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EXHIBIT 1-e
MORGAN STANLEY
Global Medium-Term Notes, Series G and Series H
Global Units, Series G and Series H
EURO DISTRIBUTION AGREEMENT
[ ], 2005
Morgan Stanley & Co. International Limited
c/o Morgan Stanley & Co. International
Limited
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 $[ ] (or
the equivalent
thereof in one or more currencies other than U.S. dollars)
aggregate initial
public offering price 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,
the "Program Securities"), in each case subject to reduction as
a 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 Financial Services Authority (the "UK
Listing Authority")
in its capacity as competent authority for the purposes of Part
VI of the
Financial Services and Markets Act 2000 (the "FSMA"), and to
trading on 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 London Stock
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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 an amended and restated senior indenture dated as
of November 1,
2004, between the Company and JPMorgan Chase Bank, N.A.
(formerly known as
JPMorgan Chase Bank), as trustee (the "Senior Debt Trustee") (as
may be
supplemented or amended from time to time, the "Senior Debt
Indenture"). The
Subordinated Notes will be issued pursuant to the provisions of
a subordinated
indenture dated as of October 1, 2004, between the Company and
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, 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 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
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(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.
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("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 combination of the above, (b) currencies or (c) commodities,
(iii) Purchase
Contracts, including Pre-paid Purchase Contracts, requiring the
holders thereof
to purchase or sell (a) securities 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 combination of the
above, (b)
currencies or (c) commodities or (iv) any combination thereof.
The applicable
prospectus supplement 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 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 supplements to the Basic Prospectus referred to
below. The Warrants
will have the exercise prices, exercise dates, expiration dates
and other terms
as set forth in supplements to the Basic Prospectus. The
Purchase Contracts will
have the closing dates, purchase or sale prices and other terms
as set forth in
supplements to the Basic Prospectus. The Company has initially
appointed (i)
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 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, each
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of which 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, societe anonyme
("Clearstream"), or
any other relevant clearing system. Beneficial interests in a
temporary global
Note or a temporary global Unit will be exchangeable for
beneficial interests
in, in the case of a temporary global Note, a permanent global
Note and, in the
case of a temporary global Unit, a permanent global Unit.
Beneficial interests
in a permanent global Note will be exchangeable in whole, but
not in part, for
definitive Notes in bearer form, with interest coupons attached,
upon receipt of
the Principal Paying Agent of an initial request to so exchange
by any holder of
a beneficial interest in such permanent global Note (such
temporary global Note,
permanent global Note and definitive Notes in bearer form are
collectively
referred to as the "Bearer Notes"), 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 of the
Unit Agent of an
initial request to so exchange by any holder of a beneficial
interest in such
permanent global Unit (such temporary global Unit, permanent
global Unit and
definitive Units in bearer form are collectively referred to as
the "Bearer
Units") 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 agents for the
purpose
of soliciting and receiving offers to purchase Program
Securities from the
Company by others and, on the basis of the representations and
warranties herein
contained, but subject to the terms and conditions herein set
forth, you agree
to use reasonable efforts to solicit and receive offers to
purchase Program
Securities upon terms acceptable to the Company at such times
and in such
amounts as the Company shall from time to time specify. In
addition, you may
also purchase Program Securities as principal pursuant to the
terms of a terms
agreement relating to such sale (in the case of Notes, a "Notes
Terms Agreement"
and, in the case of Units, a "Units Terms Agreement") in
accordance with the
provisions of Section 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, including the
exhibits thereto,
as amended at the Commencement Date (as hereinafter defined), is
hereinafter
referred to as the "Registration Statement." The Company
proposes to file with
the Commission from time to time, pursuant to Rule 424 under the
Securities Act
of 1933, as amended (the "Securities Act"), supplements to the
prospectus
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relating to the Program Securities included in the Registration
Statement that
will describe certain terms of the Program Securities. The
prospectus relating
to the Program Securities in the form in which it appears in the
Registration
Statement is hereinafter referred to as the "Basic Prospectus."
