Exhibit 3(a)
CERTIFICATE OF INCORPORATION
OF
CNH CAPITAL RECEIVABLES INC.
FIRST: The name of the corporation is CNH Capital
Receivables Inc. (the "Corporation").
SECOND: The address of the Corporation's registered
office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware
19801. The name of its registered agent at such address is CT Corporation.
THIRD: The nature of the business or purpose to be conducted
or promoted by the Corporation is to engage exclusively in the following
activities:
(a) to acquire, own, hold, service, sell, assign,
pledge, finance, refinance and otherwise deal
with from time to time installment sale
contracts, sale contracts, receivables,
installment obligations, loans or leases arising
out of or relating to the sale or lease of new
or used agricultural, construction or other
industrial equipment, monies due thereunder,
security interests in the equipment financed
thereby, proceeds from claims on insurance
policies related thereto and related agreements,
instruments, documents and rights (collectively,
"Receivables");
(b) to acquire, own, hold, service, sell, assign,
pledge, finance, refinance and otherwise deal
with the collateral securing or equipment leased
under the Receivables, related insurance
policies, agreements with equipment dealers or
lessors or other originators or servicers of
Receivables and any proceeds or further rights
associated with any of the foregoing
(collectively, "Related Rights");
(c) to deal with the obligors under or servicers of
Receivables and Related Rights;
(d) to borrow funds and issue evidences of
indebtedness in respect thereof, and sell and
assign Receivables and Related Rights or
interests in Receivables and Related Rights and
issue notes, certificates or evidences of
ownership or assignments in respect thereof, in
each case in order to
1
<PAGE>
finance and facilitate the purchase of
Receivables and Related Rights and to secure
such borrowings and indebtedness with (and to
pledge and grant liens on and security interests
in) Receivables and Related Rights acquired from
time to time and other assets and properties in
which it otherwise has a right, title or
interest, provided, that, if the Corporation has
issued any securities (either directly or
through a securitization trust) that are then
rated by a nationally recognized statistical
rating organization (a "Rating Agency"), the
Corporation shall not directly borrow funds or
issue evidence of indebtedness other than as
permitted by such rated transaction unless each
Rating Agency shall have confirmed in writing
that such action would not cause it to downgrade
or withdraw its rating of any outstanding
indebtedness (direct or indirect) then rated by
such Rating Agencies;
(e) to enter into one or more agreements relating to
such borrowing of funds and issuing evidences of
indebtedness in respect thereof, in each case
referred to in clause (d) above, and the
issuance of such notes, certificates or other
evidences of ownership or assignment, and to
enter into credit enhancement arrangements and
agreements with respect thereto and the purchase
and servicing of Receivables and Related Rights
and all such documents, agreements and
instruments necessary or appropriate in
connection therewith and to undertake all such
duties and obligations and covenants as may be
set forth in such agreements, documents, and
instruments on its part to be performed
thereunder (such agreements, documents and
instruments, "Securitization Agreements");
(f) to loan or otherwise invest proceeds from
Receivables and Related Rights and any other
income, in either case to the extent permitted
in any Securitization Agreement;
(g) to execute, deliver and perform agreements
evidencing, necessitated by or in connection
with any and all of the foregoing;
(h) to issue capital stock as provided for herein; and
(i) to engage in any lawful act or activity and to
exercise any powers permitted to corporations
organized under the General Corporation Law of
the State of Delaware that are incidental to and
necessary, suitable or convenient for the
accomplishment of the purposes specified in
clauses (a) through (h) above.
FOURTH: (a) The total number of shares of all classes of
capital stock that the Corporation shall have authority to issue is Two Hundred
(200) shares of common stock, par
2
<PAGE>
value $5.00 per share (the "Common Stock").
(b) All voting rights shall be vested in the holders
of the Common Stock, and at each meeting of
stockholders of the Corporation, each holder of
Common Stock shall be entitled to one vote for
each share on each matter to come before the
meeting.
(c) Dividends may be declared upon and paid to the
holders of the Common Stock as the Board of
Directors shall determine.
(d) In the event of voluntary or involuntary
liquidation or dissolution of the Corporation,
the holders of the Common Stock shall be
entitled to share ratably in all assets of the
Corporation.
