EXHIBIT
4.1
SECOND
SUPPLEMENTAL SENIOR INDENTURE
BETWEEN
MORGAN
STANLEY
AND
THE
BANK
OF NEW YORK
as
successor to JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank),
Trustee
Dated
as
of January 4, 2008
SUPPLEMENTAL
TO SENIOR INDENTURE
DATED
AS
OF NOVEMBER 1, 2004 AS SUPPLEMENTED BY A FIRST SUPPLEMENTAL SENIOR INDENTURE
DATED AS OF SEPTEMBER 4, 2007
SECOND
SUPPLEMENTAL SENIOR INDENTURE, dated as of January 4, 2008 (the “Second
Supplemental Senior Indenture”), between Morgan Stanley, a Delaware corporation
(the “Issuer”), and The Bank of New York (as successor to JPMorgan Chase Bank,
N.A. (formerly known as JPMorgan Chase Bank)), as trustee (the
“Trustee”). Terms not defined herein shall have the meanings given to
them pursuant to the Indenture, as defined below.
W
I T N E
S S E T H:
WHEREAS,
the Issuer and the Trustee are parties to that certain Senior Indenture dated
as
of November 1, 2004 (as supplemented by the First Supplemental Senior Indenture,
dated as of September 4, 2007, between the Issuer and the Trustee, the
“Indenture”);
WHEREAS,
Section 8.01 of the Indenture provides that, without the consent of Holders
of
any Securities or Coupons, the Issuer, when authorized by a resolution of its
Board of Directors, and the Trustee may enter into indentures supplemental
to
the Indenture for the purpose of, among other things, making any provisions
as
the Issuer may deem necessary or desirable, subject to the conditions set forth
therein and providedthat no such action shall adversely affect
the interests of the Holders of the Securities or Coupons;
WHEREAS,
the Issuer desires to add to and modify certain provisions of the Indenture
(i)
to allow for the issuance of Unregistered Securities in the form prescribed
by
the European Central Bank for securities to be eligible to be pledged as
collateral in European central banking and monetary operations (and to allow,
at
the Issuer’s option, for the exchange of any previously issued Unregistered
Securities for Unregistered Securities in such form), (ii) to modify the timing
requirement for the delivery of an Officer’s Certificate in connection with the
redemption prior to maturity of Securities by the Issuer and (iii) to modify
the
manner in which notices may be given to the Trustee;
WHEREAS,
the entry into this Second Supplemental Senior Indenture by the parties hereto
is in all respects authorized by the provisions of the Indenture;
and
WHEREAS,
all things necessary to make this Second Supplemental Senior Indenture a valid
indenture and agreement in accordance with its terms have been
done.
NOW,
THEREFORE, for and in consideration of the premises, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities and of the Coupons,
if
any, appertaining thereto as follows:
ARTICLE
ONE
1.1. Application
of Article One. The provisions of this Article One shall apply to (a)
Holders of all Securities issued under the Indenture and Outstanding at the
date
hereof and (b) Holders of any Securities that may be issued under the Indenture
subsequent to the date hereof.
1.2. Amendment
of Indenture. The Indenture is hereby amended by deleting in the
Table of Contents the caption “Section 2.06. Certificate of
Authentication” and inserting in lieu thereof the following: “Section 2.06.
Certificate of Authentication; Effectuation Instruction”.
1.3. Amendment
of Section 1.01. Section 1.01 of the Indenture is hereby amended
by
(a) adding
after the
definition of “Business Day” a new defined term as follows:
‘“CSK” means, with respect to Unregistered Securities issued in
NGN form, the entity appointed as common safe-keeper by Euroclear Bank S.A./N.V.
