MSDW STRUCTURED ASSET CORP.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
September __, 1998
From time to time, MSDW Structured Asset Corp., a
Delaware corporation (the "Company"), may enter into one or more
underwriting agreements that provide for the sale of designated
securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred
to as this Agreement. Terms defined in the Underwriting Agreement
are used herein as therein defined.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including
a prospectus, relating to the Units and has filed with, or
transmitted for filing to, or shall promptly hereafter file with
or transmit for filing to, the Commission a prospectus supplement
(the "Prospectus Supplement") specifically relating to the Units
pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"). The term "Registration Statement" means
the registration statement, including the exhibits thereto, as
amended to the date of this Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities and the Debt
Warrant Securities, together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus," "Prospectus" and
"preliminary 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").
The term "Contract Securities" means the Offered
Securities to be purchased pursuant to the delayed delivery
contracts substantially in the form of Schedule I hereto, with
such changes therein as the Company may approve (the "Delayed
Delivery Contracts"). The term "Underwriters' Securities" means
the Offered Securities other than Contract Securities.
1. Representations and Warranties. The Company
represents and warrants to and agrees with each of the
Underwriters that:
(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 the representations and
warranties set forth in this paragraph do not apply (A) to
statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein
or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under
the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), of the Trustee.
(c) 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
subsidiaries, taken as a whole.
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(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
subsidiaries, taken as a whole; all of the issued shares of
capital stock of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free
and clear of all liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized,
executed and delivered by the Company.
(f) The Trust Agreement 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, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(g) The Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company and are
valid and binding agreements of the Company, enforceable in
accordance with their respective terms, subject to
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of
equity.
(h) The Offered Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Trust Agreement and
delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, in the case
of the Underwriters' Securities, or by institutional
investors in accordance with the terms of the Delayed
Delivery Contracts in the case of the Contract Securities,
will be entitled to the benefits of the Trust Agreement, as
the case may be, and will be valid and binding obligations
of the Company, in each case enforceable in accordance with
their respective terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights
generally and general principles of equity.
(i) The execution and delivery by the Company of,
and the performance by the Company of its obligations
under, this Agreement and the Trust 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 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 subsidiary, and
no
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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 and the Trust 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 Offered Securities.
(j) 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 (exclusive of any amendments or
supplements thereto subsequent to the date of this
Agreement).
(k) There are no legal or governmental
proceedings pending or threatened to which the Company or
any of its subsidiaries is a party or to which any of the
properties of the Company or any of its 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.
(l) Each preliminary prospectus filed as part of
the registration statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all
material respects with the Securities Act and the
applicable rules and regulations of the Commission
thereunder.
(m) The Company is not and, after giving effect
to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as
amended.
(n) The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the
protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(o) There are no costs or liabilities associated
with Environmental Laws (including, without limitation, any
capital or operating expenditures required for
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clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any
potential liabilities to third parties) which would, singly
or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(p) The Company has complied with all provisions of
Section 517.075, Florida Statutes relating to doing
business with the Government of Cuba or with any person or
affiliate located in Cuba.
2. Delayed Delivery Contracts. If the Prospectus
provides for sales of Offered Securities pursuant to Delayed
Delivery Contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the
Prospectus pursuant to Delayed Delivery Contracts. Delayed
Delivery Contracts may be entered into only with institutional
investors approved by the Company of the types set forth in the
Prospectus. On the Closing Date, the Company will pay to the
Manager as compensation for the accounts of the Underwriters the
commission set forth in the Underwriting Agreement in respect of
the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of
any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the aggregate amount of
Offered Securities to be purchased by the several Underwriters
shall be reduced by the aggregate amount of Contract Securities;
such reduction shall be applied to the commitment of each
Underwriter pro rata in proportion to the amount of Offered
Securities set forth opposite such Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager
determines that such reduction shall be applied in other
proportions and so advises the Company; provided, however, that
the total amount of Offered Securities to be purchased by all
Underwriters shall be the aggregate amount set forth above, less
the aggregate amount of Contract Securities.
3. Terms of Public Offering. The Company is advised by
the Manager that the Underwriters propose to make a public
offering of their respective portions of the Underwriters'
Securities as soon after this Agreement has been entered into as
in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the
Prospectus.