FIFTH: The name and mailing address of the sole incorporator
of the Corporation is as follows:
Name Mailing Address
---- ---------------
Peter T. Gruszka Mayer, Brown & Platt
190 South LaSalle Street
Chicago, IL 60603
SIXTH: (a) The business and affairs of the Corporation
shall be managed by and under the direction of the Board of Directors.
(b) At any given time, at least two members of the
Corporation's Board of Directors shall be an
Independent Director as defined below; provided,
however, that if at any time the office
of either Independent Director shall be
vacant for any reason, subject to ARTICLE NINTH
and Paragraph (d) of this ARTICLE
SIXTH hereof, any action taken by the Board of
Directors in accordance with this
Certificate of Incorporation and the
Corporation's By-Laws (other than actions taken
with respect to matters described in such
ARTICLE NINTH and Paragraph (d) of this ARTICLE
SIXTH) shall nonetheless be valid.
(c) As used herein, the following terms shall have the
meaning set forth below:
(i) An "Independent Director" shall be an
individual who (A) is not (and is not
an affiliate of) and for a five year
period prior to election or
appointment, as the case may be, was
not (and was not an affiliate of) a
director, officer, employee, manager,
contractor,
3
<PAGE>
customer or supplier (in either case,
of goods or services, or both, having a
value of $1,000 or more) or the
beneficial owner at the time of such
individual's appointment as an
Independent Director, or at any time
thereafter while serving as an
Independent Director, of (x) either
directly or indirectly, any of the
outstanding shares of common stock of
CNH Global N.V. ("CNH Global"), or (y)
directly or indirectly, outstanding
shares of common stock of any affiliate
of having a value greater than the
lesser of (i) $30,000 or (ii) 0.5% of
such individual's net worth; provided,
that, with respect to clause (y) next
above, no shares held by a mutual fund,
investment trust or similar investment
vehicle in which such individual holds
an interest shall be included in the
calculation of the value of the common
stock of any affiliate of CNH Global
held by such individual so long as such
individual does not directly or
indirectly make the investment
decisions for such mutual fund,
investment trust or other investment
vehicle; (B) is not a spouse, parent,
sibling or child of any Person
described by clause (A); and (C) has
not served as a trustee in bankruptcy
for CNH Global or any of its affiliates
or subsidiaries; provided, however,
that notwithstanding anything contained
in clauses (A) through (C) above, an
Independent Director may serve or have
served as an Independent Director of
one or more additional limited purpose
corporations, business trusts,
partnerships or other entities
organized for the purpose of acquiring,
financing or otherwise investing,
directly or indirectly, in assets or
receivables originated, owned or
serviced by CNH Global or any of its
affiliates.
(ii) An "affiliate" of a Person, or a Person
"affiliated with," a specified Person
shall mean a Person that directly or
indirectly through one or more
intermediaries controls, is controlled
by or is under common control with the
specified Person.
(iii) The term "control" (including the terms
"controlling," "controlled by" and
"under common control with") shall mean
the possession, direct or indirect, of
the power to direct or cause the
direction of the management and
policies of a Person, whether through
the ownership of voting securities, by
contract or otherwise.
(iv) The term "Person" shall mean any
individual, partnership, firm,
corporation, association, trust,
limited liability company,
unincorporated organization or other
entity, as well as any syndicate or
group deemed to be a Person pursuant to
Article 13(d)(3) of the Securities
Exchange Act of 1934, as amended.
4
<PAGE>
(v) A "subsidiary" of Case Credit
Corporation ("Credit") shall mean any
corporation a majority of the voting
stock of which is owned, directly or
indirectly, through one or more other
subsidiaries, by Credit.
(d) If an Independent Director resigns, dies or
becomes incapacitated, or such position
otherwise becomes vacant, no action requiring
the unanimous vote of the Board of Directors
shall be taken until a successor Independent
Director is elected and qualified and approves
of such action. In the event of the death,
incapacity or resignation of an Independent
Director, or a vacancy for any other reason, a
successor Independent Director shall be
appointed by the remaining directors. To the
extent permitted by Delaware law, the
Independent Directors, in voting on matters
subject to the approval of the Board of
Directors, shall at all times take into account
the interests of creditors of the Corporation,
in addition to the interests of the Corporation
and its stockholders.
SEVENTH: The Corporation is to have perpetual existence.
