Exhibit 3.2
AMENDED AND RESTATED BY-LAWS
(hereinafter, the "By-Laws")
OF
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
ARTICLE I
STOCKHOLDERS
Section 1. Annual Meeting. The annual meeting of the stockholders of
the Corporation shall be held either within or without the State of Delaware, on
such date and at such time and place as the Board of Directors may designate in
the call or in a waiver of notice thereof, for the purpose of electing directors
and for the transaction of such other business as may properly be brought before
the meeting.
Section 2. Special Meetings. Special meetings of the stockholders of
the Corporation may be called by the Board of Directors or by the President, and
shall be called by the President or by the Secretary upon the written request of
the holders of record of at least twenty-five percent (25%) of the shares of
stock of the Corporation issued and outstanding and entitled to vote, at such
times and at such place either within or without the State of Delaware as may be
stated in the call or in a waiver of notice thereof.
Section 3. Notice of Meetings. Notice of the time, place and purpose
of every meeting of stockholders shall be delivered personally or mailed not
less than 10 days nor more than 60 days previous thereto to each stockholder of
record entitled to vote, at his post office address appearing upon the records
of the Corporation or at such other address as shall be furnished in writing by
him to the Corporation for such purpose. Such further notice shall be given as
may be required by law or by these By-Laws. Any meeting may be held without
notice if all stockholders entitled to vote are present in person or by proxy,
or if notice is waived in writing, either before or after the meeting, by those
not present.
Section 4. Quorum. The holders of record of at least a majority of
the shares of the stock of the Corporation issued and outstanding and entitled
to vote, present in person or by proxy, shall, except as otherwise provided by
law or by these By-Laws, constitute a quorum at all meetings of the
stockholders; if there be no such quorum, the holders of a majority of such
shares so present or represented may adjourn the meeting from time to time until
a quorum shall be obtained.
Section 5. Organization of Meetings. Meetings of the stockholders
shall be presided over by the President or, if he is not present, by a chairman
to be chosen at the meeting. The Secretary of the Corporation, or in his absence
an Assistant Secretary, shall act as secretary of the meeting, if present.
Section 6. Voting. At each meeting of stockholders, except as
otherwise provided by statute or the Certificate of Incorporation, every holder
of record of stock entitled to vote shall be entitled to one vote in person or
by proxy for each share of such stock standing in his name on the records of the
Corporation. Elections of directors shall be determined by a plurality of the
votes cast thereat and, except as otherwise provided by statute, the Certificate
of Incorporation or these By-Laws, all other action shall be determined by a
majority of the votes cast at such meeting. Each proxy to vote shall be in
writing and signed by the stockholder or by his duly authorized attorney.
At all elections of directors, the voting shall be by ballot or in
such other manner as may be determined by the stockholders present in person or
by proxy entitled to vote at such election. With respect to any other matter
presented to the stockholders for their consideration at a meeting, any
stockholder entitled to vote may, on any question, demand a vote by ballot.
A complete list of the stockholders entitled to vote at each such
meeting, arranged in alphabetical order, with the address of each and the number
of shares registered in the name of each stockholder, shall be prepared by the
Secretary and 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 also be produced and kept at the time and place of the meeting
during the whole time thereof, and may be inspected by any stockholder who is
present.
Section 7. Action by Consent. Any action required or permitted to be
taken at any meeting of stockholders may be taken without a meeting, without
prior notice and without a vote if, prior to such action, a written consent or
consents thereto, setting forth such action, is signed by the holders of record
of shares of the stock of the Corporation, issued and outstanding and entitled
to vote thereon, 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.
ARTICLE II
DIRECTORS
Section 1. Number, Quorum, Term, Vacancies, Removal. The Board of
Directors of the Corporation shall consist of one or more persons. The number of
directors may be changed by a resolution passed by a majority of the members of
the Board of Directors or by a vote of the holders of record of at least a
majority of the shares of stock of the Corporation issued and outstanding and
entitled to vote.
A majority of the members of the Board of Directors then holding
office shall constitute a quorum for the transaction of business, but if at any
meeting of the Board there shall be less than a quorum present, a majority of
those present may adjourn the meeting from time to time until a quorum shall
have been obtained.
Directors shall hold office until the next annual election and until
their successors shall have been elected and shall have qualified, or until such
director's earlier resignation or removal.
Whenever any vacancy shall have occurred in the Board of Directors,
by reason of death, resignation or otherwise, other than removal of a director
with or without cause by a vote of the stockholders, it shall be filled by a
majority of the remaining directors, though less than a quorum (except as
otherwise provided by law), or by the stockholders, and the person so chosen
shall hold office until the next annual election and until his successor is duly
elected and has qualified.
