BY-LAWS OF
HOME EQUITY SECURITIZATION CORP.
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ARTICLE I.
OFFICES
Section 1. Principal office. The principal office of the corporation
shall be located at Charlotte in Mecklenburg County, North Carolina.
Section 2. Registered office. The registered office of the corporation
required by law to be maintained in the State of North Carolina may be, but need
not be, identical with the principal office.
Section 3. Other offices. The corporation may have offices at such
other places, either within or without the State of North Carolina, as the Board
of Directors may designate or as the affairs of the corporation may require from
time to time.
ARTICLE II.
MEETINGS OF SHAREHOLDERS
Section 1. Place of meetings. All meetings of shareholders shall be
held at the principal office of the corporation, or at such other place, either
within or without the State of North Carolina, as shall be designated on the
notice of the meeting or agreed upon by a majority of the shareholders entitled
to vote thereat.
Section 2. Annual meetings. The annual meeting of shareholders shall be
held on the third Tuesday in April of each year for the purpose of electing
directors of the corporation and for the transaction of such other business as
may be properly brought before the meeting. If the day fixed for the annual
meeting shall be a legal holiday, such meeting shall be held on the next
succeeding business day.
Section 3. Substitute annual meeting. If the annual meeting shall not
be held on the day designated by these by-laws, a substitute annual meeting may
be called in accordance with the provisions of Section 4 of this Article II. A
meeting so called shall be designated and treated for all purposes as the annual
meeting.
Section 4. Special meetings. Special meetings of the shareholders may
be called at any time by the President, Secretary, or Board of Directors of the
corporation, or by the written request of the holders of not less than one-tenth
of all the shares entitled to vote at the meeting.
Section 5. Notice of meetings. Written or printed notice stating the
time and place of the meeting shall be delivered not less than ten nor more than
fifty days before the date of any shareholders' meeting, either personally or by
mail, by or at the direction of the President, the
Secretary, or other person or persons calling the meeting, to each shareholder
of record entitled to vote at such meeting; provided that such notice must be
given not less than twenty days before the date of any meeting at which a merger
or consolidation is to be considered. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail, addressed to the
shareholder at his address as it appears on the record of shareholders of the
corporation, with postage thereon prepaid.
In the case of a special meeting, the notice of meeting shall
specifically state the purpose or purposes for which the meeting is called; but,
in the case of an annual or substitute annual meeting, the notice of meeting
need not specifically state the business to be transacted thereat unless such a
statement is required by the provisions of the North Carolina Business
Corporation Act.
When a meeting is adjourned for thirty days or more, notice of the
adjourned meeting shall be given as in the case of an original meeting. When a
meeting is adjourned for less than thirty days in any one adjournment, it is not
necessary to give any notice of the adjourned meeting other than by announcement
at the meeting at which the adjournment is taken.
Section 6. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of shareholders, except that at a substitute
annual meeting of shareholders the number of shares there represented either in
person or by proxy, even though less than a majority, shall constitute a quorum
for the purpose of such meeting.
The shareholders present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum.
In the absence of a quorum at the opening of any meeting of
shareholders, such meeting may be adjourned from time to time by a vote of the
majority of the shares voting on the motion to adjourn; and at any adjourned
meeting at which a quorum is present, any business may be transacted which might
have been transacted at the original meeting.
Section 7. Proxies. Shares may be voted either in person or by one or
more agents authorized by a written proxy executed by the shareholder or by his
duly authorized attorney in fact. A proxy is not valid after the expiration of
eleven months from the date of its execution, unless the person executing it
specifies therein the length of time for which it is to continue in force, or
limits its use to a particular meeting, but no proxy shall be valid after ten
years from the date of its execution.
Section 8. Voting of shares. Subject to the provisions of Section 4 of
Article III, each outstanding share entitled to vote shall be entitled to one
vote on each matter submitted to a vote at a meeting of shareholders.
Except in the election of directors as governed by the provisions of
Section 3 of Article III, the vote of a majority of the shares voted on any
matter at a meeting of shareholders at which
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a quorum is present shall be the act of the shareholders on that matter, unless
the vote of a greater number is required by law or by the charter or by-laws of
the corporation.
