BY-LAWS
of
MSDW STRUCTURED ASSET CORP.
(a Delaware Corporation)
(As Adopted on September 30, 1998)
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ARTICLE I
Offices
Section 1.1. Registered Office in Delaware. The
registered office of MSDW Structured Asset Corp. (the
"Corporation") in the State of Delaware shall be in the City of
Wilmington, County of New Castle, and the registered agent in
charge thereof shall be The Corporation Trust Company.
ARTICLE II
Meetings of Stockholders
Section 2.1. Place of Meetings. All meetings of
stockholders shall be held at such place or places, within or
without the State of Delaware, as may from time to time be fixed
by the Board of Directors, or as shall be specified in the
respective notices, or waivers of notice, thereof.
Section 2.2. Annual Meetings. The annual meeting of
stockholders shall be held on such date and at such time as shall
be designated from time to time by the Board of Directors and
stated in the notice of the meeting, at which meetings the
stockholders shall elect a Board of Directors and transact such
other business as may properly be brought before the meeting.
Section 2.3. Special Meetings. A special meeting of
the stockholders may be called at any time and for any purpose or
purposes by the President or the Chairman of the Board or by
order of the Board of Directors, and shall be called by the
Secretary upon the written request of the holders of record of at
least 80% of the voting power of the then outstanding shares of
capital stock of the Corporation entitled to vote generally in
the election of directors. Every such request shall state the
purpose or purposes of each meeting.
Section 2.4. Notice of Meetings. Except as otherwise
expressly required by law, written notice of each meeting of
stockholders, whether annual or special, stating the place, date
and hour of the meeting shall be given not less than ten days nor
more than fifty days before the date on which the meeting is to
be held, to each stockholder of record entitled to vote thereat
by delivering a notice thereof to him personally or by mailing
such notice in a postage prepaid envelope directed to him at his
address as it appears on the stock ledger of the Corporation,
unless he shall have filed with the Secretary of the Corporation
a written request that notices intended for him be directed to
another address, in which case such notice shall be directed to
him at the address designated in such request. If any stockholder
shall, in person or by attorney thereunto authorized, in writing
or by telegraph, cable, telecopy or telex, waive notice of any
meeting of the stockholders, whether prior to or after such
meeting, notice thereof need not be given to him. Every notice of
a special meeting of the stockholders, besides stating the time
and place of the meeting, shall state briefly the purpose or
purposes thereof.
Section 2.5. List of Stockholders. It shall be the
duty of the Secretary or other officer of the Corporation who
shall have charge of the stock ledger to prepare and make, at
least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in his name. Such
list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, during ordinary business hours,
for a period of at least ten days prior to the meeting, either at
a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not
so specified, at the place where the meeting is to be held. The
list shall be kept and produced at the time and place of the
meeting during the whole time thereof and subject to the
inspection of any stockholder who may be present. The original or
duplicate stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger, such list
or the books of the Corporation or to vote in person or by proxy
at such meeting.
Section 2.6. Quorum. At each meeting of the
stockholders, the holders of record of a majority of the issued
and outstanding stock of the Corporation entitled to vote at such
meeting, present in person or by proxy, shall constitute a quorum
for the transaction of business, except where otherwise provided
by law, the Certificate of Incorporation or these ByLaws. In the
absence of a quorum, any officer entitled to preside at, or act
as Secretary of, such meeting shall have the power to adjourn the
meeting from time to time until a quorum shall be constituted.
Section 2.7. Voting. At all meetings of the
stockholders, a quorum being present, all matters shall be
decided by majority vote of the shares of stock entitled to vote
held by the stockholders present in person or by proxy, except as
otherwise required by the Certificate of Incorporation or the
laws of the State of Delaware. Unless otherwise provided in the
Certificate of Incorporation, each stockholder shall at every
meeting of the stockholders be entitled to one vote in person or
by proxy for each share of the capital stock having voting power
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held by such stockholder, but no proxy shall be voted after three
years from its date, unless the proxy provides for a longer
period.
Section 2.8. Action Without Meeting. Unless otherwise
provided in the Certificate of Incorporation, any action required
to be taken at any annual or special meeting of stockholders of
the Corporation, or any action which may be taken at any annual
or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon
were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not
consented in writing.
ARTICLE III
Board of Directors
Section 3.1. Number, Term of Office and Eligibility.
