SCHEDULE
TO THE
MASTER AGREEMENT
dated as of ________, ____
between
[MORGAN STANLEY CAPITAL SERVICES INC.]
("Party A")
and
SATURNS TRUST NO. _____
("Party B" or the "Trust")
Part 1. Termination Provisions.
(a) "Specified Entity" means in relation to Party A for the
purpose of:-
Section 5(a)(v), None Specified
Section 5(a)(vi), None Specified
Section 5(a)(vii), None Specified
Section 5(b)(iv), None specified
and in relation to Party B for the purpose of:-
Section 5(a)(v), None Specified
Section 5(a)(vi), None Specified
Section 5(a)(vii), None Specified
Section 5(b)(iv), None Specified
(b) "Specified Transaction" means, in lieu of the meaning
specified in Section 14, any contract or transaction
(whether or not documented under or effected pursuant to a
master agreement) now existing or hereafter entered into
between Party A, any Credit Support Provider of Party A or
any Affiliate of Party A, and Party B, any Credit Support
Provider of Party B or any Affiliate of Party B, provided
however, that (i) Specified Transaction shall exclude any
contract or transaction for Specified Indebtedness and any
securities repurchase or reverse repurchase agreement or
similar transaction, and (ii) for the purposes of Section
5(a)(v), Specified Transaction shall also exclude any
contract or transaction not documented under or effected
pursuant to a master agreement.
(c) "Failure to Pay or Deliver", "Breach of Agreement", "Credit
Support Default" "Misrepresentation", "Default Under
Specified Transaction" and "Cross- Default": Section
5(a)(i) is amended by deleting the words "if such failure
is not remedied on or before the third Local Business Day
after notice of such failure is given to the party."
Sections 5(a)(ii), 5(a)(iv), 5(a)(v) and 5(a)(vi) will not
apply to Party A or Party B (provided that a default by
Party B under a Specified Transaction may independently
give rise to a Trust Wind Up Event under the terms of the
Trust Agreement dated ______, _____ between MSDW Structured
Asset Corp. as Depositor
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and Chase Bank of Texas, National Association, as Trustee
(the "Trust Agreement")). Section 5(a)(iii) will not apply
to Party B.
(d) "Specified Indebtedness" has the meaning specified in
Section 14.
(e) "Threshold Amount" means, with respect to a party, U.S.
$10,000,000 (or the equivalent in another currency,
currency unit or combination thereof).
(f) "Credit Event Upon Merger"; "Tax Event Upon Merger":
Sections 5(b)(iii) and 5(b)(iv) shall not apply.
(g) The "Automatic Early Termination" provisions of Section
6(a) will not apply to Party A and will not apply to Party
B; provided, however, where the Event of Default is
specified in Sections 5(a)(vii)(1),(3),(4),(5),(6) or to
the extent analogous thereto, (8) is governed by a system
of laws which does not permit termination to take place
upon or after the occurrence of the relevant Event of
Default in accordance with the terms of this Agreement,
then the Automatic Early Termination provision of Section
6(a) will apply to Party A and Party B.
(h) Payments on Early Termination. "Market Quotation" and
"Second Method" will apply for purposes of Section 6(e) of
this Agreement; provided, however, that notwithstanding any
other provision of this Agreement, the claim of Party A for
any Settlement Amount arising other than as a result of a
Debt Security Default as defined in the Trust Agreement
shall be limited in accordance with the provisions of the
Trust Agreement to a claim pro rata with that of the
Unitholders under the Trust Agreement for their Unit
Principal Balance plus accrued interest (but this proviso
shall not apply if the Trust Agreement does not provide for
such limitation).
(i) "Termination Currency" means United States Dollars.
(j) Additional Termination Event will apply. Each of the
following shall constitute an Additional Termination Event,
with Party B as the Affected Party:
(i) Trust Wind-Up Event. Any "Trust Wind-Up Event" shall
occur in respect of Party B in accordance with Section 9.01
of the Trust Agreement:
(ii) Debt Security Default. A "Debt Security Default" shall
occur as defined in the Trust Agreement.
In the case of a Trust Wind-Up Event, all Transactions
shall be Affected Transactions. In the case of a Debt
Security Default, unless otherwise provided in the related
Confirmation, only the specific Transaction related to such
Debt Security shall be an Affected Transaction.