Shares of its own stock owned by the corporation, directly or
indirectly, through a subsidiary corporation or otherwise, shall not be voted
and shall not be counted in determining the total number of shares entitled to
vote, except that shares held in a fiduciary capacity may be voted and shall be
counted to the extent provided by law.
Section 9. Informal action by shareholders. Any action which may be
taken at a meeting of the shareholders may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all of
the persons who would be entitled to vote upon such action at a meeting, and
filed with the Secretary of the corporation to be kept as part of the corporate
records.
ARTICLE III.
BOARD OF DIRECTORS
Section 1. General powers. The business and affairs of the corporation
shall be managed by its Board of Directors.
Section 2. Number, term and qualification. The number of directors
constituting the Board of Directors shall not be less than one (1) nor more than
seven (7) as may be fixed from time to time by resolution duly adopted by the
shareholders or by the Board of Directors of the corporation. Each director
shall hold office until his death, resignation, retirement, removal,
disqualification, or his successor shall have been elected and qualified.
Directors need not be residents of the State of North Carolina or shareholders
of the corporation.
The corporation shall at all times have at least one (1) director (the
"Independent Director") who is not (i) a director, officer or employee of any
affiliate of the corporation other than a special purpose affiliate; (ii) a
person related to any director, officer or employee of any affiliate of the
corporation other than a special purpose affiliate; (iii) a holder (directly or
indirectly) of more than 5% of any voting securities of any affiliate of the
corporation; or (iv) a person related to a holder (directly or indirectly) of
more than 5% of any voting securities of any affiliate of the corporation.
For the purposes of this Section 2 of this Article III, the terms
"affiliate", "control", "person" and "special purpose affiliate" shall have the
meanings ascribed to them in Article 4 of the charter of the corporation.
Section 3. Election of directors. Except as provided in Section 6 of
this Article III, the directors shall be elected at the annual meeting of
shareholders; and those persons who receive the highest number of votes shall be
deemed to have been elected. If any shareholder so demands, the election of
directors shall be by ballot.
Section 4. Cumulative voting. Every shareholder entitled to vote at an
election of directors shall have the right to vote the number of shares standing
of record in his name for as
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many persons as there are directors to be elected and for whose election he has
a right to vote, or to cumulate his votes by giving one candidate as many votes
as the number of such directors multiplied by the number of his shares shall
equal, or by distributing such votes on the same principle among any number of
such candidates. This right of cumulative voting shall not be exercised unless
some shareholder or proxyholder announces in open meeting, before the voting for
the directors starts, his intention so to vote cumulatively; and if such
announcement is made, the chair shall declare that all shares entitled to vote
have the right to vote cumulatively and shall thereupon grant a recess of not
less than one nor more than four hours, as he shall determine, or of such other
period of time as is unanimously then agreed upon.
Section 5. Removal. Any director may be removed at any time with or
without cause by a vote of the shareholders holding a majority of the
outstanding shares entitled to vote at an election of directors. However, unless
the entire Board is removed, an individual director shall not be removed when
the number of shares voting against the proposal for removal would be sufficient
to elect a director is such shares could be voted cumulatively at an annual
election. If any directors are so removed, new directors may be elected at the
same meeting.
Section 6. Vacancies. Any vacancy occurring in the Board of Directors
may be filled by the affirmative vote of a majority of the remaining directors
even though less than a quorum, or by the sole remaining director. A director
elected to fill a vacancy shall be elected for the unexpired term of his
predecessor in office. Any directorship to be filled by reason of an increase in
the authorized number of directors shall be filled only by election at an annual
meeting or at a special meeting of shareholders called for that purpose.
Section 7. Chairperson of board. There may be a chairperson of the
Board of Directors elected by the directors from their number at any meeting of
the Board. The chairperson shall preside at all meetings of the Board of
Directors and perform such other duties as may be directed by the Board.
Section 8. Compensation. The Board of Directors may compensate
directors for their services as such and may provide for the payment of any or
all expenses incurred by directors in attending regular and special meetings of
the Board.