The term
"Prospectus" means the Basic Prospectus together with the
prospectus supplement
or supplements (each, a "Prospectus Supplement") specifically
relating to the
Program Securities, as filed with, or transmitted for filing to,
the Commission
pursuant to Rule 424 under the Securities Act. As used herein,
the terms "Basic
Prospectus" and "Prospectus" shall include in each case the
documents, if any,
incorporated by reference therein. The terms "supplement,"
"amendment" and
"amend" as used herein shall include all documents deemed to be
incorporated by
reference in the Prospectus that are filed subsequent to the
date of the Basic
Prospectus by the Company with the Commission pursuant to the
Securities
Exchange Act of 1934, as amended (the "Exchange Act"). If the
Company has filed
an abbreviated registration statement to register additional
Program Securities
pursuant to Rule 462(b) under the Securities Act (a "Rule 462
Registration
Statement"), then any reference herein to the term "Registration
Statement"
shall be deemed to include such Rule 462 Registration
Statement.
1. Representations and Warranties. The Company represents and
warrants to
and agrees with you as of the Commencement Date, as of each date
on which you
solicit offers to purchase Program Securities, as of each date
on which the
Company accepts an offer to purchase Program Securities
(including any purchase
by you as principal pursuant to a Notes Terms Agreement or a
Units Terms
Agreement), as of each date the Company issues and delivers
Program Securities
and as of each date the Registration Statement or the Basic
Prospectus is
amended or supplemented, as follows (it being understood that
such
representations, warranties and agreements shall be deemed to
relate to the
Registration Statement, the Basic Prospectus and the Prospectus,
each as amended
or supplemented to each such date):
(a) The Registration Statement has become effective, no stop
order
suspending the effectiveness of the Registration Statement is in
effect,
and no proceedings for such purpose are pending before or
threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the
Exchange Act and incorporated by reference in the Prospectus
complied or
will comply when so filed in all material respects with the
Exchange Act
and the applicable rules and regulations of the Commission
thereunder, (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
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Registration Statement and the Prospectus comply and, as amended
or
supplemented, if applicable, will comply in all material
respects with the
Securities Act and the applicable rules and regulations of the
Commission
thereunder and the Prospectus does not contain and, as amended
or
supplemented, if applicable, will not contain any untrue
statement of a
material fact or omit to state a material fact necessary to make
the
statements therein, in the light of the circumstances under
which they were
made, not misleading, except that (1) the representations and
warranties
set forth in this Section 1(b) do not apply (A) to statements or
omissions
in the Registration Statement or the Prospectus based upon
information
relating to you furnished to the Company in writing by you
expressly for
use therein or (B) to those parts of the Registration Statement
that
constitute the Statements of Eligibility (Form T-1) under the
Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"),
of the
Trustees and (2) the representations and warranties set forth in
clauses
(iii) and (iv) above, when made as of the Commencement Date or
as of any
date on which you solicit offers to purchase Program Securities
or on which
the Company accepts an offer to purchase Program Securities,
shall be
deemed not to cover information concerning an offering of
particular
Program Securities to the extent such information will be set
forth in a
supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing
as a
corporation in good standing under the laws of the State of
Delaware, has
the corporate power and authority to own its property and to
conduct its
business as described in the Prospectus and is duly qualified to
transact
business and is in 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.
(d) Each subsidiary of the Company has been duly incorporated,
is
validly existing as a corporation in good standing under the
laws of the
jurisdiction of its incorporation, has the corporate power and
authority to
own its property and to conduct its business as described in the
Prospectus
and is duly qualified to transact business and is in good
standing in each
jurisdiction in which the conduct of its business or its
ownership or
leasing of property requires such qualification, except to the
extent that
the failure to be so qualified or be in good standing would not
have a
material adverse effect on the Company and its consolidated
subsidiaries,
taken as a whole.
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(e) Each of this Agreement and any applicable Written Notes
Terms
Agreement or Written Units Terms Agreement (each as hereinafter
defined)
has been duly authorized, executed and delivered by the
Company.