(k) Events of Default with respect to Party B. With respect to
Party B only, Section 5(a)(vii) shall apply with the
following amendments:
(i) Section 5(a)(vii)(2) shall not apply;
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(ii) Section 5(a)(vii)(3) shall take effect with the
words "the Unitholders" substituted for "its
creditors"; and
(iii) Sections 5(a)(vii)(6) and (7) shall take effect with
the words "assets comprising the property of the
Trust, otherwise than in accordance with the Trust
Agreement" substituted for "all or substantially all
its assets".
Part 2. Tax Representations.
(a) Payer Tax Representations. For the purpose of Section 3(e),
Party A and Party B each makes the following
representation:-
It is not required by any applicable law, as modified by
the practice of any relevant governmental revenue
authority, of any Relevant Jurisdiction to make any
deduction or withholding for or on account of any Tax from
any payment (other than interest under Section 2(a)(iii),
2(e), 6(d)(ii) or 6(e)) to be made by it to the other party
under this Agreement. In making this representation, it may
rely on:-
(i) the accuracy of any representation made by the other
party pursuant to Section 3(f);
(ii) the satisfaction of the agreement of the other party
contained in Section 4(a)(i) or 4(a)(iii) and the
accuracy and effectiveness of any document provided
by the other party pursuant to Section 4(a)(i) or
4(a)(iii); and
(iii) the satisfaction of the agreement of the other party
contained in Section 4(d);
provided that it shall not be a breach of this
representation where reliance is placed on clause (ii), and
the other party does not deliver a form or document under
Section 4(a)(iii) by reason of material prejudice to its
legal or commercial position.
(b) Payee Tax Representations. There are no payee
representations.
Part 3. Agreement to Deliver Documents.
P
Party required
to deliver Form/Document/ Date by which Covered by Section
document Certificate to be delivered 3(d) Representation
- -------------- -------------- --------------- -------------------
Party A and Party B Either (1) a signature The earlier of the fifth Yes
booklet containing Business Day after the
secretary's certificate Trade Date of the first
and resolutions Transaction or upon
("authorizing execution of this
resolutions") authorizing Agreement and as deemed
the party to enter into necessary for any further
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derivatives transactions documentation.
of the type contemplated
by the parties or (2) a
secretary's certificate,
authorizing resolutions
and incumbency
certificate for such
party and any Credit
Support Provider of such
party reasonably
satisfactory in form and
substance to the other
party.
Party B Certified copies As soon as practicable Yes
of documents evidencing after the execution of
Party B's capacity to this Agreement.
execute this Agreement,
each Confirmation and any
Credit Support Document
(if applicable) and to
perform its obligations
hereunder and thereunder.
Party B A written opinion of Upon execution of this No
legal counsel to Party B, Agreement and as deemed
reasonably satisfactory necessary for any further
in form and substance to documentation.
Party A.
Party A and Party B Such other documents as Upon request. No
the other party may
reasonably request
Part 4. Miscellaneous.
(a) Addresses for Notices. For the purpose of Section 12(a):-
(i) Address for notice or communications to Party A:-
[Morgan Stanley Capital Services Inc.
1585 Broadway
New York, New York 10036
Attention: Derivative Products Group - 3rd floor - Swaps
Facsimile No.: 212-761-0580 Telephone No.: 212-761-2566]
(ii) Address for notice or communications to Party B:-
SATURNS Trust No. ______
c/o Chase Bank of Texas, National Association, as Trustee
55 Water Street, North Building Room 234, Windows 20 and 21
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New York, New York 10041
Attn: Global Trust Services -- SATURNS Trust No. ______
Facsimile No.: (713) 216-2101 Telephone No.: (713) 216-4181
(b) Notices. Section 12(a) is amended by adding in the third
line thereof after the phrase "messaging system" and before
the ")" the words, "; provided, however, any such notice or
other communication may be given by facsimile transmission
if telex is unavailable, no telex number is supplied to the
party providing notice, or if answer back confirmation is
not received from the party to whom the telex is sent."
(c) Process Agent. For the purpose of Section 13(c) of this
Agreement, Party B irrevocably appoints as its Process
Agent:
Same as above address for notices
(d) Offices. The provisions of Section 10(a) will apply to
Party A and to Party B.
(e) Multibranch Party. For the purpose of Section 10(c):- Party
A is not a Multibranch Party.
Party B is not a Multibranch Party.
(f) "Calculation Agent" means Party A.
(g) "Credit Support Document" means any credit support annex,
any Confirmation and any other document any of which by its
terms secures, guarantees or otherwise supports either or
both parties' obligations under this Agreement[, including,
but not limited to, the guarantee of Morgan Stanley Dean
Witter & Co. set forth in a letter to the Trust.]
