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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
ORIX CREDIT ALLIANCE RECEIVABLES 2000-B CORPORATION
First. The name of the corporation is ORIX Credit Alliance Receivables
2000-B Corporation (the "Corporation").
Second. The address of the Corporation's registered office in the state
of Delaware is 15 East North Street, City of Dover, County of Kent, Delaware.
The name and address of its registered agent at such address is United Corporate
Services, Inc.
THIRD. (a) The nature of the business or purposes to be conducted or
promoted by the Corporation is to engage in the following activities:
(i) to acquire, own, hold, service, sell, assign, pledge,
finance, refinance and otherwise deal with from time to time
installment sale contracts, loan contracts, equipment finance leases
and title retention and other security instruments (the "Contracts")
secured by capital equipment used in such industries as construction,
trucking and transportation, wood and pulp, machine tools and printing
and publishing, among others (the "Financed Equipment"), monies due
thereunder, security interests in the Financed Equipment, proceeds from
claims on insurance policies related thereto and related agreements,
instruments, documents and rights;
(ii) to acquire, own, hold, service, sell, assign, pledge,
finance, refinance and otherwise deal with the Financed Equipment and
other collateral securing the Contracts, related insurance policies,
agreements with equipment dealers or lessors or other originators or
servicers of Contracts and any proceeds or further rights associated
with any of the foregoing;
(iii) to sell, assign, pledge or otherwise transfer
Contracts, Certificates or Notes to trusts originated by the
Corporation or one of its affiliates (the "Trusts");
(iv) to authorize, sell and deliver one or more series or
classes or participation certificates or other evidence of interests
("Certificates") or one or more series or classes of bonds, notes or
other evidences or indebtedness ("Notes"), in either case issued by
Trusts;
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(v) to acquire Certificates or Notes;
(vi) to issue, authorize, sell and deliver Notes secured
or collateralized by Contracts, Certificates or Notes;
(vii) to hold and enjoy all of the rights and privileges of
any Certificate or Notes;
(viii) to negotiate, authorize, execute, deliver, assume the
obligations under, and perform, any agreement or instrument or document
relating to the activities set forth in clauses (i) through (vii)
above, including but not limited to any trust agreement, transfer and
servicing agreement, pooling and servicing agreement, indenture,
reimbursement agreement, credit support agreement, receivables purchase
agreement, indemnification agreement or underwriting agreement entered
into by and among, among others, the Corporation as well as certain
other financing entities (collectively hereinafter referred to as the
"Entities"); and
(ix) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of Delaware that
are related or incidental to the foregoing and necessary, convenient or
advisable to accomplish the foregoing.
(b) Notwithstanding any other provision of this Certificate of
Incorporation and any provision of law that otherwise so empowers the
Corporation, the Corporation shall not, without the written consent of each
nationally recognized rating agency which has been requested by the Corporation
to rate any issue of Certificates or Notes and which is then rating such
Certificates or Notes, incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, other than (A) any indebtedness incurred in
connection with any Certificates or Notes, provided that such indebtedness
incurred in connection with any Certificates or Notes must be rated at least in
the same ratings category given any outstanding Certificates or Notes by each
nationally recognized rating agency that has rated the outstanding Certificates
or Notes or, prior to the issuance of such indebtedness, the Corporation shall
have received confirmation from each nationally recognized rating agency that
has rated the outstanding Certificates or Notes that the ratings of the
outstanding Certificates or Notes will not be adversely affected by the issuance
of such future indebtedness, (B) indebtedness not exceeding $300,000 outstanding
at such time on account of incidentals or services supplied or furnished to the
Corporation in the ordinary course of its business and (C) any indebtedness to
any affiliate of the Corporation incurred in connection with the acquisition of
Contracts, which indebtedness shall be subordinated to any other obligations of
the Corporation and
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shall be nonrecourse debt of the Corporation.
FOURTH. The total number of shares of stock which the Corporation
shall have authority to issue is two hundred (200) and the par value of each of
such shares is Five Dollars ($5.00) amounting in the aggregate to One Thousand
Dollars ($1,000).
FIFTH. The name and mailing address of the incorporator is ,
125 Broad Street, New York, New York 10004.
SIXTH. The board of directors of the corporation is expressly
authorized to adopt, amend or repeal by-laws of the corporation.
(a) All corporate powers shall be exercised by the Board of
Directors, except as provided by statute or by this Certificate of
Incorporation. Notwithstanding any other provisions of these Articles, when
acting on matters subject to the vote of the members of the Board of Directors
of the Corporation, notwithstanding that the Corporation is not then insolvent,
all of the members shall take into account the interest of the Corporation's
creditors, as well as those of the other members.
(b) At all times that the Corporation has outstanding obligations
to the Entities relating to the Contracts, the Board of Directors shall include
at least two individuals who are Independent Directors. As used herein, an
"Independent Director" shall be an individual who: (i) is not and has not been
employed by ORIX Credit Alliance, Inc. ("OCAI") or any of its subsidiaries or
affiliates, as a director, officer, employee, partner, attorney or counsel
within the five years immediately prior to such individual's appointment as an
Independent Director, other than as an independent director of special purpose
subsidiaries engaged in financial transactions substantially similar to the
transactions relating to the Certificates or Notes; (ii) is not (and is not
affiliated with a company or a firm that is) an advisor or consultant to OCAI or
any of its subsidiaries and affiliates; (iii) is not affiliated with a customer
or supplier of OCAI or any of its subsidiaries or affiliates; (iv) is not
affiliated with a company of which OCAI or any of its subsidiaries and
affiliates is a customer or supplier, (v) does not have personal services
contract(s) with OCAI or any of its subsidiaries or affiliates; (vi) is not
affiliated with a tax-exempt entity that receives contributions from OCAI or any
of its subsidiaries or affiliates; (vii) is not 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 shares of OCAI; (viii)
does not at any time hold any beneficial or economic interest in the
Corporation; and (ix) is not a spouse, parent, sibling or child of any person
described in clauses (i) through (viii).