ARTICLE IV.
MEETINGS OF DIRECTORS
Section 1. Regular meetings. A regular meeting of the Board of
Directors shall be held immediately after, and at the same place as, the annual
meeting of shareholders. In addition, the Board of Directors may provide, by
resolution, the time and place, either within or without the State of North
Carolina, for the holding of additional regular meetings. Any one or more
members of the Board of Directors may participate in a meeting of the Board by
means of a conference telephone or similar communications equipment allowing all
persons participating in the meeting to hear each other at the same time, and
participation by such means shall constitute presence in person at such meeting.
Section 2. Special meetings. Special meetings of the Board of Directors
may be called
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by or at the request of the President or any two directors. Such a meeting may
be held either within or without the State of North Carolina, as fixed by the
person or persons calling the meeting.
Section 3. Notice of meetings. Regular meetings of the Board of
Directors may be held without notice. The person or persons calling a special
meeting of the Board of Directors shall, at least two days before the meeting,
give notice thereof by any usual means of communication. Such notice need not
specify the purpose for which the meeting is called.
Section 4. Waiver of notice. Any director may waive notice of any
meeting. The attendance by a director at a meeting shall constitute a waiver of
notice of such meeting, except where a director attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
Section 5. Quorum. A majority of the number of directors in office
shall constitute a quorum for the transaction of business at any meeting of the
Board of Directors.
Section 6. Manner of acting. Except as otherwise provided in these
fixed by these by-laws, the act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
Section 7. Presumption of assent. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be presumed to have assented to the action taken unless
his contrary vote is recorded or his dissent is otherwise entered in the minutes
of the meeting or unless he shall file his written dissent to such action with
the person acting as the secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to the Secretary of the
corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 8. Informal action by directors. Action taken by a majority of
the directors without a meeting is nevertheless Board action if written consent
to the action in question is signed by all the directors and filed with the
minutes of the proceedings of the Board, whether done before or after the action
so taken.
ARTICLE V.
OFFICERS
Section 1. Officers of the corporation. The officers of the corporation
shall consist of a President, a Secretary, a Treasurer and such Vice-Presidents,
Assistant Secretaries, Assistant Treasurers, and other officers as the Board of
Directors may from time to time elect. Any two or more offices may be held by
the same person, but no officer may act in more than one capacity where action
of two or more officers is required.
Section 2. Election and term. The officers of the corporation shall be
elected by the Board of Directors or in such other manner as may be approved by
the Board of Directors, and
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each officer shall hold office until his death, resignation, retirement,
removal, or disqualification or until his successor shall have been elected and
qualified.
Section 3. Compensation of officers. The compensation of all officers
of the corporation shall be fixed by the Board of Directors or in such other
manner as may be approved by the Board of Directors and no officer shall serve
the corporation in any other capacity and receive compensation therefor unless
such additional compensation is authorized by the Board of Directors.
Section 4. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed with or without cause or for any reason
whatsoever.
Section 5. Bonds. The corporation may require any officer, agent, or
employee of the corporation to give bond to the corporation, with sufficient
sureties, conditioned on the faithful performance of the duties of his
respective office or position, and to comply with such other conditions as may
from time to time be required by the corporation.
Section 6. Officers acting as Assistant Secretaries. Notwithstanding
anything contained in these by-laws, any Vice President (including any Senior
Vice President or any Assistant Vice President) shall have, by virtue of his
office, and by authority of these by-laws, the authority, from time to time, to
act as an Assistant Secretary of the corporation, and to such extent, said
officers are appointed to the office of Assistant Secretary.
ARTICLE VI.
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for shares. Certificates representing shares of
the corporation shall be in such form as shall be determined by the Board of
Directors. The corporation shall issue and deliver to each shareholder a
certificate or certificates representing all fully paid shares owned by him.
Certificates shall be signed by the President or a Vice President and by the
Secretary or Treasurer or an Assistant Secretary or an Assistant Treasurer and
may be sealed with the seal of the corporation or a facsimile thereof. The
signatures of the officers upon a certificate may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
other than the corporation itself or its employee. In case any officer who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer before such certificate is issued, it may be
issued by the corporation with the same effect as if he were such officer at the
date of issue. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the person to whom the shares
represented thereby are issued, with the number and class of shares and the date
of issue, shall be entered on the stock transfer books of the corporation.
