CERTIFICATE OF INCORPORATION
OF
MSDW STRUCTURED ASSET CORP.
* * *
1. The name of the corporation is:
MSDW Structured Asset Corp.
2. The address of its registered office in the State of
Delaware is Corporation Trust Center, 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name
of its registered agent at such address is The Corporation
Trust Company.
3. The nature of the business or purpose to be conducted or
promoted by the Corporation is to engage exclusively in the
following activities:
(a) to acquire, own, hold, sell, transfer, pledge or
otherwise dispose of, or to arrange for Trusts (as
defined below) to acquire (1) interests in bonds,
notes, debentures or other debt securities, loans, or
other extensions of credit or evidences of
indebtedness, instruments, contract rights and other
financial assets, created, issued, owing or guaranteed
by any person or persons (whether a government,
sovereign, ruler, commissioner, public body or
authority, whether supreme, municipal, local or
otherwise, or a company, bank, association partnership
or other entity or individual) located anywhere in the
world ("Debt Securities"), (2) any combination of
insurance policies, letters of credit, reserve
accounts and other types of rights or other assets
designed to assure the servicing or timely
distribution of amounts due in respect of the Debt
Securities or other property held by a Trust
(collectively, "Credit Support");
(b) To act as settlor or depositor of trusts (each a
"Trust") formed under a trust agreement, pooling and
servicing agreement or other agreement to issue one or
more series (any of which series may be issued in one
or more classes) of trust units ("Units"), including
without limitation pursuant to one or more Trust
Agreements upon standard terms (the "Standard Terms")
filed with the Securities and Exchange Commission in
connection with registration of the Units under the
Securities Act of 1933 pursuant to a form of base
prospectus (the "Prospectus") and registration
statement ("Registration Statement"), and supplements
and amendments thereto from time to time (such Trust
Agreements, together with the Swap Agreements and
Distribution Agreements as defined in the Standard
Terms, the Prospectus, the Registration Statement and
other agreements and documents contemplated by the
formation of the Trusts and issuance and distribution
of the Units in connection therewith, the "Program
Documents"), which Units shall represent beneficial
interests in the Debt Securities, Credit Support, Swap
Agreements and other Trust Property (as defined in the
Standard Terms);
(c) to register the Units on behalf of each Trust with the
Commission pursuant to the Prospectus and Registration
Statement and to comply with reporting, filing and
other requirements applicable to the Trusts under the
Securities Act and the Securities Exchange Act of
1934, and to participate in the sale and distribution
of the Units through one or more broker-dealers
(including Affiliates of the Corporation) as described
in the Prospectus and Registration Statement
applicable to the Units from time to time and pursuant
to one or more Distribution Agreements as defined in
the Standard Terms;
(d) To hold, pledge, transfer or otherwise deal with (i)
the Units, including Units representing a senior
interest, subordinated interest or residual interest
in one or more of the assets comprising the Trust
Property (as defined in the Standard Terms), (ii) any
Retained Interest (as defined in the Standard Terms)
in the Trust Property and (iii) any option or other
right with respect to the Units or the Trust Property;
(e) to loan or invest or otherwise apply proceeds from
Debt Securities, funds received in respect of the
Units (including Units representing senior interests,
subordinated interests or residual interests),
Retained Interests and any other income;
(f) to borrow money and otherwise incur indebtedness to
facilitate any activity authorized herein and to
pledge or otherwise grant security interests in its
property to secure such borrowing, provided that (i)
recourse with respect to all such indebtedness is
limited to the proceeds of collateral pledged by the
Corporation to secured such indebtedness and (ii) the
terms of such indebtedness prohibit the creditor from
filing or joining in the filing of any complaint or
petition with respect to Corporation and any of the
matters set forth in Paragraph 6;
(g) to issue capital stock as provided for herein; and
(h) to engage in any lawful act or activity to exercise
any powers permitted to corporations organized under
the General Corporation Law of the State of Delaware
that are incidental to and necessary or convenient for
the accomplishment of the foregoing purposes.
4. The total number of shares of common stock which the
corporation shall have authority to issue is One Thousand
(1,000) and the par value of each of such shares is One
($1.00) Dollar, amounting in the aggregate to One Thousand
($1,000) Dollars.
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5. The name and mailing address of the incorporator is:
Susan Krause
Morgan Stanley Dean Witter
1221 Avenue of the Americas - 27th Floor
New York, NY 10020
6. (a) As used in this Certificate of Incorporation, (i) a
"Person" is an individual, partnership, corporation
(including a business trust), joint stock company,
trust, limited liability company, unincorporated
association, joint venture, government (including any
agency or subdivision thereof) or any other entity;
(ii) an "Affiliate" of a Person is a Person that
directly or indirectly through one or more
intermediaries, controls or is controlled by, or is
under common control with, the Person specified; and
(iii) an "Associate," when used to indicate a
relationship with any Person, is (A) a corporation or
organization of which such Person is an officer,
director or partner or is, directly or indirectly, the
beneficial owner of ten percent or more of any class
of equity securities, (B) any trust or other estate in
which such Person serves as trustee or in a similar
capacity, and (C) any relative or spouse of such
Person, or any relative of such spouse, who has the
same home as such Person.