(f) Each Indenture has been duly qualified under the Trust
Indenture
Act and each of the Senior Indenture, the Subordinated
Indenture, the Unit
Agreement and the Warrant Agreement has been duly authorized,
executed and
delivered by the Company and is a valid and binding agreement of
the
Company, enforceable in accordance with its terms except as
the
enforceability thereof (i) may be limited by bankruptcy,
insolvency,
reorganization, liquidation, moratorium and other similar laws
affecting
creditors' rights generally and (ii) is subject to general
principles of
equity, regardless of whether such enforceability is considered
at a
proceeding in equity or at law.
(g) The form of Unit Agreement Without Holders' Obligations has
been
duly authorized by the Company and, when a Unit Agreement
Without Holders'
Obligations has been duly executed and delivered by the Company,
the Unit
Agreement Without Holders' Obligations will be a valid and
binding
agreement of the Company, enforceable in accordance with its
terms except
as the enforceability thereof (i) may be limited by bankruptcy,
insolvency,
reorganization, liquidation, moratorium and other similar laws
affecting
creditors' rights generally and (ii) is subject to general
principles of
equity, regardless of whether such enforceability is considered
at a
proceeding in equity or at law.
(h) The forms of Notes (including the form of 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 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 except as the
enforceability thereof
(i) may be limited by bankruptcy, insolvency, reorganization,
liquidation,
moratorium and other similar laws affecting creditors' rights
generally and
(ii) is subject to general principles of equity, regardless of
whether such
enforceability is considered at a proceeding in equity or at
law.
(i) The forms of Units under the Unit Agreement, including the
forms
of Warrants, Physically-settled Pre-paid Purchase Contracts
and
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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 except as
the
enforceability thereof (i) may be limited by bankruptcy,
insolvency,
reorganization, liquidation, moratorium and other similar laws
affecting
creditors' rights generally and (ii) is subject to general
principles of
equity, regardless of whether such enforceability is considered
at a
proceeding in equity or at law.
(j) When a Unit Agreement Without Holders' Obligations has
been
executed and delivered by the Company, the Units to be issued
thereunder
will have been duly authorized and when such Units have been
established in
conformity with the provisions of the Unit Agreement Without
Holders'
Obligations and delivered to and duly paid for by the purchasers
thereof,
and any 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 except as the enforceability thereof (i) may be limited
by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and other
similar laws affecting creditors' rights generally and (ii) is
subject to
general principles of equity, regardless of whether such
enforceability is
considered at a proceeding in equity or at law.
(k) The execution and delivery by the Company of this Agreement,
the
Notes and Pre-paid Purchase Contracts (whether issued alone or
as part of a
Unit), the Units (including any Purchase Contracts and Warrants
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
Pre-paid Purchase Contracts, the
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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 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 and any applicable Notes
Terms Agreement
or Units Terms Agreement, except such as may be required by the
securities
or Blue Sky laws of the various states in connection with the
offer and
sale of the Program Securities; provided, however, that no
representation
is made or warranty given as to whether the purchase of the
Program
Securities constitutes a "prohibited transaction" under Section
406 of the
Employee Retirement Income Security Act of 1974, as amended, or
Section
4975 of the Internal Revenue Code of 1986, as amended.
(l) There has not occurred any material adverse change, or
any
development involving a prospective material adverse change, in
the
condition, financial or otherwise, or in the earnings, business
or
operations of the Company and its subsidiaries, taken as a
whole, from that
set forth in the Prospectus.
(m) There are no legal or governmental proceedings pending
or
threatened to which the Company or any of its 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 and are not so
described or
any statutes, regulations, contracts or other documents that are
required
to be described in the Registration Statement or the Prospectus
or to be
filed or incorporated by reference as exhibits to the
Registration
Statement that are not described, filed or incorporated as
required.
(n) Each of the Company and its 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
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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, 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.
(o) Morgan Stanley DW Inc. is registered as a broker-dealer
and
investment adviser with the Commission, is registered with the
Commodity
Futures Trading Commission as a futures commission merchant and
is a member
of the New York Stock Exchange, Inc. and the National
Association of
Securities Dealers, Inc.
(p) Morgan Stanley & Co. Incorporated is registered as a
broker-dealer
and investment adviser with the Commission, is registered with
the
Commodity Futures Trading Commission as a futures commission
merchant and
is a member of the New York Stock Exchange, Inc. and the
National
Association of Securities Dealers, Inc.
