securities comprised by such
Unit).
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11.
|
If
the Registered Unit comprises Registered
Warrants:
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a.
|
Designation
of the Series of Warrants: [Call][Put] Warrants;
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b.
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c.
|
Aggregate
Number of Warrants;
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d.
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e.
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f.
|
Dates
upon which Warrants may be exercised;
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g.
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h.
|
Currency
in which exercise payments shall be made;
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i.
|
Minimum
number of Warrants exercisable by any holder on any
day;
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j.
|
Maximum
number of Warrants exercisable on any day: [In the aggregate]
[By any beneficial owner];
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k.
|
Formula
for determining Cash Settlement Value;
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l.
|
Exchange
Rate (or method of calculation);
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m.
|
Whether
the Company or the holder is the writer of the warrant;
and
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n.
|
Any
other applicable provisions.
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12.
|
If
the Registered Unit comprises Registered Purchase
Contracts:
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|
a.
|
Purchase
Contract Property;
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b.
|
Price
to Public;
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c.
|
Settlement
Date;
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d.
|
Payment
Location;
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e.
|
Method
of Settlement;
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f.
|
Method
of Computing Settlement Amount;
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g.
|
Currency
of Settlement Payment;
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h.
|
Authorized
Number of Purchase Contracts;
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|
i.
|
[Purchase]
[Sale] Price of Purchase Contract Property;
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j.
|
|
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k.
|
Corporation
Acceleration;
|
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|
l.
|
|
|
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m.
|
Redemption
Provisions; and
|
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n.
|
Any
other applicable provisions.
|
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CC.
|
The
Company will advise The Bank of New York as Principal Paying
Agent for the
Notes or as Unit Agent for the Units, by telephone or electronic
transmission (confirmed in writing at any time on the same
date) of the
information set forth in “
Settlement Procedures; Registered Notes
and Registered Units
”
“
AA
”
and “
BB
” above, as applicable, such advice to
contain a
representation as to the aggregate principal amount of
Program Securities
permitted to be issued hereunder after such issuance.
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|
DD.
|
The
Company will have delivered to The Bank of New York as
Principal Paying
Agent for the Notes, or as Unit Agent for the Units, a
pre-printed
four-ply packet for such Note or such Unit, as the case
may be, which
packet will contain the following documents in forms that
have been
approved by the Company, the Agent and The Bank of New
York, as Principal
Paying Agent for the Notes, or as Unit Agent for the
Units:
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|
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|
1.
|
Note
or Unit, as the case may be, with customer
confirmation.
|
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|
|
2.
|
Stub
One - For The Bank of New York.
|
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|
3.
|
Stub
Two - For the Agent.
|
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|
4.
|
Stub
Three - For the Company.
|
|
EE.
|
The
Bank of New York will (i) authenticate and deliver any
Note (whether
issued alone or as part of a Unit) or Cash-settled Pre-Paid
Purchase
Contract through the Principal Paying Agent, if necessary,
with the
confirmation and Stubs One and Two to the Agent, and
(ii) complete and
deliver any Unit (including by countersigning and delivering
any Warrant
includable in such Unit, by countersigning, executing
and delivering any
Purchase Contract (other than Cash-settled Pre-paid Purchase
Contracts)
includable in such Unit and by obtaining from the Principal
Paying Agent
any Notes or Cash-settled Pre-paid Purchase Contracts
to be included in
such Units, authenticated in accordance with clause (i)
above) with the
confirmation and Stubs One and Two to the Agent. The Agent will
acknowledge receipt of the Note or the Unit, as the case
may be, by
stamping or otherwise marking Stub One and returning
it to The Bank of New
York, through the Principal Paying Agent, in the case
of the Notes, if
necessary. Such delivery will be made only against such
acknowledgment of receipt and evidence that instructions
have been given
by the Agent, with respect to Program Securities denominated
in U.S.
dollars, for payment to the account of the Company at
The Bank of New
York, New York, New York (or, with respect to Program
Securities payable
in a Specified Currency other than U.S. dollars, to an
account maintained
at a bank selected by the Company, which bank shall be
located outside the
United Kingdom in the case of Program Securities payable
in a Specified
Currency other than pounds sterling that mature not later
than five years
from and including the date of issue thereof), in immediately
available
funds, of an amount equal to the purchase price of such
Program Securities
less the Agent’s commission (if any). In the event that the
instructions given by the Agent for payment to the account
of the Company
are revoked, the Company will as promptly as possible
wire transfer to the
account of the Agent an amount of immediately available
funds equal to the
amount of such payment made.
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The
Principal Paying Agent and the Unit Agent shall pay the
Company the
aggregate net proceeds received by it in immediately
available funds via a
transfer of funds to the U.S. dollar account of the Company
with The Bank
of New York in New York City (or,
with
|
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respect
to Program Securities payable in a Specified Currency
other than U.S.
dollars, to an account maintained at a bank selected
by the Company which
bank shall be located outside the United Kingdom in the
case of Program
Securities payable in a Specified Currency other than
pounds sterling that
mature not later than five years including the date of
issue thereof)
designated by the Company in writing.
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|
FF.
|
Unless
the Agent purchased such Program Securities as principal,
the Agent will
deliver (with confirmation) such Program Securities to
the customer
against payment in immediately available funds. The Agent will
obtain the acknowledgment of receipt of such Program
Securities by
retaining Stub Two.
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|
GG.
|
In
the case of all Program Securities, The Bank of New York
will send Stub
Three to the Company by first-class mail. Periodically, The
Bank of New York will also send to the Company a statement
setting forth,
in the case of the Notes, the principal amount of the
Notes outstanding as
of that date under each Indenture and, in the case of
the Units, the
aggregate face amount of the Units outstanding under
the Unit Agreement
and, in each case, setting forth a brief description
of any sales of which
the Company has advised The Bank of New York that have
not yet been
settled.
|
|
|
|
Settlement
Procedures Timetable; Registered Notes and Registered
Units:
|
|
For
sales by the Company of Registered Notes or Registered Units to or
through
the Agent, “
Settlement Procedures
;
Registered
Notes and Registered Units
”
“AA
” through
“
GG
” set forth above shall be completed on or before
the
respective times (London time) set forth
below:
|
|
Settlement
Procedure;
Registered
Notes
and
Registered Units
|
|
|
|
AA
|
|
2:00
P.M. on second day before settlement date
|
|
|
|
|
|
BB
|
|
2:00
P.M. on second day before settlement date
|
|
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|
|
|
CC
|
|
3:00
P.M. on second day before settlement date
|
|
|
|
|
|
DD-EE
|
|
2:15
P.M. on settlement date
|
|
|
|
|
|
FF
|
|
3:00
P.M. on settlement date
|
|
|
|
|
|
GG
|
|
5:00
P.M. on settlement date
|
Failure
to Settle:
|
|
Bearer
Notes and Bearer Units
. If the Agent shall have advanced
its own funds for payment against subsequent receipt of funds from
the
purchaser and if a purchaser shall fail to make payment for a Note
or a
Unit, the Agent will promptly notify, in the case of a Note, the
Company,
the Principal Paying Agent, the Depositary (and, in the case of a
Note
issued in NGN form, the CSK), and the Euroclear Operator, Clearstream
and
any other relevant clearing system, and, in the case of the Unit,
the
Company, the Unit Agent, the Depositary, and the Euroclear Operator,
Clearstream and any other relevant clearing system, in each case
by
telephone, promptly confirmed in writing (but no later than the next
Business Day). In such event, the Company shall promptly
instruct the Principal Paying Agent, in the case of the Note, and
the Unit
Agent, in the case of the Unit, to cancel the purchaser’s interest in the
appropriate Temporary Global Note representing such Note or the
appropriate Temporary Global Unit representing such Unit. Upon
(i) confirmation from the Principal Paying Agent or the Unit Agent
in
writing (which may be given by telex or telecopy) that the Principal
Paying Agent or the Unit Agent has canceled such purchaser’s interest in
such Temporary Global Note or Temporary Global Unit, as the case
may be,
and (ii) confirmation from the Agent in writing (which may be given
by
telex or telecopy) that the Agent has not received payment from the
purchaser for the Note or the Unit, the Company will promptly pay
to the
Agent an amount in immediately available funds equal to the amount
previously paid by the Agent in respect of such Bearer Note or Bearer
Unit. Such payment will be made on the
settlement
|
|
|
date,
if possible, and in any event not later than 12 noon (New York City
time)
on the Business Day following the settlement date. The
Principal Paying Agent or the Unit Agent, as the case may be, and,
in the
case of a Note Tranche in CGN form, the Depositary will make or cause
to
be made such revisions to such Temporary Global Note or Temporary
Global
Unit as are necessary to reflect the cancellation of such portion
of such
Temporary Global Note or Temporary Global Unit, or in the case of
a Note
Tranche issued in NGN form, the Principal Paying Agent shall instruct
the
Euroclear Operator and Clearstream to make the appropriate entries
to
their records to reflect the changes in the IOA of such Temporary
Global
Note.
|
|
|
|
|
|
If
a
purchaser shall fail to make payment for the Note or Unit for any
reason
other than a default by the Agent in the performance of its obligations
hereunder and under the Distribution Agreement, then the Company
will
reimburse the Agent on an equitable basis for the Agent’s loss of the use
of funds during the period when they were credited to the account
of the
Company, the Principal Paying Agent or the Unit Agent, as
applicable.
|
|
|
|
|
|
Immediately
upon such cancellation, the Principal Paying Agent or the Unit Agent,
as
the case may be, will make appropriate entries in its records to
reflect
the fact that a settlement did not occur with respect to such Note
or
Unit.
|
|
|
|
|
|
Registered
Notes and Registered Units
. If a purchaser fails to accept
delivery of and make payment for any Registered Note or Registered
Unit,
the Agent will notify the Company and The Bank of New York, as Registrar
of the Registered Notes or as Unit Agent, by telephone and return
such
Note or Unit to The Bank of New York through the Principal Paying
Agent,
in the case of the Notes or the Unit Agent, in the case of the Units,
if
necessary. Upon receipt of such notice, the Company will
immediately wire transfer to the account of the Agent an amount equal
to
the amount previously credited to the Company’s account in respect of such
Note or Unit. Such wire transfer will be made on the settlement
date, if possible, and in any event not later than the Business Day
following the settlement date. If the failure shall have
occurred for any reason other than a default by the Agent in the
performance of its obligations hereunder and under the Distribution
Agreement, then the Company will reimburse the Agent on an equitable
basis
for its loss of the use of the funds during the period when they
were
credited to the account of the
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Company
or The Bank of New York. Immediately upon receipt of the
Registered Note or Registered Unit in respect of which such failure
occurred, The Bank of New York will mark such Note or Unit
“
canceled
,” make appropriate entries in The Bank of New
York’s records and send such Note or Unit to the
Company.
|
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Cancellation
of Issuance:
|
|
If
any Program Securities of a particular series in respect of which
information has been supplied under “
Settlement
Procedures
” above is not to be issued on a given issue date, the
Issuer shall promptly notify the Principal Paying Agent and the Trustee
and shall promptly confirm such notification in writing. Upon
receipt of such notice, neither the Principal Paying Agent nor the
Trustee
shall thereafter issue or release the relevant Program Securities
but
shall, if applicable, cancel and, unless otherwise instructed by
the
Issuer in writing, dispose of them in accordance with their customary
procedures.
|
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|
Notice
of Issuance to the UK Listing Authority and the London Stock
Exchange:
|
|
The
Sponsoring Member Firm will provide information with respect to the
issuance of each Series G Note and Series G Unit to the UK Listing
Authority and the London Stock Exchange or any other stock exchange
or
quotation system, as appropriate, and will advise the Company in
writing
as to the effectiveness of the listing of such Series G Note and
Series G
Unit by the close of business on the related settlement
date.
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|
Listing:
|
|
The
Sponsoring Member Firm will, on a regular basis, provide the UK Listing
Authority and the London Stock Exchange or any other stock exchange
or
listing authority or quotation system, as appropriate, with such
information regarding Series G Notes and Series G Units issued and
outstanding as such exchange or listing authority may
require.
|
APPENDIX
1
[FORM
OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR,
CLEARSTREAM AND/OR ANY OTHER RELEVANT
CLEARING
SYSTEM]
CERTIFICATE
Morgan
Stanley
Notes,
Series G/H
Represented
by Temporary Global [Fixed/Floating] Rate
Senior
Bearer Note No. __
This
is to
certify that, based solely on certifications we have received in writing, by
tested telex or by electronic transmission from member organizations appearing
in our records as persons being entitled to a portion of the principal amount
set forth below (our “
Member Organizations
”) substantially to
the effect set forth in Appendix 2 to Exhibit B to the Amended and Restated
Euro
Distribution Agreement relating to such Notes, as of the date hereof, __________
principal amount of the above-captioned Securities (i) is owned by persons
that
are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any other entity created or organized in or under
the
laws of the United States or any political subdivision thereof, an estate the
income of which is subject to United States federal income taxation regardless
of its source or a trust if both (a) a court within the United States is able
to
exercise primary supervision over the administration of the trust and (b) one
or
more United States persons have the authority to control all substantial
decisions of the trust (“
United States persons
”), (ii) is owned
by United States persons that are (a) foreign branches of United States
financial institutions (as defined in the applicable U.S. Treasury Regulations)
(“
financial institutions
”) purchasing for their own account or
for resale, or (b) United States persons who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise the
Issuer or the Issuer’s agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986,
as
amended, and the regulations thereunder), or (iii) is owned by United States
or
foreign financial institutions for purposes of resale during the restricted
period (as defined in the applicable U.S. Treasury Regulations), and such United
States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions. Any such certification by electronic transmission
satisfies the requirements set forth in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(ii). We will retain all certifications
from our Member Organizations for the period specified in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(3)(i).
As
used
herein, “
United States
” means the United States of America
(including the States and the District of Columbia); and its
“
possessions
” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We
further
certify (i) that we are not making available herewith for exchange (or, if
relevant, seeking to collect principal or interest with respect to) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
that as of the date hereof we have not received any notification from any of
our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith (or,
if
relevant, with respect to which principal or interest is being requested) are
no
longer true and cannot be relied upon as of the date hereof.
We
understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced
or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
Dated:
___________, 20__
[To
be
dated no earlier than
[insert
date of Interest Payment Date prior
to
Exchange Date] [insert date of
Redemption
Date prior to Exchange
Date]
[insert Exchange Date]]
[EUROCLEAR
BANK S.A./N.V., as
Operator
of the Euroclear System]
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|
[CLEARSTREAM
BANKING, SOCIÉTÉ
ANONYME]
|
|
|
|
[OTHER]
|
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|
|
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
|
Title:
|
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APPENDIX
2
[FORM
OF CERTIFICATE TO BE GIVEN BY
AN
ACCOUNT HOLDER OF EUROCLEAR, CLEARSTREAM AND/OR
ANY
OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan
Stanley
Notes,
Series G/H
Represented
by Temporary Global [Fixed/Floating] Rate
Senior
Bearer Note No. __
This
is to
certify that as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any other entity created or organized
in
or under the laws of the United States or any political subdivision thereof,
an
estate the income of which is subject to United States Federal income taxation
regardless of its source, or a trust if both (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust (“
United States
persons
”), (ii) is owned by United States persons that are (a) foreign
branches of United States financial institutions (as defined in the applicable
U.S. Treasury Regulations) (“
financial
institutions
”
)
purchasing for their own account or for
resale, or (b) United States persons who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise the Issuer
or the Issuer’s agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period
(as
defined in the applicable U.S. Treasury Regulations), and in addition if the
owner of the Securities is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i)
or
(ii)) such financial institution has not acquired the Securities for purposes
of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As
used
herein, “
United States
” means the United States of America
(including the States and the District of Columbia); and its
“
possessions
” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We
undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held
by
you for our account in
accordance
with your Operating Procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed
that
this certification applies as of such date.
This
certification excepts and does not relate to [U.S.$] _________ of such interest
in the above-captioned Securities in respect of which we are not able to certify
and as to which we understand exchange for and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any principal or
interest) cannot be made until we do so certify.
We
understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced
or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
Dated:
___________, 20__
[To
be
dated no earlier than the
10th
day
before [insert date of
Interest
Payment Date prior to
Exchange
Date] [insert date of
Redemption
Date prior to
Exchange
Date] [insert Exchange
Date]]
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By:
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(Authorized
Signatory)
|
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Name:
|
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Title:
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APPENDIX
3
FORM
OF COMPANY’S NOTICE TO PRINCIPAL PAYING AGENT
|
Attention:
________________________
|
and
with a
copy to:
[The
Bank
of New York, as [Senior/Subordinated] Debt Trustee]
|
Re:
|
Amended
and Restated Euro Distribution
Agreement
|
Terms
defined in the Administrative Procedures relating to the above Amended and
Restated Euro Distribution Agreement have the same meanings herein.
We
hereby
confirm our telephone instruction to prepare, complete, authenticate and issue
a
Temporary Global Note in accordance with the terms of the [Notes Terms Agreement
dated _______,] Administrative Procedures and Amended and Restated Euro
Distribution Agreement[, to instruct the common safe-keeper to effectuate such
Temporary Global Note if so indicated in the Notes Terms Agreement, to give
instructions to the Euroclear Operator and Clearstream to make the appropriate
entries in their records to reflect the issue outstanding amount of the
Temporary Global Note]
1
and to give instructions to the Euroclear
Operator, Clearstream and/or any other relevant clearing system in order for
you
to:
2
Credit
account of [Name of Agent] with [Euroclear/Clearstream/Other]
3
with
the following Bearer Notes:
1
To
be used only if the Note Tranche is issued in New Global Note form and the
Note
will not be manually signed and physically delivered to the common
safe-keeper.