Any one or more of the directors of the Corporation may be removed
either with or without cause at any time by a vote of the holders of record of
at least a majority of the shares of stock of the Corporation, issued and
outstanding and entitled to vote, and thereupon the term of the director or
directors who shall have been so removed shall forthwith terminate and there
shall be a vacancy or vacancies in the Board of Directors, to be filled by a
vote of the stockholders as provided in these By-Laws.
Section 2. Meetings, Notice. Meetings of the Board of Directors
shall be held at such place, either within or without the State of Delaware, as
may from time to time be fixed by resolution of the Board, or as may be
specified in the call or in a waiver of notice thereof. Regular meetings of the
Board of Directors shall be held at such times as may from time to time be fixed
by resolution of the Board, and special meetings may be held at any time upon
the call of two directors or the Chairman of the Board (if one be elected) or
the Chief Executive Office (if one be elected) or the President or the
Secretary, by oral, telegraphic, e-mail or written notice duly served on or sent
or mailed to each director not less than two days before such meeting. A meeting
of the Board may be held without notice immediately after the annual meeting of
stockholders at the same place at which such meeting was held. Notice need not
be given of regular meetings of the Board. Any meeting may be held without
notice, if all directors are present, or if notice is waived in writing, either
before or after the meeting, by those not present.
Section 3. Committees. The Board of Directors may, in its
discretion, by resolution passed by a majority of the members of the Board of
Directors, designate from among its members one or more committees consisting of
two or more directors. The Board may designate one or more directors as
alternate members of any such committee, who may replace any absent or
disqualified member at any meeting of the committee. Such committees shall have
and may exercise such powers as shall be conferred or authorized by the
resolution appointing them. A majority of any such committee may determine its
action and fix the time and place of its meetings, unless the Board of Directors
shall otherwise provide. The Board shall have power
at any time to change the membership of any such committee, to fill vacancies in
it or to dissolve it.
Section 4. Action by Consent. 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 or consents thereto is signed
by all members of the Board or of such committee, as the case may be, and such
written consent or consents is filed with the minutes of proceedings of the
Board or such committee.
Section 5. Action by Conference Call. Any member of the Board of
Directors, or of any committee thereof, may participate in a meeting of such
Board or committee 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 the meeting.
Section 6. Compensation. The Board of Directors may determine, from
time to time, the amount of compensation which shall be paid to its members. The
Board of Directors shall also have power, in its discretion, to allow a fixed
sum and expenses for attendance at each regular or special meeting of the Board,
or of any committee of the Board. The Board of Directors shall also have power,
in its discretion, to provide for and pay to directors rendering services to the
Corporation not ordinarily rendered by directors, as such, special compensation
appropriate to the value of such services, as determined by the Board from time
to time.
ARTICLE III
OFFICERS
Section 1. Titles and Election. The officers of the Corporation, who
shall be chosen by the Board of Directors at its first meeting after each annual
meeting of stockholders, shall be a President, a Treasurer and a Secretary. The
Board of Directors from time to time may elect a Chairman of the Board, a Chief
Executive Officer, one or more Managing Directors, Directors, Vice Presidents,
Assistant Vice Presidents, Associates, Assistant Secretaries, Assistant
Treasurers and such other officers and agents as it shall deem necessary, and
may define their powers and duties. Any number of offices may be held by the
same person.
Section 2. Terms of Office. The officers shall hold office until
their successors are chosen and qualify.
Section 3. Removal. Any officer may be removed, either with or
without cause, at any time, by the affirmative vote of a majority of the Board
of Directors.
Section 4. Resignations. Any officer may resign at any time by
giving written notice to the Board of Directors or to the Secretary. Such
resignation shall take effect at the time specified therein and, unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective.
Section 5. Vacancies. If the office of any officer or agent becomes
vacant by reason of death, resignation, retirement, disqualification, removal
from office or otherwise, the Board of Directors may choose a successor, who
shall hold office for the unexpired term in respect of which such vacancy
occurred.
Section 6. Chairman of the Board. The Chairman of the Board, if one
be elected, shall preside at all meetings of the Board of Directors and of the
stockholders, and he shall have and perform such other duties as from time to
time may be assigned to him by the Board of Directors.
Section 7. President, Chief Executive Officer. The President shall
exercise the powers and perform the duties usual to the President and shall do
and perform such other duties as from time to time may be assigned to the
President by the Board of Directors. The Chief Executive Officer shall exercise
the powers and perform the duties usual to the Chief Executive Officer and shall
do and perform such other duties as from time to time may be assigned to the
Chief Executive Officer by the Board of Directors.