(h) Credit Support Provider means in relation to Party A:
[Morgan Stanley Dean Witter & Co.]
(i) Governing Law; Jurisdiction. This Agreement, any Credit
Support Document and each Confirmation will be governed by
and constructed in accordance with the laws of the State of
New York, without reference to its choice of law doctrine.
Section 13(b) is amended by: (1) deleting "non-" from the
second line of clause (i); and (2) deleting the final
paragraph.
(j) Waiver of Jury Trial. Each party waives, to the fullest
extent permitted by applicable law, any right it may have
to a trial by jury in respect of any Proceedings relating
to this Agreement or any Credit Support Document.
(k) Netting of Payment. Clause (ii) of Section 2(c) will not
apply to any amounts payable with respect to Transactions
from the date of this Agreement.
(l) "Affiliate" has the meaning specified in Section 14, but
excludes Morgan Stanley Derivative Products Inc.
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Part 5. Other Provisions.
(a) Trustee Capacity. It is expressly understood and agreed by
the parties hereto that insofar as this Agreement is
executed on behalf of the Trust (i) this Agreement is
executed and delivered by Chase Bank of Texas, National
Association, not in its individual capacity but solely as
Trustee under the Trust Agreement in the exercise of the
powers and authority conferred and vested in it, (ii) each
of the representations, undertakings and agreements herein
made on the part of the Trust is made and intended not as
representations, warranties, covenants, undertakings and
agreements by Chase Bank of Texas, National Association in
its individual capacity but is made and intended for the
purpose of binding only the Trust and (iii) under no
circumstances shall Chase Bank of Texas, National
Association in its individual capacity be personally liable
for the payment of any indebtedness or expenses of the
Trust or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement.
(b) Additional Representations. Section 3 is hereby amended by
adding at the end thereof the following Subparagraphs:
"(g) It is an "eligible swap participant" under, and as
defined in, 17 C.F.R. ss.35.1 and was not formed solely for
the purposes of constituting an "eligible swap
participant."
(h) It has entered into this Agreement (including each
Transaction evidenced hereby) in conjunction with its line
of business (including financial intermediation services)
or the financing of its business.
(i) Non-Reliance. It is acting for its own account, and it
has made its own independent decisions to enter into that
Transaction and as to whether that Transaction is
appropriate or proper for it based upon its own judgment
and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written
or oral) of the other party as investment advice or as a
recommendation to enter into that Transaction; it being
understood that information and explanations related to the
terms and conditions of a Transaction shall not be
considered investment advice or a recommendation to enter
into that Transaction. No communication (written or oral)
received from the other party shall be deemed to be an
assurance or guarantee as to the expected results of that
Transaction.
(j) Assessment and Understanding. It is capable of
assessing the merits of and understanding (on its own
behalf or through independent professional advice), and
understands and accepts, the terms, conditions and risks of
that Transaction. It is also capable of assuming, and
assumes, the risks of that Transaction.
(k) Status of Parties. The other party is not acting as a
fiduciary for or adviser to it in respect of that
Transaction. It is entering into this Agreement, any Credit
Support
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Document to which it is a party, each Transaction and any
other documentation relating to this Agreement or any
Transaction as principal (and not as agent or in any other
capacity, fiduciary or otherwise)."
(c) Setoff and Related Matters.
(i) The occurrence or designation of an Early Termination
Date on account of an Event of Default with respect to a
party hereto ("Y") shall constitute a material breach and
event of default (howsoever described) under all Specified
Transactions to which Y is a party, whereupon the
Nondefaulting Party ("X") or any Affiliate X shall have the
right to terminate, liquidate and otherwise close out any
such Specified Transactions
(and Y shall be liable for any damages suffered by X and
any Affiliate of X as a result thereof). For purposes of
Section 6(a) of this Agreement, each Transaction will be
deemed to be outstanding until all obligations (including
payment, delivery and exchange obligations) in respect of
such Transaction have been fully discharged and satisfied.
(ii) Upon such occurrence, or designation of any Early
Termination Date on account on an Event of Default, any
amount payable by X or any Affiliate of X under this
Agreement, any Specified Transaction with Y, or in respect
of any other matured, liquidated or terminated obligation
to Y will, at the option of X or any Affiliate of X (and
without prior notice to Y), be reduced by its setoff and
recoupment against any amount(s) payable by Y to X or any
Affiliate of X under this Agreement, any Specified
Transaction with Y or in respect of any other matured,
liquidated or terminated obligation of Y (and any such
amount(s) payable by Y will be discharged promptly and in
all respects to the extent it is so setoff). X or an
Affiliate of X, as appropriate, will give notice to Y after
any setoff and recoupment is effected under this paragraph.