2
Separate
instructions are to be sent in respect of each offer accepted by the
Company. Repeat this information (numbering consecutively) if Bearer
Units of more than one Units Tranche are to be issued to an Agent.
All
Notes:
|
Fixed
Rate Notes:
|
Floating
Rate Notes:
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
Purchase
Price:
|
Applicability
of Modified Payment upon Acceleration:
|
Index
Maturity:
|
Price
to Public:
|
If
yes, state issue price:
|
Spread
(Plus or Minus):
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
Multiplier:
|
Place
of Delivery:
|
Applicability
of Annual Interest Payments:
|
Alternate
Rate Event Spread:
|
Specified
Currency:
|
Denominated
Currency (if any):
|
Initial
Interest Rate:
|
Original
Issue Date:
|
Indexed
Currency or Currencies (if any):
|
Initial
Interest Reset Date:
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Interest
Reset Dates:
|
Interest
Payment Date(s):
|
Exchange
Rate Agent (if any):
|
Interest
Reset Period:
|
Maturity
Date:
|
Reference
Dealers:
|
Maximum
Interest Rate:
|
Optional
Redemption Date(s):
|
Face
Amount:
|
Minimum
Interest Rate:
|
Initial
Redemption Date:
|
Fixed
Amount of each Indexed Currency (if any):
|
Interest
Payment Period:
|
Initial
Redemption Percentage:
|
Aggregate
Fixed Amount of each Indexed Currency (if any):
|
Calculation
Agent:
|
Annual
Redemption Percentage Reduction:
|
Indexed
Currency (if any):
|
Reporting
Service:
|
Ranking:
|
|
Index
Currency:
|
Series:
|
|
Designated
CMT Telerate Page:
|
Minimum
Denominations:
|
|
Designated
CMT
Maturity
Index:
|
Form:
|
|
|
New
Global Note (“NGN”):
[yes/no]
|
|
|
If
the Notes are NGNs, are they intended to be held in a manner that
would
allow eligibility as collateral for Eurosystem intra-day credit and
monetary policy operations?
[Yes]
|
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Other
Provisions:
|
|
|
against
payment of
[ ]
for the Bearer Notes.
|
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APPENDIX
4
FORM
OF COMPANY’S NOTICE TO UNIT AGENT
To: The
Bank of New York
Attention:
_________________
_________________
Re: Amended
and Restated Euro Distribution Agreement
dated
January 4,
2008
Terms
defined in the Administrative Procedures relating to the above Amended and
Restated Euro Distribution Agreement have the same meanings herein.
We
hereby
confirm our telephone instruction to prepare, complete and issue a Temporary
Global Unit in accordance with the terms of the [Units Terms Agreement dated
_______________] Administrative Procedures and Amended and Restated Euro
Distribution Agreement and to give instructions to the Euroclear Operator,
Clearstream and/or any other relevant clearing system in order for you
to:
1
Credit
account of [Name of Agent] with
[Euroclear/Clearstream/Other]
2
with the following Bearer Units:
1
Separate
instructions are to be sent in respect of each offer accepted by the
Company. Repeat this information (numbering consecutively) if Bearer
Notes of more than one Note Tranche are to be issued to an Agent.
All
Units:
|
Warrants
Issued
as Part of a Unit:
|
Purchase
Contracts
Issued
as Part of a Unit:
|
Principal
Amount:
|
Price:
|
Price:
|
Purchase
Price:
|
Specified
Currency or Composite Currency:
|
Settlement
Date and Time:
|
Price
to Public:
|
Exercise
Date:
|
Buy
or Sell:
|
Place
of Delivery:
|
Warrant
Property:
|
Purchase
Contract Property:
|
Specified
Currency:
|
Permitted
Payment:
|
Purchase
or Sale Price:
|
Original
Issue Date:
|
Exercise
Price:
|
|
|
Expiration
Date:
|
Specified
Currency or Composite Currency:
|
|
Put
or Call:
|
Permitted
Payment:
|
|
|
|
|
|
|
|
|
|
|
|
|
All
Notes Issued as Part of a Unit:
|
Fixed
Rate Notes Issued as Part of a Unit:
|
Floating
Rate Notes Issued as Part of a Unit:
|
Principal
Amount:
|
Interest
Rate:
|
Base
Rate:
|
Purchase
Price:
|
Applicability
of Modified Payment upon Acceleration:
|
Index
Maturity:
|
Price
to Public:
|
If
yes, state issue price:
|
Spread
(Plus or Minus):
|
Settlement
Date and Time:
|
Amortization
Schedule:
|
Spread
Multiplier:
|
Place
of Delivery:
|
Applicability
of Annual Interest Payments:
|
Alternate
Rate Event Spread:
|
Specified
Currency:
|
Denominated
Currency (if any):
|
Initial
Interest Rate:
|
Original
Issue Date:
|
Indexed
Currency or Currencies (if any):
|
Initial
Interest Reset Date:
|
Interest
Accrual Date:
|
Payment
Currency (if any):
|
Interest
Reset Dates:
|
Interest
Payment Date(s):
|
Exchange
Rate Agent (if any):
|
Interest
Reset Period:
|
Maturity
Date:
|
Reference
Dealers:
|
Maximum
Interest Rate:
|
Optional
Repayment Date(s):
|
Face
Amount:
|
Minimum
Interest Rate:
|
Optional
Redemption Date(s):
|
Fixed
Amount of each Indexed Currency (if any):
|
Interest
Payment Period:
|
Initial
Redemption Date:
|
Aggregate
Fixed Amount of each Indexed Currency (if any):
|
Calculation
Agent:
|
Initial
Redemption Percentage:
|
Indexed
Currency (if any):
|
Reporting
Service:
|
Annual
Redemption Percentage Reduction:
|
|
Index
Currency:
|
All
Notes Issued as Part of a Unit:
|
Fixed
Rate Notes Issued as Part of a Unit:
|
Floating
Rate Notes Issued as Part of a Unit:
|
Ranking:
|
|
Designated
CMT Telerate Page:
|
Series:
|
|
Designated
CMT Maturity Index:
|
Minimum
Denominations:
|
|
|
Other
Provisions:
|
|
|
EXHIBIT
4.1
SECOND
SUPPLEMENTAL SENIOR INDENTURE
BETWEEN
MORGAN
STANLEY
AND
THE
BANK
OF NEW YORK
as
successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank),
Trustee
Dated
as
of January 4, 2008
SUPPLEMENTAL
TO SENIOR INDENTURE
DATED
AS
OF NOVEMBER 1, 2004 AS SUPPLEMENTED BY A FIRST SUPPLEMENTAL SENIOR INDENTURE
DATED AS OF SEPTEMBER 4, 2007
SECOND
SUPPLEMENTAL SENIOR INDENTURE, dated as of January 4, 2008 (the “Second
Supplemental Senior Indenture”), between Morgan Stanley, a Delaware corporation
(the “Issuer”), and The Bank of New York (as successor to JPMorgan Chase Bank,
N.A. (formerly known as JPMorgan Chase Bank)), as trustee (the
“Trustee”). Terms not defined herein shall have the meanings given to
them pursuant to the Indenture, as defined below.
W
I T N E
S S E T H:
WHEREAS,
the Issuer and the Trustee are parties to that certain Senior Indenture dated
as
of November 1, 2004 (as supplemented by the First Supplemental Senior Indenture,
dated as of September 4, 2007, between the Issuer and the Trustee, the
“Indenture”);
WHEREAS,
Section 8.01 of the Indenture provides that, without the consent of Holders
of
any Securities or Coupons, the Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee may enter into indentures supplemental
to
the Indenture for the purpose of, among other things, making any provisions
as
the Issuer may deem necessary or desirable, subject to the conditions set forth
therein and
provided
that
no such action shall adversely affect
the interests of the Holders of the Securities or Coupons;
WHEREAS,
the Issuer desires to add to and modify certain provisions of the Indenture
(i)
to allow for the issuance of Unregistered Securities in the form prescribed
by
the European Central Bank for securities to be eligible to be pledged as
collateral in European central banking and monetary operations (and to allow,
at
the Issuer’s option, for the exchange of any previously issued Unregistered
Securities for Unregistered Securities in such form), (ii) to modify the timing
requirement for the delivery of an Officer’s Certificate in connection with the
redemption prior to maturity of Securities by the Issuer and (iii) to modify
the
manner in which notices may be given to the Trustee;
WHEREAS,
the entry into this Second Supplemental Senior Indenture by the parties hereto
is in all respects authorized by the provisions of the Indenture;
and
WHEREAS,
all things necessary to make this Second Supplemental Senior Indenture a valid
indenture and agreement in accordance with its terms have been
done.
NOW,
THEREFORE, for and in consideration of the premises, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities and of the Coupons,
if
any, appertaining thereto as follows:
ARTICLE
ONE
1.1. Application
of Article One. The provisions of this Article One shall apply to (a)
Holders of all Securities issued under the Indenture and Outstanding at the
date
hereof and (b) Holders of any Securities that may be issued under the Indenture
subsequent to the date hereof.
1.2. Amendment
of Indenture. The Indenture is hereby amended by deleting in the
Table of Contents the caption “Section 2.06.
Certificate of
Authentication
” and inserting in lieu thereof the following: “Section 2.06.
Certificate of Authentication; Effectuation Instruction
”.
1.3. Amendment
of Section 1.01. Section 1.01 of the Indenture is hereby amended
by
(a) adding
after the
definition of “Business Day” a new defined term as follows:
‘
“CSK”
means, with respect to Unregistered Securities issued in
NGN form, the entity appointed as common safe-keeper by Euroclear Bank S.A./N.V.
and Clearstream Banking, société anonyme.’;
(b) adding
after the
definition of “Judgement Currency” a new defined term as follows: ‘
“NGN
form”
means an Unregistered Security the aggregate principal amount of
which, as shall be indicated in the applicable Issuer Order, shall be
definitively determined by the records of Euroclear Bank S.A./N.V. and
Clearstream Banking, société anonyme.’;
(c) amending
and restating
the introductory clause of the definition of “Outstanding” to read as
follows:
‘“
Outstanding
”
when used with reference to Securities, shall, subject to the provisions of
Section 7.04, mean, as of any particular time, all Securities authenticated
and
delivered by the Trustee under this Indenture (and, in the case of Securities
issued in NGN form and not physically delivered to the CSK, effectuated by
the
CSK), except’
(d) amending
and restating
subsection (c) of the definition of “Outstanding” to read in its entirety as
follows:
‘(c) Securities
which shall have been paid or in substitution for which other Securities shall
have been authenticated and delivered (and, in the case of Securities issued
in
NGN form and not physically delivered to the CSK, effectuated by the CSK)
pursuant to the terms of Section 2.09 (except with respect to any such Security
as to which proof satisfactory to the Trustee is presented that such Security
is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).’; and
(e) amending
and restating
the definition of “Security” or “Securities” to read in its entirety as
follows:
‘“
Security
”
or “
Securities
” has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture (and, in the case of Securities issued in
NGN
form and not physically delivered to the CSK, effectuated by the
CSK).’
1.4. Amendment
of Section 2.03. Section 2.03(o) is hereby amended and restated to
read in its entirety as follows:
“(o) whether
the Securities of the series will be issuable as Registered Securities (and
if
so, whether such Securities will be issuable as Registered Global Securities)
or
Unregistered Securities (with or without Coupons and in NGN form or not), or
any
combination of the foregoing, any restrictions applicable to the offer, sale,
transfer, exchange or delivery of Unregistered Securities or Registered
Securities or the payment of interest thereon and, if other than as provided
in
Section 2.08, the terms upon which Unregistered Securities of any series may
be
exchanged for Registered Securities of such series and vice versa;”
1.5. Amendment
of Section 2.04.
(i)
Section 2.04(a) is hereby amended by deleting the first sentence thereof, and
replacing it in its entirety with the following: “The Issuer may deliver
Securities of any series having attached thereto appropriate Coupons, if any,
executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of
the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients
as
may be specified from time to time by an Issuer Order, and, if such Securities
are issued in NGN form and such Issuer Order so specifies, shall instruct,
or
shall cause a paying agent therefor to instruct, the CSK to effectuate such
Securities.”; and
(ii)
Section 2.04(a)(iv)(C) of the Indenture is hereby amended and restated to read
in its entirety as follows:
“(C) when
the Securities and Coupons, if any, have been executed by the Issuer and
authenticated by the Trustee in accordance with the provisions of this
Indenture, and, in the case of Securities issued in NGN form and not physically
delivered to the CSK, effectuated by the CSK, and delivered to and duly paid
for
by the purchasers thereof, they will have been duly issued under this Indenture
and will be valid and binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled to the benefits
of
this Indenture; and”.
1.6. Amendment
of Section 2.05. Section 2.05 of the Indenture is hereby amended by
deleting the “.” after the last sentence of the first paragraph and adding
thereafter the following: “and, in the case of any Security issued in NGN form
and not physically delivered to the CSK, effectuated by the CSK.”
1.7. Amendment
of Section 2.06. Section 2.06 of the Indenture is hereby amended and
restated to read in its entirety as follows:
“Section
2.06.
Certificate of Authentication; Effectuation
Instruction
. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
executed by the Trustee by the manual signature of one of its authorized
signatories, and shall be, in the case of Securities issued in NGN form and
not
physically delivered to the CSK, effectuated by the CSK by the manual or
facsimile signature of one of its authorized officers, shall be entitled to
the
benefits of this Indenture or be valid or obligatory for any purpose. No Coupon
shall be entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been duly executed by the
Trustee, and, in the case of Securities issued in NGN form and not physically
delivered to the CSK, such Security shall have been effectuated by the CSK
as
aforesaid. The execution of the certificate of authentication by the Trustee
upon any Security executed by the Issuer, and, in the case of Securities issued
in NGN form and not physically delivered to the CSK, evidence via facsimile
transmission, electronic means or such other evidence in writing as may be
acceptable to the Trustee of the execution by the CSK of the certificate of
effectuation on such Security, shall be conclusive evidence that the Security
so
authenticated, and effectuated if applicable, has been duly authenticated,
and
effectuated if applicable, and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
1.8. Amendment
of Section 2.08. Section 2.08 of the Indenture is hereby amended by
deleting the penultimate sentence of the fourth paragraph thereof, which
currently reads as: “Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.” and
adding in lieu thereof the following two sentences: “At its option, the Issuer
may cause Unregistered Securities of any series not in NGN form to be exchanged
for Unregistered Securities in NGN form. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange
is
entitled to receive; provided, that with respect to any such Securities to
be
issued in NGN form and not physically delivered to the CSK, the Trustee shall
instruct or shall cause a paying agent therefor to instruct the CSK to
effectuate such Securities and such Securities shall have been effectuated
by
the CSK.”
1.9. Amendment
of Section 2.09. Section 2.09 of the Indenture is hereby amended
by:
(a) amending
and restating
the first sentence of the first paragraph to read in its entirety as
follows:
“In
case
any temporary or definitive Security or any Coupon appertaining to any Security
shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer
in
its discretion may execute, and upon the written request of any officer of
the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons
so
mutilated, defaced, destroyed, lost or stolen; provided, that with respect
to
any such Security to be issued in NGN form and not physically delivered to
the
CSK, the Trustee shall instruct, or shall cause a paying agent to instruct,
the
CSK to effectuate such Security and such Security shall have been effectuated
by
the CSK.”; and
(b) in
the first sentence of
the third paragraph thereof after the phrase “of such series duly authenticated
and delivered” and before the word “hereunder” inserting “(and, in the case of
Securities issued in NGN form and not physically delivered to the CSK,
effectuated by the CSK)”.
1.10. Amendment
of Section 2.11. Section 2.11 is hereby amended and restated in its
entirety to read as follows:
“Section
2.11.
Temporary Securities
. Pending the
preparation of definitive Securities for any series, the Issuer may execute
and
the Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case in
form satisfactory to the Trustee). Temporary Securities of any series shall
be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of
the
Trustee as evidenced by the execution and authentication, and, in the case
of
Temporary Securities issued in NGN form and not physically delivered to the
CSK,
effectuation thereof. Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every Temporary Security
shall be executed by the Issuer, be authenticated by the Trustee and, in the
case of Temporary Securities issued in NGN form and not physically delivered
to
the CSK, the Trustee shall instruct, or shall cause a paying agent to instruct,
the CSK to effectuate such Temporary Security, upon the same conditions and
in
substantially the same manner, and with like effect, as the definitive
Securities.
Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Registered Securities of
such
series may be surrendered in exchange therefor without charge at each office
or
agency to be maintained by the Issuer for that purpose pursuant to Section
3.02
and, in the case of Unregistered Securities, at any agency maintained by the
Issuer for such purpose as specified pursuant to Section 2.03, and the Trustee
shall authenticate and deliver, and, in the case of Temporary Securities issued
in NGN form and not physically delivered to the CSK, instruct or cause a paying
agent to instruct the CSK to effectuate, in exchange for such temporary
Securities of such series an equal aggregate principal amount of definitive
Securities of the same series having authorized denominations and, in the case
of Unregistered Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall be entitled
to
the same benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.03. The provisions of this
Section are subject to any restrictions or limitations on the issue and delivery
of temporary Unregistered Securities of any series that may be established
pursuant to Section 2.03 (including any provision that Unregistered Securities
of such series initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary or agency located outside the United
States and the procedures pursuant to which definitive or global Unregistered
Securities of such series would be issued in exchange for such temporary global
Unregistered Security).”