4. Payment and Delivery. Except as otherwise provided
in this Section 4, payment for the Underwriters' Securities shall
be made to the Company in Federal or other funds immediately
available at the time and place set forth in the Underwriting
Agreement, upon delivery to the Manager for the respective
accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as
the Manager shall request in writing not less than two full
business days prior to the date of delivery, with any transfer
taxes payable in connection with the transfer of the
Underwriters' Securities to the Underwriters duly paid.
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Delivery on the Closing Date of any Units that are (i) Units in
bearer form shall be effected by delivery of a single temporary
Global Security (as defined in the Trust Agreement) to a common
depositary for Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System
("Euroclear"), and for Centrale de Livraison de Valeurs
Mobilieres S.A. ("Cedel") for credit to the respective accounts
at Euroclear or Cedel of each Underwriter or to such other
accounts as such Underwriter may direct. Any Global Security
shall be delivered to the Manager not later than the Closing
Date, against payment of funds to the Company in the net amount
due to the Company for such Global Security by the method and in
the form set forth in the Underwriting Agreement. The Company
shall cause definitive Units in bearer form to be prepared and
delivered in exchange for such Global Security in such manner and
at such time as may be provided in or pursuant to the Indenture;
provided, however, that the Global Security shall be exchangeable
for definitive Units in bearer form only on or after the date
specified for such purpose in the Prospectus.
5. Conditions to the Underwriters' Obligations. The
several obligations of the Underwriters are subject to the
following conditions:
(a) Subsequent to the execution and delivery of
the Underwriting Agreement and prior to the Closing Date:
(i) 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 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; and
(ii) 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 (exclusive of any amendments
or supplements thereto subsequent to the date of this
Agreement) that, in the judgment of the Manager, is
material and adverse and that makes it, in the
judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the
Closing Date a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the
effect set forth in Section 5(a)(i) above and to the effect
that the representations and warranties of the Company
contained in this Agreement are true and correct as of the
Closing Date and that the Company has complied with all of
the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before
the Closing Date.
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The officer signing and delivering such certificate may
rely upon the best of his or her knowledge as to proceedings
threatened.
(c) An opinion, dated the Closing Date, addressed
to MSDW Structured Asset Corp. in substantially the form
attached at Exhibit A to this Underwriting Agreement, shall
be received by the Underwriters.
6. Covenants of the Company. In further consideration
of the agreements of the Underwriters herein contained, the
Company covenants with each Underwriter as follows:
(a) To furnish the Manager, without charge, ___
signed copies of the Registration Statement (including
exhibits thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and to furnish the Manager in
New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of
this Agreement and during the period mentioned in Section
6(c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and
amendments thereto or to the Registration Statement as the
Manager may reasonably request.
(b) Before amending or supplementing the
Registration Statement or the Prospectus with respect to
the Offered Securities, to furnish to the Manager a copy of
each such proposed amendment or supplement and not to file
any such proposed amendment or supplement to which the
Manager reasonably objects.
(c) If, during such period after the first date
of the public offering of the Offered Securities as in the
opinion of counsel for the Underwriters the Prospectus is
required by law to be delivered in connection with sales by
an Underwriter or dealer, any event shall occur or
condition exist as a result of which it is necessary to
amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it
is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with
the Commission and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses
the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of
the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that
the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities
for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Manager shall reasonably request.
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(e) During the period beginning on the date of the
Underwriting Agreement and continuing to and including the
Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or
warrants to purchase debt securities of the Company
substantially similar to the Offered Securities (other than
(i) the Offered Securities and (ii) commercial paper issued
in the ordinary course of business), without the prior
written consent of the Manager.