For purposes of the foregoing, X and any Affiliate of X
shall be entitled to convert any obligations denominated in
one currency into another at such rates of exchange as it
deems appropriate in good faith and in a commercially
reasonable manner, and amounts may be set off and recouped
irrespective of the currency, place of payment or booking
office of any obligation to or from Y. If an obligation is
unascertained, X or any Affiliate of X, as appropriate, may
in good faith estimate that obligation and setoff and
recoup in respect of that estimate, subject to the relevant
party's accounting to the other(s) when the obligation is
ascertained. All obligations of X and any Affiliate of X
under this Agreement, any Specified Transaction with Y or
in respect of any other matured, liquidated or terminated
obligation to Y are subject to the condition precedent that
Y shall have performed all of its obligations to X and any
Affiliate of X under this Agreement, any Specified
Transaction with X and in respect of any other matured,
liquidated or terminated obligation of Y. Party A and Party
B and their Affiliates intend that all Transactions and
Specified Transactions be treated as mutual and part of a
single, indivisible contractual and business relationship.
(iii) If either party ("C"), its Credit Support Provider or
any Affiliate of C has reasonable grounds for insecurity
regarding a potential default under this Agreement or any
Specified Transaction by the other party ("D"), any Credit
Support Provider or
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any Affiliate of D, then C or any Affiliate of C may
transfer its rights and obligations under this Agreement or
any agreement for a Specified Transaction to any Affiliate
of C or to C, and each of the parties hereto agrees to such
transfer and to use its best efforts to obtain any required
consents from its relevant Affiliate to any such transfer.
(iv) Nothing in this Part 5(c) shall be effective to create
a charge or other security interest. This Part 5(c) shall
be without prejudice and in addition to any right of
setoff, recoupment, combination of accounts, lien or other
right to which any party or any of its Affiliates is at any
time otherwise entitled (whether by operation of law,
contract or otherwise).
(d) Confirmations. Party A will deliver to Party B a
Confirmation relating to each Transaction.
(e) Security. As collateral security for the prompt and
complete payment and performance when due of the
obligations of Party B hereunder, Party B hereby grants to
Party A a continuing security interest in all of Party B's
right, title and interest in the Trust Property as such
term is defined in the Trust Agreement pursuant to which
Party B was formed. Such security interest shall remain in
full force and effect until Party A has received amounts
due to it hereunder.
(f) Further Acknowledgments. Each party agrees and
acknowledges that:
(i) Each transfer of funds, securities or other property
under this Agreement or any Transaction hereunder
constitutes a transfer that may not be avoided under
Sections 544, 545, 547, 548(a)(2) or 548(b) of Title
11 of the United States Code (the "Bankruptcy Code").
(ii) The rights given to each party hereunder upon an
Event of Default by the other to cause the
liquidation and termination of this Agreement and
each Transaction hereunder, and to set off mutual
debts and claims in connection therewith, may not be
stayed, limited or avoided under the Bankruptcy Code,
including, without limitation, Section 362, 365(c) or
105(a) thereof.
(g) Non-Petition. Prior to the date that is one year and one
day after all distributions in respect of the Units issued
by the Trust have been made, Party A shall not take any
action or institute any proceeding against the Trust under
the United States Bankruptcy Code or any other liquidation,
insolvency, bankruptcy, moratorium, reorganization or
similar law ("Insolvency Law") applicable to the Trust, now
or hereafter in effect, or which would be reasonably likely
to cause the Trust to be subject to, or seek the protection
of, any such Insolvency Law.
(h) Rating Agency Confirmation. No amendment to this Agreement
shall take effect unless and until the Rating Agencies
Condition specified in the Trust Agreement shall be
satisfied with respect to such amendment.
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IN WITNESS WHEREOF, the parties have executed this Schedule
by their duly authorized officers as of the date hereof.
[MORGAN STANLEY CAPITAL SERVICES INC.]
By: ______________________________
Name:
Title:
Date:
SATURNS TRUST NO. ______
By: Chase Bank of Texas, National
Association, as Trustee
By: ____________________________
Name:
Title:
Date:
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