1.11. Amendment
of Section 5.03. The introductory clauses of Section 5.3 up to the
first colon are hereby amended and restated to read in their entirety as
follows:
“Any
moneys collected by the Trustee pursuant to this Article in respect of any
series shall be applied in the following order at the date or dates fixed by
the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which monies have been collected
and stamping thereon (or otherwise noting thereon, or, in the case of Securities
issued in NGN form, causing Euroclear Bank S.A./N.V. and Clearstream Banking,
société anonyme to make entries in their respective records of), the payment, or
issuing Securities of such series in reduced principal amounts in exchange
for
the presented Securities of like series if only partially paid, or upon
surrender thereof if fully paid:”
1.12. Amendment
of Section 6.02. Section 6.02 is hereby amended by replacing the
period at the end of Section 6.02(g) with “;” and by adding after Section
6.02(g) the following:
“(h) neither
the Trustee nor any paying agent shall be liable for any failure on the part
of
the CSK to effectuate any Security issued in NGN form and not physically
delivered to the CSK or for any failure on the part of the CSK to do so in
a
timely manner, unless it shall be proved that the Trustee or the
paying
agent
was
negligent in instructing the CSK to effectuate any such Security in accordance
with the applicable provision hereof;
provided
, that the Trustee or
paying agent shall not be deemed to have acted with negligence if it shall
have
given such instructions in the manner and by the time prescribed by the
CSK, provided further that in the absence of any such prescribed
manner or timing, the Trustee or paying agent shall be entitled to give, and
shall incur no liability hereunder if it shall give, such instructions by
facsimile transmission (without any requirement for telephonic confirmation)
to
a telephone number provided by the CSK for such purpose or by email to an email
address provided by the CSK for such purpose and shall be protected in giving
and shall incur no liability hereunder in giving such instructions no later
than
one Business Day after the applicable Security shall have been delivered to
the
Trustee for authentication.”
1.13. Amendment
of Section 6.03. The first sentence of Section 6.03 is hereby amended
and restated to read in its entirety as follows:
“The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication and any CSK’s certificates of effectuation, shall
be taken as statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same.”
1.14. Amendment
of Section 6.14. The second sentence of the first paragraph of
Section 6.14 is hereby amended and restated to read in its entirety as
follows:
“Securities
of each such series authenticated by such Authenticating Agent, and, if such
Securities are issued in NGN form and not physically delivered to the CSK,
effectuated by the CSK, shall be entitled to the benefits of this Indenture
and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee.”
1.15. Amendment
of Section 8.05. The second sentence of Section 8.05 is hereby
amended and restated to read in its entirety as follows:
“If
the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee, and, in the case of Securities issued in NGN form not physically
delivered to the CSK, effectuated by the CSK, and delivered in exchange for
the
Securities of such series then Outstanding.”
1.16. Amendment
of Section 11.04. The second sentence of the first paragraph of Section 11.04
is
hereby amended by replacing the “.” at the end of the sentence with “,” and
adding thereafter “or, if such notice, direction, request or demand is given or
served via facsimile transmission or other electronic means acceptable to the
Trustee to a telephone number or email address designated by
the
Trustee, with confirmation of such transmission via facsimile or other
electronic means.”
1.17. Amendment
of Section 12.02. The second sentence of the fourth paragraph of
Section 12.02 is hereby and restated in its entirety to read as
follows:
“The
Issuer will deliver to the Trustee at least 70 days prior to the date fixed
for
redemption or at least 10 days prior to the first day of any applicable
Redemption Notice Period (unless, in either case, a shorter notice shall be
satisfactory to the Trustee) an Officer’s Certificate stating the aggregate
principal amount of Securities to be redeemed;
provided
, that with
respect to redemptions of Securities represented by one or more global notes
that are to be redeemed in whole and not in part and for which the related
notice of redemption is being given by the Issuer and not the Trustee, the
Issuer may deliver such Officer’s Certificate contemporaneously with the
delivery of the notice of redemption of such Securities.”
1.18. Amendment
of Section 12.03. The fourth paragraph of Section 12.03 is hereby
amended and restated to read in its entirety as follows:
“Upon
presentation of any Security redeemed in part only, the Issuer shall execute
and
the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Issuer, a new Security or Securities of such
series, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented; provided, that with respect to any such
new Security or Securities to be issued in NGN form and not physically delivered
to the CSK, the Trustee shall instruct, or shall cause a paying agent to
instruct, the CSK to effectuate such Security or Securities and such Security
or
Securities shall have been effectuated by the CSK.”
ARTICLE
TWO
2.01. Further
Assurances. The Issuer will, upon request by the Trustee,
execute and deliver such further instruments and do such further acts as may
reasonably be necessary or proper to carry out more effectively the purposes
of
this Second Supplemental Senior Indenture.
2.02. Other
Terms of Indenture. Except insofar as herein otherwise expressly
provided, all provisions, terms and conditions of the Indenture are in all
respects ratified and confirmed and shall remain in full force and
effect.
2.03. Terms
Defined. All terms defined elsewhere in the Indenture shall have the
same meanings when used herein.
2.04. Governing
Law. This Second Supplemental Senior Indenture shall be deemed to be
a contract under the laws of the State of New York, and for all purposes shall
be construed in accordance with the laws of such State, except as may otherwise
be required by mandatory provisions of law.
2.05. Counterparts. This
Second Supplemental Senior Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
2.06. Responsibility
of the Trustee. The recitals contained herein shall be taken as the
statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to
the validity or sufficiency of this Second Supplemental Senior Indenture.
IN
WITNESS
WHEREOF, the parties hereto have caused this Second Supplemental Senior
Indenture to be duly executed by the Issuer and the Trustee under their
respective corporate seals as of the day and year first written
above.
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MORGAN
STANLEY
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By:
/s/ Daniel Park
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Title:
Assistant Treasurer
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[Corporate
Seal]
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Attest:
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By:
/s/ Martin M. Cohen
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Assistant
Secretary
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THE
BANK OF NEW YORK, as Trustee
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By:
/s/ Ignazio Tamburello
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Title:
Assistant Vice President
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[Corporate
Seal]
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Attest:
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By:
/s/ Francine Kincaid
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STATE
OF
NEW
YORK )
)
ss.:
COUNTY
OF
NEW YORK )
On
the 4th day of January, 2008, before me personally came Daniel Park, to me
known, who, being by me duly sworn, did depose and say that he is Assistant
Treasurer, of Morgan Stanley, one of the corporations described in and which
executed the foregoing instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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/s/
Michael M. O'Brien
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Notary
Public
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[Notarial
Seal]
STATE
OF
NEW
YORK )
)
ss.:
COUNTY
OF
NEW YORK )
On
the 4th day of January, 2008, before me personally came Ignazio Tamburello,
to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President, of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument
is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
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/s/
Cheryl L. Clarke
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Notary
Public
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[Notarial
Seal]
13
EXHIBIT
4.2
[FORM
OF FACE OF SECURITY]
TEMPORARY
GLOBAL FLOATING RATE SENIOR BEARER NOTE
BEARER
No.
TGFL _____
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BEARER
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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 OR IN PART FOR AN INTEREST IN A PERMANENT GLOBAL
BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY (WHICH FOR THIS PURPOSE INCLUDES ANY COMMON SAFE-KEEPER) 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 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.
1
1
If
this
Note is offered in Japan or denominated in Japanese Yen, appropriate legends
need to be added.
MORGAN
STANLEY
GLOBAL
MEDIUM-TERM NOTE, SERIES [G/H]
(Temporary
Global Floating Rate Senior Bearer Note)
ORIGINAL
ISSUE DATE:
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INTEREST
ACCRUAL DATE:
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INTEREST
PAYMENT DATE(S):
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MATURITY
DATE:
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INITIAL
INTEREST RATE:
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INTEREST
PAYMENT PERIOD:
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BASE
RATE:
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INITIAL
INTEREST RESET DATE:
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INTEREST
RESET PERIOD:
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INDEX
MATURITY:
|
MAXIMUM
INTEREST RATE:
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INTEREST
RESET DATE(S):
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SPREAD
(PLUS OR MINUS):
|
MINIMUM
INTEREST RATE:
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CALCULATION
AGENT:
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SPREAD
MULTIPLIER:
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INITIAL
REDEMPTION DATE:
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SPECIFIED
CURRENCY:
|
EUROCLEAR
NO:
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INITIAL
REDEMPTION
PERCENTAGE:
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INDEX
CURRENCY:
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CLEARSTREAM
NO:
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ANNUAL
REDEMPTION
PERCENTAGE
REDUCTION:
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DESIGNATED
CMT TELERATE
PAGE:
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COMMON
CODE:
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OPTIONAL
REPAYMENT DATE(S):
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DESIGNATED
CMT
MATURITY
INDEX:
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ISIN:
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REDEMPTION
NOTICE PERIOD:
2
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MINIMUM
DENOMINATIONS:
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REPORTING
SERVICE:
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NEW
GLOBAL NOTE (“NGN”):
[YES/NO]
3
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IF
THIS IS AN NGN, INTENDED TO BE HELD IN A MANNER THAT WOULD ALLOW
ELIGIBILITY AS COLLATERAL FOR EUROSYSTEM INTRA-DAY CREDIT AND MONETARY
POLICY OPERATIONS:
[YES]
3
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EXCHANGE
FOR REGISTERED
NOTES: [NO]
4
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OTHER
PROVISIONS:
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2
Applicable
if other than 30-60 calendar days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10
calendar days may be possible.
3
To be Eurosystem eligible, NGNs must also be denominated in euro, listed
(Series
G) and must meet certain other criteria established by the European Central
Bank.
4
Unless
explicitly stated otherwise in term sheet, MS practice has been to exclude
this
option.
Morgan
Stanley, a Delaware corporation (together with its successors and assigns,
the
“
Issuer
”), for value received, hereby promises to pay to
bearer, upon surrender hereof, the principal amount specified in Schedule A
hereto, or, if this Note is intended to be an NGN, the aggregate principal
amount from time to time entered in the records of both Euroclear Bank S.A./N.V.
and Clearstream Banking, société anonyme (together, the “
Relevant
Clearing Systems
”), on the Maturity Date specified above (except to the
extent previously redeemed or repaid) and to pay interest thereon, from and
including the Interest Accrual Date specified above at a rate per annum equal
to
the Initial Interest Rate specified above or determined in accordance with
the
provisions specified on the reverse hereof until but excluding the Initial
Interest Reset Date specified above, and on and after at a rate per annum
determined in accordance with the provisions specified in the Permanent Global
Bearer Note (as defined below) until but excluding the date such principal
amount is paid or duly made available for payment (except as provided
below). Unless such rate is otherwise specified on the face hereof,
the Calculation Agent shall determine the Initial Interest Rate for this Note
in
accordance with the provisions specified on the reverse hereof. The
Issuer will pay interest in arrears monthly, quarterly, semiannually or annually
as specified above as the Interest Payment Period on each Interest Payment
Date
(as specified above), commencing with the first Interest Payment Date next
succeeding the Interest Accrual Date specified above, and at maturity (or on
any
redemption or repayment date);
provided, however
, that if the Interest
Accrual Date occurs fifteen calendar days or less prior to the first Interest
Payment Date occurring after the Interest Accrual Date, interest payments will
commence on the second Interest Payment Date succeeding the Interest Accrual
Date; and
provided, further
, that if an Interest Payment Date (other
than the Maturity Date (as specified above) or any redemption or repayment
date)
would fall on a day that is not a Business Day, as defined below, such Interest
Payment Date shall be the following day that is a Business Day, except that
if
the Base Rate specified above is LIBOR or EURIBOR and such next Business Day
falls in the next calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day; and
provided
,
further,
that if the Maturity Date or redemption or repayment date
would fall on a day that is not a Business Day, the payment of principal,
premium, if any, and interest will be made on the next succeeding Business
Day
and no interest shall accrue for the period from and after such Maturity Date
or
redemption or repayment date. If this Note is intended to be an NGN,
the records of the Relevant Clearing Systems (which, in this Note, means the
records that each Relevant Clearing System holds for its customers to reflect
the amount of such customers’ interests in this Note) shall be conclusive
evidence of the aggregate principal amount of this Note and, for these purposes,
a statement issued by a Relevant Clearing System (which statement shall be
made
to the Issuer, to the Trustee, to the Principal Paying Agent or to the bearer
of
this Note on request) stating the aggregate principal amount of this Note shall
be conclusive of the records of the Relevant Clearing Systems at that
time.
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 principal amount hereof has been paid
or
duly made available for payment. Upon any payment of interest on this Note,
the
Principal Paying Agent (as defined below) shall, (i) if this Note is not
intended to be an NGN, cause Schedule A of this Note to be endorsed to reflect
such payment, or (ii) if this Note is intended to be an NGN, cause the payment
to be entered pro rata in the records of the Relevant Clearing
Systems. No payment on this Note will be made at any office or agency
of the Issuer in the United States or by check mailed to an address in the
United States
(as
defined below) or by wire transfer to an account maintained by the holder of
this Note with a bank in the United States except as may be permitted under
U.S.
federal tax laws and regulations then in effect without adverse tax consequences
to the Issuer. 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. Notwithstanding any other provision of this Note, no payment
of principal or interest shall be made on any portion of this Note unless there
shall have been delivered to the Principal Paying Agent a certificate
substantially in the form of Exhibit A hereto with respect to the portion of
this Note with respect to which such principal or interest is to be
paid. Such certificate shall have been delivered to the Principal
Paying Agent by Euroclear Bank S.A./N.V., as operator of the Euroclear System
(“
Euroclear
”), Clearstream Banking,
société anonyme
(“
Clearstream, Luxembourg
”), and/or any other relevant clearing
system (including Euroclear France), as the case may be, and shall be based
on a
certificate substantially in the form of Exhibit B hereto provided to Euroclear,
Clearstream, Luxembourg and/or any other relevant clearing system, as the case
may be, by those of its account holders who are to receive such payment of
principal or interest.
This
Note
is issued in temporary global bearer form and represents all or a portion of
a
duly authorized issue of Senior Global Medium-Term Notes, Series [G/H] (the
“
Notes
”) of the Issuer. The Notes are issuable under
a Senior Indenture, dated as of November 1, 2004, between the Issuer and The
Bank of New York (as successor to JPMorgan Chase Bank, N.A. (formerly known
as
JPMorgan Chase Bank)), as Trustee (the “
Trustee
”, which term
includes any successor trustee under the Senior Indenture) (as supplemented
by
the First Supplemental Senior Indenture, dated as of September 4, 2007, and
the
Second Supplemental Senior Indenture, dated as of January 4, 2008, and as may
be
further 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 Bank
of New York, London Branch (as successor to JPMorgan Chase Bank, N.A., 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).
Except
as
otherwise provided herein, this Note is governed by the terms and conditions
of
the Permanent Global Floating Rate Senior Bearer Note (the “
Permanent
Global Bearer Note
”) to be issued in exchange for this Note, which
terms and conditions are hereby incorporated by reference herein
mutatis
mutandis
and shall be binding on the Issuer and the holder hereof as if
fully set forth herein. The form of the Permanent Global Bearer Note
is attached hereto.
This
Note
is exchangeable in whole or from time to time in part on or after the Exchange
Date (as defined below) for an interest (equal to the principal amount of the
portion of this Note being exchanged, and, if this Note is intended to be an
NGN, recorded in the records of the Relevant Clearing Systems) in a single
Permanent Global Bearer Note upon the request of Euroclear, Clearstream,
Luxembourg and/or any other relevant clearing system, acting on behalf of the
owner of a beneficial interest in this Note, to the Principal Paying Agent
upon
delivery to the Principal Paying Agent of a certificate substantially in the
form of Exhibit A hereto with
respect
to
the portion of this Note to be exchanged. Such certificate shall have
been delivered to the Principal Paying Agent by Euroclear, Clearstream,
Luxembourg and/or any other relevant clearing system, as the case may be, and
shall be based on a certificate substantially in the form of Exhibit B hereto
provided to Euroclear, Clearstream, Luxembourg and/or any other relevant
clearing system, as the case may be, by those of its account holders having
an
interest in the portion hereof to be exchanged. Notwithstanding the
foregoing, if this Note is subject to a tax redemption as described on the
reverse of the Permanent Global Bearer Note attached hereto, interests in this
Note may be exchanged for interests in a Permanent Global Bearer Note on and
after such redemption date as if such redemption date had been the Exchange
Date, subject to receipt of the certificates described in the preceding
sentence. Upon exchange of any portion of this Note for an interest
in a Permanent Global Bearer Note, the Principal Paying Agent shall, (i) if
this
Note is not intended to be an NGN, 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 being so exchanged, or (ii) if this Note is intended
to be an NGN, cause the details of such exchange to be entered in the records
of
the Relevant Clearing Systems. Except as otherwise provided herein,
until exchanged for a Permanent Global Bearer Note, this Note shall in all
respects be entitled to the same benefits under the Senior Indenture as a duly
authenticated and delivered Permanent Global Bearer Note.
As
used
herein:
(a) the
term “
Business Day
” means any day, other than a Saturday or
Sunday, (i) 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 in London or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, euro or Australian
dollars, 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 (ii) 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 “
Exchange Date
” means the date that is 40 calendar days
after the date on which the Issuer receives the proceeds of the sale of this
Note (the “
Closing Date
”),
provided
that if
an interest represented by this Note is held by Morgan Stanley & Co.
International plc, or any other manager participating in the distribution of
the
tranche of Notes of which this Note forms a part, as part of an unsold allotment
or subscription more than 40 calendar days after the Closing Date for this
Note,
the Exchange Date with respect to such interest shall be the day after the
date
such interest is sold by Morgan Stanley & Co. International plc
or such other manager, all as determined and notified to the Trustee by Morgan
Stanley & Co. International plc, or if Morgan Stanley & Co.
International plc did not participate in the distribution of such tranche,
by
the Issuer.
(c) the
term “
United States
” means the United States of America
(including the States and the District of Columbia); and its
“
possessions
” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
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.
Unless
the
certificate of authentication hereon has been executed by the Trustee by manual
signature, and, if this Note is intended to be an NGN and will not be physically
delivered to the entity appointed as common safe-keeper by the Relevant Clearing
Systems (the “
CSK
”), unless this Note has been effectuated by
the CSK, 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.