and Clearstream Banking, société anonyme.’;
(b) adding
after the
definition of “Judgement Currency” a new defined term as follows: ‘“NGN
form” means an Unregistered Security the aggregate principal amount of
which, as shall be indicated in the applicable Issuer Order, shall be
definitively determined by the records of Euroclear Bank S.A./N.V. and
Clearstream Banking, société anonyme.’;
(c) amending
and restating
the introductory clause of the definition of “Outstanding” to read as
follows:
‘“Outstanding”
when used with reference to Securities, shall, subject to the provisions of
Section 7.04, mean, as of any particular time, all Securities authenticated
and
delivered by the Trustee under this Indenture (and, in the case of Securities
issued in NGN form and not physically delivered to the CSK, effectuated by
the
CSK), except’
(d) amending
and restating
subsection (c) of the definition of “Outstanding” to read in its entirety as
follows:
‘(c) Securities
which shall have been paid or in substitution for which other Securities shall
have been authenticated and delivered (and, in the case of Securities issued
in
NGN form and not physically delivered to the CSK, effectuated by the CSK)
pursuant to the terms of Section 2.09 (except with respect to any such Security
as to which proof satisfactory to the Trustee is presented that such Security
is
held by a person in whose hands such Security is a legal, valid and binding
obligation of the Issuer).’; and
(e) amending
and restating
the definition of “Security” or “Securities” to read in its entirety as
follows:
‘“Security”
or “Securities” has the meaning stated in the first recital of
this Indenture, or, as the case may be, Securities that have been authenticated
and delivered under this Indenture (and, in the case of Securities issued in
NGN
form and not physically delivered to the CSK, effectuated by the
CSK).’
1.4. Amendment
of Section 2.03. Section 2.03(o) is hereby amended and restated to
read in its entirety as follows:
“(o) whether
the Securities of the series will be issuable as Registered Securities (and
if
so, whether such Securities will be issuable as Registered Global Securities)
or
Unregistered Securities (with or without Coupons and in NGN form or not), or
any
combination of the foregoing, any restrictions applicable to the offer, sale,
transfer, exchange or delivery of Unregistered Securities or Registered
Securities or the payment of interest thereon and, if other than as provided
in
Section 2.08, the terms upon which Unregistered Securities of any series may
be
exchanged for Registered Securities of such series and vice versa;”
1.5. Amendment
of Section 2.04.
(i)
Section 2.04(a) is hereby amended by deleting the first sentence thereof, and
replacing it in its entirety with the following: “The Issuer may deliver
Securities of any series having attached thereto appropriate Coupons, if any,
executed by the Issuer to the Trustee for authentication together with the
applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the order of
the
Issuer (contained in the Issuer Order referred to below in this Section) or
pursuant to such procedures acceptable to the Trustee and to such recipients
as
may be specified from time to time by an Issuer Order, and, if such Securities
are issued in NGN form and such Issuer Order so specifies, shall instruct,
or
shall cause a paying agent therefor to instruct, the CSK to effectuate such
Securities.”; and
(ii)
Section 2.04(a)(iv)(C) of the Indenture is hereby amended and restated to read
in its entirety as follows:
“(C) when
the Securities and Coupons, if any, have been executed by the Issuer and
authenticated by the Trustee in accordance with the provisions of this
Indenture, and, in the case of Securities issued in NGN form and not physically
delivered to the CSK, effectuated by the CSK, and delivered to and duly paid
for
by the purchasers thereof, they will have been duly issued under this Indenture
and will be valid and binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled to the benefits
of
this Indenture; and”.
1.6. Amendment
of Section 2.05. Section 2.05 of the Indenture is hereby amended by
deleting the “.” after the last sentence of the first paragraph and adding
thereafter the following: “and, in the case of any Security issued in NGN form
and not physically delivered to the CSK, effectuated by the CSK.”