Section 8. Managing Directors, Directors, Vice Presidents, etc. If
chosen, the Managing Directors, Directors, Vice Presidents, Assistant Vice
Presidents and Associates shall have such powers and shall do and perform such
duties as the Board of Directors shall direct.
Section 9. Secretary. The Secretary shall attend all sessions of the
Board of Directors and all meetings of the stockholders and record all votes and
the minutes of proceedings in a book to be kept for that purpose. He shall give,
or cause to be given, notice of all meetings of the stockholders and of the
Board of Directors and shall perform such other duties as may be prescribed by
the Board of Directors. The Secretary shall affix the corporate seal to any
instrument requiring it, and if required, it may be attested by the signature of
the Secretary or of an Assistant Secretary or the Treasurer or an Assistant
Treasurer who may affix the seal to any such instrument in the event of the
absence or disability of the Secretary. The Secretary shall have and be the
custodian of the stock records and all other books, records and papers of the
Corporation (other than financial) and shall see that all books, reports,
statements, certificates and other documents and records required by law are
properly kept and filed.
Section 10. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys, and other valuable effects in the name and to the credit of
the Corporation, in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the Board of Directors whenever the Board may require it an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
Section 11. Duties of Officers may be Delegated. In case of the
absence or disability of any officer of the Corporation, or for any other reason
that the Board may deem sufficient, the Board may delegate, for the time being,
the powers or duties, or any of them, of
such officer to any other officer or to any director. In addition, the Board may
designate a group of officers any two of which may delegate by written
instrument any of the powers given to them by the Board to other employees of
the Corporation.
ARTICLE IV
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
Section 1. Indemnification of Directors and Officers. The
Corporation shall, to the fullest extent permitted by applicable law, indemnify
any person (and the heirs, executors and administrators thereof) who was or is
made, or threatened to be made, a party to an action, suit or proceeding,
whether civil, criminal, administrative or investigative, whether involving any
actual or alleged breach of duty, neglect or error, any accountability, or any
actual or alleged misstatement, misleading statement or other act or omission
and whether brought or threatened in any court or administrative or legislative
body or agency, including an action by or in the right of the Corporation to
procure a judgment in its favor and an action by or in the right of any other
corporation of any type or kind, domestic or foreign, or any partnership,
limited liability company, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Corporation is serving or
served in any capacity at the request of the Corporation, by reason of the fact
that he, his testator or intestate is or was a director or officer of the
Corporation, or is serving or served such other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise in any capacity,
against judgments, fines, amounts paid in settlement, and costs, charges and
expenses, including attorneys' fees, incurred therein or in any appeal thereof.
Section 2. Indemnification of Others. The Corporation shall
indemnify other persons and reimburse the expenses thereof, to the extent
required by applicable law, and may indemnify any other person to whom the
Corporation is permitted to provide indemnification or the advancement of
expenses, whether pursuant to rights granted pursuant to, or provided by, the
Delaware General Corporation Law or otherwise.
Section 3. Reimbursement or Advance of Expenses. The Corporation
shall, from time to time, reimburse or advance to any person referred to in
Section 1 of this Article IV the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action, suit or
proceeding referred to in Section 1, upon receipt of a written undertaking by or
on behalf of such person to repay such amount(s) if a judgment or other final
adjudication adverse to the director or officer establishes that (i) his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled, or (iii) his conduct was
otherwise of a character such that Delaware law would require that such
amount(s) be repaid.
Section 4. Service at Request of the Corporation. Any director or
officer of the Corporation serving (i) another corporation of which a majority
of the shares entitled to vote in the election of its directors is held by the
Corporation, or (ii) any employee benefit plan of the
corporation or any corporation referred in clause (i), in any capacity shall be
deemed to be doing so at the request of the corporation.
Section 5. Election of Applicable Law. Any person entitled to be
indemnified or to the reimbursement or advancement of expenses as a matter of
right pursuant to this Article IV may elect to have the right to indemnification
(or advancement of expenses) interpreted on the basis of the applicable law in
effect at the time of the occurrence of the event or events giving rise to the
action, suit or proceeding, to the extent permitted by applicable law, or on the
basis of the applicable law in effect at the time indemnification is sought.
ARTICLE V
CAPITAL STOCK
Section 1. Certificates. The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of stock in such form
as the Board of Directors may from time to time prescribe. The certificates of
stock shall be signed by the President or the Chief Executive Officer or a
Managing Director or a Director or a Vice President and by the Secretary, or the
Treasurer, or an Assistant Secretary, or an Assistant Treasurer, sealed with the
seal of the Corporation or a facsimile thereof, and countersigned and registered
in such manner, if any, as the Board of Directors may by resolution prescribe.