(c) As used in paragraph (b), the following terms shall have the
following meanings:
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(i) 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, or is
controlled by, or is under common control with, the specified person.
(ii) 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;
provided, however, that a person shall not be deemed to control another
person solely because he or she is a director of such other person.
SEVENTH. Notwithstanding any other provision of these Articles and any
provision of law, the Corporation shall not do any of the following:
(a) engage in any business or activity other than as set forth
hereof;
(b) without the unanimous affirmative vote of the members of the
Board of Directors of the Corporation,(i) dissolve or liquidate, in whole or in
part, or institute proceedings to be adjudicated bankrupt or insolvent, (ii)
consent to the institution of a bankruptcy or insolvency proceeding against it,
(iii) file a petition seeking or consenting to reorganization or relief under
any applicable federal or state law relating to bankruptcy, (iv) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Corporation or a substantial part of its property, (v)
make a general assignment for the benefit of creditors, (vi) admit in writing
its inability to pay its debts generally as they become due, or (vii) take any
corporate action in furtherance of the actions set forth in clauses (i) through
(vi) of this paragraph, provided, however, that no director may be required by
any stockholder of the Corporation to consent to the institution of bankruptcy
or insolvency proceedings against the Corporation so long as it is solvent; or
(c) without the unanimous affirmative vote of the members of the
Board of Directors of the Corporation, merge or consolidate with any
other corporation, company or entity or sell, lease or otherwise transfer
(except as contemplated by Article Third hereof) all or substantially all of
its assets to, or acquire all or substantially all of the assets or capital
stock or other ownership interest of, any other corporation, company or entity.
EIGHTH. The following internal affairs provisions shall apply;
a. The Corporation's assets will not be commingled with those of
any direct
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or ultimate parent of the Corporation or any other person or entity and will
hold all of its assets in its own name;
b. The Corporation will maintain separate corporate records and
books of account from those of any subsidiaries, affiliates, or the direct or
ultimate parent of the Corporation or any other person or entity;
c. The Corporation will maintain bank accounts separate from any
other person or entity;
d. The Corporation will maintain separate financial statements,
showing its assets and liabilities separate and apart from those of any other
person or entity and not to have its assets listed on the financial statement
of any other entity;
e. The Corporation will pay its own liabilities and expenses
solely out of its own funds;
f. The Corporation will observe all corporate and other
organizational formalities;
g. The Corporation will maintain an arm's length relationship
with its affiliates and enter into transactions with affiliates only on a
commercially reasonable basis;
h. The Corporation will pay the salaries of its own employees
from its own funds;
i. The Corporation will maintain a sufficient number of
employees in light of its contemplated business operations;
j. The Corporation will not guarantee or become obligated for
the debts of any other entity or person;
k. The Corporation will not hold out its credit as being
available to satisfy the obligations of any other person or entity;
l. The Corporation will not acquire the obligations or
securities of its affiliates or owners, including partners, members or
shareholders, as appropriate;
m. The Corporation will not make loans to any other person or
entity or to buy or hold evidence of indebtedness issued by any other person or
entity;
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n. The Corporation will allocate fairly and reasonably any
overhead expenses that are shared with an affiliate, including paying for
office space and services performed by any employee of an affiliate;
o. The Corporation will hold itself out as a separate entity;
p. The Corporation will correct any known misunderstanding
regarding its separate identity;
q. The Corporation will not identify itself as a division of any
other person or entity; and
r. The Corporation will maintain adequate capital in light of
its contemplated business purposes.
NINTH. The Corporation is to have perpetual existence.
TENTH. Meetings of stockholders may be held within or without the
State of Delaware, as the by-laws of the Corporation may provide. The books of
the Corporation may be kept (subject to any provision contained in applicable
law) outside the State of Delaware at such place or places as may be designated
from time to time by the Board of Directors or in the by-laws of the
Corporation.
ELEVENTH. (a) A director of this Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law, (iii) under Section 174 of the General Corporation Law of
the State of Delaware, or (iv) of any transaction from which the director
derived an improper personal benefit.
(b) Any repeal or modification of paragraph (a) 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.
TWELFTH. Election of Directors need not be by written ballot unless
the by-laws of the Corporation so provide.
THIRTEENTH. The Corporation reserves the right to amend, alter, change
or repeal any provision contained in these Articles in any manner now or
hereafter provided herein or by statute; and, except as provided with respect to
the indemnification of directors, all rights, preferences and privileges
conferred by these Articles upon
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stockholders, directors or any other person are granted subject to such right;
provided, however, that the Corporation shall not amend, alter, change or repeal
any provision of Articles Third, Sixth, Seventh, Eighth or Thirteenth (the
"Restricted Articles") without the unanimous affirmative vote of the members of
the Board of Directors and provided, further, that the Corporation shall not
amend or change any Article so as to be inconsistent with the Restricted
Articles.
FOURTEENTH. The Corporation expressly elects not to be governed by
Section 203 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, ORIX Credit Alliance Receivables 2000-B Corporation
has caused this Certificate to be signed and attested by its sole incorporator
this day of July, 2000.
ORIX CREDIT ALLIANCE RECEIVABLES
2000-B CORPORATION
By:
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Title: Sole Incorporator