Section 2. Transfer of shares. Transfer of shares of the corporation
shall be made only on the stock transfer books of the corporation by the holder
of record thereof or by his legal representative, who shall furnish proper
evidence of authority to transfer, or by his attorney thereunto authorized by
power of attorney duly executed and filed with the Secretary, and on surrender
for cancellation of the certificate for such shares with proper endorsement on
the
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certificate or on a separate accompanying document together with such evidence
of the payment of transfer taxes and compliance with such other provisions of
law as the corporation or its transfer agent may require.
Section 3. Lost certificate. The Board of Directors may direct a new
certificate to be issued in place of any certificate theretofore issued by the
corporation claimed to have been lost or destroyed, upon receipt of an affidavit
of such fact from the person claiming the certificate of stock to have been lost
or destroyed. When authorizing such issue of a new certificate, the Board of
Directors shall require that the owner of such lost or destroyed certificate, or
his legal representative, give the corporation a bond in such sum as the Board
may direct as indemnity against any claim that may be made against the
corporation with respect to the certificate claimed to have been lost or
destroyed, except where the Board of Directors by resolution finds that in the
judgment of the directors the circumstances justify omission of a bond.
Section 4. Closing transfer books and fixing record date. For the
purpose of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of any dividend, or in order to make a determination of shareholders for
any other proper purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period but not to exceed, in any
case, fifty days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten days immediately
preceding such meeting.
In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any such determination of
shareholders, such record date in any case to be not more than fifty days, and
in case of a meeting of shareholders, not less than ten days, immediately
preceding the date on which the particular action, requiring such determination
of shareholders is to be taken.
If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on which
the resolution of the Board of Directors declaring such dividend is adopted, as
the case may be, shall be the record date for such determination of
shareholders.
When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, except where the determination has been made
through the closing of the stock transfer books and the stated period of closing
has expired.
Section 5. Holder of record. The corporation may treat as absolute
owner of shares the person in whose name the shares stand of record on its books
just as if that person had full competency, capacity and authority to exercise
all rights of ownership irrespective of any knowledge or notice to the contrary
or any description indicating a representative, pledge or other fiduciary
relation or any reference to any other instrument or to the rights of any other
person appearing upon its record or upon the share certificate except that any
person furnishing to the
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corporation proof of his appointment as a fiduciary shall be treated as if he
were a holder of record of the shares evidenced by such certificate.
ARTICLE VII.
GENERAL PROVISIONS
Section 1. Dividends. The Board of Directors may from time to time
declare, and the corporation may pay, dividends on its outstanding shares in
cash, property, or its own shares pursuant to law and subject to the provisions
of its charter.
Section 2. Seal. The corporate seal of the corporation shall consist of
two concentric circles between which is the name of the corporation and in the
center of which is inscribed SEAL; and such seal is hereby adopted as the
corporate seal of the corporation.
Section 3. Waiver of notice. Whenever any notice is required to be
given to any shareholder or director by law, by the charter or by these by-laws,
a waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the giving of such notice.
Section 4. Fiscal Year. The fiscal year of the corporation shall be
fixed by the Board of Directors, and in the absence of any action on the matter,
the fiscal year shall be the calendar year.
Section 5. Amendments. Except as otherwise provided herein, these
by-laws may be amended or repealed and new bylaws may be adopted by the
affirmative vote of a majority of the directors then holding office at any
regular or special meeting of the Board of Directors.
The Board of Directors shall have no power to adopt a by-law: (1)
prescribing quorum or voting requirements for action by shareholders or
directors different from those prescribed by law; or (2) classifying and
staggering the election of directors.
No by-law adopted or amended by the shareholders shall be amended or
repealed by the Board of Directors, except to the extent that such by-law
expressly authorizes its amendment or repeal by the Board of Directors.
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HOME EQUITY SECURITIZATION CORP.
CORPORATE SEAL