IN
WITNESS
WHEREOF, the Issuer has caused this Note to be duly executed.
DATED:
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MORGAN
STANLEY
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By:
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Name:
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Title:
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TRUSTEE’S
CERTIFICATE
OF
AUTHENTICATION
This
is one of the Notes referred
to
in the within-mentioned
Senior
Indenture.
THE
BANK OF NEW YORK,
as
Trustee
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By:
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Authorized
Signatory
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EFFECTUATION
BY COMMON
5
SAFE-KEEPER
This
Note
is effectuated.
[COMMON
SAFE-KEEPER]
By:
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[Authorized
Signatory]
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5
Effectuation block only applicable if this Temporary Global Floating Rate
Senior
Bearer Note is intended to be an NGN and if a Note manually signed by the
Issuer
will not be physically delivered to the common safe-keeper.
[Not
Applicable]
6
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SCHEDULE
A
7
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SCHEDULE
OF EXCHANGES
The
Initial Principal Amount of this Note is ______________. The
following payments of interest and exchanges of a part of this Note for an
interest in a single Permanent Global Bearer Note have been made:
Date
of Exchange or
Interest
Payment
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Principal
Amount
Exchanged
for
Permanent
Global
Bearer
Note
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Remaining
Principal
Amount
Outstanding
Following
Such
Exchange
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Notation
Made by or on
Behalf
of Principal
Paying
Agent
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6
If Schedule A is not applicable, include “Not Applicable” and remove remainder
of Schedule A.
7
Applicable if this Temporary Global Floating Rate Senior Bearer Note is not
intended to be an NGN.
EXHIBIT
A
[FORM
OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR,
CLEARSTREAM, LUXEMBOURG
AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan
Stanley
Global
Medium-Term Notes, Series [G/H]
Represented
by Temporary Global Floating Rate Senior Bearer Note No.
__
This
is to
certify that, based solely on certifications we have received in writing, by
tested telex or by electronic transmission from member organizations appearing
in our records as persons being entitled to a portion of the principal amount
set forth below (our “
Member Organizations
”) substantially to
the effect set forth in Appendix 2 to Exhibit B to the Euro Distribution
Agreement relating to such Notes, as of the date hereof, __________ principal
amount of the above-captioned Securities (i) is owned by persons that are
not citizens or residents of the United States, domestic partnerships, domestic
corporations or any other entity created or organized in or under the laws
of
the United States or any political subdivision thereof, an estate the income
of
which is subject to U.S. federal income taxation regardless of its source or
a
trust if both (a) a court within the United States is able to exercise primary
supervision over the administration of the trust and (b) one or more United
States persons have the authority to control all substantial decisions of the
trust (“
United States persons
”), (ii) is owned by United States
persons that are (a) foreign branches of United States financial institutions
(as defined in the applicable U.S. Treasury regulations) (“
financial
institutions
”) purchasing for their own account or for resale, or (b)
United States persons who acquired the Securities through foreign branches
of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a)
or (b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer or the Issuer’s agent
that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C)
of
the U.S. Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institutions for purposes of resale during the restricted period (as defined
in
the applicable U.S. Treasury regulations), and such United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions. Any such certification by electronic transmission
satisfies the requirements set forth in United States Treasury Regulations
Section
1.163-5(c)(2)(i)(D)(3)(ii). We
will retain all certifications from our Member Organizations for the period
specified in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(i).
As
used
herein, “
United States
” means the United States of America
(including the States and the District of Columbia); and its
“
possessions
” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We
further
certify (i) that we are not making available herewith for exchange (or, if
relevant, seeking to collect principal or interest with respect to) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) that as of the date hereof we have not received any notification from
any of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
(or, if relevant, with respect to which principal or interest is being
requested) are no longer true and cannot be relied upon as of the date
hereof.
We
understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________,
20__
[To
be
dated no earlier than
[insert
date of Interest Payment Date prior to Exchange Date]
[insert
date of Redemption Date prior to Exchange Date]
[insert
Exchange Date]]
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[EUROCLEAR
BANK S.A./N.V., as
Operator of the Euroclear System]
[CLEARSTREAM
BANKING,
SOCIÉTÉ ANONYME]
[OTHER]
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By:
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Name:
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Title:
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EXHIBIT
B
[FORM
OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER
OF EUROCLEAR, CLEARSTREAM, LUXEMBOURG
AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan
Stanley
Global
Medium-Term Notes, Series [G/H]
Represented
by Temporary Global Floating Rate Senior Bearer Note No.
__
This
is to
certify that as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any other entity created or organized
in
or under the laws of the United States or any political subdivision thereof,
an
estate the income of which is subject to U.S. federal income taxation regardless
of its source, or a trust if both (a) a court within the United States is able
to exercise primary supervision over the administration of the trust and (b)
one
or more United States persons have the authority to control all substantial
decisions of the trust (“
United States persons
”), (ii) is owned
by United States persons that are (a) foreign branches of United States
financial institutions (as defined in the applicable U.S. Treasury regulations)
(“
financial institutions
”) purchasing for their own account or
for resale, or (b) United States persons who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
hereby agrees, on its own behalf or through its agent, that you may advise
the
Issuer or the Issuer’s agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986,
as
amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in the applicable U.S. Treasury regulations),
and
in addition if the owner of the Securities is a United States or foreign
financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)) such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As
used
herein, “
United States
” means the United States of America
(including the States and the District of Columbia); and its
“
possessions
” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We
undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held
by
you for our account in accordance with your Operating Procedures if any
applicable statement herein is not correct on such date, and in the absence
of
any such notification it may be assumed that this certification applies as
of
such date.
This
certification excepts and does not relate to [U.S.$]___________ of such interest
in the above-captioned Securities in respect of which we are not able to certify
and as to which we understand exchange for and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any principal or
interest) cannot be made until we do so certify.
We
understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________,
20__
[To
be
dated no earlier than the 10th day before
[insert
date of Interest Payment Date prior to Exchange Date]
[insert
date of Redemption Date prior to Exchange Date]
[insert
Exchange Date]]
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[NAME
OF ACCOUNT HOLDER]
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By:
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(Authorized Signatory)
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Name:
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Title:
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EXHIBIT
4.3
[FORM
OF FACE OF SECURITY]
PERMANENT
GLOBAL FLOATING RATE SENIOR BEARER NOTE
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 (WHICH FOR THIS PURPOSE INCLUDES ANY COMMON SAFEKEEPER)
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 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.
1
1
If this Note is
offered in Japan or denominated in Japanese Yen, appropriate legends need
to be
added.
MORGAN
STANLEY
GLOBAL
MEDIUM TERM NOTE, SERIES [G/H]
Permanent
Global Floating Rate Senior Bearer Note
ORIGINAL
ISSUE DATE:
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INTEREST
ACCRUAL DATE:
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INTEREST
PAYMENT DATE(S):
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MATURITY
DATE:
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INITIAL
INTEREST RATE:
|
INTEREST
PAYMENT PERIOD:
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BASE
RATE:
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INITIAL
INTEREST RESET DATE:
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INTEREST
RESET DATE(S):
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INDEX
MATURITY:
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MAXIMUM
INTEREST RATE:
|
INTEREST
RESET PERIOD:
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SPREAD
(PLUS OR MINUS):
|
MINIMUM
INTEREST RATE:
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CALCULATION
AGENT:
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SPREAD
MULTIPLIER:
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INITIAL
REDEMPTION DATE:
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EUROCLEAR
NO:
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SPECIFIED
CURRENCY:
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INITIAL
REDEMPTION PERCENTAGE:
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CLEARSTREAM
NO:
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INDEX
CURRENCY:
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ANNUAL
REDEMPTION PERCENTAGE REDUCTION:
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COMMON
CODE:
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DESIGNATED
CMT TELERATE PAGE:
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REDEMPTION
NOTICE PERIOD:
2
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ISIN:
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DESIGNATED
CMT MATURITY INDEX:
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OPTIONAL
REPAYMENT DATE(S):
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MINIMUM
DENOMINATIONS:
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REPORTING
SERVICE:
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INITIAL
OFFERING DATE:
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EXCHANGE
FOR REGISTERED NOTES: [NO]
3
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NEW
GLOBAL NOTE (“NGN”):
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IF
THIS IS AN NGN, INTENDED TO BE HELD IN A MANNER THAT WOULD ALLOW
ELIGIBILITY AS COLLATERAL FOR EUROSYSTEM INTRA-DAY CREDIT AND MONETARY
OPERATIONS: [YES]
4
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OTHER
PROVISIONS:
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2
Applicable
if other than 30-60 calendar days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10
calendar days may be possible.
3
Unless
explicitly stated otherwise in term sheet, MS practice has been to exclude
this
option.
4
To be Eurosystem
eligible, NGNs must also be denominated in euro, listed (Series G) and
must meet
certain other criteria established by the European Central
Bank.
Morgan
Stanley, a Delaware corporation (together with its successors and assigns,
the
“
Issuer
”), for value received, hereby promises to pay to
bearer, upon surrender hereof, the principal amount specified in [Schedule
A
hereto]
5
[Schedule A-1 hereto]
6
,
or, if the face of this Note indicates that
it is intended to be an NGN, the aggregate principal amount from time to time
entered in the records of both Euroclear Bank S.A./N.V. and Clearstream Banking,
société anonyme (together, the “
Relevant Clearing Systems
”), on
the Maturity Date specified above (except to the extent previously redeemed
or
repaid) and to pay interest thereon, from and including the Interest Accrual
Date specified above at a rate per annum equal to the Initial Interest Rate
specified above or determined in accordance with the provisions specified on
the
reverse hereof until the Initial Interest Reset Date specified above, and on
and
after at a rate per annum determined in accordance with the provisions specified
on the reverse hereof until but excluding the date such principal amount is
paid
or duly made available for payment. Unless such rate is otherwise specified
on
the face hereof, the Calculation Agent shall determine the Initial Interest
Rate
for this Note in accordance with the provisions specified on the reverse
hereof. The Issuer will pay interest in arrears monthly, quarterly,
semiannually or annually as specified above as the Interest Payment Period
on
each Interest Payment Date (as specified above), commencing with the first
Interest Payment Date next succeeding the Interest Accrual Date specified above,
and on the Maturity Date specified above (or any redemption or repayment date);
provided
,
however
, that if the Interest Accrual Date occurs
fifteen calendar days or less prior to the first Interest Payment Date occurring
after the Interest Accrual Date, interest payments will commence on the second
Interest Payment Date succeeding the Interest Accrual Date; and
provided
,
further
, that if an Interest Payment Date (other
than the Maturity Date or any redemption or repayment date) would fall on a
day
that is not a Business Day, as defined on the reverse hereof, such Interest
Payment Date shall be the following day that is a Business Day, except that
if
the Base Rate specified above is LIBOR or EURIBOR and such next Business Day
falls in the next calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day; and
provided
,
further
, that if the Maturity Date or redemption or repayment
date
would fall on a day that is not a Business Day, the payment of principal,
premium, if any, and interest shall be made on the next succeeding Business
Day
and no interest shall accrue for the period from and after such Maturity Date
or
redemption or repayment date. If this Note is intended to be an NGN,
the records of the Relevant Clearing Systems (which, in this Note, means the
records that each Relevant Clearing System holds for its customers to reflect
the amount of such customers’ interests in this Note) shall be conclusive
evidence of the aggregate principal amount of this Note and, for these purposes,
a statement issued by a Relevant Clearing System (which statement shall be
made
to the Issuer, to the Trustee, to the Principal Paying Agent or to the bearer
of
this Note on request) stating the aggregate principal
6
Applies
if this Note is issued as part of, or in relation to, a Unit.
amount
of
this Note shall be conclusive of the records of such Relevant Clearing System
at
that time.
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 principal hereof has been 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 and premium, if any, and interest on this Note will be made
in
such coin or currency of the United States 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.
Unless
the
certificate of authentication hereon has been executed by the Trustee referred
to on the reverse hereof by manual signature, and, if this Note is intended
to
be an NGN and will not be physically delivered to the entity appointed as common
safe-keeper by the Relevant Clearing Systems (the “
CSK
”),
unless this Note has been effectuated by the CSK, 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.
IN
WITNESS
WHEREOF, the Issuer has caused this Note to be duly executed.
DATED:
|
MORGAN
STANLEY
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By:
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Name:
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Title:
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TRUSTEE’S
CERTIFICATE
OF
AUTHENTICATION
This
is
one of the Notes referred
to
in the
within-mentioned
Senior
Indenture.
THE
BANK
OF NEW YORK,
as
Trustee
SAFE-KEEPER
This
Note
is effectuated.
[COMMON
SAFE-KEEPER]
7
An effectuation
block is only applicable if this Permanent Global Floating Rate Senior Bearer
Note is intended to be an NGN and if a Note manually signed by the Issuer
will
not be physically delivered to the common safe-keeper.
[FORM
OF REVERSE OF SECURITY]
This
Note
is one of a duly authorized issue of Global Medium-Term Notes, Series [G/H],
having maturities more than nine months from the date of issue (the
“
Notes
”), of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of November 1, 2004, between the Issuer
and
The Bank of New York (as successor to JPMorgan Chase Bank, N.A. (formerly known
as JPMorgan Chase Bank)), as Trustee (the “
Trustee
,” which term
includes any successor trustee under the Senior Indenture) (as supplemented
by
the First Supplemental Senior Indenture, dated as of September 4, 2007, and
the
Second Supplemental Senior Indenture, dated as of January 4, 2008, and as may
be
further 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 Bank of New
York, London Branch (as successor to JPMorgan Chase Bank, N.A., 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.
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 calendar days prior to the date fixed for redemption or within the
Redemption Notice 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 three successive calendar
weeks,
the
first publication to be not less than 30 nor more than 60 calendar 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 (i) if this Note is not intended to
be an
NGN, cause Schedule [A] [A-1] 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, or (ii) if this Note is intended to be an
NGN,
cause the details of such redemption to be entered in the records of the
Relevant Clearing Systems, whereupon, in either case, the principal amount
hereof shall be reduced for all purposes by the amount so redeemed and noted
or
recorded, as applicable.
If
this
Note is redeemed in part but not in whole prior to maturity hereof, (i) if
this
Note is not intended to be an NGN, the Trustee shall select or cause to be
selected, not more than 60 days prior to the redemption date, the portions
of
this Note for redemption from the outstanding aggregate principal amount of
this
Note not previously called for redemption by such method as the Trustee deems
fair and appropriate, or (ii) if this Note is intended to be an NGN, the portion
of this Note to be redeemed will be selected in accordance with the rules and
procedures of Euroclear Bank S.A./N.V. and/or Clearstream Banking, société
anonyme (to be reflected in the records of the Relevant Clearing Systems as
either a pool factor or a reduction in nominal amount, at their
discretion).
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 calendar 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 Financial Industry Regulatory
Authority, 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
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 Principal 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 (i) if this Note is not intended to be an NGN,
cause Schedule [A] [A-1] 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, or (ii) if this Note is intended to be an NGN, cause the
details of such repayment to be entered in the records of the Relevant Clearing
Systems, whereupon, in either case, the principal amount hereof shall be reduced
for all purposes by the amount so repaid and noted or recorded, as
applicable.
This
Note
will bear interest at the rate determined in accordance with the applicable
provisions below by reference to the Base Rate shown on the face hereof based
on
the Index Maturity, if any, shown on the face hereof (i) plus or minus the
Spread, if any, or (ii) multiplied by the Spread Multiplier, if any, specified
on the face hereof. Commencing with the Initial Interest Reset Date
specified on the face hereof, the rate at which interest on this Note is payable
shall be reset as of each Interest Reset Date specified on the face hereof
(as
used herein, the term “
Interest Reset Date
” shall include the
Initial Interest Reset Date). For the purpose of determining the Initial
Interest Rate, references in this paragraph, the next succeeding paragraph
and,
if applicable, clauses (i) and (ii) under “Determination of EURIBOR” below to
Interest Reset Date shall be deemed to mean the Original Issue Date. The
determination of the rate of interest at which this Note will be reset on any
Interest Reset Date shall be made on the Interest Determination Date (as defined
below) pertaining to such Interest Reset Date. The Interest Reset
Dates will be the Interest Reset Dates specified on the face hereof;
provided
,
however
, that the interest rate in effect for the
period from the Interest Accrual Date to the Initial Interest Reset Date will
be
the Initial Interest Rate. If any Interest Reset Date would otherwise
be a day that is not a Business Day (as defined below), such Interest Reset
Date
shall be postponed to the next succeeding day that is a Business Day, except
that if the Base Rate specified on the face hereof is LIBOR or EURIBOR and
such
Business Day is in the next succeeding calendar month, such Interest Reset
Date
shall be the immediately preceding Business Day.
The
Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to the Federal Funds Rate, Federal
Funds (Open) Rate and Prime Rate shall be on the Business Day prior to the
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate and CMT Rate will be the second Business Day prior to
such
Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to
EURIBOR (or to LIBOR when the Index Currency is euros) shall be the second
TARGET Settlement Day prior to such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR (other than for LIBOR Notes for which
the Index Currency is euros) shall be the second London Banking Day prior to
such Interest Reset Date, except that the Interest Determination Date pertaining
to an Interest Reset Date for a LIBOR Note for which the Index Currency is
pounds sterling will be such Interest
Reset
Date. As used herein, “
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. The Interest Determination
Date pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to the Treasury Rate shall be the day of the week in which such
Interest Reset Date falls on which Treasury bills normally would be
auctioned. Treasury Bills are normally sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
normally held on the following Tuesday, except that the auction may be held
on
the preceding Friday;
provided
,
however
, that if an auction is
held on the Friday of the week preceding such Interest Reset Date, the Interest
Determination Date shall be such preceding Friday; and
provided
,
further
, that if an auction shall fall on any Interest Reset Date,
then
the Interest Reset Date shall instead be the first Business Day following the
date of such auction. The Interest Determination Date pertaining to
an Interest Reset Date for Notes bearing interest calculated by reference to
two
or more base rates will be the latest Business Day that is at least two Business
Days before the Interest Reset Date for the applicable Note on which each base
rate is determinable.