1.7. Amendment
of Section 2.06. Section 2.06 of the Indenture is hereby amended and
restated to read in its entirety as follows:
“Section
2.06. Certificate of Authentication; Effectuation
Instruction. Only such Securities as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
executed by the Trustee by the manual signature of one of its authorized
signatories, and shall be, in the case of Securities issued in NGN form and
not
physically delivered to the CSK, effectuated by the CSK by the manual or
facsimile signature of one of its authorized officers, shall be entitled to
the
benefits of this Indenture or be valid or obligatory for any purpose. No Coupon
shall be entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been duly executed by the
Trustee, and, in the case of Securities issued in NGN form and not physically
delivered to the CSK, such Security shall have been effectuated by the CSK
as
aforesaid. The execution of the certificate of authentication by the Trustee
upon any Security executed by the Issuer, and, in the case of Securities issued
in NGN form and not physically delivered to the CSK, evidence via facsimile
transmission, electronic means or such other evidence in writing as may be
acceptable to the Trustee of the execution by the CSK of the certificate of
effectuation on such Security, shall be conclusive evidence that the Security
so
authenticated, and effectuated if applicable, has been duly authenticated,
and
effectuated if applicable, and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
1.8. Amendment
of Section 2.08. Section 2.08 of the Indenture is hereby amended by
deleting the penultimate sentence of the fourth paragraph thereof, which
currently reads as: “Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.” and
adding in lieu thereof the following two sentences: “At its option, the Issuer
may cause Unregistered Securities of any series not in NGN form to be exchanged
for Unregistered Securities in NGN form. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange
is
entitled to receive; provided, that with respect to any such Securities to
be
issued in NGN form and not physically delivered to the CSK, the Trustee shall
instruct or shall cause a paying agent therefor to instruct the CSK to
effectuate such Securities and such Securities shall have been effectuated
by
the CSK.”
1.9. Amendment
of Section 2.09. Section 2.09 of the Indenture is hereby amended
by:
(a) amending
and restating
the first sentence of the first paragraph to read in its entirety as
follows:
“In
case
any temporary or definitive Security or any Coupon appertaining to any Security
shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer
in
its discretion may execute, and upon the written request of any officer of
the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons
so
mutilated, defaced, destroyed, lost or stolen; provided, that with respect
to
any such Security to be issued in NGN form and not physically delivered to
the
CSK, the Trustee shall instruct, or shall cause a paying agent to instruct,
the
CSK to effectuate such Security and such Security shall have been effectuated
by
the CSK.”; and
(b) in
the first sentence of
the third paragraph thereof after the phrase “of such series duly authenticated
and delivered” and before the word “hereunder” inserting “(and, in the case of
Securities issued in NGN form and not physically delivered to the CSK,
effectuated by the CSK)”.
1.10. Amendment
of Section 2.11. Section 2.11 is hereby amended and restated in its
entirety to read as follows:
“Section
2.11. Temporary Securities. Pending the
preparation of definitive Securities for any series, the Issuer may execute
and
the Trustee shall authenticate and deliver temporary Securities for such series
(printed, lithographed, typewritten or otherwise reproduced, in each case in
form satisfactory to the Trustee). Temporary Securities of any series shall
be
issuable as Registered Securities without coupons, or as Unregistered Securities
with or without coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of
the
Trustee as evidenced by the execution and authentication, and, in the case
of
Temporary Securities issued in NGN form and not physically delivered to the
CSK,
effectuation thereof. Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every Temporary Security
shall be executed by the Issuer, be authenticated by the Trustee and, in the
case of Temporary Securities issued in NGN form and not physically delivered
to
the CSK, the Trustee shall instruct, or shall cause a paying agent to instruct,
the CSK to effectuate such Temporary Security, upon the same conditions and
in
substantially the same manner, and with like effect, as the definitive
Securities.
Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Registered Securities of
such
series may be surrendered in exchange therefor without charge at each office
or
agency to be maintained by the Issuer for that purpose pursuant to Section
3.02
and, in the case of Unregistered Securities, at any agency maintained by the
Issuer for such purpose as specified pursuant to Section 2.03, and the Trustee
shall authenticate and deliver, and, in the case of Temporary Securities issued
in NGN form and not physically delivered to the CSK, instruct or cause a paying
agent to instruct the CSK to effectuate, in exchange for such temporary
Securities of such series an equal aggregate principal amount of definitive
Securities of the same series having authorized denominations and, in the case
of Unregistered Securities, having attached thereto any appropriate Coupons.