(f) Whether or not the transactions contemplated
in this Agreement are consummated or this Agreement is
terminated, to pay or cause to be paid all expenses
incident to the performance of its obligations under this
Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's
accountants in connection with the registration and
delivery of the Offered Securities under the Securities Act
and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any
preliminary prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering
of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the
Offered Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or legal investment
memorandum in connection with the offer and sale of the
Offered Securities under state law and all expenses in
connection with the qualification of the Offered Securities
for offer and sale under state law as provided in Section
6(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with
the Blue Sky or legal investment memorandum, (iv) the fees
and disbursements of the Company's counsel and accountants
and of the Trustee and its counsel, (v) all filing fees and
the reasonable fees and disbursements of counsel to the
Underwriters incurred in connection with the review and
qualification of the offering of the Offered Securities by
the National Association of Securities Dealers, Inc., (vi)
any fees charged by the rating agencies for the rating of
the Offered Securities, [(vii) all fees and expenses in
connection with the preparation and filing of the
registration statement on Form 8-A relating to the
Securities and all costs and expenses incident to listing
the Offered Securities on [the NYSE/AMEX/the NASDAQ
National Market] [and other national securities exchanges
and foreign stock exchanges]], (viii) the costs and
expenses of the Company relating to investor presentations
on any "road show" undertaken in connection with the
marketing of the offering of the Offered Securities,
including, without limitation, expenses associated with the
production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives
and officers of the Company and any such consultants, and
the cost of any aircraft chartered in connection with the
road show, (ix) all other costs and expenses incident to
the perfor mance of the obligations of the Company
hereunder for which provision is not otherwise made in this
Section [and (x) all document production charges and
expenses of counsel to the Underwriters incurred in
connection with the preparation of the Indenture]. It is
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understood, however, that except as provided in this
Section, Section 8 entitled "Indemnity and Contribution",
and the last paragraph of Section 10 below, the
Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, and any
advertising expenses connected with any offers they may
make].
7. Covenants of the Underwriters.
Each of the several Underwriters represents and
agrees with the Company that:
(i) except to the extent permitted under
U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D) (the "D
Rules"), (A) it has not offered or sold, and during
the restricted period will not offer or sell, Debt
Securities in bearer form (including any Debt Security
in global form that is exchangeable for Debt
Securities in bearer form) to a person who is within
the United States or its possessions or to a United
States person and (B) it has not delivered and will
not deliver within the United States or its
possessions definitive Debt Securities in bearer form
that are sold during the restricted period;
(ii) it has, and throughout the restricted
period will have, in effect procedures reasonably
designed to ensure that its employees or agents who
are directly engaged in selling Debt Securities in
bearer form are aware that such Debt Securities may
not be offered or sold during the restricted period to
a person who is within the United States or its
possessions or to a United States person, except as
permitted by the D Rules;
(iii) if it is a United States person, it is
acquiring the Debt Securities in bearer form for
purposes of resale in connection with their original
issuance and if it retains Debt Securities in bearer form
for its own account, it will only do so in accordance with
the requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)
(i)(D)(6);
(iv) if it transfers to any affiliate Debt
Securities in bearer form for the purpose of offering
or selling such Debt Securities during the restricted
period, it will either (A) obtain from such affiliate
for the benefit of the Company the representations and
agreements contained in Sections 7(a)(i), 7(a)(ii) and
7(a)(iii) or (B) repeat and confirm the
representations and agreements contained in Sections
7(a)(i), 7(a)(ii) and 7(a)(iii) on such affiliate's
behalf and obtain from such affiliate the authority to
so obligate it;
(v) it will obtain for the benefit of the Company
the representations and agreements contained in
Sections 7(a)(i), 7(a)(ii), 7(a)(iii) and 7(a)(iv) from
any person other than its affiliate with whom it enters
into a written contract, as defined in U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D)(4) for the offer or sale
during the restricted period of Debt Securities in
bearer form; and
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(vi) it will comply with or observe any other
restrictions or limitations set forth in the Prospectus on
persons to whom, or the jurisdictions in which, or the manner in
which, the Debt Securities may be offered, sold,
resold or delivered.
All other terms used in the preceding paragraph have the
meaning given to them by the U.S. Internal Revenue Code (the
"Code") and regulations thereunder, including the D Rules.
The restricted period is defined at U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(7).
8. Indemnity and Contribution. (a) The Company agrees
to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission
or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Manager expressly for use
therein.
