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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
UNION PLANTERS HOME EQUITY CORP.
ARTICLE FIRST: The name of the corporation (the "Corporation") is:
UNION PLANTERS HOME EQUITY CORP.
ARTICLE SECOND: The address of the registered office of the
Corporation in the State of Delaware is The Corporation Trust Company, 1209
Orange Street, in the City of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust Company.
ARTICLE THIRD: For all purposes of this Certificate of
Incorporation, the following terms have the meanings assigned to them in this
Article THIRD and such definitions extend to the plural as well as the singular
forms of the defined terms.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control
with any holder of common stock of the Corporation.
"Independent Director" means a Person (i) who, except in his
or her capacity as a director and/or officer of the Corporation, is not
an employee, director or officer, or a former employee, director or
officer, of Union Planters Corporation or any Affiliate; provided,
however, that such person may have formerly served as an Independent
Director of an Affiliate of Union Planters Corporation, (ii) who is not
a direct, indirect or beneficial holder of 5% or more of the
outstanding stock or any other equity interest in Union Planters
Corporation or any Affiliate, (iii) who is not a spouse, parent, child,
grandchild or sibling of any individual encompassed within clause (i)
or clause (ii) above, (iv) who is not a trustee in bankruptcy of Union
Planters Corporation or any Affiliate, and (v) who has not received,
and was not a member or employee of a firm or business that received,
in any year within the five years immediately preceding or any years
during such person's incumbency as a director or officer of the
Corporation, fees or other income from Union Planters Corporation or
any Affiliate in the aggregate in excess of 10% of the gross income,
for any applicable year, of such person, firm or business (not
including any fees received by such person for his or her service as a
Director or officer of the Corporation).
"Person" means any individual, corporation, association,
company, limited liability company, joint-stock company, business
trust, partnership, joint venture, unincorporated organization or
government or any agency or political subdivision thereof.
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ARTICLE FOURTH: The purposes for which the Corporation is formed are
limited solely as follows:
(a) To purchase or otherwise acquire, own, hold, pledge,
finance, transfer, assign and otherwise deal in or with mortgage loans,
mortgage-backed securities, mortgage collateralized obligations, other
interests in real estate, United States government securities and
securities of any agency or instrumentality of the United States, and
any combination of the foregoing, including, but not limited to, (1)
mortgage loans secured by senior or subordinate liens on residential
property, (2) participation interests in mortgage loans, (3)
pass-through, mortgage-backed certificates as to which the Fannie Mae
guarantees the timely payment of interest at the pass-through rate and
the timely payment of principal, (4) pass-through, mortgage-backed
certificates as to which the Freddie Mac guarantees timely payment at
the participation certificate rate and the ultimate collection of all
principal, (5) pass-through, mortgage-backed certificates as to which
the Government National Mortgage Association guarantees timely payment
of principal installments and interest fixed on the certificate, (6)
pass-through, mortgage-backed certificates as to which the United
States Department of Veterans Affairs guarantees the timely payment of
interest at the pass-through rate and the timely payment of principal,
(7) regular or residual interests in real estates mortgage investment
conduits or regular or ownership interests in financial assets
securitization investment trusts, (8) any other mortgage pass-through
certificates or mortgage-collateralized obligations, (9) entitlements
to payments on or other interests in such mortgage loans, certificates,
or obligations ((a) (1) through (a) (9), collectively, "Mortgage
Collateral"), and (10) other securities issued or guaranteed by the
United States government or any agency, subdivision or instrumentality
thereof ("Government Securities").
(b) To (1) issue and sell from time to time one or more
series of certificates, bonds, notes or other securities and to incur
other indebtedness, including the issuance and sale of certificates
representing interests in trusts established by the Corporation
(collectively the "Securities"), which Securities shall (A) represent
interests in or be secured by the Mortgage Collateral, Government
Securities or other assets pledged or sold to secure payment of such
Securities (such other assets, together with the Mortgage Collateral
and Government Securities, the "Collateral"), (B) be nonrecourse to the
Corporation and its assets other than the Collateral and (C) not
constitute a claim against the Corporation to the extent that funds
produced by the Collateral are insufficient to allow full and/or timely
payments or distributions to be made on such Securities or to allow
full and/or timely payment of principal and interest thereon in
accordance with the terms thereof and (2) incur, assume or guaranty
indebtedness to the extent not prohibited under paragraph (b) of
Article FIFTH below;
(c) To (1) acquire, own, hold, sell, transfer, assign,
pledge, finance, refinance and otherwise deal in or with Securities,
(2) acquire, own, hold, sell, transfer, assign, pledge, finance,
refinance and otherwise deal in or with Collateral, and (3) acquire,
own, hold, sell, transfer, assign, pledge and otherwise deal in or with
any or all of the
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ownership interests in trusts established by the Corporation or other
entities, institutions or individuals.