The number of directors shall be fixed from time to time by
resolution of the stockholders or Board of Directors of the
Corporation. Each director shall hold office until his successor
is elected and qualified, or until his earlier resignation or
removal.
Section 3.2. Quorum and Manner of Acting. At all
meetings of the Board of Directors a majority of the total number
of directors shall constitute a quorum for the transaction of
business, and the act of a majority of the directors present at
any meeting at which there is a quorum shall be the act of the
Board of Directors, except as may be otherwise specifically
provided by the laws of the State of Delaware, the Certificate of
Incorporation or the By-Laws. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be
present.
Section 3.3. Annual Meeting. Immediately after each
annual meeting of stockholders for the election of directors the
Board of Directors shall meet at the place of the annual meeting
of stockholders for the purpose of organization, the election of
officers and the transaction of other business. Notice of such
meeting need not be given. If such meeting is held at any other
time or place, notice thereof must be given or waived as
hereinafter provided for special meetings of the Board of
Directors.
Section 3.4. Regular Meetings. Regular meetings of the
Board of Directors may be held at such time and place, within or
without the State of Delaware, as shall from time to time be
determined by the Board of Directors. After there has been such
determination, and
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notice thereof has been once given to each member of the Board of
Directors, regular meetings may be held without further notice
being given.
Section 3.5. Special Meetings; Notice. Special
meetings of the Board of Directors shall be held whenever called
by the Chairman of the Board or the President. Notice of each
such meeting shall be mailed to each director, addressed to him
at his residence or usual place of business, at least two days
before the date on which the meeting is to be held, or shall be
sent to him at such place by telegraph, cable, telecopy or telex,
or be delivered personally or by telephone, not later than the
day before the day on which such meeting is to be held. Each such
notice shall state the time and place of the meeting and the
purposes thereof. If any director shall, in person or by attorney
thereunto authorized, in writing or by telegraph, cable, telecopy
or telex, waive notice of any meeting of the Board of Directors,
whether prior to or after such meeting, notice thereof need not
be given to him. No notice to or waiver by any director with
respect to any special meeting shall be required if such director
shall be present at said meeting.
Section 3.6. Resignation. Any director of the
Corporation may resign at any time by giving written notice to
the Chairman of the Board, if any, the President or the Secretary
of the Corporation. The resignation of any director shall take
effect upon receipt of notice thereof or at such later time as
shall be specified in such notice; and, unless otherwise
specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
Section 3.7. Newly-Created Directorships and Vacancies
on the Board of Directors. Subject to the rights of the holders
of any class or series of stock having preference over the Common
Stock as to dividends or upon liquidation, dissolution or winding
up of the Corporation to elect directors under specified
circumstances, if any, newly-created directorships resulting from
any increase in the authorized number of directors or any
vacancies on the Board of Directors resulting from death,
resignation, retirement, disqualification, removal from office or
other cause may be filled by a majority vote of the directors
then in office, although less than a quorum, or by a majority of
the votes cast by the holders of the Voting Stock; and any
director so chosen shall hold office for the remaining term of
his predecessor or, if there shall have been no predecessor,
until the next annual election of directors or until his
successor shall have been duly elected and qualified. No decrease
in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
Section 3.8. Removal of Directors. Subject to the
rights of the holders of any class or series of stock having
preference over the Common Stock as to dividends or upon
liquidation, dissolution or winding up of the Corporation to
elect directors under specified circumstances, if any, any
director, or the entire Board of Directors, may be removed from
office at any time, with or without cause, only by the
affirmative vote of the holders of at least 80% of the voting
power of the Voting Stock, voting together as a single class.
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Section 3.9. Compensation of Directors. The Board of
Directors shall have the authority to fix the compensation of
directors and of members of committees of directors.
Section 3.10. Action Without Meeting. Any action
required or permitted to be taken at any meeting of the Board of
Directors or of any committee thereof may be taken without a
meeting if a written consent thereto is signed by all members of
the Board or of such committee, as the case may be, and such
written consent is filed with the records of the proceedings of
the Board or committee.
Section 3.11. Meeting by Conference Telephone.
Directors and members of any committee designated by the Board of
Directors may participate in a meeting of the Board of Directors
or of such committee, as the case may be, by means of conference
telephone or similar communications equipment by means of which
all persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section shall
constitute presence in person at such meeting.