(b) The business and affairs of the Corporation shall be
managed by and under the direction of the Board of
Directors. At any given time, the Corporation will
have at least one member of the Corporation's Board of
Directors (herein referred to as the "Independent
Director") and at least one officer (herein referred
to as the "Independent Officer"), each of whom shall
be an individual who is not (and is not an Associate
of), and for a twelve-month period prior to election
or appointment, as the case may be, has not been a
direct, indirect or beneficial holder of two percent
or more of any class of equity securities, director,
officer or employee of any Affiliate of the
Corporation. The same individual may serve both as an
Independent Director and an Independent Officer.
(c) No Independent Director serving pursuant to the
requirements of this Paragraph 6 shall, with regard to
any matter described in Paragraph 8, owe a fiduciary
duty or other obligation to the stockholders (except
as may specifically be required by the statutory law
of any applicable jurisdiction); instead, such
Independent Director's fiduciary duty and other
obligations with regard to any matter described in
Paragraph 8 shall be owed to the Corporation
including, without limitation, the Corporation's
creditors. Every stockholder of the Corporation shall
be deemed to have consented to the foregoing by virtue
of such stockholder's purchase of shares of capital
stock of the Corporation, and no further act or deed
of any stockholder shall be required to evidence such
consent. In addition, no Independent Director may be
removed unless his or her successor has been duly
elected.
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(d) The Corporation's Board of Directors is authorized to
make, alter or repeal the by-laws of the corporation.
Election of directors need not be by written ballot.
7. A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary
damages for any breach of fiduciary duty as a director,
except for liability (i) for any breach by the director of
his duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware or (iv) for any transaction from
which the director derived an improper personal benefit.
No repeal, modification or amendment of, or adoption of any
provision inconsistent with this Paragraph 7 nor, to the
fullest extent permitted by law, any modification of law
shall adversely affect any right or protection of a
director of the corporation existing at the time of such
repeal, amendment, adoption or modification or affect the
liability of any director of the corporation for any action
taken or any omission that occurred prior to the time of
such repeal, amendment, adoption or modification.
If the General Corporation Law of the State of Delaware
shall be amended after this Certificate of Incorporation is
filed with the Secretary of State of Delaware to authorize
corporate action further eliminating or limiting the
liability of directors, then a director of the corporation,
in addition to the circumstances in which he is not liable
immediately prior to such amendment, shall be free of
liability to the fullest extent permitted by the General
Corporation Law of Delaware, as so amended.
8. The Corporation shall not, without the affirmative vote of
each member of the Corporation's Board of Directors,
including the affirmative vote of the Independent Director:
(a) make an assignment for the benefit of creditors, file
a petition in bankruptcy, petition or apply to any
tribunal for the appointment of a custodian, receiver,
trustee or other similar official for it or for a
substantial part of its property, commence any
proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or
liquidation law or statute or similar law or statute
of any jurisdiction, whether now or hereinafter in
effect, consent or acquiesce in the filing of any such
petition, application, proceeding or appointment of or
taking possession by the custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other
similar official) of the Corporation or any
substantial part of its property, admit its inability
to pay its debts generally as they become due, or
declare or effect a moratorium on its debt or
authorize any of the foregoing to be done or taken on
behalf of the Corporation;
(b) be a party to any merger or consolidation or sell,
transfer, assign, convey or lease any substantial part
of the assets of the Corporation, unless the entity
(if other than
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the Corporation) formed under or surviving the
consolidation or merger or which acquires the
properties or assets of the Corporation is a
corporation organized and existing under the laws of
the United States, any state thereof or the District
of Columbia, expressly assumes the due and punctual
payment of, and all obligations of the Corporation in
connection with, indebtedness of the Corporation
permitted by this Certificate of Incorporation, has a
certificate of incorporation containing provisions
substantially identical to the provisions of Paragraph
3, Paragraph 6, Paragraph 8, Paragraph 9 and Paragraph
10, and, immediately after giving effect to the
proposed merger, consolidation or transfer, no default
or event of default under any obligation of the
Corporation would occur and be continuing; or
(c) dissolve or liquidate, in whole or in part; provided
that if there is not one Independent Director then in
office and acting, a vote upon any matter set forth in
this Paragraph 8 shall not be taken unless and until
one Independent Director shall have been duly elected.
9. Without the affirmative vote of each member of the
Corporation's Board of Directors, including the affirmative
vote of the Independent Director, the Corporation shall not
amend Paragraph 3, Paragraph 6, Paragraph 8, Paragraph 10,
and this Paragraph 9 (together, the "Independent Director
Provisions") of this Certificate of Incorporation or any
By-laws of the Corporation related to the Independent
Director Provisions; provided that if there is not one
Independent Director then in office, no vote upon any
matter set forth in this Paragraph 9 shall be taken unless
and until one Independent Director shall have been duly
elected.
