EXHIBIT 1-f
MORGAN STANLEY
Morgan Stanley DirectSecurities(SM)
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 U.S.$[ ]
aggregate initial public offering price of its
Morgan Stanley DirectSecurities(SM) due
more than nine months from the date of
issue (the "Notes") or such larger
aggregate initial public offering price as
the Company may determine to offer (the
"Program Capacity"), subject to
reduction as a result of the sale of the
Company's (i) Global Medium-Term Notes,
Series F (issued other than as part of a
Unit), (ii) Global Units, Series F,
(iii) Global Medium-Term Notes, Series G
and Series H (issued other than as part
of a Unit), to be sold primarily outside of
the United States, and (iv) Global
Units, Series G and Series H, to be sold
primarily outside of the United States,
and the sale of certain of the Company's
other debt securities, warrants,
preferred stock, common stock, purchase
contracts and units and of capital
securities of certain Morgan Stanley
Capital Trusts (together with the Notes,
the "Program Securities") in excess of an
aggregate initial public offering
price equal to U.S. $[
] minus the Program Capacity.
<PAGE>
The Notes will
be issued as senior indebtedness 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 "Trustee") (as may be supplemented or
amended from time to time, the
"Indenture").
The Notes 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 Company
hereby appoints you as its exclusive agents for the purpose of
soliciting and receiving offers to purchase
Notes 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 Notes 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 Notes as principal
pursuant to the terms of a terms agreement
relating to such sale (a "Notes 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
Notes. 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
Notes included in the Registration
Statement that will describe certain terms of
the Notes. The prospectus relating to the
Notes 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 Notes, 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 (the "Rule 462
Registration Statement"), then any
reference herein to the term "Registration
Statement" shall be deemed to include such
Rule 462 Registration Statement.
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<PAGE>
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 Notes, as of
each date on which the Company accepts
an offer to purchase Notes (including any
purchase by you as principal pursuant
to a Notes Terms Agreement), as of each
date the Company issues and delivers
Notes 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 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 Notes
or on which the Company accepts an
offer to purchase Notes, shall be deemed
not to cover information concerning an
offering of particular Notes to the extent
such information will be set forth in
a supplement to the Basic Prospectus.
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<PAGE>
(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
(as hereinafter defined) has been duly
authorized, executed and delivered by the
Company.
(f) The
Indenture has been duly qualified under the Trust Indenture Act
and
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
the Notes has been duly authorized and established in
conformity with the provisions of the
Indenture and, when the Notes have been
executed and authenticated in accordance
with the provisions of the Indenture
and delivered to and duly paid for by the
purchasers thereof, the Notes 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.
4
<PAGE>
(h) The
execution and delivery by the Company of this Agreement, the
Notes,
the Indenture and any applicable Written
Notes Terms Agreement and the
performance by the Company of its
obligations under this Agreement, the Notes,
the Indenture and any applicable Notes
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 Indenture and any applicable Notes
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 Notes;
provided, however, that no representation
is made or warranty given as to whether the
purchase of the Notes 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.
(i) 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.
(j) 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.
(k) 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.
5
<PAGE>
(l) 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.
(m) 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.
(n) The Company
is not, and after giving effect to the offering and sale of
the Notes 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.
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
Notes 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 Notes. Upon receipt of
at least one business day's prior
notice from the Company, you will forthwith
suspend solicitations of offers to
purchase Notes 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) a change in the interest rates,
repayment provisions, redemption
provisions or maturities offered on the
Notes or (ii) for a change you deem to
be immaterial), you shall not be required
to resume soliciting offers to
purchase Notes 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
Note 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 Note
equal to between 0.2% and 3.0% (depending
upon such Note's maturity) of the
principal amount of such Note or such other
discount as may be specified in the
Prospectus Supplement relating to such
Note.
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<PAGE>
You shall
communicate to the Company, orally or in writing, each offer to
purchase Notes 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 Notes and may reject any
offer in whole or in part. You shall
have the right to reject any offer to
purchase Notes 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 Notes 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 Notes 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 that will provide
for the sale of such Notes to and the
purchase thereof by you. Each Notes 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 hereto (a
"Written Notes Terms Agreement"), or (ii)
an oral agreement between you and the
Company confirmed in writing by you to the
Company.
Your commitment
to purchase Notes as principal pursuant to a Notes 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 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. Each such
Notes 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 may also specify
certain provisions relating to the
reoffering of such Notes by you.
Each Notes Terms
Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless
otherwise specified in a Notes Terms
Agreement, the procedural details relating
to the issue and delivery of Notes
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 Notes to
be purchased by you as principal pursuant
to a Notes Terms Agreement is referred
to herein as a "Settlement Date."
Unless otherwise
specified in a Notes Terms Agreement, if you are
purchasing Notes as principal you may
resell such Notes 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.
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<PAGE>
(c)
Administrative Procedures. You and the Company agree to perform
the
respective duties and obligations
specifically provided to be performed in the
DirectSecurities, 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 Notes 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
Notes and (ii) the first date on which the
Company accepts any offer by you to
purchase Notes 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 Notes pursuant to this
Agreement or pursuant to any Notes Terms
Agreement, the Company will not file
any Prospectus Supplement relating to the
Notes or any amendment to the
Registration Statement relating to the
Notes 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 Notes 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
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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 Notes so long as you are not
reasonably satisfied with such document.
(b) If, at any
time when a prospectus relating to the Notes 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 Notes 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 (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 Notes
hereunder. Notwithstanding any other
provision of this Section 3(b), until the
distribution of any Notes 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.
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(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 Notes. 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 Notes pursuant
to a Notes Terms Agreement or solicits an
offer to purchase Notes 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 the acceptance of
such offer, as many copies of the
Prospectus, as then amended or supplemented
(including the Prospectus Supplement
relating to the Notes to be purchased
pursuant to such Notes 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 Indenture, the
Notes, this Agreement, the Administrative
Procedures, any Notes 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.
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(h) The Company
will, whether or not any sale of Notes is consummated, pay
all expenses incident to the performance of
its obligations under this Agreement
and any Notes 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 Notes, (iii) the
fees and disbursements of the Company's
counsel and accountants and of the
Trustees and their counsel, (iv) the
qualification of the Notes 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 Indenture and any Blue Sky or
Legal Investment Memoranda, (vii) any fees
charged by rating agencies for the
rating of the Notes, (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 Notes, 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
and continuing to and including the
Settlement Date with respect to such Notes
Terms Agreement, the Company will not,
without your prior consent, offer, sell,
contract to sell or otherwise dispose of
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), except as may
otherwise be provided in the applicable
Notes Terms Agreement.
4. Conditions of
the Obligations of the Agents. Your obligation to solicit
offers to purchase Notes as agents of the
Company, your obligation to purchase
Notes as principals pursuant to any Notes
Terms Agreement and the obligation of
any other purchaser to purchase Notes 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 Notes, at the time of
such solicitation, and, in the case of
your or any other purchaser's obligation to
purchase Notes, at the time the
Company accepts the offer to purchase such
Notes and at the time of issuance and
delivery)
11
<PAGE>
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
Notes 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 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 Notes 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 w