(q) The Company is not, and after giving effect to the offering
and
sale of the Program Securities and the application of the
proceeds thereof
as described in the Prospectus, will not be required to register
as, an
"investment company" as such term is defined in the Investment
Company Act
of 1940, as amended.
Notwithstanding the foregoing, it is understood and agreed that
the
representations and warranties set forth in Section 1(b)(iii)
and 1(b)(iv), 1(h)
(except as to due authorization of the Notes and Cash-settled
Pre-paid Purchase
Contracts), 1(i) (except as to due authorization of the Units,
Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid
Purchase
Contracts), 1(j) (except as to due authorization of the Units
and Warrants) and
1(k), when made as of the Commencement Date, or as of any date
on which you
solicit offers to purchase Program Securities, with respect to
any Program
Securities the payments of principal or interest on which, or
any other payments
with respect to which, will be determined by reference to one or
more currency
exchange rates, commodity prices, securities of entities
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
agents
hereunder, you agree to use reasonable efforts to solicit offers
to purchase
Program Securities upon the terms and conditions set forth in
the Prospectus as
then amended or supplemented.
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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
11
<PAGE>
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 Prospectus
Supplement
relating to such Notes or Units.
12
<PAGE>
(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 agents of the Company shall be
delivered at
the office of Davis Polk & Wardwell, your counsel, not later
than 4:00 p.m., New
York 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."
3. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Program
Securities
pursuant to this Agreement or pursuant to any Notes Terms
Agreement or
Units Terms Agreement, the Company will not file any Prospectus
Supplement
relating to the Program Securities or any amendment to the
Registration
Statement 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
Prospectus
Supplement to be filed with or transmitted for filing to the
Commission in
accordance with Rule 424(b) under the Securities Act. The
Company will
promptly advise you of the filing of any amendment or supplement
to the
Basic Prospectus, of the filing and effectiveness of any
amendment to the
Registration Statement, of any request 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
13
<PAGE>
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.
(b) If, at any time when a prospectus relating to the
Program
Securities is required to be delivered under the Securities Act
or made
available to purchasers of the Program Securities, any event
occurs or
condition exists as a result of which the Prospectus, as then
amended or
supplemented, would include an untrue statement of a material
fact, or omit
to state any material fact necessary to make the statements
therein, in the
light of the circumstances when the Prospectus, as then amended
or
supplemented, is delivered to a purchaser, not misleading, or
if, in your
opinion or in the opinion of the Company, it is necessary at any
time to
amend or supplement the Prospectus, as then amended or
supplemented, to
comply with applicable law, the Company will immediately notify
you by
telephone (with confirmation in writing) to suspend solicitation
of offers
to purchase Program Securities and, if so notified by the
Company, you
shall forthwith suspend such solicitation and cease using the
Prospectus,
as then amended or supplemented. If the Company shall decide to
amend or
supplement the Registration Statement or Prospectus, as then
amended or
supplemented, it shall so advise you promptly by telephone
(with
confirmation in writing) and, at its expense, shall prepare and
cause to be
filed promptly with the Commission an amendment or supplement to
the
Registration Statement or Prospectus, as then amended or
supplemented,
satisfactory in all respects to you, that will correct such
statement or
omission or effect such compliance and will supply such amended
or
supplemented Prospectus to you in such quantities as you may
reasonably
request. If any documents, certificates, opinions and letters
furnished to
you pursuant to paragraph (e) below and Sections 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
14
<PAGE>
resume the solicitation of offers to purchase Program Securities
hereunder.
Notwithstanding any other provision of this Section 3(b), until
the
distribution of any Program Securities you may own as principal
has been
completed, if any event described above in this paragraph (b)
occurs, the
Company will, at its own expense, forthwith prepare and cause to
be filed
promptly with the Commission an amendment or supplement to the
Registration
Statement or Prospectus, as then amended or supplemented,
satisfactory in
all respects to you, will supply such amended or supplemented
Prospectus to
you in such quantities as you may reasonably request and shall
furnish to
you pursuant to paragraph (e) below and Sections 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.
