Exhibit 4-k
TRUST AGREEMENT
OF
MSDW CAPITAL TRUST V
THIS TRUST AGREEMENT is made as of February 12, 1998 (this "Trust
Agreement"), among Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation, as depositor (the "Depositor"), The Bank of New York (Delaware),
a Delaware banking corporation, as Delaware trustee (the "Delaware Trustee"),
The Bank of New York, a New York banking corporation, as property trustee
(the "Property Trustee", and together with the Delaware Trustee, the "Issuer
Trustees") and Alexander C. Frank and Debra M. Aaron, individuals, as
administrators (the "Administrators"). The Depositor and the Issuer Trustees
hereby agree as follows:
1. The trust created hereby shall be known as MSDW Capital Trust V
(the "Issuer Trust"), in which name the Issuer Trustees or the Depositor, to
the extent provided herein, may conduct the business of the Issuer Trust,
make and execute contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Issuer Trust the sum of $10. It is the intention of the parties hereto
that the Issuer Trust created hereby constitute a business trust under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq.
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(the "Business Trust Act"), and that this document constitute the governing
instrument of the Issuer Trust. The Issuer Trustees are hereby authorized
and directed to execute and file a certificate of trust with the Delaware
Secretary of State in accordance with the provisions of the Business Trust
Act.
3. An amended and restated Trust Agreement satisfactory to each party
to it and substantially in the form to be included as an exhibit to the 1933
Act Registration Statement (as herein defined), or in such other form as the
parties thereto may approve, will be entered into to provide for the
contemplated operation of the Issuer Trust created hereby and the issuance of
the Capital Securities and Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Trust Agreement, the
Issuer Trustees shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law
or as may be necessary to obtain prior to such execution and delivery any
licenses, consents or approvals required by applicable law or otherwise.
Notwithstanding the foregoing, the Issuer Trustees may take all actions
deemed proper as are necessary to effect the transactions contemplated
herein. It is the intent of the parties hereto that the Administrators shall
not be trustees with respect to the Issuer Trust and this Trust Agreement
shall be construed in a manner consistent with such intent.
4. The Depositor, as the depositor of the Issuer Trust, is hereby
authorized (i) to file with the Securities and Exchange Commission (the
"Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf
of the Issuer Trust, (a) a Registration Statement (the "1933 Act Registration
Statement"), including pre-effective or post-effective amendments thereto,
relating to the registration under the Securities Act of 1933, as amended
(the "1933 Act"), of the Capital Securities of the Issuer Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Capital Securities required to be filed pursuant to the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement"), including all pre-effective and post-effective
amendments thereto, relating to the registration of the Capital Securities of
the Issuer Trust under the Securities Exchange Act of 1934, as amended; (ii)
to file with the New York Stock Exchange, the American Stock Exchange, The
London Stock Exchange Ltd, The Luxembourg Stock Exchange, The Paris Bourse or
other stock exchange or securities market, or the National Association of
Securities Dealers ("NASD"), and execute on behalf of the Issuer Trust a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause
the Capital Securities to be listed on the New York Stock Exchange, the
American Stock Exchange, The London Stock Exchange Ltd, The Luxembourg Stock
Exchange, The Paris Bourse or such other stock exchange or securities market,
or the NASD's Nasdaq National Market; (iii) to file and execute on behalf of
the Issuer Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers
and documents as shall be necessary or desirable to register the Capital
Securities under the securities or "Blue Sky" laws of such jurisdictions as
the Depositor, on behalf of the Issuer Trust, may deem necessary or
desirable; and (iv) to execute, deliver and perform on behalf of the Issuer
Trust an underwriting agreement with one or more underwriters relating to the
offering of the Capital Securities of the Issuer Trust. In the event that
any filing referred to in clauses (i), (ii) or (iii) above is required by the
rules and regulations of the Commission, the New York Stock Exchange or such
other exchanges or securities markets, NASD, or securities or "Blue Sky" laws
to be executed on behalf of the Issuer Trust by the Administrators, the
Administrators, in their capacity as administrators of the Issuer Trust, are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Issuer Trust any and all of the foregoing, it being understood
that the Administrators, in their capacity as administrators of the Issuer
Trust, shall not be required to join in any such filing or execute on behalf
of the Issuer Trust any such document unless required by the rules
and regulations of the Commission, the New York Stock Exchange or such
other exchanges or securities markets, NASD, or securities or "Blue Sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees and administrators of the Issuer Trust
initially shall be two and thereafter the number of trustees of the Issuer
Trust shall be such number as shall be fixed from time to time by a written
instrument signed by the Depositor which may increase or decrease the number
of trustees and administrators of the Issuer Trust; provided, however, that
to the extent required by the Business Trust Act, one trustee of the Issuer
Trust shall either be a natural person who is a resident of the State of
Delaware or, if not a natural person, an entity which has its principal place
of business in the State of Delaware. Subject to the foregoing, the
Depositor is entitled to appoint or remove without cause any trustee or
administrator of the Issuer Trust at any time. Any trustee or administrator
of the Issuer Trust may resign upon thirty days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to
conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.,
as Depositor
By: /s/ Alexander C. Frank
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Name: Alexander C. Frank
Title: Assistant Treasurer
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity
but solely as Delaware Trustee
By: /s/ Walter N. Gitlin
------------------------
Name: Walter N. Gitlin
Title: Authorized Signatory
THE BANK OF NEW YORK,
not in its individual capacity
but solely as Property Trustee
By: /s/ Michael Culhane
------------------------
Name: Michael Culhane
Title: Vice President
By: /s/ Alexander C. Frank
--------------------------
Name: Alexander C. Frank
Title: Administrator
By: /s/ Debra Aaron
------------------------
Name: Debra Aaron
Title: Administrator