EXHIBIT 3.7
BY - LAWS
OF
AMERICAN REAL ESTATE FINANCE CORP.
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ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office shall be established
and maintained at the office of Corporation Service Company, 2711 Centerville
Road, Suite 400, in the City of Wilmington, in the County of New Castle, in the
State of Delaware, and said corporation shall be the registered agent of this
corporation in charge thereof.
Section 1.2 Other Offices. The Corporation may have offices, either within
or without the State of Delaware, at such place or places as the Board of
Directors may, from time to time, appoint or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Annual Meetings. Annual meetings of stockholders for the
election of directors and for such other business as may be stated in the notice
of the meeting, may be called by the directors or any officer instructed by the
directors to call the meeting and shall be held at such place, either within or
without the State of Delaware, and at such time and date as the Board of
Directors, by resolution, shall determine and as set forth in the notice of the
meeting. In the event the Board of Directors fails to so determine the time,
date and place of meeting, the annual meeting of stockholders, commencing with
the year 2005, shall be held on the 1st day of April.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a Board of Directors and
they may transact such other corporate business as shall be stated in the notice
of meeting.
Section 2.2 Other Meetings. Meetings of stockholders for any purpose other
than the election of directors may be held at such time and place, within or
without the State of Delaware, as shall be stated in the notice of the meeting.
Section 2.3 Telephonic Meetings. Meetings may be held 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 paragraph shall constitute presence in person at a
meeting.
Section 2.4 Voting. Each stockholder entitled to vote in accordance with
the terms of the Certificate of Incorporation and in accordance with the
provisions of these By-Laws shall be entitled to one vote, in person or by
proxy, for each share of stock entitled to vote held by such stockholder, but no
proxy shall be voted after three years from its date unless such proxy provides
for a longer period. Upon demand of any stockholder, the vote for directors and
the vote upon any question before the meeting shall be by ballot. All elections
for directors shall be decided by plurality vote and all other questions shall
be decided by majority vote, except as otherwise provided by the Certificate of
Incorporation or the laws of the State of Delaware.
A complete list of the stockholders entitled to vote at the ensuing
election, arranged in alphabetical order, with the address of each and the
number of shares held by each, 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 2.5 Conduct of Meeting. Meetings of the stockholders shall be
presided over by one of the following officers in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Vice Chairman of the
Board, if any, the President, a Vice President, or, if none of the foregoing is
in office and present and acting, by a chairman to be chosen by the
stockholders. The Secretary of the Corporation or, in his absence, an Assistant
Secretary, shall act as secretary of every meeting, but if neither the Secretary
nor an Assistant Secretary is present, the Chairman of the meeting shall appoint
a secretary of the meeting.
Section 2.6 Inspectors. The directors, in advance of any meeting, may, but
need not, appoint one or more Inspectors of Election to act at the meeting or
any adjournment thereof. If an Inspector or Inspectors are not appointed, the
person presiding at the meeting may, but need not, appoint one or more
Inspectors. In case any person who may be appointed as an Inspector fails to
appear or act, the vacancy may be filled by appointment made by the directors in
advance of the meeting or at the meeting by the person presiding thereat. Each
Inspector, if any, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of Inspector at such meeting
with strict impartiality and according to the best of his ability. The
Inspectors, if any, shall determine the number of shares of stock outstanding
and the voting power of each, the shares of stock represented at the meeting,
the existence of a quorum, the validity and effect of proxies, and shall receive
votes, ballots or consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate all votes,
ballots or consents, determine the result, and do such acts as are proper to
conduct the election or vote with fairness to all stockholders. On request of
the person presiding at the meeting, the
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Inspector or Inspectors, if any, shall make a report in writing of any
challenge, question or matter determined by him or them and execute a
certificate of any fact found by him or them.
Section 2.7 Quorum. Except as otherwise required by Law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the Corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting, from time to time, without notice other than
announcement at the meeting, until the requisite amount of stock entitled to
vote shall be present. At such adjourned meeting, the requisite amount of stock
entitled to vote at the meeting, as originally noticed, shall be entitled to
vote at any adjournment or adjournments thereof.