10. The Corporation shall take all reasonable steps to continue
its identity as a separate legal entity and to make it
apparent to third Persons that the Corporation is an entity
with assets and liabilities distinct from those of Morgan
Stanley Dean Witter & Co. and any other Person, and that
the Corporation is not a division of Morgan Stanley Dean
Witter & Co. or any other Person. Without limiting the
generality of the foregoing, the Corporation shall take the
following actions:
(a) The Corporation will compensate each of its employees,
consultants and agents from the Corporation's own
funds for services provided to the Corporation, except
as provided in the Services Agreement between the
Corporation and Morgan Stanley & Co. Incorporated (the
"Services Agreements"). Morgan Stanley Dean Witter and
its subsidiaries and affiliates may act as agent of
the Corporation only through express agencies created
by arms-length agreements and any such agencies will
be conducted only on a fully disclosed basis and for
fair compensation. Accountants and attorneys will be
fairly compensated by the Corporation for their fees
and other charges as agreed to by the Corporation and
such accountants or attorneys (as applicable).
(b) The Corporation shall pay from its own assets all
obligations of any kind incurred
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by the Corporation, recognizing, however, that certain
organizational expenses of the Corporation have been
or shall be paid by Morgan Stanley & Co. Incorporated
in such capacity.
(c) The Corporation shall take all appropriate action
necessary to maintain its existence in good standing
under the laws of the State of Delaware. The
Corporation shall conduct its own business in its own
name and shall observe all customary formalities,
including holding regular meetings of its Board of
Directors and its stockholders and maintenance of
current minute books. Regular meetings of the Board of
Directors shall be held at least annually.
(d) The Corporation will allocate fairly and reasonably
any overhead for shared office space.
(e) The Corporation will maintain financial reports,
corporate records and books of account separate from
those of any other person, and stationery, invoices,
and business forms that are separate and distinct from
those of any other Person.
(f) Any financial statements of any Affiliate of the
Corporation which are consolidated to include the
Corporation will contain detailed notes clearly
stating that (i) all of the Corporation's assets are
owned by the Corporation and (ii) the Corporation is a
separate corporate entity with its own separate
creditors which will be entitled to be satisfied out
of the Corporation's assets prior to any asset of the
Corporation becoming available to the holder of any
stock of the Corporation.
(g) The Corporation shall not commingle its assets with
those of any of its Affiliates. The Corporation's
assets will be separately identified and segregated.
All of the Corporation's assets shall at all times be
held by or on behalf of the Corporation, and, if held
on behalf of the Corporation by another entity, shall
be kept identifiable (in accordance with customary
usages) as assets owned by the Corporation. The
Corporation will strictly observe corporate
formalities in its dealings with each of its
Affiliates. The Corporation shall not maintain joint
bank accounts or other depository accounts to which
any of its Affiliates has independent access.
(h) The Corporation shall not, directly or indirectly, be
named and shall not enter into an agreement to be
named as a direct or contingent beneficiary or loss
payee on any insurance policy covering the property of
any of its Affiliates.
(i) The Corporation will maintain arm's length
relationships with each of its Affiliates. All
business transactions entered into by the Corporation
with any of its Affiliates shall be on terms that are
not more or less favorable to the Corporation than the
terms and conditions that could have been obtained,
under similar circumstances, from unaffiliated
persons. In addition, except for
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transactions under the Services Agreement, purchases
of Debt Securities or Credit Support by the
Corporation for the purposes of the formation of
Trusts and issuance of Units pursuant to the Program
Documents, sales of Units by the Corporation to or
through its broker-dealer Affiliates pursuant to a
Distribution Agreement, and other transactions
contemplated by the Program Documents in the ordinary
course of the Corporation's business, all business
transactions entered into by the Corporation with any
of its Affiliates shall be approved by the unanimous
written consent of the Board of Directors. The
Corporation will pay its own liabilities out of its
own funds. Neither the Corporation nor any of its
Affiliates will guarantee the debts of the other, will
pledge, or grant a security interest in or lien upon,
its assets for the benefit of the other, or will be or
will hold itself out to be responsible for the debts
of the other or the decisions or actions respecting
the daily business and affairs of the other.
(j) The annual financial statements of the Corporation
will disclose, in accordance with generally accepted
accounting principles, any transactions between the
Corporation and any of its Affiliates.
(k) The Corporation will retain as its auditors a
nationally recognized firm of certified public
accountants.
I, THE UNDERSIGNED, being the incorporator hereinbefore
named, for the purpose of forming a corporation pursuant to the
General Corporation Law of Delaware, do make this Certificate,
declaring and certifying that this is my act and deed and the
facts stated herein are true, and accordingly have set my hand
this 21st day of September, 1998.
/s/ Susan Krause
-----------------------
Susan Krause
Sole Incorporator
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