Unless
otherwise specified on the face hereof, the “Calculation Date” pertaining to an
Interest Determination Date, including the Interest Determination Date as of
which the Initial Interest Rate is determined, will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not
a Business Day, the next succeeding Business Day, or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or Maturity Date
(or,
with respect to any principal amount to be redeemed or repaid, any redemption
or
repayment date), as the case may be.
Determination
of CD Rate.
If the Base Rate specified on the face hereof is the
“
CD Rate
,” for any Interest Determination Date, the
CD Rate with respect to this Note shall be the rate on that date for negotiable
U.S. dollar certificates of deposit having the Index Maturity specified on
the
face hereof as published by the Board of Governors of the Federal Reserve System
in “Statistical Release H.15(519), Selected Interest Rates,” or any successor
publication of the Board of Governors of the Federal Reserve System
(“
H.15(519
)”) under the heading “CDs (Secondary
Market).”
The
following procedures shall be followed if the CD Rate cannot be determined
as
described above:
(i)
If the
above rate is not published in H.15(519) by 3:00 p.m., New York City time,
on
the Calculation Date, the CD Rate shall be the rate on that Interest
Determination Date set forth in the daily update of H.15(519), available through
the world wide website of the Board of Governors of the Federal Reserve System
at http://www.federalreserve.gov/releases/h15/update, or any successor site
or
publication (“
H.15 Daily Update
”) for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption “CDs (Secondary
Market).”
(ii)
If
the above rate is not yet published in either H.15(519) or the H.15 Daily Update
by 3:00 p.m., New York City time, on the Calculation Date, the Calculation
Agent
shall determine the CD Rate to be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on that Interest
Determination Date of three leading nonbank dealers in negotiable U.S. dollar
certificates of deposit in The City of New York, which may include the initial
dealer and its affiliates, selected by the Calculation Agent (after consultation
with the Issuer), for negotiable U.S. dollar certificates of deposit of major
U.S. money center banks of the highest credit standing in the market for
negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity specified on the face hereof in an amount that is representative
for a single transaction in that market at that time.
“Initial
dealer” with respect to this Note means Morgan Stanley & Co. International
plc.
(iii)
If
the dealers selected by the Calculation Agent are not quoting as set forth
in
(ii) above, the CD Rate for that Interest Determination Date shall remain the
CD
Rate for the immediately preceding Interest Reset Period, or, if there was
no
Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
Determination
of Commercial Paper Rate.
If the Base Rate specified on the face
hereof is the “
Commercial Paper Rate
,” for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be
the Money Market Yield (as defined herein), calculated as described below,
of
the rate on that date for U.S. dollar commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the
heading “Commercial Paper
-
Nonfinancial.”
The
following procedures shall be followed if the Commercial Paper Rate cannot
be
determined as described above:
(i)
If the
above rate is not published by 3:00 p.m., New York City time, on the Calculation
Date, then the Commercial Paper Rate shall be the Money Market Yield of the
rate
on that Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in the H.15 Daily Update, or other
recognized electronic source used for the purpose of displaying the applicable
rate, under the heading “Commercial Paper - Nonfinancial.”
(ii)
If by
3:00 p.m., New York City time, on that Calculation Date the rate is not yet
published in either H.15(519) or the H.15 Daily Update, or other recognized
electronic source used for the purpose of displaying the applicable rate, then
the Calculation Agent shall determine the Commercial Paper Rate to be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m.,
New
York City time, on that Interest Determination Date of three leading dealers
of
U.S. dollar commercial paper in The City of New York, which may include the
initial dealer and its affiliates, selected by the Calculation Agent (after
consultation with the Issuer), for commercial
paper
of
the Index Maturity specified on the face hereof, placed for an industrial issuer
whose bond rating is “Aa,” or the equivalent, from a nationally recognized
statistical rating agency.
(iii)
If
the dealers selected by the Calculation Agent are not quoting as set forth
in
(ii) above, the Commercial Paper Rate for that Interest Determination Date
shall
remain the Commercial Paper Rate for the immediately preceding Interest Reset
Period, or, if there was no Interest Reset Period, the rate of interest payable
shall be the Initial Interest Rate.
The
“
Money Market Yield
” shall be a yield calculated in accordance
with the following formula:
Money
Market Yield =
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x
100
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360
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(D x M)
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where
“D”
refers to the applicable per year rate for commercial paper quoted on a bank
discount basis and expressed as a decimal and “M” refers to the actual number of
days in the interest period for which interest is being calculated.
Determination
of EURIBOR.
If the Base Rate specified on the face hereof is
“
EURIBOR
,” for any Interest Determination Date, EURIBOR with
respect to this Note shall be the rate for deposits in euros as sponsored,
calculated and published jointly by the European Banking Federation and ACI
-
The Financial Market Association, or any company established by the joint
sponsors for purposes of compiling and publishing those rates, for the Index
Maturity specified on the face hereof as that rate appears on the display on
Moneyline Telerate, or any successor service, on page 248 or any other page
as
may replace page 248 on that service (“
Telerate Page 248
”) as
of 11:00 a.m., Brussels time.
The
following procedures shall be followed if the rate cannot be determined as
described above:
(i)
If the
above rate does not appear, the Calculation Agent shall request the principal
Euro-zone office of each of four major banks in the Euro-zone interbank market,
as selected by the Calculation Agent (after consultation with the Issuer),
to
provide the Calculation Agent with its offered rate for deposits in euros,
at
approximately 11:00 a.m., Brussels time, on the Interest Determination Date,
to
prime banks in the Euro-zone interbank market for the Index Maturity specified
on the face hereof commencing on the applicable Interest Reset Date, and in
a
principal amount not less than the equivalent of U.S.$1 million in euro that
is
representative of a single transaction in euro, in that market at that
time. If at least two quotations are provided, EURIBOR shall be the
arithmetic mean of those quotations.
(ii)
If
fewer than two quotations are provided, EURIBOR shall be the arithmetic mean
of
the rates quoted by four major banks in the Euro-zone interbank market, as
selected by the Calculation Agent (after consultation with the Issuer), at
approximately 11:00 a.m., Brussels time, on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent
to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii)
If
the banks so selected by the Calculation Agent are not quoting as set forth
in
(ii) above, EURIBOR in effect for the applicable period shall be the same as
EURIBOR for the immediately preceding Interest Reset Period, or, if there was
no
Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
“
Euro-zone
”
means the region comprised of member states of the European Union that adopt
the
single currency in accordance with the relevant treaty of the European Union,
as
amended.
Determination
of the Federal Funds Rate.
If the Base Rate specified on the
face hereof is the “
Federal Funds Rate
,” for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall
be
the rate on that date for U.S. dollar federal funds as published in H.15(519)
under the heading “Federal Funds (Effective)” as displayed on
Moneyline Telerate, or any successor service, on page 120 or any other page
as
may replace page 120 on that service (“
Telerate Page
120
”).
The
following procedures shall be followed if the Federal Funds Rate cannot be
determined as described above:
(i)
If the
above rate is not published by 3:00 p.m., New York City time, on the Calculation
Date, the Federal Funds Rate shall be the rate on that Interest Determination
Date as published in the H.15 Daily Update, or other recognized electronic
source used for the purpose of displaying the applicable rate, under the heading
“Federal Funds (Effective).”
(ii)
If
the above rate is not yet published in either H.15(519) or the H.15 Daily
Update, or other recognized electronic source used for the purpose of displaying
the applicable rate, by 3:00 p.m., New York City time, on the Calculation Date,
the Calculation Agent shall determine the Federal Funds Rate to be the
arithmetic mean of the rates for the last transaction in overnight U.S. dollar
federal funds prior to 9:00 a.m., New York City time, on that Interest
Determination Date, by each of three leading brokers of U.S. dollar federal
funds transactions in The City of New York, which may include the initial dealer
and its affiliates, selected by the Calculation Agent (after consultation with
the Issuer).
(iii)
If
the brokers selected by the Calculation Agent are not quoting as set forth
in
(ii) above, the Federal Funds Rate for that Interest Determination Date shall
remain the
Federal
Funds Rate for the immediately preceding Interest Reset Period, or, if there
was
no Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
Determination
of Federal Funds (Open) Rate
. If the Base Rate specified on the face hereof
is the “
Federal Funds (Open) Rate
”, for any Interest
Determination Date, the Federal Funds (Open) Rate with respect to this Note
shall be the rate on that date for U.S. dollar federal funds as published in
H.15(519) under the heading “Federal Funds (Open)” as displayed on Moneyline
Telerate, or any successor service, on page 5 or any other page as may replace
page 5 on that service, (“
Telerate Page 5
”).
The
following procedures shall be followed if the Federal Funds (Open) Rate cannot
be determined as described above:
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If
the above rate is not published by 3:00 p.m., New York City time,
on the
Calculation Date, the Federal Funds (Open) Rate will be the rate
on that
Interest Determination Date as published in the H.15 Daily Update,
or
other recognized electronic source used for the purpose of displaying
the
applicable rate, under the heading “Federal Funds
(Open).”
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·
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If
the above rate is not yet published in either H.15(519) or the H.15
Daily
Update, or other recognized electronic source used for the purpose
of
displaying the applicable rate, by 3:00 p.m., New York City time,
on the
Calculation Date, the Calculation Agent will determine the Federal
Funds
(Open) Rate to be the arithmetic mean of the rates for the last
transaction in overnight U.S. dollar federal funds (based on the
Federal
Funds (Open) Rate) prior to 9:00 a.m., New York City time, on that
Interest Determination Date, by each of three leading brokers of
U.S.
dollar federal funds transactions in the City of New York, which
may
include the agent and its affiliates, selected by the Calculation
Agent,
after consultation with the Issuer.
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·
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If
the brokers selected by the Calculation Agent are not quoting as
set forth
above, the Federal Funds (Open) Rate for that Interest Determination
Date
shall remain the Federal Funds (Open) Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period,
the rate
of interest payable will be the Initial Interest
Rate.
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Determination
of LIBOR.
If the Base Rate specified on the face hereof is
“
LIBOR
,” LIBOR with respect to this Note shall be based on
London Interbank Offered Rate. The Calculation Agent shall determine LIBOR
for
each Interest Determination Date 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.
(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 for the applicable Interest Reset Date as 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.
(iv)
If
the banks so selected by the Calculation Agent are not quoting as described
in
(iii) above, LIBOR in effect for the applicable period shall be the same as
LIBOR for the immediately preceding Interest Reset Period, or, if there was
no
Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
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 Money 3000
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 Moneyline Telerate, 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.
Determination
of Prime Rate.
If the Base Rate specified on the face hereof is
“
Prime Rate
,” for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published
in
H.15(519) under the heading “Bank Prime Loan.”
The
following procedures shall be followed if the Prime Rate cannot be determined
as
described above:
(i)
If the
above rate is not published prior to 3:00 p.m., New York City time, on the
Calculation Date, then the Prime Rate shall be the rate on that Interest
Determination Date as published in the H.15 Daily Update under the heading
“Bank
Prime Loan.”
(ii)
If
the above rate is not published in either H.15(519) or the H.15 Daily Update
by
3:00 p.m., New York City time, on the Calculation Date, the Calculation Agent
shall determine the Prime Rate to be the arithmetic mean of the rates of
interest publicly announced by each bank that appears on the Reuters Screen
USPRIME 1 Page, as defined below, as that bank’s Prime Rate or base lending rate
as in effect for that Interest Determination Date.
(iii)
If
fewer than four rates for that Interest Determination Date appear on the Reuters
Screen USPRIME 1 Page by 3:00 p.m., New York City time, on the Calculation
Date,
the Calculation Agent shall determine the Prime Rate to be the arithmetic mean
of the Prime Rates quoted on the basis of the actual number of days in the
year
divided by 360 as of the close of business on that Interest Determination Date
by at least three major banks, which may include affiliates of the initial
dealer, in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
(iv)
If
the banks selected by the Calculation Agent are not quoting as set forth in
(iii) above, the Prime Rate for that Interest Determination Date shall remain
the Prime Rate for the immediately preceding Interest Reset Period, or, if
there
was no Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
“
Reuters
Screen USPRIME 1 Page
” means the display designated as page “USPRIME 1”
on the Reuters Money 3000 Service, or any successor service, or any
other page
as may replace the USPRIME 1 Page on that service for the purpose of displaying
prime rates or base lending rates of major U.S. banks.
Determination
of Treasury Rate.
If the Base Rate specified on the face hereof
is “
Treasury Rate
,” the Treasury Rate with respect to this Note
shall be
(i)
the rate from the Auction held on the applicable Interest Determination Date
(the “
Auction
”) of direct obligations of the United States
(“
Treasury Bills
”) having the Index Maturity specified on the
face hereof as that rate appears under the caption “INVESTMENT RATE” on the
display on Moneyline Telerate, or any successor service, on page 56 or any
other
page as may replace page 56 on that service (“
Telerate Page
56
”) or page 57 or any other page as may replace page 57 on that
service (“
Telerate Page 57
”); or
(ii)
if
the rate described in (i) above is not published by 3:00 p.m., New York City
time, on the Calculation Date, the Bond Equivalent Yield of the rate
for the applicable Treasury Bills as published in the H.15 Daily Update, or
other recognized electronic source used for the purpose of displaying the
applicable rate, under the caption “U.S. Government Securities/Treasury
Bills/Auction High”; or
(iii)
if
the rate described in (ii) above is not published by 3:00 p.m., New York City
time, on the related Calculation Date, the Bond Equivalent Yield of the Auction
rate of the applicable Treasury Bills, announced by the United States Department
of the Treasury; or
(iv)
if
the rate described in (iii) above is not announced by the United States
Department of the Treasury, or if the Auction is not held, the Bond Equivalent
Yield of the rate on the applicable Interest Determination Date of Treasury
Bills having the Index Maturity specified on the face hereof published in
H.15(519) under the caption “U.S. Government Securities/Treasury Bills/Secondary
Market”; or
(v)
if the
rate described in (iv) above is not so published by 3:00 p.m., New York City
time, on the related Calculation Date, the rate on the applicable Interest
Determination Date of the applicable Treasury Bills as published in the H.15
Daily Update, or other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption “U.S. Government
Securities/Treasury Bills/Secondary Market”; or
(vi)
if
the rate described in (v) above is not so published by 3:00 p.m., New York
City
time, on the related Calculation Date, the rate on the applicable Interest
Determination Date calculated by the Calculation Agent as the Bond Equivalent
Yield of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 p.m., New York City time, on the applicable Interest
Determination Date, of three primary U.S.
government
securities dealers, which may include the initial dealer and its affiliates,
selected by the Calculation Agent, for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity specified on the face hereof;
or
(vii)
if
the dealers selected by the Calculation Agent are not quoting as described
in
(vi), the Treasury Rate for the immediately preceding Interest Reset Period,
or,
if there was no Interest Reset Period, the rate of interest payable shall be
the
Initial Interest Rate.
The
“
Bond Equivalent Yield
” means a yield calculated in accordance
with the following formula and expressed as a percentage:
Bond
Equivalent Yield =
|
|
x
100
|
360
− (D x M)
|
where
“D”
refers to the applicable per annum rate for Treasury Bills quoted on a bank
discount basis, “N” refers to 365 or 366, as the case may be, and “M” refers to
the actual number of days in the interest period for which interest is being
calculated.
Determination
of CMT Rate.
If the Base Rate specified on the face hereof is
the “
CMT Rate
,” for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT
Telerate Page (as defined below) under the caption “... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45
p.m.,” under the column for the Designated CMT Maturity Index, as defined below,
for:
(1) the
rate on that Interest Determination Date, if the Designated CMT Telerate Page
is
7051; and
(2)
the
week or the month, as applicable, ended immediately preceding the week in which
the related Interest Determination Date occurs, if the Designated CMT Telerate
Page is 7052.
The
following procedures shall be followed if the CMT Rate cannot be determined
as
described above:
(i)
If the
above rate is no longer displayed on the relevant page, or if not displayed
by
3:00 p.m., New York City time, on the related Calculation Date, then the CMT
Rate shall be the Treasury Constant Maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519).
(ii)
If
the rate as described in (i) above is no longer published, or if not published
by 3:00 p.m., New York City time, on the related Calculation Date, then the
CMT
Rate shall be the Treasury Constant Maturity Rate for the Designated CMT
Maturity Index or other U.S. Treasury rate for the Designated CMT Maturity
Index
on the Interest Determination Date as may then be published by either the Board
of Governors of the
Federal
Reserve System or the United States Department of the Treasury that the
Calculation Agent determines to be comparable to the rate formerly displayed
on
the Designated CMT Telerate Page and published in the relevant
H.15(519).
(iii)
If
the information set forth above in (ii) is not provided by 3:00 p.m., New York
City time, on the related Calculation Date, then the Calculation Agent shall
determine the CMT Rate to be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30
p.m.,
New York City time, on the Interest Determination Date, reported, according
to
their written records, by three leading primary U.S. government securities
dealers (“
Reference Dealers
”) in The City of New York, which
may include the initial dealer or another affiliate, selected by the Calculation
Agent as described in the following sentence. The Calculation Agent
shall select five reference dealers (after consultation with the Issuer) and
shall eliminate the highest quotation or, in the event of equality, one of
the
highest, and the lowest quotation or, in the event of equality, one of the
lowest, for the most recently issued direct noncallable fixed rate obligations
of the United States (“
Treasury Notes
”) with an original
maturity of approximately the Designated CMT Maturity Index, a remaining term
to
maturity of no more than 1 year shorter than that Designated CMT Maturity Index
and in a principal amount that is representative for a single transaction in
the
securities in that market at that time. If two Treasury Notes with an
original maturity as described above have remaining terms to maturity equally
close to the Designated CMT Maturity Index, the quotes for the Treasury Note
with the shorter remaining term to maturity shall be used.