(d) To use the proceeds of the sale of the Securities to
purchase or otherwise acquire Collateral or to loan the proceeds of the
sale of the Securities to entities that may or may not be affiliated
with the Corporation or to make dividend payments to the extent
permitted by law;
(e) To invest cash balances, from time to time, as
provided in any trust agreement, pooling and servicing agreement,
indenture or similar document to which the Corporation may be a party
in connection with the issuance of the Securities; and
(f) Subject to the limitations contained in Article FIFTH
of this Certificate of Incorporation, to engage in any activity and to
exercise any power that is incidental to or that renders convenient the
accomplishment of any or all of the foregoing and that is permitted to
corporations under the laws of the State of Delaware and that is not
required to be set forth specifically in this Certificate of
Incorporation.
ARTICLE FIFTH: Notwithstanding any other provision in this
Certificate of Incorporation and any provision of law that otherwise so empowers
the Corporation, until such time as all interests of the Corporation evidenced
by Securities shall be indefeasibly paid in full and all liens and security
interests securing such indebtedness shall be indefeasibly released and
discharged, the Corporation shall not perform any act in contravention of any of
the following clauses of this Article FIFTH without the express prior written
unanimous consent of the Board of Directors, including each Independent
Director; provided, however, the Corporation shall not perform any act in
contravention of any of the following clauses of this Article FIFTH if such act
would cause a reduction or withdrawal of any credit rating assigned by any
nationally recognized statistical rating organization (each, a "Rating Agency")
to any Security at the request of the Corporation:
(a) The Corporation shall not engage in any business or
activity other than as authorized in Article FOURTH hereof.
(b) The Corporation shall not incur, assume or guaranty
any indebtedness except for (1) such indebtedness as (A) may be
incurred by the Corporation in connection with the issuance of the
Securities and (B) provides for recourse solely to the Collateral
pledged to secure such indebtedness or to entities other than the
Corporation, and (2) indebtedness that by its terms (A) is subordinated
to indebtedness of the Corporation evidenced by Securities and (B)
provides that the holder thereof may not cause the filing of a petition
in bankruptcy or take any similar action against the Corporation until
at least 91 days after every indebtedness of the Corporation evidenced
by the Securities is indefeasibly paid in full.
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(c) The Corporation shall not consolidate or merge with
or into any other entity or convey or transfer its properties and
assets substantially as an entirety to any entity, unless:
(1) the entity (if other than the Corporation) formed in
or surviving such consolidation or merger or that
acquires by conveyance or transfer the properties and
assets of the Corporation substantially as an
entirety (A) shall be organized and existing under
the laws of the United States of America or any state
or the District of Columbia, and (B) shall expressly
assume the obligations, if any, of the Corporation
under, by amendment or supplement to any indentures,
trust agreements or pooling and servicing agreements
(collectively, the "Indentures") pursuant to which
the Securities that are then outstanding may have
been issued by the Corporation or by trusts
established by the Corporation, which amendments
and/or supplements must be executed and delivered to
the appropriate trustees under such Indentures (the
"Trustees"), in form satisfactory to such Trustees;
(2) immediately after giving effect to such transaction,
no default or event of default under the Indentures
shall have occurred and be continuing;
(3) the Corporation shall have delivered to the Trustees
an officers' certificate and an opinion of counsel
each stating that such consolidation, merger,
conveyance or transfer and such supplemental
indentures are not prohibited under the terms of the
Indentures and that all conditions precedent provided
for in the Indentures relating to such transaction
have been complied with; and
(4) the Corporation shall have received written
confirmation from each Rating Agency that has rated
any of the outstanding Securities at the request of
the Corporation that such consolidation, merger,
conveyance or transfer will not adversely affect such
Rating Agency's ratings of the outstanding
Securities;
provided, however, that the provisions of Article FIFTH shall not limit
the ability of the Corporation to sell the Collateral securing an
outstanding series of Securities, subject to the lien in favor of such
Securities, to a limited-purpose trust, limited liability company,
partnership or corporation.