(c) The Company will make generally available to its security
holders
and to you as soon as practicable earning statements that
satisfy the
provisions of Section 11(a) of the Securities Act and the rules
and
regulations of the Commission thereunder covering twelve month
periods
beginning, in each case, not later than the first day of the
Company's
fiscal quarter next following the "effective date" (as defined
in Rule 158
under the Securities Act) of the Registration Statement with
respect to
each sale of Program Securities. If such fiscal quarter is the
first fiscal
quarter of the Company's fiscal year, such earning statement
shall be made
available not later than 90 days after the close of the period
covered
thereby and in all other cases shall be made available not later
than 45
days after the close of the period covered thereby.
(d) The Company will furnish in New York City, without charge,
(i) to
each Agent, a signed copy of the Registration Statement,
including exhibits
and all amendments thereto, and as many copies of the
Prospectus, any
documents incorporated by reference therein and any supplements
and
amendments thereto as you may reasonably request and (ii) to
each Agent
that purchases Program Securities pursuant to a 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
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.
15
<PAGE>
(e) During the term of this Agreement, the Company shall furnish
to
you such relevant documents and certificates of officers of the
Company
relating to the business, operations and affairs of the Company,
the
Registration Statement, the Basic Prospectus, any amendments or
supplements
thereto, the Indentures, the Unit Agreement, any Unit Agreement
Without
Holders' Obligations, the Warrant Agreement, the Notes, the
Units, the
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.
(f) The Company shall notify you promptly in writing of any
downgrading, or of its receipt of any notice of any intended or
potential
downgrading or of any review for possible change that does not
indicate the
direction of the possible change, in the rating accorded the
Company or any
of the Company's securities by any "nationally recognized
statistical
rating organization," as such term is defined for purposes of
Rule
436(g)(2) under the Securities Act.
(g) The Company will, whether or not any sale of Program
Securities is
consummated, pay all expenses incident to the performance of
its
obligations under this Agreement and any Notes Terms Agreement
or Units
Terms Agreement, including: (i) the preparation and filing of
the
Registration Statement and the Prospectus and all amendments
and
supplements thereto, (ii) the preparation, issuance and delivery
of the
Program Securities, (iii) the fees and disbursements of the
Company's
counsel and accountants, of the Trustees and their counsel, of
the Unit
Agent and its counsel, of the Warrant Agent and its counsel and
of the
Principal Paying Agent and its counsel and any paying agents for
the
Program Securities appointed by the Company, (iv) 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(j), (v) the printing and delivery to you in quantities as
hereinabove
stated of copies of the Registration Statement and all
amendments thereto
and of the Prospectus and any amendments or supplements thereto,
(vi) the
printing and delivery to you of copies of the Indentures, the
Unit
Agreement, any Unit Agreement Without Holders' Obligations and
the Warrant
Agreement, (vii) any fees charged by rating agencies for the
rating of the
Program Securities, (viii) the fees and expenses, if any,
incurred with
respect to any filing with the National Association of
Securities Dealers,
Inc., the fees and disbursements of your counsel incurred in
connection
with the offering and sale of the
16
<PAGE>
Program Securities, including any opinions to be rendered by
such counsel
hereunder, and (x) any out-of-pocket expenses incurred by you;
provided
that any advertising expenses incurred by you shall have been
approved by
the Company.
(h) During the period beginning on the date of any Notes
Terms
Agreement or Units Terms Agreement relating to either Notes or
Units, as
the case may be, and continuing to and including the Settlement
Date with
respect to such Notes Terms Agreement or Units Terms Agreement,
the Company
will not, without your prior consent, offer, sell, contract to
sell or
otherwise dispose of (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.
(i) The Company will indemnify and hold you harmless against
any
documentary, stamp or similar transfer or issue tax, including
any interest
and penalties, on the issue of the Program Securities in
accordance with
the terms of this Agreement, on the execution and delivery of
this
Agreement, any Written Notes Terms Agreement or Written Units
Terms
Agreement and on the exchange of any temporary global Notes for
definitive
Notes or permanent global Notes, of any temporary global Units
for
definitive Units or permanent global Units, of any permanent
global bearer
Notes for definitive bearer Notes or of any permanent global
bearer Units
for definitive bearer Units, that are or may be required to be
paid under
the laws of the United Kingdom, the United States or any
political
subdivision or taxing authority thereof or therein.
