EXHIBIT 1-d
MORGAN STANLEY
Global Medium-Term Notes, Series F
Global Units, Series F
U.S. DISTRIBUTION AGREEMENT
[
], 2005
Morgan Stanley
1585 Broadway
New York, New York 10036
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
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 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 F, due
more than nine months from the date
of issue (the "Notes"), and its Global
Units, Series F (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 G and Series H, to be sold
primarily outside of the United
States, (ii) Global Units, Series G and
Series H, to be sold primarily outside
of 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 Notes may be issued as senior indebtedness (the "Series F
Senior
Notes") or as subordinated indebtedness
(the "Series F Subordinated Notes") of
the Company. The Series F 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 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
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Series F 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's
Obligations").(1) Units may include one or
more (i) Series F Senior Notes, (ii)
warrants ("Warrants") entitling 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 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 affiliated or not affiliated with
the Company, 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
---------
(1) The Unit
Agreement Without Holders' Oligations shall include additional
provisions to allow for the issuance of
Pre-Paid Purchase Contracts that are
not issued under the Indenture.
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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 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
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
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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 (the
"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 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
(iv) 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
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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.
(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
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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
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, 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.
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(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 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 consolidated subsidiary,
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
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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
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 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
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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.
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%
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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
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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.
(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 F, and Global Units, Series F,
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:
11
<PAGE>
(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 (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 and (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. The Company will use its
best efforts to
prevent the issuance of any such stop order or notice of
suspension of
qualification 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, 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
12
<PAGE>
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 (f) 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 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 (f) 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
13
<PAGE>
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.
(e) The Company will endeavor to qualify the Notes for offer and
sale
under the
securities or Blue Sky laws of such jurisdictions as you shall
reasonably
request and to maintain such qualifications for as long as you
shall reasonably
request.
(f) 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.
(g) 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.
(h) 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, and of the Warrant Agent and its counsel, (iv) the
qualification of
the Notes and Units (and of any securities comprised
14
<PAGE>
thereby) under
securities or Blue Sky laws in accordance with the
provisions of
Section 3(e), including filing fees and the fees and
disbursements of
your counsel in connection therewith and in connection
with the
preparation of any Blue Sky or Legal Investment Memoranda, (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, the Warrant Agreement and any
Blue
Sky or Legal
Investment Memoranda, (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., (ix) 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, 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.
(i) 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.
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 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
15
<PAGE>
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 any (A) suspension or
material limitation of trading generally on or by, as the case
may
be, any of the New York Stock Exchange, the American Stock
Exchange,
the Nasdaq National Market, the Chicago Board of Options
Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B)
suspension of trading of any securities of the Company on any
exchange or in any over-the-counter market, (C) material
disruption
in securities settlement, payment or clearance services in the
United
States or, in the event of a global offering, in any relevant
foreign
jurisdiction, (D) declaration of any moratorium on commercial
banking
activities by Federal or New York State authorities or (E) any
outbreak or escalation of hostilities or any change in
financial
markets (or, if the relevant Program Securities are denominated in
a
currency other than U.S. dollars, any change in currency
exchange
rates or controls) or any calamity or crisis that, in your
judgment,
is material and adverse and which, singly or together with any
other
event specified in this clause (E), makes it, in your judgment,
impracticable or inadvisable to proceed with the offer, sale or
delivery of the Program Securities on the terms and in the
manner
contemplated by the Prospectus, as amended or supplemented, at
the
time of such solicitation or at the time such offer to purchase
was
made; 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
16
<PAGE>
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 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, 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
17
<PAGE>
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,
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
18
<PAGE>
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
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,
19
<PAGE>
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 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,