EIGHTH: Meetings of stockholders shall be held at such
place, within or without the State of Delaware, as may be designated by or
in the manner provided in the By-laws or, if not so designated or provided,
at the registered office of the Corporation in the State of Delaware.
Elections of directors need not be by ballot unless and except to the
extent that the By-laws so provide. The books of the Corporation may be
kept (subject to any provision contained in any applicable statute) outside
the State of Delaware at such place or places as may be designated from
time to time by the Corporation's Board of Directors or in the By-laws of
the Corporation.
NINTH: (a) The Corporation shall not, without the
affirmative vote of 100% of the members of the Board of Directors,
including the affirmative vote of each Independent Director, which vote of
each such director shall be in writing and given prior to such action, do
any of the following:
(i) engage in any business or activity other
than those set forth in ARTICLE THIRD
hereof;
(ii) dissolve or liquidate, in whole or in
part, consolidate or merge with or into
any other entity or convey or transfer
its properties and assets,
substantially as an entirety to any
entity other than in the ordinary
course of the Corporation's business as
set forth in ARTICLE THIRD hereof;
5
<PAGE>
(iii) institute proceedings to be adjudicated
bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency
proceedings against it or file a petition
seeking, or consent to, reorganization,
liquidation or relief under any applicable
federal or state law relating to bankruptcy,
insolvency, reorganization or dissolution, or
consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator
(or other similar official) of the Corpora-
tion or a substantial part of its property,
or make an assignment for the benefit of
creditors, or admit in writing its inability
to pay its debts as they become due, or take
corporate action in furtherance of any such
action or take any similar action with respect
to any securitization trust established by it;
or
(iv) increase or reclassify the capital stock of
the Corporation or issue any additional
shares of capital stock of the Corporation.
(b) The Corporation shall not take any corporate
action in connection with any merger of the
Corporation into, or consolidation of the
Corporation with, any other Person or entity, or
convey, transfer or lease substantially all of
its assets as an entirety to any Person or
entity unless, the following conditions are
satisfied:
(i) The Person or entity surviving such merger
or consolidation or the Person or entity
which acquires by conveyance, transfer or
lease substantially all of the assets of
the Corporation (A) is organized under the
laws of the United States or any state
thereof, (B) has immediately following such
merger or consolidation or transfer a net
worth at least equal to that of the
Corporation immediately prior to such
merger, consolidation or transfer (or whose
obligations are guaranteed by a Person or
entity with a net worth at least equal to
that of the Corporation immediately prior
to such merger, consolidation or transfer),
(C) expressly assumes all of the
obligations of the Corporation in
connection with the indebtedness
of the Corporation and (D) shall have a
certificate of incorporation, or other
organizational document containing
provisions substantially similar to the
provisions of ARTICLE THIRD, this
ARTICLE NINTH, ARTICLE TENTH and ARTICLE
ELEVENTH of this Certificate of
Incorporation.
(ii) Immediately after giving effect to such
merger, consolidation or transfer, no
default or event of default shall have
occurred and be continuing under any
agreement to which the Corporation is a
party.
6
<PAGE>
(iii) Such merger, consolidation or transfer
shall be authorized by (A) the
affirmative vote of 100% of the entire
Board of Directors, including each
Independent Director and (B) the
affirmative vote of the holders of
outstanding shares of capital stock of
the Corporation representing 100% of
all the votes entitled to be cast
thereon.
(c) The Corporation shall not, without the
affirmative vote of 100% of the members of the
Board of Directors, including the affirmative
vote of each Independent Director, which vote of
each such director shall be in writing and given
prior to such action, dissolve or liquidate, in
whole or in part;
provided that if there is not two Independent Directors then in office and
acting, a vote upon any matter set forth in this ARTICLE NINTH shall not be
taken unless and until both Independent Directors shall have been duly
elected.
TENTH: Without the affirmative vote of each member of the
Corporation's Board of Directors, including the affirmative vote of the
Independent Directors, the Corporation shall not amend either this
Certificate of Incorporation or the By-laws of the Corporation; provided
that if there are not two Independent Directors then in office, a vote upon
any matter set forth in this ARTICLE TENTH shall not be taken unless and
until two Independent Directors shall have been duly elected.
ELEVENTH: In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized:
(a) To make, alter or repeal the By-Laws of the
Corporation, subject to any limitation set forth
in the By-Laws or in this Certificate of
Incorporation.