(j) In connection with any application to admit the Series G
Notes or
Series G Units to the Official List of the UK Listing Authority
and to
trading on the London Stock Exchange, the Company will furnish
from time to
time any and all documents, instruments, information and
undertakings and
publish all advertisements or other material that may be
necessary in order
to effect such listing and 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,
17
<PAGE>
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.
(k) 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 FSMA): (i) you represent, warrant and agree in
the terms
relating to the Notes set out in Section 7(b)(v); and (ii) the
redemption
value of each such Note is not less than (pound)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 (pound)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 agents of the Company,
your obligation
to purchase Program Securities as principals pursuant to any
Notes Terms
Agreement or Units Terms Agreement and the obligation of any
other purchaser to
purchase Program Securities will be subject to the accuracy of
the
representations and warranties on the part of the Company
herein, to the
accuracy of the statements of the Company's officers made in
each certificate
furnished
18
<PAGE>
pursuant to the provisions hereof and to the performance and
observance by the
Company of all covenants and agreements herein contained on its
part to be
performed and observed (in the case of your obligation to
solicit offers to
purchase Program Securities, at the time of such solicitation,
and, in the case
of your or any other purchaser's obligation to purchase Program
Securities, at
the time the Company accepts the offer to purchase such Program
Securities and
at the time of issuance and delivery) and (in each case) to the
following
additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may
be:
(i) there shall not have occurred any change, or any
development
involving a prospective change, in the condition, financial
or
otherwise, or in the earnings, business or operations of the
Company
and its subsidiaries, taken as a whole, from that set forth in
the
Prospectus, as amended or supplemented at the time of such
solicitation or at the time such offer to purchase was made,
that, in
your judgment, is material and adverse and that makes it, in
your
judgment, impracticable to market the Program Securities on the
terms
and in the manner contemplated by the Prospectus, as so amended
or
supplemented;
(ii) there shall not have occurred such a change in national
or
international financial, political or economic conditions or
currency
exchange rates or exchange controls as would in your view be
likely to
prejudice materially the success of the offering and
distribution of
the Program Securities or dealings in the Program Securities in
the
secondary market; and
(iii) there shall not have occurred any downgrading, nor
shall
any notice have been given of any intended or potential
downgrading or
of any review for a possible change that does not indicate
the
direction of the possible change, in the rating accorded the
Company
or any of the Company's securities by any "nationally
recognized
statistical rating organization," as such term is defined for
purposes
of Rule 436(g)(2) under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or
(iii) above, as
disclosed to you in writing by the Company prior to such
solicitation or, in the
case of a purchase of Program Securities, before the offer to
purchase such
Program Securities was made or (B) unless in each case described
in (ii) above,
the relevant event shall have occurred and been known to you
prior to such
solicitation or, in the case of a purchase of Program
Securities, before the
offer to purchase such Program Securities was made.
