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.
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.
(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 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 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 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
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Susan Krause
Sole Incorporator