BY-LAWS
of
MSDW STRUCTURED ASSET CORP.
(a Delaware Corporation)
(As Adopted on September 30, 1998)
------------------
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 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 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.
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.
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 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 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 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 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.
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.
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.