(b) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from
the Company to such Underwriter, but only with reference to
information relating to such Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for
use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any
governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to
either Section 8(a) or 8(b), such person (the "indemnified
party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such
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proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of
the legal expenses of any indemnified party in connection with
any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by
the Manager, in the case of parties indemnified pursuant to
Section 8(a) above, and by the Company, in the case of parties
indemnified pursuant to Section 8(b) above. The indemnifying
party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) To the extent the indemnification provided
for in Section 8(a) or 8(b) is unavailable to an indemnified
party or insufficient in respect of any losses, claims, damages
or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other hand from the offering
of the Offered Securities or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(d)(i) above but also the
relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other hand in connection
with the offering of the Offered Securities shall be deemed to be
in the same respective proportions as the net proceeds from the
offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate Public Offering Price of the Offered
Securities.
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The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 8 are several
in proportion to the respective principal amounts of Offered
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that
it would not be just or equitable if contribution pursuant to
this Section 8 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of
the equitable considerations referred to in Section 8(d). The
amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in
this Section 8 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions
contained in this Section 8 and the representations, warranties
and other statements of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling
any Underwriter or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and
payment for any of the Offered Securities.
9. Termination. This Agreement shall be subject to
termination by notice given by the Manager to the Company, if (a)
after the execution and delivery of the Underwriting Agreement
and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may
be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State
authorities or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or
any
12
calamity or crisis that, in the judgment of the Manager, is
material and adverse and (b) in the case of any of the events
specified in clauses 9(a)(i) through 9(a)(iv), such event, singly
or together with any other such event, makes it, in the judgment
of the Manager, impracticable to market the Offered Securities on
the terms and in the manner contemplated in the Prospectus.
10. Defaulting Underwriters. If, on the Closing Date,
any one or more of the Underwriters shall fail or refuse to
purchase Underwriters' Securities that it has or they have agreed
to purchase hereunder on such date, and the aggregate amount of
Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate amount of the Underwriters'
Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount
of Underwriters' Securities set forth opposite their respective
names in the Underwriting Agreement bears to the aggregate amount
of Underwriters' Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as
the Manager may specify, to purchase the Underwriters' Securities
which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no
event shall the amount of Underwriters' Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of
one-ninth of such amount of Underwriters' Securities without the
written consent of such Underwriter. If, on the Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase
Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of
Underwriters' Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the
purchase of such Underwriters' Securities are not made within 36
hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the
Company. In any such case either the Manager or the Company shall
have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in
any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal
on the part of the Company to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred
by such Underwriters in connection with this Agreement or the
offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two
or more counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon
the same instrument.
13
12. Applicable Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State
of New York.
13. Headings. The headings of the sections of this
Agreement have been inserted for convenience of reference only
and shall not be deemed a part of this Agreement.
14
UNDERWRITING AGREEMENT
__________, 199_
MSDW Structured Asset Corp.
Delaware
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the
underwriter or underwriters (including ourselves) named below
(such underwriter or underwriters being herein called the
"Underwriters"), and we understand that MSDW Structured Asset
Corp., a Delaware corporation (the "Company"), proposes to sell
[Currency and Principal Amount] aggregate initial offering price
of Structured Asset Trust Unit Repackaging ("SATURNS") Units
Series _____ ("Offered Securities"). The Offered Securities will
be issued pursuant to the provisions of a Trust Agreement between
the Company and Chase Bank of Texas, National Association, as
Trustee (the "Trustee").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to
sell to the several Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Company the
respective principal amounts of Offered Securities set forth
below opposite their names at a purchase price of ____% of the
initial unit principal balance of the Offered Securities, plus
accrued interest, if any, from Date of Offered Securities to the
date of payment and delivery:
15
Name Aggregate initial unit
principal balance of
Offered Securities
Morgan Stanley & Co. Incorporated
Morgan Stanley & Co. International Limited
[Insert syndicate list]
Total
The Underwriters will pay for the Offered Securities
upon delivery thereof at [Specify office for Depositary for
Global Security] at ______ a.m. (New York City time) on
___________, 199_, or at such other time, not later than 5:00
p.m. (New York City time) on __________, 199_, as shall be
designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth
in the Prospectus dated ___________, 199_, and the Prospectus
Supplement dated ____________, 199_, including the following:
16
Terms of Offered Securities
[attach Schedule 1 to Trust Agreement]
All provisions contained in the document entitled MSDW
Structured Asset Corp. Underwriting Agreement Standard Provisions
dated September __, 1998, a copy of which is attached hereto, are
herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein, except that
(i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an
Offered Security shall not be deemed to be a part of this
Agreement, and (iii) all references in such document to a type of
agreement that has not been entered into in connection with the
transactions contemplated hereby shall not be deemed to be a part
of this Agreement.