(iv)
If
the Calculation Agent cannot obtain three Treasury Notes quotations as described
in (iii) above, the Calculation Agent shall determine the CMT Rate to be a
yield
to maturity based on the arithmetic mean of the secondary market offer side
prices as of approximately 3:30 p.m., New York City time, on the Interest
Determination Date of three reference dealers in The City of New York, selected
using the same method described in (iii) above, for Treasury Notes with an
original maturity equal to the number of years closest to but not less than
the
Designated CMT Maturity Index and a remaining term to maturity closest to the
Designated CMT Maturity Index and in a principal amount that is representative
for a single transaction in the securities in that market at that
time.
(v)
If
three or four, and not five, of the reference dealers are quoting as described
in (iv) above, then the CMT Rate shall be based on the arithmetic mean of the
offer prices obtained and neither the highest nor the lowest of those quotes
shall be eliminated.
(vi)
If
fewer than three reference dealers selected by the Calculation Agent are quoting
as described in (iv) above, the CMT Rate for that Interest Determination Date
shall remain the CMT Rate for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable shall
be
the Initial Interest Rate.
“
Designated
CMT Telerate Page
” means the display on Moneyline Telerate, or any
successor service, on the page designated on the face hereof or any other page
as may replace that page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519). If no page is specified
on the face hereof, the Designated CMT Telerate Page shall be 7052, for the
most
recent week.
“
Designated
CMT Maturity Index
” means the original period to maturity of the U.S.
Treasury securities, which is either 1, 2, 3, 5, 7, 10, 20 or 30 years, as
specified in the applicable pricing supplement for which the CMT Rate shall
be
calculated. If no maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Notwithstanding
the foregoing, the interest rate hereon shall not be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if any, specified
on the face hereof. The Calculation Agent shall calculate the
interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be
higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At
the
request of the holder hereof, the Calculation Agent will provide to the holder
hereof the interest rate hereon then in effect and, if determined, the interest
rate that will become effective as of the next Interest Reset Date.
Unless
otherwise indicated on the face hereof, interest payments on this Note will
include interest accrued to but excluding the Interest Payment Date or the
Maturity Date (or any earlier redemption or repayment date), as the case may
be. Accrued interest hereon shall be an amount calculated by
multiplying (i) if this Note is not intended to be an NGN, the principal amount
hereof shown on Schedule [A] [A-1] hereto, or (ii) if this Note is intended
to
be an NGN, the principal amount hereof as set forth in the records of the
Relevant Clearing System, in either case by an accrued interest
factor. Such accrued interest factor shall be computed by adding the
interest factor calculated for each day in the period for which interest is
being paid. Unless otherwise specified on the face hereof, the
interest factor for each such date shall be computed by dividing the interest
rate applicable to such day (i) by 360 if the Base Rate is CD Rate, Commercial
Paper Rate, EURIBOR, Federal Funds Rate, Federal Funds (Open) Rate, Prime Rate
or LIBOR (except if the Index Currency is pounds sterling); (ii) by 365 if
the
Base Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by the
actual number of days in the year if the Base Rate is the Treasury Rate or
the
CMT Rate. All percentages used in or resulting from any calculation
of the rate of interest on this Note will be rounded, if necessary, to the
nearest one hundred thousandth of a percentage point (with .000005% being
rounded up to .00001%), and all U.S. dollar amounts used in or resulting from
such calculations on this Note will be rounded to the nearest cent, with
one-half cent rounded upward. All Japanese Yen amounts used in or
resulting from such calculations will be rounded downwards to the next lower
whole Japanese Yen amount. All amounts
denominated
in any other currency used in or resulting from such calculations will be
rounded to the nearest two decimal places in such currency, with .005 being
rounded up to .01. The interest rate in effect on any Interest Reset
Date will be the applicable rate as reset on such date. The interest
rate applicable to any other day is the interest rate from the immediately
preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
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 calendar days’ written notice to the Principal Paying Agent through the
relevant clearing system, (i) if this Note is not intended to be an NGN, in
whole, or (ii) if this Note is intended to be an NGN, in whole or from time
to
time in part, 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 Bank S.A./N.V., as operator of the Euroclear System
(“
Euroclear
”), or Clearstream Banking,
société anonyme
(“
Clearstream, Luxembourg
”), or any other relevant clearing
system (including Euroclear France) 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 Bank
of
New York, London Branch (as successor to JPMorgan Chase Bank, N.A., 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 register the transfer of or 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 register the transfer of or 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 for a Definitive Bearer Note or
Definitive Bearer Notes, or for a Registered Note or Registered Notes, the
Principal Paying Agent shall (i) if this Note is not intended to be an NGN,
cause Schedule [A] [A-1] 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, or (ii) if this Note is intended to be an NGN, cause
the details of such exchange to be entered in the records of the Relevant
Clearing Systems, whereupon, in either case, the principal amount hereof shall
be reduced for all purposes by the amount so exchanged and noted or recorded,
as
applicable. 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) if this Note is not intended to
be an
NGN, 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 Clearstream, Luxembourg 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, (i) if this Note is not intended to be an NGN,
a
common depositary located outside the United States (the “
common
depositary
”) holding this Note for Euroclear, Clearstream, Luxembourg
and/or any other relevant clearing system, or (ii) if this Note is intended
to
be an NGN, Euroclear and/or Clearstream, Luxembourg 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, (i) if this Note is not intended to be an NGN, cause
Schedule [A] [A-1]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, or (ii) if this
Note
is
intended to be an NGN, cause the details of such exchange to be entered in
the
records of the Relevant Clearing Systems. 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 or common safe-keeper,
as
applicable, outside the United States for Euroclear, Clearstream, Luxembourg
and/or any other relevant clearing system or to a nominee of such a common
depositary or common safe-keeper.
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 in exchange for
this Note, but, in the case of any destroyed, lost or stolen Note, only upon
receipt of evidence satisfactory to the Trustee and the Issuer that this Note
was destroyed, 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 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
a
redemption price equal to 100% of the principal amount hereof, together with
accrued interest to the date fixed for redemption, if the Issuer determines
that, as a result of any change in or amendment to the laws (including a
holding, judgment or as ordered by a court of competent jurisdiction), 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 occurs, becomes
effective or, in the case of a change in official position, is announced on
or
after the Initial Offering 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 legal 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 calendar 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 calendar 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 U.S. 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 U.S. 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 a redemption price equal to 100% of the principal amount thereof,
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 calendar days prior to the date fixed for redemption or at least 30
calendar 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 calendar days
prior
to the date fixed for redemption or within the Redemption Notice Period
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 calendar 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 U.S. 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 calendar 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 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 U.S. 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 or deduction 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, make any payment of Additional Amounts to any such holder who is a
U.S.
Alien for or on account of:
(a)
any
present or future 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 for U.S. federal income tax purposes, and the
United States, 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 or on behalf of the holder of this Note for payment on a date
more than 15 calendar 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, excise 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 controlled foreign corporation or passive foreign
investment company with respect to the United States or as a corporation which
accumulates earnings to avoid U.S. federal income tax or as a private foundation
or other tax exempt organization or a bank receiving interest under Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended;
(d)
any
tax, assessment or other governmental charge that is payable otherwise than
by
withholding or deduction 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;
(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).
In
addition, the Issuer shall not be required to make any payment of Additional
Amounts (i) to any such holder where such withholding or deduction is imposed
on
a payment to an individual and is required to be made pursuant to any law
implementing or complying
with,
or
introduced in order to conform to, any European Union Directive on the taxation
of savings; or (ii) by or on behalf of a holder who would have been able to
avoid such withholding or deduction by presenting this Note or the relevant
coupon to another Paying Agent in a member state of the European
Union. Nor shall the Issuer pay Additional Amounts with respect to
any payment on this Note to a U.S. 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
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 or premium, if any,
or
interest on any series 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 aggregate principal amount of the outstanding
debt securities of each affected series, voting as one class, by notice in
writing to the Issuer and to the Trustee, if given by the securityholders,
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,
insolvency or reorganization of the Issuer, shall have occurred and be
continuing, either the Trustee or the holders of not less than 25% in aggregate
principal amount of all outstanding debt securities issued under the Senior
Indenture, voting as one class, by notice in writing to the Issuer and to the
Trustee, if given by the securityholders, 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 of or
premium, if any, or interest on such debt securities) by the holders of a
majority in aggregate 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 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 or for other property or the cash value of the property (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 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 or 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 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 or 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 relevant treaty of the European Union, as
amended. 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., The City of New York 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 plc, 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.
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 plc and such exchange so requires, the Issuer shall maintain
a
Paying Agent in London. If any European Union Directive on the
taxation of savings comes into force, the Issuer will, to the extent possible
as
a matter of law, maintain a Paying Agent in a member state of the European
Union
that will not be obligated to withhold or deduct tax pursuant to any such
Directive or any law implementing or complying with, or introduced in order
to
conform to, such Directive. 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 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 and 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 or premium, if any,
or
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, (i) 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 in London or (y) if this Note is denominated in a Specified
Currency other than U.S. dollars, euro or Australian dollars, 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 (ii) 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 “
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 published by the Federal Reserve Bank of New
York;
(c)
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 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;
(d)
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
(e)
the
term “
U.S. Alien
” means any person who is, for U.S. federal
income tax purposes, (i) a nonresident alien individual, (ii) a foreign
corporation, (iii) a nonresident alien fiduciary of a foreign estate or trust
or
(iv) a foreign
partnership
one or more of the members of which is, for U.S. federal income tax purposes,
a
nonresident alien individual, a foreign corporation or a nonresident 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.
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)
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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):
________________.
EXCHANGES
FOR DEFINITIVE BEARER NOTES OR 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:
Date
of Exchange, Redemption or Payment
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Principal
Amount Exchanged From Temporary Global Notes
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Principal
Amount Exchanged For Definitive Bearer Notes
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Principal
Amount Exchanged For Definitive Registered Notes
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Principal
Amount Redeemed at the Option of the Issuer
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Principal
Amount Repaid at the Option of the Holder
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Remaining
Principal Amount Outstanding Following Such Exchange, Redemption
or
Repayment
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Notation
Made by or on Behalf of Paying Agent
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8
If Schedule A is not
applicable because this Note is intended to be an NGN, include “Not Applicable”
and remove the remainder of Schedule A.
9
Applies if this Note
is not issued as part of, or in relation to, a Unit and is not intended to
be an
NGN.
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”)]
11
, (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”)]
12
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 Warrants, (ii) redemption
at
the option of the Issuer or (iii) repayments at the option of the Holder have
been made:
Date
of Exchange, Cancellation Redemption, or
Repayment
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Amount Exchanged From Temporary Global Notes
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[Principal
Amount Exchanged From an Attached Unit Note]
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[Principal
Amount Exchanged For Separated Note]
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Amount Exchanged For Definitive Bearer Notes
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Principal
Amount Exchanged For Definitive Registered Notes
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Principal
Amount Redeemed at the Option of the Issuer
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Principal
Amount Repaid at the Option of the Holder
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Principal
Amount Cancelled
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Remaining
Principal Amount Outstanding Following such Exchange, Cancellation
Redemption or Repayment
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Notation
Made by or on Behalf of Paying Agent
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10
This Schedule A-1
needed only if this Note is issued as part of, or in relation to, a Unit
and is
not intended to be an NGN.
11
Applies only if
this Note is attached to a Unit.
12
Applies only if
this Note has been separated from a Unit.
EXHIBIT
4.4
[FORM
OF FACE OF SECURITY]
TEMPORARY
GLOBAL FIXED RATE SENIOR BEARER NOTE
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 OR IN PART FOR AN INTEREST IN A PERMANENT GLOBAL
BEARER NOTE, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY (WHICH FOR THIS PURPOSE INCLUDES ANY COMMON SAFE-KEEPER) 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 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.
1
________________
1
If this Note is
offered in Japan or denominated in Japanese Yen, appropriate legends need
to be
added.
MORGAN
STANLEY
GLOBAL-MEDIUM
TERM NOTE, SERIES [G/H]
Temporary
Global Fixed Rate Senior Bearer Note
ORIGINAL
ISSUE DATE:
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INITIAL
REDEMPTION DATE:
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INTEREST
RATE:
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MATURITY
DATE:
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INTEREST
ACCRUAL DATE:
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INITIAL
REDEMPTION PERCENTAGE:
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INTEREST
PAYMENT
DATE(S):
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OPTIONAL
REPAYMENT
DATE(S):
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SPECIFIED
CURRENCY:
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ANNUAL
REDEMPTION PERCENTAGE REDUCTION:
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EUROCLEAR
NO.:
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MINIMUM
DENOMINATIONS:
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EXCHANGE
RATE AGENT:
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REDEMPTION
NOTICE PERIOD:
2
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CLEARSTREAM
NO.:
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APPLICABILITY
OF MODIFIED PAYMENT UPON ACCELERATION OR REDEMPTION:
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INITIAL
OFFERING DATE:
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EXCHANGE
FOR REGISTERED NOTES: [NO]
3
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COMMON
CODE:
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If
yes, state Issue Price:
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NEW
GLOBAL NOTE (“NGN”):
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IF
THIS IS AN NGN, INTENDED TO BE HELD IN A MANNER THAT WOULD ALLOW
ELIGIBILITY AS COLLATERAL FOR EUROSYSTEM INTRA-DAY CREDIT AND MONETARY
POLICY OPERATIONS:
[YES]
4
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ISIN:
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ORIGINAL
YIELD TO MATURITY:
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OTHER
PROVISIONS:
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Morgan
Stanley, a Delaware corporation (together with its successors and assigns,
the
“
Issuer
”), for value received, hereby promises to pay to
bearer, upon surrender hereof, the principal amount specified in Schedule A
hereto, or, if this Note is intended to be an NGN, the aggregate principal
amount from time to time entered in the records of both Euroclear Bank S.A./N.V.
and Clearstream Banking, société anonyme (together, the “Relevant Clearing
Systems”), on the Maturity Date specified above (except to the extent previously
redeemed or
________________________
2
Applicable
if other than 30-60 calendar days. Consult with Euroclear or Clearstream
if a
shorter redemption is requested. A minimum of 10 calendar days may be
possible.
3
Unless
explicitly stated otherwise in term sheet, MS practice has been to exclude
this
option.
4
To be Eurosystem
eligible, NGNs must also be denominated in euro, listed (Series G) and
must meet
certain other criteria established by the European Central
Bank.
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 principal amount 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 in each year commencing
on
the Interest Payment Date next succeeding the Interest Accrual Date specified
above, and at maturity (or on any redemption or repayment date);
provided,
however
, that if the Interest Accrual Date occurs fifteen calendar days or
less prior to the first Interest Payment Date occurring after the Interest
Accrual Date, interest payments will commence on the second Interest Payment
Date succeeding the Interest Accrual Date. If this Note is intended
to be an NGN, the records of the Relevant Clearing Systems (which, in this
Note,
means the records that each Relevant Clearing System holds for its customers
to
reflect the amount of such customer s’ interests in this Note) shall be
conclusive evidence of the aggregate principal amount of this Note and, for
these purposes, a statement issued by a Relevant Clearing System (which
statement shall be made to the Issuer, to the Trustee, to the Principal Paying
Agent or to the bearer of this Note on request) stating the aggregate principal
amount of this Note shall be conclusive of the records of the Relevant Clearing
Systems at that time.
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 principal amount hereof has been paid
or
duly made available for payment. Upon any payment of interest on this
Note, the Principal Paying Agent (as defined below) shall, (i) if this Note
is
not intended to be an NGN, cause Schedule A of this Note to be endorsed to
reflect such payment, or, (ii) if this Note is intended to be an NGN, cause
the
payment to be entered pro rata in the records of the Relevant Clearing
Systems. No payment on this Note will be made at any office or agency
of the Issuer in the United States or by check mailed to an address in the
United States (as defined below) or by wire transfer to an account maintained
by
the holder of this Note with a bank in the United States except as may be
permitted under United States federal tax laws and regulations then in effect
without adverse tax consequences to the Issuer. 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. Notwithstanding any other provision of this Note, no payment
of principal or interest shall be made on any portion of this Note unless there
shall have been delivered to the Principal Paying Agent a certificate
substantially in the form of Exhibit A hereto with respect to the portion of
this Note with respect to which such principal or interest is to be
paid. Such certificate shall have been delivered to the Principal
Paying Agent by Euroclear Bank S.A./N.V., as operator of the Euroclear System
(“
Euroclear
”), and Clearstream Banking,
société
anonyme
(“
Clearstream, Luxembourg
”), and/or any other
relevant clearing system (including Euroclear France) as the case may be, and
shall be based on a certificate substantially in the form of Exhibit B hereto
provided to Euroclear, Clearstream, Luxembourg and/or any other relevant
clearing system, as the case may be, by those of its account holders who are
to
receive such payment of principal or interest.
This
Note
is issued in temporary global bearer form and represents all or a portion of
a
duly authorized issue of Global Medium-Term Notes, Series [G/H] (the
“
Notes
”), issued under a Senior Indenture, dated as of November
1, 2004, between the Issuer and The Bank of New York (as successor to JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank)), as Trustee (the
“
Trustee
,” which term includes any successor trustee under the
Senior Indenture) (as supplemented by the First Supplemental Senior Indenture,
dated as of September 4, 2007 and the Second Supplemental Senior Indenture,
dated as of January 4, 2008, and as may be further 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 Bank of New York, London Branch (as successor to JPMorgan Chase
Bank, N.A., 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).