Section 2.8 Notice Or Waiver Of Notice Of Meetings. Written notice,
stating the place, date and time of the meeting and the general nature of the
business to be considered, shall be given to each stockholder entitled to vote
thereat at his address as it appears on the records of the Corporation, not less
than ten nor more than sixty days before the date of the meeting. No business
other than that stated in the notice shall be transacted at any meeting without
the unanimous consent of all the stockholders entitled to vote thereat.
Attendance of a stockholder at a meeting of stockholders shall constitute a
waiver of notice of such meeting, except when the stockholder attends the
meeting for the express purpose of objecting, at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or
convened.
Section 2.9 Action Without Meeting. Unless otherwise provided by the
Certificate of Incorporation, any action required to be taken at any annual or
special meeting of stockholders, or any action which may be taken at any annual
or special meeting, 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
DIRECTORS
Section 3.1 Number And Term. The number of directors shall initially be
four (4). The director shall be elected at the annual meeting of the
stockholders and each director shall be elected to serve until his successor
shall be elected and shall qualify. A Director need not be a stockholder.
Section 3.2 Resignations. Any director, member of a committee or other
officer may resign at any time. Such resignation shall be made in writing, and
shall take effect at the time
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specified therein and, if no time be specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
Section 3.3 Vacancies. If the office of any director, member of a
committee or other office becomes vacant, the remaining directors in office,
though less than a quorum, by a majority vote, may appoint any qualified person
to fill such vacancy, such appointee to hold office for the unexpired term and
until his successor shall be duly chosen.
Section 3.4 Removal. Any director or directors may be removed either for
or without cause at any time by the affirmative vote of the holders of a
majority of all the shares of stock outstanding and entitled to vote, at a
special meeting of the stockholders called for the purpose and the vacancies
thus created may be filled, at the meeting held for the purpose of removal, by
the affirmative vote of a majority in interest of the stockholders entitled to
vote.
Section 3.5 Increase Or Decrease Of Number. The number of directors may be
increased or decreased from time to time by resolution of the Board of Directors
or by majority vote of the stockholders at the annual meeting or at a special
meeting called for that purpose and, by like vote, the additional directors may
be chosen at such meeting to hold office until the next annual election and
until their successors are elected and qualify.
Section 3.6 Powers. The Board of Directors shall exercise all of the
powers of the Corporation except such as are by Law, or by the Certificate of
Incorporation of the Corporation or by these By-Laws conferred upon or reserved
to the stockholders.
Section 3.7 Committees. The Board of Directors may, by resolution or
resolutions passed by a majority of the whole Board, designate one or more
committees, each committee to consist of two or more of the directors of the
Corporation. The Board 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. In the absence or disqualification of any member of
such committee or committees, 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 director.
Any such committee, to the extent provided in the resolution of the Board
of Directors, or in these By-Laws, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and
affairs of the Corporation and may authorize the seal of the Corporation to be
affixed to all papers which may require it; however, no such committee shall
have the power or authority in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation, recommending to
the stockholders the sale, lease or exchange of all or substantially all of the
Corporation's property assets, recommending to the stockholders a dissolution of
the Corporation or a revocation of a dissolution, or amending the By-Laws of the
Corporation; and, unless by resolution, these By-Laws, or the Certificate of
Incorporation expressly so provide, no such committee shall have the power or
authority to declare a dividend or to authorize the issuance of stock.
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Section 3.8 Meetings. The newly elected directors may hold their first
meeting for the purpose of organization and the transaction of business if a
quorum is present immediately after the annual meeting of the stockholders or
the time and place of such meeting may be fixed by consent in writing of all the
directors. Attendance of a director at a meeting of directors shall constitute a
waiver of notice of such meeting, except when the director attends the meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened.
Regular meetings of the directors may be held without notice at such
places and times as shall be determined from time to time by resolution of the
directors.
Special meetings of the Board may be called by the President or by the
Secretary on the written request of any two directors on at least two days'
notice to each director and shall be held at such place or places as may be
determined by the directors, or as shall be stated in the call of the meeting.