(b) To set apart out of any of the funds of the
Corporation available for dividends a reserve or
reserves for any proper purpose and to abolish
any such reserve in the manner in which it was
created.
(c) By a majority of the whole Board, to designate
one or more committees, each committee to
consist of one 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. The
By-Laws may provide that 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, she or they constitute a quorum, may
7
<PAGE>
unanimously appoint another member of the Board
of Directors to act at the meeting in the place
of any such absent or disqualified member. Any
such committee, to the extent provided in the
resolution of the Board of Directors, or in the
By-Laws of the Corporation, 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; but
no such committee shall have the power or
authority in reference to taking any action that
requires the unanimous consent of all members of
the Board of Directors, including 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 and 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 the resolution or By-Laws expressly so
provide, no such committee shall have the power
or authority to declare a dividend or to
authorize the issuance of stock.
(d) To exercise, in addition to the powers and
authorities herein or by law conferred upon it,
any such powers and authorities and do all such
acts and things as may be exercised or done by
the Corporation, subject nevertheless, to the
provisions of the laws of the State of Delaware
and of this Certificate of Incorporation and of
the By-Laws of the Corporation.
TWELFTH: The Corporation will maintain its separate
corporate existence and identity and will take all steps necessary to make
it apparent to third parties that the Corporation is an entity with assets
and liabilities distinct from those of Credit or any subsidiary or
affiliate of Credit. Without limiting the foregoing, the Corporation shall
therefore, at all times (i) promptly reimburse Credit or any affiliate of
Credit for all reasonable expenses paid or incurred by Credit, any
affiliate or their personnel for or on behalf of the Corporation, including
appropriate allocations of (x) salaries and benefits of those personnel
performing services for the Corporation and (y) office space, overhead,
computing and other expenses attributable to services performed for the
Corporation, if any, (ii) maintain the Corporation's books, accounting
records and other corporate documents and records separate from those of
Credit or any other entity, (iii) prepare separate financial statements
from those of Credit and request that Credit include appropriate footnotes
in any consolidated financial statements issued by Credit to reflect the
Corporation's separate existence and assets and liabilities, (iv) maintain
the Corporation's books of account and payroll (if any) separate from those
of Credit or any affiliate of Credit, (v) act solely in its corporate name
and through its own authorized officers and agents, stationary, checks,
invoices and letterhead, (vi) separately manage the Corporation's
liabilities from those of Credit or any affiliate of Credit and pay its own
liabilities, including all administrative expenses, including salaries,
from its own separate assets, (vii) pay from the Corporation's assets all
obligations and
8
<PAGE>
indebtedness of any kind incurred by the Corporation, (viii) maintain an
arm's length relationship with its affiliates, (ix) maintain a sufficient
number of employees in light of its contemplated business operations, (x)
hold itself out as a separate entity, (xi) correct any known
misunderstanding regarding its separate identity, (xii) except as
contemplated by a Securitization Agreement, not commingle its assets with
those of any other entity, (xiii) except as contemplated by a
Securitization Agreement, not acquire obligations or securities of its
partners, members or shareholders, (xiv) except as contemplated by a
Securitization Agreement, not pledge its assets for the benefit of any
other entity or make loans or advances to any other entity, and (xv)
maintain adequate capital in light of its contemplated business operations.
The Corporation shall abide by all corporate formalities, including the
maintenance of current minute books, and the Corporation shall cause its
financial statements to be prepared in accordance with generally accepted
accounting principles in a manner that indicates the separate existence of
the Corporation and its assets and liabilities. The Corporation shall not
assume the liabilities of Credit or any affiliate of Credit, and shall not
guarantee the liabilities of Credit or any affiliate of Credit. The
officers and directors of the Corporation (as appropriate) shall make
decisions with respect to the business and daily operations of the
Corporation independent of and not dictated by Credit or any affiliate of
Credit.
THIRTEENTH: To the fullest extent permitted by the
General Corporation Law of the State of Delaware as it now exists or may
hereafter be amended, no director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages arising from a breach
of fiduciary duty owed to the Corporation or its stockholders.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such
repeal or modification.