Except
as
otherwise provided herein, this Note is governed by the terms and conditions
of
the Permanent Global Fixed Rate Senior Bearer Note (the “
Permanent
Global Bearer Note
”) to be issued in exchange for this Note, which
terms and conditions are hereby incorporated by reference herein
mutatis
mutandis
and shall be binding on the Issuer and the holder hereof as if
fully set forth herein. The form of the Permanent Global Bearer Note
is attached hereto.
This
Note
is exchangeable in whole or from time to time in part on or after the Exchange
Date (as defined below) for an interest (equal to the principal amount of the
portion of this Note being exchanged, and, if this Note is intended to be an
NGN, recorded in the records of the Relevant Clearing Systems) in a single
Permanent Global Bearer Note upon the request of Euroclear, Clearstream,
Luxembourg and/or any other relevant clearing system, acting on behalf of the
owner of a beneficial interest in this Note, to the Principal Paying Agent
upon
delivery to the Principal Paying Agent of a certificate substantially in the
form of Exhibit A hereto with respect to the portion of this Note to be
exchanged. Such certificate shall have been delivered to the
Principal Paying Agent by Euroclear, Clearstream, Luxembourg and/or any other
relevant clearing system, as the case may be, and shall be based on a
certificate substantially in the form of Exhibit B hereto provided
to Euroclear, Clearstream, Luxembourg and/or any other relevant
clearing system, as the case may be, by those of its account holders having
an
interest in the portion hereof to be exchanged. Notwithstanding the
foregoing, if this Note is subject to a tax redemption as described on the
reverse of the Permanent Global Bearer Note attached hereto, interests in this
Note may be exchanged for interests in a Permanent Global Bearer Note on and
after such redemption date as if such redemption date had been the Exchange
Date, subject to receipt of the certificates described in the preceding
sentence. Upon exchange of any portion of this Note for an interest
in a Permanent Global Bearer Note, the Principal Paying Agent shall, (i) if
this
Note is not intended to be an NGN, 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 being so exchanged, or, (ii) if this Note is intended
to be an NGN, cause the details of such exchange to be entered in the records
of
the Relevant Clearing Systems. Except as otherwise provided herein,
until exchanged for a Permanent Global Bearer Note, this Note shall in all
respects be
entitled
to the same benefits under the Senior Indenture as a duly authenticated and
delivered Permanent Global Bearer Note.
As
used
herein:
(a) the
term “
Exchange Date
” means the date that is 40 calendar days
after the date on which the Issuer receives the proceeds of the sale of this
Note (the “
Closing Date
”),
provided
that if an
interest represented by this Note is held by Morgan Stanley & Co.
International plc, or any other manager participating in the distribution of
the
tranche of Notes of which this Note forms a part, as part of an unsold allotment
or subscription more than 40 calendar days after the Closing Date for this
Note,
the Exchange Date with respect to such interest shall be the day after the
date
such interest is sold by Morgan Stanley & Co. International plc or such
other manager, all as determined and notified to the Trustee by Morgan Stanley
& Co. International plc or if Morgan Stanley & Co. International plc did
not participate in the distribution of such tranche, by the Issuer.
(b) the
term “
United States
” means the United States of America
(including the States and the District of Columbia); and its
“
possessions
” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
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.
Unless
the
certificate of authentication hereon has been executed by the Trustee by manual
signature, and, if this Note is intended to be an NGN and will not be physically
delivered to the entity appointed as common safe-keeper by the Relevant Clearing
Systems (the “CSK”), unless this Note has been effectuated by the CSK, 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.
IN
WITNESS
WHEREOF, the Issuer has caused this Note to be duly executed.
DATED:
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MORGAN
STANLEY
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By:
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Name:
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Title:
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TRUSTEE’S
CERTIFICATE
OF
AUTHENTICATION
This
is one of the Notes referred
to
in the within-mentioned
Senior
Indenture.
THE
BANK OF NEW YORK,
as
Trustee
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By:
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Authorized
Signatory
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EFFECTUATION
BY COMMON
5
SAFE-KEEPER
This
Note
is effectuated.
[COMMON
SAFE-KEEPER]
By:
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[Authorized
Signatory]
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______________
5
An effectuation
block is only applicable if this Temporary Global Fixed Rate Senior Bearer
Note
is intended to be an NGN and if a Note manually signed by the Issuer will
not be
physically delivered to the common safe-keeper.
[Not
Applicable]
6
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SCHEDULE
A
7
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SCHEDULE
OF EXCHANGES
The
Initial Principal Amount of this Note is ______________. The
following payments of interest and exchanges of a part of this Note for
an
interest in a single Permanent Global Bearer Note have been made:
Date
of Exchange or
Interest
Payment
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Principal
Amount
Exchanged
for
Permanent
Global
Bearer
Note
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Remaining
Principal
Amount
Outstanding
Following
Such
Exchange
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Notation
Made by or on
Behalf
of Principal
Paying
Agent
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______________________
6
If Schedule A is not
applicable, include “Not Applicable” and remove remainder of Schedule
A
7
Applicable if this
Temporary Global Fixed Rate Senior Bearer Note is not intended to be
an
NGN
EXHIBIT
A
[FORM
OF CERTIFICATE TO BE GIVEN BY
EUROCLEAR,
CLEARSTREAM, LUXEMBOURG
AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan
Stanley
Global
Medium-Term Notes, Series [G/H]
Represented
by Temporary Global Fixed Rate Senior Bearer Note No. __
This
is to
certify that, based solely on certifications we have received in writing, by
tested telex or by electronic transmission from member organizations appearing
in our records as persons being entitled to a portion of the principal amount
set forth below (our “
Member Organizations
”) substantially to
the effect set forth in Appendix 2 to Exhibit B to the Euro Distribution
Agreement relating to such Notes, as of the date hereof, __________ principal
amount of the above-captioned Securities (i) is owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any other entity created or organized in or under the laws
of
the United States or any political subdivision thereof, an estate the income
of
which is subject to United States Federal income taxation regardless of its
source or a trust if both (a) a court within the United States is able to
exercise primary supervision over the administration of the trust and (b) one
or
more United States persons have the authority to control all substantial
decisions of the trust (“
United States persons
”), (ii) is owned
by United States persons that are (a) foreign branches of United States
financial institutions (as defined in the applicable U.S. Treasury regulations)
(“
financial institutions
”) purchasing for their own account or
for resale, or (b) United States persons who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
has agreed, on its own behalf or through its agent, that we may advise the
Issuer or the Issuer’s agent that it will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the U.S. Internal Revenue Code of 1986,
as
amended, and the regulations thereunder), or (iii) is owned by United States
or
foreign financial institutions for purposes of resale during the restricted
period (as defined in the applicable U.S. Treasury regulations), and such United
States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions. Any such certification by electronic transmission
satisfies the requirements set forth in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(3)(ii). We will retain all certifications
from our Member
Organizations
for the period specified in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(3)(i).
As
used
herein, “
United States
” means the United States of America
(including the States and the District of Columbia); and its
“
possessions
” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We
further
certify (i) that we are not making available herewith for exchange (or, if
relevant, seeking to collect principal or interest with respect to) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
that as of the date hereof we have not received any notification from any of
our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith (or,
if
relevant, with respect to which principal or interest is being requested) are
no
longer true and cannot be relied upon as of the date hereof.
We
understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________,
20__
[To
be
dated no earlier than
[insert
date of Interest Payment Date prior to Exchange Date]
[insert
date of Redemption Date prior to Exchange Date]
[insert
Exchange Date]]
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[EUROCLEAR
BANK S.A./N.V., as
Operator of the Euroclear System]
[CLEARSTREAM
BANKING,
SOCIÉTÉ ANONYME]
[OTHER]
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By:
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Name:
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Title:
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EXHIBIT
B
[FORM
OF CERTIFICATE TO BE GIVEN BY AN ACCOUNT
HOLDER
OF EUROCLEAR, CLEARSTREAM, LUXEMBOURG
AND/OR
ANY OTHER RELEVANT CLEARING SYSTEM]
CERTIFICATE
Morgan
Stanley
Global
Medium-Term Notes, Series [G/H]
Represented
by Temporary Global Fixed Rate Senior Bearer Note No. __
This
is to
certify that as of the date hereof, and except as set forth below, the
above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any other entity created or organized
in
or under the laws of the United States or any political subdivision thereof,
an
estate the income of which is subject to United States Federal income taxation
regardless of its source, or a trust if both (a) a court within the United
States is able to exercise primary supervision over the administration of the
trust and (b) one or more United States persons have the authority to control
all substantial decisions of the trust (“
United States
persons
”), (ii) is owned by United States persons that are (a) foreign
branches of United States financial institutions (as defined in the applicable
U.S. Treasury regulations) (“
financial institutions
”)
purchasing for their own account or for resale, or (b) United States persons
who
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise the Issuer or the Issuer’s agent that it will comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the U.S. Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii)
are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in the applicable U.S. Treasury
regulations), and in addition if the owner of the Securities is a United States
or foreign financial institution described in clause (iii) above (whether or
not
also described in clause (i) or (ii)) such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its
possessions.
As
used
herein, “
United States
” means the United States of America
(including the States and the District of Columbia); and its
“
possessions
” include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We
undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held
by
you for our account in
accordance
with your Operating Procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed
that
this certification applies as of such date.
This
certification excepts and does not relate to [U.S. $]___________ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand exchange for and delivery of definitive
Securities (or, if relevant, exercise of any rights or collection of any
principal or interest) cannot be made until we do so certify.
We
understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
Dated: _______________,
20__
[To
be
dated no earlier than the 10th day before
[insert
date of Interest Payment Date prior to Exchange Date]
[insert
date of Redemption Date prior to Exchange Date]
[insert
Exchange Date]]
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[NAME
OF ACCOUNT HOLDER]
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By:
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(Authorized Signatory)
Name:
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Title:
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EXHIBIT
4.5
[FORM
OF FACE OF SECURITY]
PERMANENT
GLOBAL FIXED RATE SENIOR BEARER NOTE
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 (WHICH FOR THIS PURPOSE INCLUDES ANY COMMON SAFEKEEPER)
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 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.
1
1
If
this
Note is offered in Japan or denominated in Japanese Yen, appropriate legends
need to be added.
MORGAN
STANLEY
GLOBAL
MEDIUM-TERM NOTE, SERIES [G/H]
Permanent
Global Fixed Rate Senior Bearer Note
ORIGINAL
ISSUE DATE:
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INITIAL
REDEMPTION DATE:
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INTEREST
RATE:
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MATURITY
DATE:
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INTEREST
ACCRUAL DATE:
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INITIAL
REDEMPTION PERCENTAGE:
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INTEREST
PAYMENT
DATE(S):
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OPTIONAL
REPAYMENT
DATE(S):
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SPECIFIED
CURRENCY:
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ANNUAL
REDEMPTION PERCENTAGE REDUCTION:
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EUROCLEAR
NO.:
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MINIMUM
DENOMINATIONS:
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EXCHANGE
RATE AGENT:
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REDEMPTION
NOTICE PERIOD:
2
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CLEARSTREAM
NO.:
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APPLICABILITY
OF MODIFIED PAYMENT UPON ACCELERATION OR REDEMPTION:
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INITIAL
OFFERING DATE:
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EXCHANGE
FOR REGISTERED NOTES: [NO]
3
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COMMON
CODE:
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If
yes, state Issue Price:
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NEW
GLOBAL NOTE (“NGN”):
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PRICE
APPLICABLE UPON OPTIONAL REPAYMENT:
5
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ISIN:
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ORIGINAL
YIELD TO MATURITY:
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IF
THIS IS AN NGN, INTENDED TO BE HELD IN A MANNER THAT WOULD ALLOW
ELIGIBILITY AS COLLATERAL FOR
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OTHER
PROVISIONS:
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______________
2
Applicable
if other than 30-60 calendar
days. Consult with Euroclear or Clearstream if a shorter redemption is
requested. A minimum of 10 calendar days may be
possible.
3
Unless
explicitly stated otherwise in term sheet, MS practice has been to exclude
this
option.
4
To be Eurosystem
eligible, NGNs must also be denominated in euro, listed (Series G) and
must meet
certain other criteria established by the European Central
Bank.
5
Applies if this Note
has optional repayment and is issued with original issue
discount.
EUROSYSTEM
INTRA-DAY CREDIT AND MONETARY POLICY OPERATIONS:
[YES]
4
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Morgan
Stanley, a Delaware corporation (together with its successors and assigns,
the
“
Issuer
”), for value received, hereby promises to pay to
bearer, upon surrender hereof, the principal amount specified in [Schedule
A
hereto]
6
[Schedule A-1 hereto]
7
,
or, if the face of this Note indicates that
it is intended to be an NGN, the aggregate principal amount from time to time
entered in the records of both Euroclear Bank S.A./N.V. and Clearstream Banking,
société anonyme (together, the “Relevant Clearing Systems”), 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 principal amount 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 in each year commencing on the
Interest Payment Date next succeeding the Interest Accrual Date specified above,
and at maturity (or on any redemption or repayment date);
provided,
however,
that if the Interest Accrual Date occurs fifteen calendar days or
less prior to the first Interest Payment Date occurring after the Interest
Accrual Date, interest payments will commence on the second Interest Payment
Date succeeding the Interest Accrual Date. If this Note is intended
to be an NGN, the records of the Relevant Clearing Systems (which, in this
Note,
means the records that each Relevant Clearing System holds for its customers
to
reflect the amount of such customers’ interests in this Note) shall be
conclusive evidence of the aggregate principal amount of this Note and, for
these purposes, a statement issued by a Relevant Clearing System (which
statement shall be made to the Issuer, to the Trustee, to the Principal Paying
Agent or to the bearer of this Note on request) stating the aggregate principal
amount of this Note shall be conclusive of the records of such Relevant Clearing
System at that time.
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 principal hereof has been 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
________________
7
Applies
if this Note is issued as part of, or in relation to, a
Unit.
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, 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 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, 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.
Unless
the
certificate of authentication hereon has been executed by the Trustee referred
to on the reverse hereof by manual signature, and, if this Note is intended
to
be an NGN and will not be physically delivered to the entity appointed as common
safe-keeper by the Relevant Clearing Systems (the “CSK”), unless this Note has
been effectuated by the CSK, 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.
IN
WITNESS
WHEREOF, the Issuer has caused this Note to be duly executed.
DATED:
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MORGAN
STANLEY
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By:
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Name:
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Title:
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TRUSTEE’S
CERTIFICATE
OF
AUTHENTICATION
This
is one of the Notes referred
to
in the within-mentioned
Senior
Indenture.
THE
BANK OF NEW YORK,
as
Trustee
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By:
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Authorized
Signatory
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EFFECTUATION
BY COMMON
8
SAFE-KEEPER
This
Note
is effectuated.
[COMMON
SAFE-KEEPER]
By:
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|
|
|
[Authorized
Signatory]
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8
An effectuation
block is only applicable if this Permanent Global Fixed Rate Senior Bearer
Note
is intended to be an NGN and if a Note manually signed by the Issuer will not
be
physically delivered to the common safe-keeper.
[FORM
OF REVERSE OF SECURITY]
This
Note
is one of a duly authorized issue of Global Medium-Term Notes, Series [G/H],
having maturities more than nine months from the date of issue (the
“
Notes
”), of the Issuer. The Notes are issuable
under a Senior Indenture, dated as of November 1, 2004, between the Issuer
and
The Bank of New York (as successor to JPMorgan Chase Bank, N.A. (formerly known
as JPMorgan Chase Bank)), as Trustee (the “
Trustee
,” which term
includes any successor trustee under the Senior Indenture) (as supplemented
by
the First Supplemental Senior Indenture, dated as of September 4, 2007 and
the
Second Supplemental Senior Indenture, dated as of January 4, 2008 and as may
be
further 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 Bank of New
York, London Branch (as successor to JPMorgan Chase Bank, N.A., 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.
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). If the face hereof
indicates that this Note is subject to “Modified Payment upon Acceleration or
Redemption”, the amount of principal payable upon redemption will 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 accrued from the Interest
Accrual Date to the date of redemption (expressed as a percentage of the
aggregate principal amount), with the amount of original issue discount accrued
being calculated using a constant yield method (as described
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 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 three successive calendar
weeks, the first publication to be not less than 30 nor more than 60 calendar
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 (i) if this Note is not intended
to be an NGN, cause Schedule [A] [A-1] 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, or (ii) if this Note is intended
to
be an NGN, cause the details of such redemption to be entered in the records
of
the Relevant Clearing Systems, whereupon, in either case, the principal amount
hereof shall be reduced for all purposes by the amount so redeemed and noted
or
recorded, as applicable.
If
this Note is redeemed in part but
not in whole prior to maturity hereof, (i) if this Note is not intended to
be an
NGN, the Trustee shall select or cause to be selected, not more than 60 days
prior to the redemption date, the portions of this Note for redemption from
the
outstanding aggregate principal amount of this Note not previously called for
redemption by such method as the Trustee deems fair and appropriate, or (ii)
if
this Note is intended to be an NGN, the portion of this Note to be redeemed
will
be selected in accordance with the rules and procedures of Euroclear Bank
S.A./N.V. and/or Clearstream Banking, société anonyme (to be reflected in the
records of the Relevant Clearing Systems as either a pool factor or a reduction
in nominal amount, at their discretion).