ARTICLE IV
Committees of Directors
Section 4.1. Designation of Committees. The Board of
Directors may, by resolution passed by a majority of the whole
Board, designate one or more committees, each committee to
consist of one or more of the directors of the Corporation. The
Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
Section 4.2. Vacancies. In the absence or
disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or
disqualified member.
Section 4.3. Powers. Any such committee, to the extent
provided in the resolution of the Board of Directors, shall have
and may exercise all the powers and authority of the Board of
Directors to the extent provided by Section 141(c) of the General
Corporation Law of the State of Delaware as it exists now or may
hereafter be amended.
Section 4.4. Minutes of Committee Meetings. Each
committee shall keep regular minutes of its meetings and report
the same to the Board of Directors when required.
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ARTICLE V
Officers
Section 5.1. Principal Officers. The Board of
Directors shall elect a President, a Secretary and a Treasurer,
and may in addition elect a Chairman of the Board, a Chief
Financial Officer, one or more Vice Presidents, one or more
Assistant Secretaries and one or more Assistant Treasurers. One
person may hold, and perform the duties of, any two or more of
said offices.
Section 5.2. Election, Term of Office and Eligibility.
The officers of the Corporation referred to in Section 5.1 shall
be elected annually by the Board of Directors at the annual
meeting thereof. Each such officer shall hold office until his
successor shall have been duly elected and shall qualify, or
until his death or until he shall resign or shall have been
removed.
Section 5.3. Other Officers. The Board of Directors
may appoint such other officers as it may from time to time
determine, each of whom shall hold office for such period, and
perform such duties as the President or the Board of Directors
may from time to time determine. The Board of Directors may
delegate to any officer referred to in Section 5.1 the power to
appoint and to remove any such officers.
Section 5.4. Removal. Any officer may be removed,
either with or without cause, at any time, by resolution adopted
by the Board of Directors at any regular meeting of the Board or
at any special meeting of the Board called for that purpose at
which a quorum is present.
Section 5.5. Resignations. Any officer may resign at
any time by giving written notice to the Board of Directors, to
the Chairman of the Board, if any, the President or the Secretary
of the Corporation. The resignation of any officer shall take
effect upon receipt of notice or at such later time as shall be
specified in such notice; and, unless otherwise specified
therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 5.6. Chairman of the Board. The Chairman of
the Board, if any, shall preside at all meetings of stockholders
and at all meetings of the Board of Directors. Subject to the
control and the direction of the Board of Directors, the Chairman
of the Board may enter into any contract and execute and deliver
any instrument in the name and on behalf of the Corporation. The
Chairman of the Board shall perform such other duties and have
such other powers as the Board of Directors shall prescribe.
Section 5.7. President. In the absence of the Chairman
of the Board, the President shall preside at all meetings of the
stockholders and at all meetings of the Board of
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Directors. Subject to the control and the direction of the Board
of Directors, the President may enter into any contract and
execute and deliver any instrument in the name and on behalf of
the Corporation. The President shall perform such other duties
and have such other powers as the Board of Directors shall
prescribe.
Section 5.8. Chief Financial Officer. The Chief
Financial Officer shall be responsible for the financial affairs
of the Corporation, including overseeing the duties performed by
the Treasurer of the Corporation. Subject to the control and
direction of the Board of Directors, the Chief Financial Officer
may enter into any contract and execute and deliver any
instrument in the name of and on behalf of the Corporation. The
Chief Financial Officer shall perform such other duties and have
such other powers as the Board of Directors prescribes.
Section 5.9. Vice Presidents. The Vice Presidents
shall perform such duties and have such powers as the President
or the Board of Directors may from time to time prescribe.
Subject to the control and the direction of the Board of
Directors, each Vice President may enter into any contract and
execute and deliver any instrument in the name and on behalf of
the Corporation.
Section 5.10. Secretary. The Secretary, if present,
shall act as Secretary at all meetings of the Board of Directors
and of the stockholders and keep the minutes thereof in a book or
books to be provided for that purpose; he shall see that all
notices required to be given by the Corporation are duly given
and served; he shall have charge of the stock records of the
Corporation; he shall see that all reports, statements and other
documents required by law are properly kept and filed; and, in
general, he shall perform all the duties incident to the office
of Secretary.