Section 3.9 Telephone Meetings. Meetings may be held 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 paragraph shall constitute presence in person at a
meeting.
Any member or members of the Board of Directors or of any committee
designated by the Board may participate in a meeting of the Board or any 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.
Section 3.10 Quorum. A majority of the Board of Directors shall constitute
a quorum for the transaction of business. 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 is obtained, and no further notice
thereof need be given other than by announcement at the meeting which shall be
adjourned.
Section 3.11 Compensation. Directors shall not receive any stated salary
for their services as directors or as members of committees but by resolution of
the Board of Directors, fixed fees and expenses of attendance may be allowed for
attendance at each meeting. Nothing herein contained shall be construed to
preclude any director from serving the Corporation in any other capacity as an
officer, agent or otherwise, and receiving compensation therefore.
Section 3.12 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 minutes of the proceedings of the Board or such
committee.
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ARTICLE IV
OFFICERS
Section 4.1 Officers. The officers of the Corporation shall be a
President, a Treasurer, and a Secretary, all of whom shall be elected by the
Board of Directors and who shall hold office until their successors are elected
and qualified. In addition, the Board of Directors may elect a Chairman, one or
more Vice Presidents and such Assistant Secretaries and Assistant Treasurers, as
they may deem proper. None of the officers of the Corporation need be directors.
The officers shall be elected at the first meeting of the Board of Directors and
at each annual meeting. More than two offices may be held by the same person.
Section 4.2 Other Officers And Agents. The Board of Directors may appoint
such other officers and agents as it may deem advisable, such officers to hold
their offices for such terms and to exercise such powers and perform such duties
as shall be determined, from time to time, by the Board of Directors.
Section 4.3 Chairman. The Chairman of the Board of Directors, if one be
elected, shall preside at all meetings of the Board of Directors 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 4.4 President. The President shall be the chief executive officer
of the Corporation and shall have the general powers and duties of supervision
and management usually vested in the office of President of a corporation. He
shall preside at all meetings of the stockholders, if present thereat and in the
absence or nonelection of the Chairman of the Board of Directors, and shall have
general supervision, direction and control of the business of the Corporation.
Except as the Board of Directors shall authorize the execution thereof in some
other manner, he shall execute bonds, mortgages and other contracts in behalf of
the Corporation and shall cause the seal to be affixed to any instrument
requiring it and, when so affixed, the seal shall be attested by the signature
of the Secretary or the Treasurer or an Assistant Secretary or an Assistant
Treasurer.
Section 4.5 Vice President. Each Vice President shall have such powers and
shall perform such duties as shall be assigned to him by the Board of Directors.
Section 4.6 The Treasurer. The Treasurer shall have custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the Corporation. He shall
deposit all monies and other valuables in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation, as may be
ordered by the Board of Directors or the President, taking proper vouchers for
such disbursements. He shall render to the President and the Board of Directors
at the regular meetings of the Board of Directors, or whenever they may request
it, an account of all his transactions as Treasurer and of the financial
condition of the Corporation. If required by the Board of Directors, he shall
give
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the Corporation a bond for the faithful discharge of his duties in such amount
and with such surety as the Board shall prescribe.
Section 4.7 Secretary. The Secretary shall give, or cause to be given,
notice of all meetings of stockholders and directors and all other notices
required by law or by these By-Laws and, in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the President or by the directors or by the stockholders, upon whose
requisition the meeting is called as provided in these By-Laws. He shall record
all the proceedings of the meetings of the Corporation and of the directors in a
book to be kept for that purpose and shall perform such other duties as may be
assigned to him by the directors or the President. He shall have the custody of
the seal of the Corporation and shall affix the same to all instruments
requiring it, when authorized by the directors or the President, and attest the
same.
Section 4.8 Assistant Treasurers And Assistant Secretaries. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
ARTICLE V
MISCELLANEOUS
Section 5.1 Certificates Of Stock. Certificates of stock, signed by the
Chairman or Vice Chairman of the Board of Directors, if they were elected, the
President or Vice President, and the Treasurer or an Assistant Treasurer, or the
Secretary or an Assistant Secretary, shall be issued to each stockholder
certifying the number of shares owned by him in the Corporation. Any of or all
the signatures may be facsimiles.