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Upon any consolidation or merger with respect to the
Corporation, or any conveyance or transfer of the properties and assets
of the Corporation substantially as an entirety as provided above, the
entity formed by or surviving such consolidation or merger (if other
than the Corporation) or the entity to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Corporation under the Indentures
with the same effect as if such entity had been an original party to
each such Indenture. In the event of any such conveyance or transfer,
the Corporation may be dissolved, wound-up and liquidated at any time
thereafter, and the Corporation thereafter shall be released from its
liabilities and its obligations under the Indentures.
(d) The Corporation shall not amend, alter, change or
repeal any provision contained in Article THIRD, FOURTH, FIFTH, SIXTH,
TENTH, ELEVENTH OR THIRTEENTH of this Certificate of Incorporation.
(e) The Corporation shall not issue any additional
Securities if such issuance would result in the downgrading or
withdrawal of any ratings assigned to the outstanding Securities by any
Rating Agency that rated such outstanding Securities at the request of
the Corporation.
(f) For so long as any Securities issued by the
Corporation are outstanding, the Corporation shall not dissolve or
liquidate in whole or in part except in connection with a merger,
consolidation or sale of assets as provided in this Article FIFTH.
(g) The Corporation shall not engage in transactions with
Affiliates except on a commercially reasonable basis.
(h) For so long as any Securities issued by the
Corporation are outstanding, the Corporation shall not take any action
that is reasonably likely to cause the Corporation to become insolvent
in either the balance-sheet or equity sense.
ARTICLE SIXTH: Notwithstanding any other provision in this
Certificate of Incorporation and any provision of law that otherwise so empowers
the Corporation, until such time as all indebtedness of the Corporation
evidenced by Securities shall be indefeasibly paid in full and all liens and
security interests securing such indebtedness shall be indefeasibly released and
discharged, for so long as any Securities issued either by the Corporation are
outstanding, the Corporation shall not, without the express prior written
unanimous consent of the Board of Directors, including each Independent
Director, file a voluntary or involuntary petition for relief under any chapter
of the United States Bankruptcy Code, 11 U.S.C. ss.ss. 101-1330, institute
proceedings for the Corporation to be adjudicated bankrupt or insolvent, or
consent to the institution of bankruptcy or insolvency proceedings against the
Corporation, or file a petition or consent to a petition seeking reorganization
or relief under any applicable federal or state law relating to bankruptcy or
insolvency, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Corporation, or a
substantial part
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of the property of the Corporation, or make any assignment for the benefit of
creditors for itself, or, except as required by law, admit in writing it's
inability to pay its debts generally as they become due, or take any corporate
action in furtherance of any such action.
ARTICLE SEVENTH: The total number of shares of stock which the
Corporation shall have authority to issue is 1,000 shares of Common Stock, par
value $0.01 per share.
ARTICLE EIGHTH: The name and mailing address of the Sole Incorporator
is as follows:
<TABLE>
<CAPTION>
Name Mailing Address
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<S> <C>
David B. Rich, III, Esquire Hunton & Williams
Bank of America Plaza
Suite 3500
101 South Tryon Street
Charlotte, North Carolina 28280
</TABLE>
ARTICLE NINTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the
Corporation, its Directors and holders of its capital stock:
(a) The business and affairs of the Corporation shall be
managed by or under the direction of the Board of Directors of the
Corporation.
(b) The Directors of the Corporation shall have
concurrent power with the common stockholders to make, alter, amend,
change, add to or repeal the By-Laws of the Corporation.
(c) The number of Directors of the Corporation shall be
as from time to time fixed by, or set in the manner provided in, the
By-Laws of the Corporation. Election of Directors need not be by
written ballot unless the By-Laws so provide. The number of Directors
constituting the initial Board of Directors shall be [two] [three] [(2)
(3)], and the names and addresses of the persons who are to serve as
the initial Directors are as follows:
<TABLE>
<CAPTION>
Name Address
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<S> <C>
Norman J. Burglin 7130 Goodlett Farms Parkway
Cordova, Tennessee 38018
Bobby L. Doxey 7130 Goodlett Farms Parkway
Cordova, Tennessee 38018
</TABLE>
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(d) No Director shall be personally liable to the
Corporation or any of its stockholders for monetary damages for breach
of fiduciary duty as a Director, except for liability (1) for any
breach of the Director's duty of loyalty to the Corporation or its
stockholders, (2) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (3)
pursuant to Section 174 of the Delaware General Corporation Law,
relating to dividends, stock purchases and redemptions, or (4) for any
transaction from which the Director derived an improper personal
benefit. Any repeal or modification of this Article NINTH 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 with respect to acts or omissions occurring
prior to such repeal or modification.