Section 5.11. Assistant Secretary. The Assistant
Secretary, if any, or, if there be more than one, the Assistant
Secretaries, in the order determined by the Board of Directors,
shall, in the absence or disability of the Secretary, perform the
duties and exercise the powers of the Secretary and shall perform
such other duties and have such other powers as the Board of
Directors, the Chairman of the Board or the President may from
time to time prescribe.
Section 5.12. Treasurer. The Treasurer shall have
charge and custody of, and be responsible for, all funds and
securities of the Corporation and shall deposit all such funds in
the name of the Corporation in such banks or other depositories
as shall be selected by the Board of Directors or by such
officers as shall be designated by the Board of Directors. He
shall exhibit at all reasonable times his books of account and
records to any of the directors of the Corporation upon
application during business hours at the office of the
Corporation where such books and records shall be kept; when
requested by the Board of Directors, he shall render a statement
of the condition of the finances of the Corporation at any
meeting of the Board or at the annual meeting of stockholders; he
shall receive, and give receipt for, moneys due and payable to
the Corporation from any source whatsoever; and, in general, he
shall perform all the duties incident
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to the office of Treasurer. The Treasurer shall give such bond,
if any, for the faithful discharge of his duties as the Board of
Directors may require.
Section 5.13. Assistant Treasurer. The Assistant
Treasurer, if any, or, if there shall be more than one, the
Assistant Treasurers, in the order determined by the Board of
Directors, shall, in the absence or disability of the Treasurer,
perform the duties and exercise the powers of the Treasurer and
shall perform such other duties and have such other powers as the
Board of Directors, the Chairman of the Board or the President
may from time to time prescribe.
ARTICLE VI
Shares and Their Transfer
Section 6.1. Certificates for Stock. The interest of
each stockholder in the Corporation shall be evidenced by a
certificate or certificates for shares of stock of the
Corporation certifying the number of shares owned by him, in such
form as the Board of Directors may from time to time prescribe.
The certificates for shares of stock of the Corporation shall be
signed by the Chairman of the Board, the President or a Vice
President and by the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer, and shall be countersigned
and registered in such manner, if any, as the Board of Directors
may by resolution prescribe; provided, however, that in case such
certificates are signed by a transfer agent other than the
Corporation or its employee or by a registrar other than the
Corporation or its employee the signatures of the Chairman of the
Board, President, Vice President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary may be facsimile; and further
provided that in case any officer or officers who shall have
signed, or whose facsimile signature or signatures shall have
been used on any such certificate or certificates shall cease to
be such officer or officers of the Corporation, whether because
of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such
certificate or certificates may nevertheless be adopted by the
Corporation and be issued and delivered as though the person or
persons who signed such certificate or certificates or whose
facsimile signature or signatures shall have been used thereon
had not ceased to be such officer or officers of the Corporation.
Section 6.2. Stock Ledger. A record shall be kept by
the Secretary, transfer agent or by any other officer, employee
or agent designated by the Board of Directors of the name of each
person, firm or corporation holding capital stock of the
Corporation, the number of shares represented by, and the
respective dates of, each certificate for such capital stock, and
in case of cancellation of any such certificate, the respective
dates of cancellation.
Section 6.3. Cancellation. Every certificate
surrendered to the Corporation for exchange or registration of
transfer shall be canceled, and no new certificate or
certificates shall
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be issued in exchange for any existing certificate until such
existing certificate shall have been so canceled, except as
provided in Section 6.5 and in cases provided by the applicable
law.
Section 6.4. Transfers. Shares of stock shall be
transferable on the books of the Corporation by the holder of
record thereof in person or by his attorney upon surrender of
such certificate with an assignment endorsed thereon or attached
thereto duly executed and with such proof of authenticity of
signatures as the Corporation may reasonably require. The Board
of Directors may make such rules and regulations as it may deem
expedient, not inconsistent with the Certificate of Incorporation
or these By-Laws, concerning the issue, transfer and registration
of certificates for shares of the stock of the Corporation. The
Board of Directors may appoint, or authorize any principal
officer or officers to appoint, one or more transfer clerks or
one or more transfer agents and one or more registrars, and may
require all certificates of stock to bear the signature or
signatures of any of them.
Section 6.5. Lost, Stolen, Destroyed or Mutilated
Certificates. Before any certificates for stock of the
Corporation shall be issued in exchange for certificates which
shall become mutilated or shall be lost, stolen or destroyed,
proper evidence of such loss, theft, mutilation or destruction
shall be procured for the Board of Directors, if it so requires.