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),
provided
that if the face
hereof indicates that this Note is subject to “Modified Payment upon
Acceleration or Redemption”, the amount of principal payable upon repayment will
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 accrued from the
Interest Accrual Date to the date of repayment (expressed as a
percentage of the aggregate principal amount), with the amount of original
issue
discount accrued being calculated using a constant yield method (as described
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 calendar 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
Financial Industry Regulatory Authority, 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 Principal
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 (i) if this Note
is
not intended to be an NGN, cause Schedule [A] [A-1] 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, or, (ii) if this Note
is
intended to be an NGN, cause the details of such repayment to be entered in
the
records of the Relevant Clearing Systems, whereupon, in either case, the
principal amount hereof shall be reduced for all purposes by the amount so
repaid and noted or recorded, as applicable.
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 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 calendar days’ written notice to the Principal Paying Agent through the
relevant clearing system, (i) if this Note is not intended to be an NGN, in
whole, or, (ii) if this Note is intended to be an NGN, in whole or from time
to
time in part, 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
Bank
S.A./N.V., as operator of the Euroclear System (“
Euroclear
”),
or Clearstream Banking,
société anonyme
(“
Clearstream,
Luxembourg
”), or any other relevant clearing system (including
Euroclear France) is closed for business for a continuous period of fourteen
calendar 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 Bank
of
New York, London Branch (as successor to JPMorgan Chase Bank, N.A., 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 register the transfer of or 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 register the transfer of or 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 for a Definitive Bearer Note or Definitive Bearer Notes,
or for a Registered Note or Registered Notes, the Principal Paying Agent shall
(i) if this Note is not intended to be an NGN, cause Schedule [A] [A-1] 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, or
(ii)
if this Note is intended to be an NGN, cause the details of such exchange to
be
entered in the records of the Relevant Clearing Systems, whereupon, in either
case, the principal amount hereof shall be reduced for all purposes by the
amount so exchanged and noted or recorded, as applicable. 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) if this Note is not intended to
be an
NGN, 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 Clearstream, Luxembourg or any other relevant clearing system is closed
for
business for a continuous period of fourteen calendar 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, (i) if this Note is not intended to be an
NGN, a common depositary located outside the United States (the “
common
depositary
”)
holding
this Note for Euroclear, Clearstream, Luxembourg and/or any other relevant
clearing system or (ii) if this Note is intended to be an NGN, Euroclear and/or
Clearstream, Luxembourg 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, (i) if this Note is not
intended to be an NGN, cause Schedule [A] [A-1] 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, or (ii) if this Note is intended to
be
an NGN, cause the details of such exchange to be entered in the records of
the
Relevant Clearing Systems. 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 or common safe-keeper, as applicable,
outside the United States for Euroclear, Clearstream, Luxembourg and/or any
other relevant clearing system or to a nominee of such a common depositary
or
common safe-keeper.
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 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 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 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 a redemption price equal to 100%
of
the principal amount 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,” the amount of principal so payable will 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 accrued from the Interest
Accrual Date to the date of redemption (expressed as a percentage of the
aggregate principal amount), with the amount of original issue discount accrued
being calculated using a constant yield method (as described in the next
paragraph) (the “
Amortized Amount
”)), if the Issuer determines
that, as a result of any change in or amendment to the laws (including a
holding, judgment or as ordered by a court of competent jurisdiction), 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 occurs, becomes
effective or, in the case of a change in official position, is announced on
or
after the Initial Offering 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 legal 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 calendar 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.
The
constant yield shall be calculated
using a 30-day month, 360-day year convention, a computing period that, except
for the initial period (as defined below), corresponds to the shortest period
between Interest Payment Dates (with ratable accruals within a compounding
period), and an assumption that the maturity will not be
accelerated. If the period from the Original Issue Date to the first
Interest Payment Date (the “
initial period
”) is shorter than
the compounding period for this Note, a proportionate amount of the yield for
an
entire compounding period will be accrued. If the initial period is
longer than the compounding period, then the period will be divided into a
regular compounding period and a short period with the short period being
treated as provided in the preceding sentence.
Notice
of
redemption will be given not less than 30 nor more than 60 calendar 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 U.S. 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
U.S. 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 a redemption price equal to 100% of
the
principal amount thereof (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 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 calendar days prior to the date fixed for redemption or at least 30
calendar 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 calendar days
prior
to the date fixed for redemption or within the Redemption Notice Period
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 calendar 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 U.S. 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 calendar 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 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 U.S. 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 or deduction 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, make any payment of Additional Amounts to any such
holder who is a U.S. Alien for or on account of:
(a) any
present or future 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 for U.S. federal income tax purposes, and the
United States, 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 or on behalf of the holder of this Note for
payment on a date more than 15 calendar 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, excise 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 controlled foreign corporation or passive foreign
investment company with respect to the United States or as a corporation which
accumulates earnings to avoid U.S. federal income tax or as a private foundation
or other tax-exempt organization or a bank receiving interest under Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended;
(d) any
tax, assessment or other governmental charge that is payable otherwise than
by
withholding or deduction 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;
(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).
In
addition, the Issuer shall not be required to make any payment of Additional
Amounts (i) to any such holder where such withholding or deduction is imposed
on
a payment to an individual and is required to be made pursuant to any law
implementing or complying with, or introduced in order to conform to, any
European Union Directive on the taxation of savings; or (ii) by or on behalf
of
a holder who would have been able to avoid such withholding or deduction by
presenting this Note or the relevant coupon to another Paying Agent in a member
state of the European Union. Nor shall the Issuer pay Additional
Amounts with respect to any payment on this Note to a U.S. 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
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 or premium,
if
any, or interest on any series of debt securities issued under the Senior
Indenture, including the series of 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 aggregate principal amount of the
outstanding debt securities of each affected series, voting as one class, by
notice in writing to the Issuer and to the Trustee, if given by the
securityholders, 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, insolvency or reorganization of the Issuer, shall
have occurred and be continuing, either the Trustee or the holders of not less
than 25% in aggregate principal amount of all outstanding debt securities issued
under the Senior Indenture, voting as one class, by notice in writing to the
Issuer and to the Trustee, if given by the securityholders, 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 of or premium, if any, or interest on such debt securities) by
the
holders of a majority in aggregate principal amount of the debt securities
of
all affected series then outstanding.
If
the face hereof indicates that this
Note is subject to “Modified Payment upon Acceleration or Redemption,” then
(i) if the principal hereof is declared to be due and payable as described
in the preceding paragraph, the amount of principal due and payable with respect
to
this
Note
shall 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 accrued from
the Interest Accrual Date to the date of declaration (expressed as a percentage
of the aggregate principal amount), with the amount of original issue discount
accrued being calculated using a constant yield method (as described above),
(ii) for the purpose of any vote of securityholders taken pursuant to the
Senior Indenture prior to the acceleration of payment of this Note, the
principal amount hereof shall equal the amount that would be due and payable
hereon, calculated as set forth in clause (i) above, if this Note were declared
to be due and payable on the date of any such vote and (iii) for the
purpose of any vote of securityholders taken pursuant to the Senior Indenture
following the acceleration of payment of this Note, the principal amount hereof
shall equal the amount of principal due and payable with respect to this Note,
calculated as set forth in clause (i) above.
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 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 or for other property or the cash value of the property
(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 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 or 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 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 or 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 relevant treaty of the European Union, as
amended. 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 plc, 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.
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 plc and such exchange so requires, the Issuer shall maintain
a
Paying Agent in London. If any European Union Directive on the
taxation of savings comes into force, the Issuer will, to the extent possible
as
a matter of law, maintain a Paying Agent in a member state of the European
Union
that will not be obligated to withhold or deduct tax pursuant to any such
Directive or any law implementing or complying with, or introduced in order
to
conform to, such Directive. 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 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 and 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 or premium, if any,
or
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, (i) 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 in London or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, euro or Australian
dollars, 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 (ii) 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 “
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 published by the Federal Reserve Bank of New
York;
(c) 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 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;
(d) 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
(e) the
term “
U.S. Alien
” means any person who is, for U.S. federal
income tax purposes, (i) a nonresident alien individual, (ii) a foreign
corporation, (iii) a nonresident alien fiduciary of a foreign estate or trust
or
(iv) a foreign partnership one or more of the members of which is, for U.S.
federal income tax purposes, a nonresident alien individual, a foreign
corporation or a nonresident 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.
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
(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):
______________________
.
EXCHANGES
FOR DEFINITIVE BEARER NOTES OR 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:
Date
of Exchange, Redemption or Payment
|
|
Principal
Amount
Exchanged
From
Temporary
Global
Notes
|
|
Principal
Amount
Exchanged
For
Definitive
Bearer
Notes
|
|
Principal
Amount
Exchanged
for
Definitive
Registered
Notes
|
|
Principal
Amount
Redeemed
at the
Option
of the
Issuer
|
|
Principal
Amount
Repaid
at the
Option
of the
Holder
|
|
Remaining
Principal
Amount
Outstanding
Following
Such
Exchange,
Redemption
or
Repayment
|
|
Notation
Made by or
on
Behalf of Paying
Agent
|
|
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_______________
9
If Schedule A is not
applicable because this Note is intended to be an NGN, include “Not Applicable”
and remove remainder of Schedule A.
10
Applies if this
Note is not issued as part of, or in relation to, a Unit and is not intended
to
be an NGN.
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
”)]
12
, (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
”)]
13
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 Warrants, (ii) redemption at the
option of the Issuer or (iii) repayments at the option of the Holder have
been made:
Date
of
Exchange,
Cancellation
Redemption,
or
Repayment
|
|
Principal
Amount
Exchanged
From
Temporary
Global
Notes
|
|
[Principal
Amount
Exchanged
From
an
Attached
Unit
Note]
3
|
|
[Principal
Amount
Exchanged
For
Separated
Note]
2
|
|
Principal
Amount
Exchanged
For
Definitive
Bearer
Notes
|
|
Principal
Amount
Exchanged
For
Definitive
Registered
Notes
|
|
Principal
Amount
Redeemed
at
the
Option
of
the
Issuer
|
|
Principal
Amount
Repaid
at
the
Option
of
the
Holder
|
|
Principal
Amount
Cancelled
|
|
Remaining
Principal
Amount
Outstanding
Following
such
Exchange,
Cancellation
Redemption
or
Repayment
|
|
Notation
Made
by
or
on
Behalf
of
Paying
Agent
|
|
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_______________
11
This Schedule A-1
needed only if this Note is issued as part of, or in relation to, a Unit
and is
not intended to be an NGN.
12
Applies
only if this Note is attached to a Unit.
13
Applies
only if this Note has been separated from a Unit.
EXHIBIT
5.1
Morgan
Stanley
1585
Broadway
New
York,
NY 10036
Ladies
and
Gentlemen:
We
have acted as special counsel to
Morgan Stanley, a Delaware corporation (the "Company"), and depositor of Morgan
Stanley Capital Trust VII, Morgan Stanley Capital Trust VIII, Morgan Stanley
Capital Trust IX and Morgan Stanley Capital Trust X, each a statutory trust
formed under the laws of the State of Delaware (each, an "Issuer Trust" and,
collectively, the "Issuer Trusts"), in connection with the preparation and
filing of a registration statement with the Securities and Exchange Commission
on Form S-3ASR (as it may be amended or supplemented from time to time, the
"Registration Statement") for the purpose of registering under the Securities
Act of 1933, as amended (the "Securities Act") $125,452,274,876 aggregate
initial offering price of the following securities, as such amount may be
increased from time to time upon due authorization by the Company (the
"Securities"): (i) debt securities ("Debt Securities"), (ii) warrants to
purchase or sell (a) securities issued by the Company or by an entity affiliated
or not affiliated with the Company, a basket of such securities, an index or
indices of such securities, any other property, (b) currencies, (c) commodities
or (d) any combination of the foregoing (collectively, the "Warrants"), (iii)
purchase contracts ("Purchase Contracts") requiring the holders thereof to
purchase or sell (a) securities issued by the Company or by an entity affiliated
or not affiliated with the Company, a basket of such securities, an index or
indices of such securities or any other property, (b) currencies, (c)
commodities or (d) any combination of the above, shares of the Company's common
stock, par value $.01 per share ("Common Stock"), (v) shares of the Company's
preferred stock, par value $0.01 per share ("Preferred Stock"), to be issued
from time to time in one or more series, (vi) an indeterminate number of
depositary shares representing fractional interests in shares or multiple shares
of the Preferred Stock (the “Depositary Shares”), (vii) Warrants, Purchase
Contracts, Common Stock, Preferred Stock, Debt Securities and debt obligations
issued by an entity affiliated or not affiliated with the Company or any
combination thereof that may be offered in the form of Units ("Units"), (viii)
capital securities of the Issuer Trusts (the "Capital Securities") and (ix)
guarantees of the Company with respect to the Capital Securities (the
"Guarantees"), and, collectively, the "Shelf Securities").
As
used
herein, the term "Debt Securities" includes prepaid Purchase Contracts issued
under an indenture.
Certain
of the Debt Securities (the
“Senior Debt Securities”) are to be issued from time to time as senior
indebtedness of the Company under a senior indenture dated as of November 1,
2004, between the Company and The Bank of New York (as successor to JPMorgan
Chase Bank N.A. (formerly known as
JPMorgan
Chase Bank)) (the "Senior Debt Trustee"), as trustee (as supplemented by the
First Supplemental Senior Indenture dated as of September 4, 2007 between the
Company and the Senior Debt Trustee (the “First Supplemental Senior Indenture”)
and the Second Supplemental Senior Indenture dated as of January 4, 2008 between
the Company and the Senior Debt Trustee (the “Second Supplemental Senior
Indenture”) and as may be further supplemented or amended from time to time, the
“Senior Indenture”).
The
Senior Indenture and the forms of
the Senior Debt Securities are filed or incorporated by reference as exhibits
to
the Registration Statement.
In
rendering this opinion, we have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records and other documents and certificates
as
we deemed necessary or appropriate as a basis for the opinions set forth herein.
In such examination, we have assumed the legal capacity of all natural persons,
the genuineness of all signatures, the authenticity of all documents submitted
to us as originals, the conformity to the original documents of all documents
submitted to us as copies and the authenticity of the originals of all such
latter documents. In making our examination of executed documents or documents
to be executed, we have assumed that the parties thereto, other than the
Company, had or will have the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by
such
parties of such documents and that such documents constitute valid and binding
obligations of such parties. In addition, we have assumed that the Senior
Indenture and the Senior Debt Securities have been or will be executed in
substantially the form reviewed by us and that the terms of the Senior Debt
Securities will have been established so as not to violate, conflict with or
constitute a default under (i) any agreement or instrument to which the Company
or its property is subject, (ii) any law, rule, or regulation to which the
Company is subject, (iii) any judicial or administrative order or decree of
any
governmental authority or (iv) any consent, approval, license, authorization
or
validation of, or filing, recording or registration with, any governmental
authority.
We
have examined the originals or
copies certified or otherwise identified to our satisfaction of such additional
corporate records of the Company and such other documents and certificates
as we
have deemed necessary as a basis for the opinions hereinafter
expressed.
Based
upon and subject to the foregoing
and assuming that (i) the Registration Statement and any amendments thereto
(including post-effective amendments) are or will have become effective and
comply with all applicable laws; (ii) the Registration Statement will continue
to be effective and will comply with all applicable laws at the time the Senior
Debt Securities are offered or issued as contemplated by the Registration
Statement; (iii) a prospectus supplement will have been prepared and filed
with
the Securities and Exchange
Commission
describing the Senior Debt Securities offered thereby and will comply with
all
applicable laws; (iv) all Senior Debt Securities will be issued and sold in
compliance with applicable federal and state securities laws and in the manner
stated in the Registration Statement and the appropriate prospectus supplement;
(v) the Company's Board of Directors (or a committee thereof duly authorized
to
act on its behalf) (the "Board") and appropriate officers of the Company have
taken all necessary corporate action to approve the terms of the Senior Debt
Securities and the terms of the offering; and (vi) a definitive purchase,
underwriting or similar agreement and any other necessary agreement with respect
to any Senior Debt Securities offered or issued will have been duly authorized
and validly executed and delivered by the Company and the other parties thereto;
we are of the opinion that:
1.
the Senior Indenture and the Senior
Debt Securities have been duly authorized by the Company; and
2.
when the terms of the Senior Debt
Securities have been established by the officers of the Company given authority
to do so by the Board and (i) the Senior Debt Securities have been duly
authenticated, executed and issued in accordance with the provisions of the
Senior Indenture, (ii) if the Senior Debt Securities are intended to be in
NGN
form, as defined in the Senior Indenture, and are not to be physically delivered
to the relevant common safe-keeper (“CSK”) for Euroclear Bank S.A./N.V., as
operator of the Euroclear System, and Clearstream Banking,
société
anonyme
, the Senior Debt Securities have been effectuated by the CSK, and
(iii) the Senior Debt Securities have been duly paid for by the purchasers
thereof in accordance with the applicable definitive purchase, underwriting
or
similar agreement, all required corporate action of the Company will have been
taken with respect to the issuance and sale of the Senior Debt Securities and
such Senior Debt Securities will have been validly issued and will constitute
valid and binding obligations of the Company, enforceable against the Company
in
accordance with their terms.
Our
opinion in paragraph 2 above is
subject to the effects of applicable bankruptcy, insolvency and similar laws
affecting the enforcement of creditors' rights generally and equitable
principles of general applicability.
We
note that, as of the date of this
opinion, a judgment for money in an action based on the Senior Debt Securities
in a federal or state court in the United States ordinarily would be enforced
in
the United States only in United States dollars. The date used to determine
the
rate of conversion into United States dollars will depend upon various factors,
including which court renders the judgment.
We
are members of the Bar of the State
of New York and the foregoing opinion is limited to the laws of the State of
New
York and the General Corporation Law of the State of Delaware.
We
hereby consent to the filing of this
opinion as an Exhibit to the Registration Statement and further consent to
the
reference to our name under the caption "Legal Matters" in each of the related
prospectuses. In giving this consent, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act.
Very
truly yours,
/s/
Davis
Polk & Wardwell
4