Section 5.2 Lost Certificates. A new certificate of stock may be issued in
the place of any certificate theretofore issued by the Corporation, alleged to
have been lost or destroyed, and the directors may, in their discretion, require
the owner of the lost or destroyed certificate, or his legal representatives, to
give the Corporation a bond, in such sum as they may direct not exceeding double
the value of the stock, to indemnify the Corporation against any claim that may
be made against it on account of the alleged loss of any such certificate or the
issuance of any such new certificate.
Section 5.3 Transfer Of Shares. The shares of stock of the Corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives and, upon such
transfer, the old certificates shall be surrendered to the Corporation by the
delivery thereof to the person in charge of the stock and transfer books and
ledgers or to such other person as the directors may designate, by whom they
shall be canceled and new certificates shall thereupon be issued. A record shall
be made of each transfer and whenever a transfer shall be made for collateral
security, and not absolutely, it shall be so expressed in the entry of the
transfer.
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Section 5.4 Stockholders Record Date. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or 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 purposes of any other lawful action, the Board of Directors may fix, in
advance, a record date which 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. A determination of stockholders of record entitled to notice of or to
vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
Section 5.5 Dividends. Subject to the provisions of the Certificate of
Incorporation, the Board of Directors may, out of funds legally available
therefore, at any regular or special meeting, declare dividends upon the capital
stock of the Corporation as and when they deem such dividends expedient. Before
declaring any dividend, there may be set apart, out of any funds of the
Corporation available for dividends, such sum or sums as the directors, from
time to time, in their discretion, deem proper for working capital or as a
reserve fund to meet contingencies or for equalizing dividends or for such other
purposes as the directors shall deem conducive to the best interests of the
Corporation.
Section 5.6 Seal. The corporate seal shall be circular in form and shall
contain the name of the Corporation, the year of its creation and the words
"CORPORATE SEAL DELAWARE". Said seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
Section 5.7 Fiscal Year. The fiscal year of the Corporation shall be
determined by resolution of the Board of Directors.
Section 5.8 Checks. All checks, drafts or other orders for the payment of
money, notes or other evidences of indebtedness issued in the name of the
Corporation shall be signed by such officer or officers or agent or agents of
the Corporation, and in such manner as shall be determined, from time to time,
by resolution of the Board of Directors.
Section 5.9 Notice And Waiver Of Notice. Whenever notice is required to be
given by these By-Laws to be effective it shall be given by one or more of the
following means: personal delivery; United States mail; fax; e-mail; or
overnight courier. Notice shall be deemed to have been duly given or made if
addressed to the person entitled thereto at his address, e-mail address or fax
number, as the case may be, as it appears on the records of the Corporation and:
in the case of personal delivery, when delivered by hand; in the case of United
States mail, three days after such mailing, postage prepaid; in the case of fax,
when received; in the case of e-mail, when sent; or, in the case of overnight
courier, one day following delivery to the overnight service. Stockholders not
entitled to vote shall not be entitled to receive notice of any meetings except
as otherwise provided by Statute.
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Whenever any notice whatever is required to be given under the provisions
of any law or under the provisions of the Certificate of Incorporation of the
Corporation or of these By-Laws, a waiver thereof in writing, signed by the
person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto. Attendance at a meeting
shall constitute a waiver of notice of such meeting except when such attendance
is for the express purpose of objecting at the beginning of the meeting to the
transaction of any business because the meeting is not lawfully called or
convened.
ARTICLE VI
AMENDMENTS
Section 6.1 These By-Laws may be altered or repealed and new By-Laws may
be made at any annual meeting of the stockholders or at any special meeting
thereof if notice of the proposed alteration or repeal of any By-Law or By-Laws
to be made be contained in the notice of such special meeting by the affirmative
vote of a majority of the stock issued and outstanding and entitled to vote
thereat or by the affirmative vote of a majority of the Board of Directors, at
any regular or special meeting of the Board of Directors, if notice of the
proposed alteration or repeal of any By-Law or By-Laws to be made, be contained
in the notice of such regular or special meeting.
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