EXHIBIT 4-ss
AMENDMENT NO. 1
TO THE
TRUST AGREEMENT
OF
MSDW CAPITAL TRUST III
This Amendment No. 1 to the Trust Agreement of MSDW Capital Trust III
(the "Trust"), dated as of September 24, 2001 (this "Amendment"), is made and
entered into among Morgan Stanley Dean Witter & 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 "Trustees"), and
Alexander C. Frank and Debra M. Aaron, individuals, as administrators
(together, the "Administrators").
W I T N E S S E T H
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WHEREAS, the Trust is a Delaware business trust that was created under
Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the
"Act") pursuant to (i) the Trust Agreement of the Trust, dated as of February
12, 1998 (the "Trust Agreement"), and (ii) the Certificate of Trust of the
Trust, dated February 12, 1998, as filed with the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on February 12, 1998;
and
WHEREAS, the Delaware Trustee will file the Certificate of Amendment
of Certificate of Trust of the Trust, dated as of September 24, 2001 (the
"Certificate of Amendment"), with the Secretary of State on September 24, 2001;
and
WHEREAS, the Depositor, the Trustees and the Administrators desire to
amend the Trust Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
obligations contained herein, the parties hereto, intending to be legally
bound, hereby agree as follows:
I. AMENDMENTS.
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A. The Trust Agreement is hereby amended to reflect that the name of
the Trust has been changed to "Morgan Stanley Capital Trust III" pursuant to
the Certificate of Amendment.
B. Section 4 of the Trust Agreement is hereby deleted in its
entirety and it shall be replaced with the following:
"4. The Depositor, as the depositor of the Issuer Trust, is hereby
authorized and appointed as the Issuer Trust's and the Issuer
Trustees' true and lawful attorney-in-fact and agent (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 (each as herein defined) and any and all
amendments thereto, including pre-effective and post-effective
amendments, on
behalf of the Issuer Trust, (a) a Registration Statement (the "1933
Act Registration Statement"), including pre-effective or
post-effective amendments thereto, with all exhibits thereto, and any
other documents that may be required in connection therewith, relating
to the registration under the Securities Act of 1933, as amended (the
"1933 Act"), of the Capital or Preferred Securities of the Issuer
Trust, (b) any preliminary prospectus or prospectus or supplement
thereto relating to the Capital or Preferred 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, with all exhibits thereto, and any other documents that may
be required in connection therewith, relating to the registration of
the Capital or Preferred Securities of the Issuer Trust under the
Securities Exchange Act of 1934, as amended; (ii) to file with the New
York Stock Exchange, Inc., the American Stock Exchange LLC, The London
Stock Exchange plc, The Luxembourg Stock Exchange, The Paris Bourse or
other stock exchange or securities market, or the National Association
of Securities Dealers (the "NASD"), and execute and verify on behalf
of the Issuer Trust a listing application and all other applications,
statements, certificates, agreements and other instruments, under seal
or otherwise, as shall be necessary or desirable, and do or cause to
be done all such acts and things in the name of and on behalf of the
Issuer Trust to meet the requirements of any such stock exchange,
securities market or the NASD's Nasdaq National Market, or to appear
before the appropriate representatives of committees of any such stock
exchange or securities market, in order to cause the Capital or
Preferred Securities to be listed on any such stock exchange or
securities market; (iii) to file, execute and verify 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 or
qualify the Capital or Preferred Securities for offer and sale under
the securities or "Blue Sky" laws of the various states and
jurisdictions of the United States or under any foreign laws or
regulations 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 or Preferred
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, the NASD, or the securities or
"Blue Sky" laws or foreign laws or regulations 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 exchange or
securities markets, the NASD, or the securities or "Blue Sky" laws or
foreign laws or regulations."
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II. MISCELLANEOUS.
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A. Successors and Assigns. This Amendment shall be binding upon,
and shall enure to the benefit of, the parties hereto and their respective
successors and assigns.
B. Full Force and Effect. Except to the extent modified hereby,
the Trust Agreement shall remain in full force and effect.
C. Counterparts. This Amendment may be executed in
counterparts, all of which together shall constitute one agreement binding
on all parties hereto, notwithstanding that all such parties are not
signatories to the original or same counterpart.
D. Governing Law. This Amendment shall be interpreted in
accordance with the laws of the State of Delaware (without regard to conflict
of laws principles), all rights and remedies being governed by such laws.
E. Effectiveness of Amendment. This Amendment shall be effective
immediately upon execution.
F. Capitalized Terms. Capitalized terms used herein and not
otherwise defined are used as defined in the Trust Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed as of the day and year first above written.
MORGAN STANLEY DEAN WITTER & CO.,
as Depositor
By: /s/ Alexander C. Frank
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Name: Alexander C. Frank
Title: Treasurer
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ William T. Lewis
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Name: William T. Lewis
Title: Senior Vice President
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Kisha Holder
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Name: Kisha Holder
Title: Assistant Treasurer
ALEXANDER C. FRANK,
as Administrator
/s/ Alexander C. Frank
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DEBRA M. AARON,
as Administrator
/s/ Debra M. Aaron
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