Until so exchanged, the temporary Securities of any series shall be entitled
to
the same benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.03. The provisions of this
Section are subject to any restrictions or limitations on the issue and delivery
of temporary Unregistered Securities of any series that may be established
pursuant to Section 2.03 (including any provision that Unregistered Securities
of such series initially be issued in the form of a single global Unregistered
Security to be delivered to a depositary or agency located outside the United
States and the procedures pursuant to which definitive or global Unregistered
Securities of such series would be issued in exchange for such temporary global
Unregistered Security).”
1.11. Amendment
of Section 5.03. The introductory clauses of Section 5.3 up to the
first colon are hereby amended and restated to read in their entirety as
follows:
“Any
moneys collected by the Trustee pursuant to this Article in respect of any
series shall be applied in the following order at the date or dates fixed by
the
Trustee and, in case of the distribution of such moneys on account of principal
or interest, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which monies have been collected
and stamping thereon (or otherwise noting thereon, or, in the case of Securities
issued in NGN form, causing Euroclear Bank S.A./N.V. and Clearstream Banking,
société anonyme to make entries in their respective records of), the payment, or
issuing Securities of such series in reduced principal amounts in exchange
for
the presented Securities of like series if only partially paid, or upon
surrender thereof if fully paid:”
1.12. Amendment
of Section 6.02. Section 6.02 is hereby amended by replacing the
period at the end of Section 6.02(g) with “;” and by adding after Section
6.02(g) the following:
“(h) neither
the Trustee nor any paying agent shall be liable for any failure on the part
of
the CSK to effectuate any Security issued in NGN form and not physically
delivered to the CSK or for any failure on the part of the CSK to do so in
a
timely manner, unless it shall be proved that the Trustee or the
paying
agent
was
negligent in instructing the CSK to effectuate any such Security in accordance
with the applicable provision hereof; provided, that the Trustee or
paying agent shall not be deemed to have acted with negligence if it shall
have
given such instructions in the manner and by the time prescribed by the
CSK, provided further that in the absence of any such prescribed
manner or timing, the Trustee or paying agent shall be entitled to give, and
shall incur no liability hereunder if it shall give, such instructions by
facsimile transmission (without any requirement for telephonic confirmation)
to
a telephone number provided by the CSK for such purpose or by email to an email
address provided by the CSK for such purpose and shall be protected in giving
and shall incur no liability hereunder in giving such instructions no later
than
one Business Day after the applicable Security shall have been delivered to
the
Trustee for authentication.”
1.13. Amendment
of Section 6.03. The first sentence of Section 6.03 is hereby amended
and restated to read in its entirety as follows:
“The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication and any CSK’s certificates of effectuation, shall
be taken as statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same.”
1.14. Amendment
of Section 6.14. The second sentence of the first paragraph of
Section 6.14 is hereby amended and restated to read in its entirety as
follows:
“Securities
of each such series authenticated by such Authenticating Agent, and, if such
Securities are issued in NGN form and not physically delivered to the CSK,
effectuated by the CSK, shall be entitled to the benefits of this Indenture
and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee.”
1.15. Amendment
of Section 8.05. The second sentence of Section 8.05 is hereby
amended and restated to read in its entirety as follows:
“If
the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee, and, in the case of Securities issued in NGN form not physically
delivered to the CSK, effectuated by the CSK, and delivered in exchange for
the
Securities of such series then Outstanding.”
1.16. Amendment
of Section 11.04. The second sentence of the first paragraph of Section 11.04
is
hereby amended by replacing the “.” at the end of the sentence with “,” and
adding thereafter “or, if such notice, direction, request or demand is given or
served via facsimile transmission or other electronic means acceptable to the
Trustee to a telephone number or email address designated by
the
Trustee, with confirmation of such transmission via facsimile or other
electronic means.”