17
[SIGNATURE PAGE WHERE
MORGAN STANLEY & CO. INCORPORATED
OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED
IS A CO-LEAD MANAGER]
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth
below.
Very truly yours,
[MORGAN STANLEY & CO.
INCORPORATED]
[MORGAN STANLEY & CO.
INTERNATIONAL LIMITED]
[Name of Other Lead Managers]
Acting severally on behalf of themselves and the
several Underwriters named herein
By: [MORGAN STANLEY & CO.
INCORPORATED]
[MORGAN STANLEY & CO.
INTERNATIONAL LIMITED]
By:
Name:
Title:
Accepted:
MSDW STRUCTURED ASSET CORP.
By:
Name:
Title:
18
[SIGNATURE PAGE WHERE
MORGAN STANLEY & CO. INCORPORATED
OR MORGAN STANLEY & CO. INTERNATIONAL LIMITED
IS SOLE MANAGER]
Please confirm your agreement by having an authorized
officer sign a copy of this Agreement in the space set forth
below.
Very truly yours,
[MORGAN STANLEY & CO.
INCORPORATED]
[MORGAN STANLEY & CO.
INTERNATIONAL LIMITED]
[Name of Other Lead Managers]
Acting severally on behalf of themselves and the
several Underwriters named herein
By:
Name:
Title:
Accepted:
MSDW STRUCTURED ASSET CORP.
By:
Name:
Title:
19
SCHEDULE I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Ladies and Gentlemen:
The undersigned hereby agrees to purchase from MSDW
Structured Asset Corp., a Delaware corporation (the "Company"),
and the Company agrees to sell to the undersigned the Company's
securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated
__________________, 19__ and Prospectus Supplement dated
________________, 19__, receipt of copies of which are hereby
acknowledged, at a purchase price stated in Schedule A and on the
further terms and conditions set forth in this Agreement. The
undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company
Securities in the principal amount and numbers on the delivery
dates set forth in Schedule A. Each such date on which Securities
are to be purchased hereunder is hereinafter referred to as a
"Delivery Date."
Payment for the Securities which the undersigned has
agreed to purchase on each Delivery Date shall be made to the
Company or its order by certified or official bank check in New
York Clearing House funds at the office of______________________,
New York, N.Y., at 10:00 a.m. (New York City time) on the
Delivery Date, upon delivery to the undersigned of the Securities
to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of
and make payment for the Securities on the Delivery Date shall be
subject to the conditions that (1) the purchase of Securities to
be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and
delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to
above of, such part of the Securities as is to be sold to them.
Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned
as its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to
the Underwriters in connection therewith.
20
Failure to take delivery of and make payment for
Securities by any purchaser under any other Delayed Delivery
Contract shall not relieve the undersigned of its obligations
under this agreement.
This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors,
but will not be assignable by either party hereto without the
written consent of the other.
If this Agreement is acceptable to the Company, it is
requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned
at its address set forth below. This will become a binding
agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or
delivered.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
Very truly yours,
(Purchaser)
By:
(Title)
(Address)
Accepted:
MSDW STRUCTURED ASSET CORP.
By:
Name:
Title:
21
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative
of the Purchaser with whom details of delivery on the Delivery
Date may be discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code)Department
22
SCHEDULE A
Securities:
Aggregate Initial Unit Principal Balance:
Purchase Price:
Delivery:
Exhibit A
OPINION OF COUNSEL FOR ISSUER
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
MSDW Structured Asset Corp.