(e) In addition to the powers and authority hereinbefore
or by statute expressly conferred upon them, the Directors are hereby
empowered to exercise all such powers and do all such acts and things
as may be exercised or done by the Corporation, subject, nevertheless,
to the provisions of the Delaware General Corporation Law, this
Certificate of Incorporation, and any By-Laws adopted by the
stockholders or the Board of Directors; provided, however, that no
By-Laws hereafter adopted by the stockholders or the Board of Directors
shall invalidate any prior act of the Directors which would have been
valid if such By-Laws had not been adopted. The Corporation's Board of
Directors will duly authorize all of the Corporation's actions.
ARTICLE TENTH: Notwithstanding any other provision in this
Certificate of Incorporation and any other provision of law to the contrary,
until such time as all indebtedness of the Corporation evidenced by Securities
shall be indefeasibly paid in full and all liens and security interests securing
such indebtedness shall be indefeasibly released and discharged, the Corporation
at all times shall:
(a) maintain its books, records and bank accounts
separate and apart from those of all other Persons;
(b) not commingle any of its assets with those of any
other Person;
(c) pay the salaries of its own employees, if any, and
maintain a sufficient number of employees in light of its contemplated
business operations
(d) pay its own liabilities out of its own funds;
(e) maintain financial statements separate and apart from
those of all other Persons;
(f) observe all corporate formalities, organizational
formalities and other applicable or customary formalities;
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(g) not guarantee or become obligated for the debts of
any other Person except as provided in Article FIFTH or hold out its
credit as being available to satisfy the obligations of any other
Person;
(h) not pledge its assets for the benefit of any other
Person or make any loans or advances to any other Person;
(i) not acquire the direct obligations of, or securities
issued by, its shareholders or any Affiliate;
(j) allocate fairly and reasonably any overhead for
expenses that are shared with an Affiliate, including paying for the
office space and services performed by any employee of any Affiliate;
(k) use stationery, invoices and checks bearing its own
name;
(l) conduct business in its own name, promptly correct
any known misunderstandings regarding its separate identity, and not
identify itself as a division of any other Person;
(m) maintain adequate capital in light of its
contemplated business operations;
(n) maintain arm's length relationships with all
Affiliates and enter into transactions with Affiliates only on
commercial reasonable bases; and
(O) not have any employees other than employees necessary
to perform authorized activities.
ARTICLE ELEVENTH: The Board of Directors of the Corporation
shall include at least one Independent Director at all times when any Securities
are outstanding. When voting on matters subject to the vote of the Board of
Directors, notwithstanding that the Corporation is not then insolvent in either
the equity or balance-sheet sense, the Independent Director shall take into
account the interests of the creditors of the Corporation, including, but not
limited to, the interests of all holders of Securities rated by any Rating
Agency that has rated the Securities at the request of the Corporation.
ARTICLE TWELFTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the Delaware
General Corporation 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.
ARTICLE THIRTEENTH: The Corporation is to have perpetual
existence.
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ARTICLE FOURTEENTH: The Corporation shall indemnify, to the full
extent permitted by the Delaware General Corporation Law, as amended from time
to time, all persons who may be indemnified pursuant thereto. As part of such
indemnification, the Corporation shall advance the expenses of such indemnified
persons to the full extent permitted by the Delaware General Corporation Law, as
amended from time to time. Notwithstanding any other provision in this Article
FOURTEENTH, (a) the Corporation's indemnification and advance obligations shall
be fully subordinate to all indebtedness of the Corporation evidenced by
Securities and (b) none of the Corporation's indemnification and advance
obligations shall constitute a "claim" against the Corporation within the
meaning of 11 U.S.C. ss. 101(5) until all indebtedness of the Corporation
evidenced by Securities is indefeasibly paid in full.
The Corporation and any Affiliate may purchase and maintain insurance
on behalf of any Person who is or was a director or officer of the Corporation
against any liability asserted against such Person and incurred by such Person
in any such capacity, or arising out of such Person's status as such, regardless
of whether the Corporation would have the power to indemnify such Person against
such liability under the provisions of this Article or applicable law.
ARTICLE FIFTEENTH: Except as provided in Articles FIFTH and
SIXTH, 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.
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IN WITNESS WHEREOF, I, THE UNDERSIGNED, being the sole incorporator of
the Corporation herein before named, do hereby declare and certify that the
Corporation has duly authorized this Certificate of Incorporation and the facts
herein stated are true, and accordingly have hereunto set my hand as of this
30th day of August, 2000.
By:/s/ David B. Rich, III
--------------------------------
Sole Incorporator
David B. Rich, III
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