Where any such certificate is countersigned by a transfer agent other than the
Corporation or its employee, or registered by a registrar other than the
Corporation or its employee, the signature of any such officer may be a
facsimile signature. 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 2. Transfer. The shares of stock of the Corporation shall be
transferred only upon the books of the Corporation by the holder thereof in
person or by his attorney, upon surrender for cancellation of certificates for
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached therto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require.
Section 3. Record Dates. The Board of Directors may fix in advance a
date, not less than 10 nor more than 60 days preceding the date of any meeting
of stockholders, or the date for the payment of any dividend, or the date for
the distribution or allotment of any rights, or the date when any change,
conversion or exchange of capital stock shall go into effect, as a record date
for the determination of the stockholders entitled to notice of, and to vote at,
any such meeting, or entitled to receive payment of any such dividend, or to
receive any distribution or allotment of such rights, or to exercise the rights
in respect of any such change, conversion or
exchange of capital stock, and in such case only such stockholders as shall be
stockholders of record on the date so fixed shall be entitled to such notice of,
and to vote at, such meeting, or to receive payment of such dividend, or to
receive such distribution or allotment or rights or to exercise such rights, as
the case may be, notwithstanding any transfer of any stock on the books of the
Corporation after any such record date fixed as aforesaid.
Section 4. Lost Certificates. In the event that any certificate of
stock is lost, stolen, destroyed or mutilated, the Board of Directors may
authorize the issuance of a new certificate of the same tenor and for the same
number of shares in lieu thereof. The Board may in its discretion, before the
issuance of such new certificate, require the owner of the lost, stolen,
destroyed or mutilated certificate or the legal representative of the owner to
make an affidavit or affirmation setting forth such facts as to the loss,
destruction or mutilation as it deems necessary and to give the Corporation a
bond in such reasonable sum as it directs to indemnify the Corporation.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 1. Offices. The registered office of the Corporation shall
be located at the office of The Corporation Trust Company, in the City of
Wilmington, County of New Castle, in the State of Delaware and said corporation
shall be the registered agent of the Corporation in charge thereof. The
Corporation may have other offices either within or without the State of
Delaware at such places as shall be determined from time to time by the Board of
Directors or the business of the Corporation may require.
Section 2. Fiscal Year. The fiscal year of the Corporation shall be
determined by the Board of Directors.
Section 3. Corporate Seal. The seal of the Corporation shall be
circular in form and contain the name of the Corporation and the year and state
of its incorporation. Such seal may be altered from time to time at the
discretion of the Board of Directors.
Section 4. Books. There shall be kept at such office of the
Corporation as the Board of Directors shall determine, within or without the
State of Delaware, correct books and records of account of all its business and
transactions, minutes of the proceedings of its stockholders, Board of Directors
and committees, and the stock book, containing the names and addresses of the
stockholders, the number of shares held by them, respectively, and the dates
when they respectively became the owners of record thereof, and in which the
transfer of stock shall be registered, and such other books and records as the
Board of Directors may from time to time determine.
Section 5. Voting of Stock. Unless otherwise specifically authorized
by the Board of Directors, all stock owned by the Corporation, other than stock
of the Corporation, shall be voted, in person or by proxy, by the President or
the Chief Executive Officer or a Managing Director or a Director or a Vice
President of the Corporation on behalf of the Corporation.
Section 6. Construction. The masculine gender, when appearing in
these By-Laws, shall be deemed to include the feminine gender.
ARTICLE VII
AMENDMENTS
Section 1. Amendments. The vote of the holders of at least a
majority of the shares of stock of the Corporation issued and outstanding and
entitled to vote shall be necessary at any meeting of stockholders to amend or
repeal these By-Laws or to adopt new By-Laws. These By-Laws may also be amended
or repealed, or new By-Laws adopted, at any meeting of the Board of Directors by
the vote of at least a majority of the entire Board, provided that any by-law
adopted by the Board may be amended or repealed by the stockholders in the
manner set forth above.
Any proposal to amend or repeal these By-Laws or to adopt new
By-Laws shall be stated in the notice of the meeting of the Board of Directors
or the stockholders or in the waiver of notice thereof, as the case may be,
unless all of the directors or the holders of record of all of the shares of
stock of the Corporation issued and outstanding and entitled to vote are present
at such meeting.
The undersigned, the duly qualified and acting Assistant Secretary of
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION, a Delaware corporation, hereby
certifies the foregoing to be a true and complete copy of the Amended and
Restated By-Laws of DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION, in effect
on March 25, 2004.
/s/ James O. Wilhelm
Assistant Secretary