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
We have acted as special counsel to MSDW Structured
Asset Corp., a Delaware corporation (the "Company"), in
connection with the Company's offering pursuant to a registration
statement on Form S-3 (No. 33-_____) of the Structured Assets
Trust Unit Repackaging Units (the "Securities") to be issued
under a Trust Agreement dated as of September __, 1998 (the
"Trust Agreement") between the Company and Chase Bank of Texas,
National Association, as trustee. Such registration statement, as
amended when it became effective, but excluding the documents
incorporated by reference therein, is herein called the
"Registration Statement," and the related prospectus, as
supplemented by the prospectus supplement dated ____________, and
as first filed with the Securities and Exchange Commission
pursuant to Rule 424(b)(2) under the Securities Act, but
excluding the documents incorporated by reference therein, is
herein called the "Prospectus." This opinion letter is furnished
pursuant to Section 5(c) of the Underwriting Agreement dated
September __, 1998
(the "Underwriting Agreement") between the Company and the
underwriter named in the Agreement (the "Underwriter").
In arriving at the opinions expressed below, we have
reviewed the following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents
incorporated by reference therein;
(c) the Prospectus and the documents incorporated by
reference therein;
(d) a form of the Securities;
(e) an executed copy of the Trust Agreement; and
(f) the documents delivered to you by the Company at
the closing pursuant to the Underwriting
Agreement, including copies of the Company's
Certificate of Incorporation and By-Laws
certified by the Secretary of State of the State
of Delaware and the corporate secretary of the
Company, respectively.
In addition, we have reviewed the originals or copies certified
or otherwise identified to our satisfaction of all such corporate
records of the Company and such other instruments and other
certificates of public officials, officers and representatives of
the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis
for the opinions expressed below.
In rendering the opinions expressed below, we have
assumed the authenticity of all documents submitted to us as
originals and the conformity to the originals of all documents
submitted to us as copies. In addition, we have assumed and have
not verified the accuracy as to factual matters of each document
we have reviewed (including, without limitation, the accuracy of
the representations and warranties of the Company in the
Underwriting Agreement).
2
Based on the foregoing, and subject to the further
assumptions and qualifications set forth below, it is our opinion
that:
[1. The Company is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation.]
[2. The Company has corporate power to own its
properties and conduct its business as described in the
Prospectus, and the Company has corporate power to issue the
Securities, to enter into the Underwriting Agreement and the
Trust Agreement and to perform its obligations thereunder.]
3. The statements set forth under the headings
"Description of Trust Agreements" and "Description of Units" in
the Prospectus, insofar as such statements purport to summarize
certain provisions of the Securities, and Trust Agreement and the
Certificate of Incorporation of the Company, provide a fair
summary of such provisions.
4. The execution and delivery of the Underwriting
Agreement have been duly authorized by all necessary corporate
action of the Company, and the Underwriting Agreement has been
duly executed and delivered by the Company.
5. The sale of the Securities to the Underwriter
pursuant to the Underwriting Agreement, and the performance by
the Company of its obligations in the Underwriting Agreement and
the Trust Agreement (a) do not require any consent, approval,
authorization, registration or qualification of or with any
governmental authority of the United States or the State of New
York, except such as have been obtained or effected under the
Securities Act (but we express no opinion as to any consent,
approval, authorization, registration or qualification that may
be required under state securities or Blue Sky laws), and (b) do
not result in a breach
3
or violation of any of the terms and provisions of, or constitute
a default under the Certificate of Incorporation or By-Laws of
the Company.
[Insofar as the foregoing opinions relate to the valid
existence and good standing of the Company, they are based solely
on a certificate of good standing received from the Secretary of
State of the State of Delaware and on a telephonic confirmation
from such Secretary of State.] Insofar as the foregoing opinions
relate to the validity, binding effect or enforceability of any
agreement or obligation of the Company, (a) we have assumed that
each other party to such agreement or obligation has satisfied
those legal requirements that are applicable to it to the extent
necessary to make such agreement or obligation enforceable
against it, and (b) such opinions are subject to applicable
bankruptcy, insolvency and similar laws affecting creditors'
rights generally and to general principles of equity.
The foregoing opinions are limited to the federal law
of the United States of America, and the law of the State of New
York and the General Corporation Law of the State of Delaware.
4
We are furnishing this opinion letter to you, the
Underwriter, solely for your benefit in connection with the
offering of the Securities. This opinion letter is not to be
used, circulated, quoted or otherwise referred to for any other
purpose, except that this opinion letter may be relied upon by
(i) the Trustee in its capacity as such and (ii) _______ in
connection with their rating of the Securities.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By Mitchell S. Dupler, a Partner
--------------------------------
5