19
<PAGE>
(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 Sidley Austin Brown
& Wood
LLP, counsel to the Company, or of other counsel satisfactory to
you and
who may be an officer of the Company, to the 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 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 DW Inc., Discover Bank, 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 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
20
<PAGE>
tribunals, to own, lease, license and use its properties and
assets
and to conduct its business in the manner described in the
Prospectus,
as amended or supplemented, except to the extent that the
failure to
obtain or file would not have a material adverse effect on the
Company
and its consolidated subsidiaries, taken as a whole;
(D) each of this Agreement and any applicable Written Notes
Terms
Agreement or Written Units Terms Agreement has been duly
authorized,
executed and delivered by the Company;
(E) each Indenture has been duly qualified under the Trust
Indenture Act and each of the Senior Indenture, the
Subordinated
Indenture, the Unit Agreement and the Warrant Agreement has been
duly
authorized, executed and delivered by the Company and is a valid
and
binding agreement of the Company, enforceable in accordance with
its
terms except as the enforceability thereof (i) may be limited
by
bankruptcy, insolvency, reorganization, liquidation, moratorium
and
other similar laws affecting creditors' rights generally and
(ii) is
subject to general principles of equity, regardless of whether
such
enforceability is considered at a proceeding in equity or at
law;
(F) the Unit Agreement Without Holders' Obligations, 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 except as the enforceability thereof (i) may be
limited
by bankruptcy, insolvency, reorganization, liquidation,
moratorium and
other similar laws affecting creditors' rights generally and
(ii) is
subject to general principles of equity, regardless of whether
such
enforceability is considered at a proceeding in equity or at
law;
(G) the forms of Notes (including the form of 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
21
<PAGE>
relevant Trustee or its duly appointed agent in accordance with
the
provisions of the relevant Indenture and delivered to and duly
paid
for by the purchasers thereof on the date of such opinion, 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 except as the enforceability thereof (i) may
be
limited by bankruptcy, insolvency, reorganization,
liquidation,
moratorium and other similar laws affecting creditors'
rights
generally and (ii) is subject to general principles of
equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(H) the forms of 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 except as the enforceability thereof (i) may
be
limited by bankruptcy, insolvency, reorganization,
liquidation,
moratorium and other similar laws affecting creditors'
rights
generally and (ii) is subject to general principles of
equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
22
<PAGE>
(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 except as the enforceability thereof (i)
may be
limited by bankruptcy, insolvency, reorganization,
liquidation,
moratorium and other similar laws affecting creditors'
rights
generally and (ii) is subject to general principles of
equity,
regardless of whether such enforceability is considered at a
proceeding in equity or at law;
(J) 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
23
<PAGE>
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 (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" (in
the
Prospectus Supplement), "Description of Debt Securities" (in the
Basic
Prospectus), "Description of Units" (in the Prospectus
Supplement and
in the Basic Prospectus), "Plan of Distribution" (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 (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, in each case insofar as such statements
constitute
summaries of the legal matters, documents or proceedings
referred to
therein, fairly present the information called for with respect
to
such legal matters, documents and proceedings and fairly
summarize the
matters referred to therein;
(L) after due inquiry, such counsel does not know of any legal
or
governmental proceedings pending or threatened to which the
Company or
any of its consolidated subsidiaries is a party or to which any
of the
properties of the Company or any of its consolidated
24
<PAGE>
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) such counsel (1) believes that each document, if any,
filed
pursuant to the Exchange Act and incorporated by reference in
the
Prospectus as then amended or supplemented (except as to
financial
statements and schedules and other financial and statistical
data
included therein, as to which such counsel need not express
any
belief) complied when so filed as to form in all material
respects
with the Exchange Act and the applicable rules and regulations
of the
Commission thereunder, (2) has no reason to believe that any
part of
the Registration Statement (except as to financial statements
and
schedules and other financial and statistical data included
therein,
as to which such counsel need not express any belief, and except
for
that part of the Registration Statement that constitutes the
Forms T-1
heretofore referred to), as then amended, if applicable, when
such
part became effective contained, and the Registration
Statement
(except as to financial statements and schedules and other
financial
and statistical data included therein, as to which such counsel
need
not express any belief, and except for the part of the
Registration
Statement that constitutes the Forms T-1) as of the date such
opinion
is delivered contains, any untrue statement of a material fact
or
omitted or omits to state a material fact required to be
stated
therein or necessary to make the statements therein not
misleading,
(3) believes that the Registration Statement and Prospectus, as
then
25
<PAGE>
amended or supplemented, if applicable (except as to
financial
statements and schedules and other financial and statistical
data
included therein, as to which such counsel need not express
any
belief), complied as to form in all material respects with
the
Securities Act and the applicable rules and regulations of
the
Commission thereunder and (4) has no reason to believe that
the
Prospectus, as then amended or supplemented, if applicable
(except as
to financial statements and schedules and other financial
and
statistical data included therein, as to which such counsel need
not
express any belief), as of the date such opinion is delivered
contains
any untrue statement of a material fact or omits to state a
material
fact necessary in order to make the statements therein, in the
light
of the circumstances under which they were made, not
misleading;
provided that in the case of an opinion delivered on the
Commencement
Date or pursuant to Section 5(b), the opinion and belief set
forth in
clauses (3) and (4) above shall be deemed not to cover
information
concerning an offering of particular Notes or Units to the
extent such
information will be set forth in a supplement to the Basic
Prospectus.