1.17. Amendment
of Section 12.02. The second sentence of the fourth paragraph of
Section 12.02 is hereby and restated in its entirety to read as
follows:
“The
Issuer will deliver to the Trustee at least 70 days prior to the date fixed
for
redemption or at least 10 days prior to the first day of any applicable
Redemption Notice Period (unless, in either case, a shorter notice shall be
satisfactory to the Trustee) an Officer’s Certificate stating the aggregate
principal amount of Securities to be redeemed; provided, that with
respect to redemptions of Securities represented by one or more global notes
that are to be redeemed in whole and not in part and for which the related
notice of redemption is being given by the Issuer and not the Trustee, the
Issuer may deliver such Officer’s Certificate contemporaneously with the
delivery of the notice of redemption of such Securities.”
1.18. Amendment
of Section 12.03. The fourth paragraph of Section 12.03 is hereby
amended and restated to read in its entirety as follows:
“Upon
presentation of any Security redeemed in part only, the Issuer shall execute
and
the Trustee shall authenticate and deliver to or on the order of the Holder
thereof, at the expense of the Issuer, a new Security or Securities of such
series, of authorized denominations, in principal amount equal to the unredeemed
portion of the Security so presented; provided, that with respect to any such
new Security or Securities to be issued in NGN form and not physically delivered
to the CSK, the Trustee shall instruct, or shall cause a paying agent to
instruct, the CSK to effectuate such Security or Securities and such Security
or
Securities shall have been effectuated by the CSK.”
ARTICLE
TWO
2.01. Further
Assurances. The Issuer will, upon request by the Trustee,
execute and deliver such further instruments and do such further acts as may
reasonably be necessary or proper to carry out more effectively the purposes
of
this Second Supplemental Senior Indenture.
2.02. Other
Terms of Indenture. Except insofar as herein otherwise expressly
provided, all provisions, terms and conditions of the Indenture are in all
respects ratified and confirmed and shall remain in full force and
effect.
2.03. Terms
Defined. All terms defined elsewhere in the Indenture shall have the
same meanings when used herein.
2.04. Governing
Law. This Second Supplemental Senior Indenture shall be deemed to be
a contract under the laws of the State of New York, and for all purposes shall
be construed in accordance with the laws of such State, except as may otherwise
be required by mandatory provisions of law.
2.05. Counterparts. This
Second Supplemental Senior Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
2.06. Responsibility
of the Trustee. The recitals contained herein shall be taken as the
statements of the Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to
the validity or sufficiency of this Second Supplemental Senior Indenture.
IN
WITNESS
WHEREOF, the parties hereto have caused this Second Supplemental Senior
Indenture to be duly executed by the Issuer and the Trustee under their
respective corporate seals as of the day and year first written
above.
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MORGAN
STANLEY
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By:
/s/ Daniel Park
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Title:
Assistant Treasurer
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[Corporate
Seal]
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Attest:
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By:
/s/ Martin M. Cohen
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Assistant
Secretary
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THE
BANK OF NEW YORK, as Trustee
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By:
/s/ Ignazio Tamburello
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Title:
Assistant Vice President
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[Corporate
Seal]
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Attest:
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By:
/s/ Francine Kincaid
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STATE
OF
NEW
YORK )
)
ss.:
COUNTY
OF
NEW YORK )
On
the 4th day of January, 2008, before me personally came Daniel Park, to me
known, who, being by me duly sworn, did depose and say that he is Assistant
Treasurer, of Morgan Stanley, one of the corporations described in and which
executed the foregoing instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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/s/
Michael M. O'Brien
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Notary
Public
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[Notarial
Seal]
STATE
OF
NEW
YORK )
)
ss.:
COUNTY
OF
NEW YORK )
On
the 4th day of January, 2008, before me personally came Ignazio Tamburello,
to me known, who, being by me duly sworn, did depose and say that he is
Assistant Vice President, of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument
is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
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/s/
Cheryl L. Clarke
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Notary
Public
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[Notarial
Seal]
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