When authorizing such issue of a new certificate or certificates,
the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his
legal representative, to give the Corporation a bond in such sum
as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged
to have been lost, stolen or destroyed.
Section 6.6. Record Dates. For the purpose of
determining the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or
entitled to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend
or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action,
the Board of Directors may fix, in advance, a date as a record
date for any such determination of stockholders. Such record date
shall not be more than sixty nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other
action.
ARTICLE VII
Indemnification
The Corporation shall indemnify, to the fullest extent
permitted by applicable law, any person who was or is a party or
is threatened to be made a party to, or is involved in any manner
in, any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that such person (1) is or
was a director or officer of the Corporation or a Subsidiary or
(2) is or was serving at the request of the
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Corporation or a Subsidiary as a director, officer, partner,
member, employee or agent of another corporation, partnership,
joint venture, trust, committee or other enterprise.
To the extent deemed advisable by the Board of
Directors, the Corporation may indemnify, to the fullest extent
permitted by applicable law, any person who was or is a party or
is threatened to be made a party to, or is involved in any manner
in, any threatened, pending or completed action, suit or
proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that the person is or was an
employee or agent (other than a director or officer) of the
Corporation or a Subsidiary.
The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or a
Subsidiary, or is or was serving at the request of the
Corporation or a Subsidiary as a director, officer, partner,
member, employee or agent of another corporation, partnership,
joint venture, trust, committee or other enterprise, against any
expense, liability or loss asserted against him and incurred by
him in any such capacity, or arising out of his status as such,
whether or not the Corporation or a Subsidiary would have the
power to indemnify him against such expense, liability or loss
under the provisions of applicable law.
No repeal, modification or amendment of, or adoption
of any provision inconsistent with, this Article VII, nor to the
fullest extent permitted by applicable law, any modification of
law shall adversely affect any right or protection of any person
granted pursuant hereto existing at, or with respect to events
that occurred prior to, the time of such repeal, amendment,
adoption or modification.
For purposes of this Article VII the term "Subsidiary"
or "Subsidiaries" shall mean a corporation(s), all of the capital
stock of which is owned directly or indirectly by the
Corporation, other than directors' qualifying shares.
The right to indemnification conferred in this Article
VII also includes, to the fullest extent permitted by applicable
law, the right to be paid the expenses (including attorney's
fees) incurred in connection with any such proceeding in advance
of its final disposition. The payment of any amounts to any
director, officer, partner, member, employee or agent pursuant to
this Article VII shall subrogate the Corporation to any right
such director, officer, partner, member, employee or agent may
have against any other person or entity. The rights conferred in
this Article VII shall be contract rights.
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ARTICLE VIII
Liability of Directors
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 Article VIII 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 these By-Laws are amended to
include this Article VIII, 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 the State of Delaware, as so amended.
ARTICLE IX
Miscellaneous Provisions
Section 9.1. Corporate Seal. The Board of Directors
shall provide a corporate seal, which shall be in the form of a
circle and shall bear the name of the Corporation and words and
figures showing that it was incorporated in the State of Delaware
in the year 1998. The Secretary shall be the custodian of the
seal.
Section 9.2. Fiscal Year. The fiscal year of the
Corporation shall be as specified by the Board of Directors.
Section 9.3. Voting of Stocks Owned by the
Corporation. The Board of Directors may authorize any person on
behalf of the Corporation to vote and grant proxies to be used at
any meeting of stockholders of any corporation (except this
Corporation) in which the Corporation may hold stock.
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ARTICLE X
Amendment of By-Laws
In furtherance of and not in limitation of the powers
conferred by statute, the Board of Directors of the Corporation
from time to time may make, amend or repeal the ByLaws of the
Corporation; provided that any By-Laws may be amended or
repealed, and may be made, by the stockholders of the
Corporation. Notwithstanding any other provisions of the
Certificate of Incorporation of the Corporation or these By-Laws
(and not withstanding the fact that a lesser percentage may be
specified by law, the Certificate of Incorporation or these
ByLaws), the affirmative vote of the holders of at least 80% of
the voting power of the Voting Stock, voting together as a single
class, shall be required for the stockholders of the Corporation
to amend, repeal or adopt any By-Laws of the Corporation.
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