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell,
your special counsel, covering the matters in subparagraphs (D),
(E), (F),
(G), (H), (I) and (K) (with respect to statements in the
Prospectus, as
then amended or supplemented, under the captions "Description of
Notes" (in
the Prospectus Supplement), "Description of Debt Securities" (in
the Basic
Prospectus), "Description of Units" (in the Prospectus
Supplement and the
Basic Prospectus), "Plan of Distribution" (in the Prospectus
Supplement and
in the Basic Prospectus), "Description of Purchase Contracts"
(in the Basic
Prospectus) and "Description of Warrants" (in the Basic
Prospectus)) and
clauses (2), (3) and (4) of subparagraph (N) in paragraph (b)(i)
above.
The opinions described in subparagraphs (F) and (I) need only
be
contained in an opinion delivered on a Settlement Date related
to an offering of
Units under a Unit Agreement Without Holders' Obligations to be
executed on or
prior to such Settlement Date.
Notwithstanding the foregoing, the opinions described in
subparagraphs
(G) (except as to due authorization of the Notes and
Cash-settled Pre-paid
Purchase Contracts), (H) (except as to due authorization of the
Units, Warrants,
Physically-settled Pre-paid Purchase Contracts and Non-Pre-paid
Purchase
26
<PAGE>
Contracts), (I) (except as to due authorization of the Units and
Warrants), (J),
(K)(1) and (N)(3) and (4) of paragraph (b)(i) above, when
contained in an
opinion delivered on the Commencement Date or pursuant to
Section 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 subparagraph (N) of paragraph (b)(i) above, if
such
opinion is given by counsel who is also an officer of the
Company, such counsel
may state that his or her opinion and belief are based upon his
or her
participation, or the participation of someone under his or her
supervision, in
the preparation of the Registration Statement and Prospectus and
any amendments
or supplements thereto and documents incorporated therein by
reference and
review and discussion of the contents thereof, but are without
independent check
or verification, except as specified. With respect to
subparagraph (N) of
paragraph (b)(i) above, Davis Polk & Wardwell and, if Sidley
Austin Brown & Wood
LLP is giving such opinion, Sidley Austin Brown & Wood LLP
may state that their
opinion and belief are based upon their participation in the
preparation of the
Registration Statement and Prospectus and any amendments or
supplements thereto
(but not including documents incorporated therein by reference)
and review and
discussion of the contents thereof (including documents
incorporated therein by
reference), but are without independent check or verification,
except as
specified.
(iii) The opinion, dated as of such date, of Sidley Austin
Brown & Wood LLP, special counsel to the Company, to the
effect
that the statements set forth under the caption "United
States
Federal Taxation" in the Prospectus Supplement and under the
caption "Forms of Securities-Limitations on Issuance of
Bearer
Securities" 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 Sidley Austin Brown & Wood LLP described in
paragraph
(b)(iii) above and in paragraph (b)(i) above, if such opinion is
given by Sidley
Austin Brown & Wood LLP, shall be rendered to you at the
request of the Company
and shall so state therein.
27
<PAGE>
(c) On the Commencement Date and, if called for by any Notes
Terms
Agreement or Units Terms Agreement, on the corresponding
Settlement Date,
you shall have received a certificate, dated the Commencement
Date or such
Settlement Date, as the case may be, and signed by an executive
officer of
the Company to the effect set forth in subparagraph (a)(iii)
above and to
the effect that the representations and warranties of the
Company contained
in this Agreement are true and correct as of such date and that
the Company
has complied with all of the agreements and satisfied all of the
conditions
on its part to be performed or satisfied on or before such
date.
The officer signing and delivering such certificate may rely
upon the best of
his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any Notes
Terms
Agreement or Units Terms Agreement, on the corresponding
Settlement Date,
the Company's independent auditors shall have furnished to you a
letter or
letters, dated as of the Commencement Date or such Settlement
Date, as the
case may be, in form and substance satisfactory to you
containing
statements and information of th
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