FOURTEENTH: A director shall be fully protected in
relying on information, opinions, reports, books or account or statements,
including financial statements and other financial data, that are prepared
or presented by (a) one or more directors, officers or employees of the
Corporation reasonably believed to be reliable and competent in the matters
prepared or presented, (b) counsel, public accountants, or other persons as
to matters reasonably believed to be within the preparer or presenter's
professional or expert competence, or (c) a committee on which the director
relying thereon does not serve and which has been established in accordance
with General Corporation Law of the State of Delaware, as to matters within
the committee's designated authority and matters on which the committee is
reasonably believed to merit confidence. Notwithstanding anything to the
contrary in the immediately proceeding sentence, a director is not entitled
to rely on such information, opinions, reports, books of account or
statements if he or she has knowledge concerning the matter in question
that would cause reliance thereon to be unwarranted.
FIFTEENTH: (a) The Corporation shall indemnify any officer
or director who was or is a party or who is threatened to be made a party to
any threatened, pending or completed
9
<PAGE>
action, suit or proceeding, whether civil, criminal, administrative or
investigative (except an action by or in the right of the Corporation) by
reason of the fact that he or she is or was a director or officer of the
Corporation, or is or was serving at the request of the Corporation as a
director or officer of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action, suit or proceeding
if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Corporation,
and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the Person did not act in good faith or in a
manner which he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his or her conduct was
unlawful.
(b) The Corporation shall indemnify any officer or
director who was or is a party or who is
threatened to be made a party to any threatened,
pending or completed action or suit by or in the
right of the Corporation to procure a judgement
in its favor by reason of the fact that he or
she is or was a director or officer of the
Corporation, or is or was serving at the request
of the Corporation as a director or officer of
another corporation, partnership, joint venture,
trust or other enterprise against expenses,
including amounts paid in settlement and
attorneys' fees actually and reasonably incurred
by him in connection with the defense or
settlement of the action or suit if he or she
acted in good faith and in a manner which he
reasonably believed to be in or not opposed to
the best interests of the Corporation.
Indemnification may not be made for any claim,
issue or matter as to which such a person has
been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Corporation or
for amounts paid in settlement to the
Corporation, unless and only to the extent that
the court in which the action or suit was
brought or other court of competent jurisdiction
determines upon application that in view of all
the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for
such expenses as the court deems proper.
(c) Notwithstanding anything contained in this
ARTICLE FIFTEENTH to the contrary and subject to
the applicable provisions of the General
Corporation Law of the State of Delaware, as
long as any obligations of the Corporation are
outstanding, the rights of each officer and
director of the Corporation hereunder shall be
entirely subordinated to the full payment when
due of all such obligation.
10
<PAGE>
SIXTEENTH: No director of the Corporation shall be
personally liable to the Corporation or any of its stockholders for
monetary damages for breach of fiduciary duty as a director; provided that
the provisions of this ARTICLE SIXTEENTH shall not eliminate or limit the
liability of a director (a) for any breach of the director's duty of
loyalty to the Corporation and to its stockholders, (b) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (c) under Section 174 of the General Corporation
Law of the State of Delaware or (d) for any transaction from which such
director derived an improper personal benefit. If the General Corporation
Law of the State of Delaware is amended after the filing of this
Certificate of Incorporation so as to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of each director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the law of the State of Delaware
as the same exists from time to time. Any repeal or modification of the
ARTICLE SIXTEENTH by the stockholders of the Corporation shall not
adversely affect any elimination of or limitation on the personal liability
of a director of the Corporation existing at the time of such repeal or
modification.
SEVENTEENTH: Except as set forth in ARTICLE NINTH hereof,
the Corporation reserves the right to amend, alter, change or repeal any
provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
EIGHTEENTH: The number of the directors constituting the
Board of Directors shall be five and the following persons shall serve as the
initial directors of the Corporation:
Name Address
---- -------
Robert A. Wegner 100 South Saunders Road
Lake Forest, IL 60045
Theodore R. French 100 South Saunders Road
Lake Forest, IL 60045
Jean-Pierre Rosso 100 South Saunders Road
Lake Forest, IL 60045
John R. Power, Jr. Patrician Group
901 Warrenville Road
Suite 205
Lisle, IL 60532
William L. Staples Staples Financial Inc.
233 South Wacker Drive
Suite 9650
Chicago, IL 60606
11
<PAGE>
EXECUTED this 19th day of May, 2000.
By: /s/ Peter T. Gruszka
-------------------------------------
Peter T. Gruszka
12
<PAGE>
