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EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
FLEET HOME EQUITY LOAN CORPORATION
The undersigned, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to Title 8 of the General Corporation Law
of the State of Delaware (the "DGCL"), does hereby certify as follows:
FIRST: The name of the corporation is Fleet Home Equity Loan
Corporation (the "Corporation").
SECOND: The address, including street, number, city, and county of the
registered office of the Corporation in the State of Delaware is Corporation
Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle. The
name of the registered agent of the Corporation in the State of Delaware at such
address is The Corporation Trust Company.
THIRD: The nature of business or purposes to be conducted or promoted
by the Corporation is:
1. To acquire, own, hold, sell, transfer, pledge or otherwise
dispose of the following (the "Assets"):
(a) interests in loan agreements, promissory notes or other
evidences of indebtedness (collectively, the "Loans") which may be
unsecured or secured by mortgages, deeds of trust, pledge agreements or
other security devices creating liens on residential properties,
condominium units, shares in cooperative corporations and certain other
dwelling units, and mortgage participation certificates or other
beneficial interests evidencing interests in Loans;
(b) mortgage-backed securities issued and/or guaranteed as to
timely payment of interest and/or principal by the Government National
Mortgage Association, Federal National Mortgage Association, Federal
Home Loan Mortgage Corporation or other government sponsored entity;
and
(c) asset-backed securities, mortgage pass-through
certificates and other collateralized mortgage obligations issued by a
financial institution or other entity engaged generally in the business
of consumer or mortgage lending, a public agency or instrumentality of
a state, local or federal government, or a limited purpose corporation
engaged in the business of establishing trusts and acquiring and
selling assets to such trusts and selling beneficial interests in such
trusts.
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2. To own, hold, sell, assign, transfer, pledge and otherwise deal
with any collateral securing the Assets, related insurance policies, related
agreements with originators or servicers of Assets and any rights associated
therewith.
3. To own, hold, sell, assign, transfer, pledge and otherwise deal
with the Assets and to enter into agreements for the servicing of the Assets.
4. To act as settlor or depositor of trusts (each, a "Trust")
formed under trust agreements, pooling and servicing agreements or other
agreements to issue series (any of which series may be issued in one or more
classes) of trust certificates ("Certificates") representing interests in Assets
and/or to issue series (any of which series may be issued in one or more
classes) of bonds, notes or other evidences of indebtedness (the "Debt
Obligations", and together with the Certificates, the "Securities")
collateralized by Assets and/or other property and to enter into any other
agreement in connection with the authorization, issuance, sale and delivery of
such Debt Obligations.
5. To hold, pledge, transfer or otherwise deal with Securities and
Securities representing subordinated interests in Assets ("Subordinated
Interests") or residual interests in Assets ("Residual Interests").
6. To loan or invest or otherwise apply proceeds from Assets,
funds received in respect of Securities, Subordinated Interests or Residual
Interests and any other income, as determined by the Corporation's Board of
Directors.
7. To arrange or otherwise provide for enhancement for any series
of Securities to be issued by the Corporation.
8. To not engage in any activity prohibited by Articles FOURTEENTH
or FIFTEENTH except to the extent contemplated by the other provisions of this
Article THIRD.
9. To engage in any lawful act or activity to exercise any powers
permitted to corporations organized under the DGCL that are incidental to and
necessary or convenient for the accomplishment of the foregoing purposes.
FOURTH: The total number of shares of all classes of capital stock that
the Corporation shall have authority to issue is 100 shares of common stock, and
the par value of such shares shall be $0.01 per share.
FIFTH: The name and mailing address of the sole incorporator is as
follows:
Name Mailing Address
Fleet National Bank 100 Federal Street
Boston, MA 02110
SIXTH: The Corporation is to have perpetual existence.
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SEVENTH: 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 and of
its directors and stockholders:
1. The business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors.
2. In furtherance and not in limitation of the powers conferred by
statutes, the Board of Directors shall have concurrent power with the
stockholders to make, alter, amend, change, add to or repeal the bylaws of the
Corporation.
3. The number of directors of the Corporation shall initially be
five and thereafter shall be as from time to time fixed by, or in the manner
provided in, the bylaws of the Corporation. At least one director shall be an
independent director. Election of directors need not be by written ballot unless
the bylaws so provide.
4. In addition to the powers and authority hereinabove 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 DGCL,
this Certificate of Incorporation and the bylaws of the Corporation; provided,
however, that no bylaw hereafter adopted by the stockholders shall invalidate
any prior act of the directors that would have been valid if such bylaw had not
been adopted.
5. The Corporation's funds and other assets will not be commingled
with those of any of its stockholders or of any direct or indirect parent of the
Corporation or of any affiliate of any such parent.
6. The Corporation will maintain separate corporate records and
books of account from those of any of its stockholders or of any direct or
indirect parent of the Corporation or of any affiliate of any such parent.
For purposes of this Article SEVENTH, the following terms shall have
the following meanings:
"affiliate" means any entity controlling or controlled by or under
common control with the Corporation.
"independent director" shall mean a director who shall not have been,
at the time of such appointment or at any time in the preceding five
years, or during such individual's tenure as director shall not be (i)
a direct or indirect legal or beneficial owner in the Corporation or
any of its affiliates, (ii) a creditor, supplier, employee, officer,
director, family member, manager, or contractor of the Corporation or
any of its affiliates, or (iii) a person who controls (directly,
indirectly, or otherwise) the Corporation or its affiliates, any
creditor, supplier, employee, officer, director, manager, or contractor
of the Corporation or its affiliates; provided, however,
notwithstanding the foregoing, during an independent director's tenure,
such director may be a director of the Corporation and may, in his
capacity as such, control (directly, indirectly, or otherwise) the
Corporation, its employees, officers, or managers.
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EIGHTH: The Corporation shall not have the power to issue, assume or
guarantee any liability (other than liabilities incurred in connection with the
administration of the Corporation, including rents, fees for professional
services and directors' fees and expenses and as permitted in Article THIRD),
unless such liability is approved in writing by each of the rating agencies that
have rated any Securities.
NINTH: 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 (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
law, (iii) pursuant to Section 174 of the DGCL or (iv) 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 of 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.
TENTH: The Corporation shall not, without the unanimous vote of the
entire Board of Directors, 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 or relief
under any applicable federal or state law relating to bankruptcy, or 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, or make any assignment for the benefit of creditors, or admit in
writing its inability to pay its debts generally as they become due, or
dissolve, liquidate, consolidate, merge or sell all or substantially all of the
assets of the Corporation.
ELEVENTH: The Board of Directors, by the affirmative vote of a majority
of the whole Board, and irrespective of any personal interest of its members,
shall have authority to provide reasonable compensation of all directors for
services, ordinary or extraordinary, to the Corporation as directors, officers
or otherwise.
TWELFTH: Meetings of stockholders and directors may be held within or
without the State of Delaware, as the bylaws of the Corporation may provide. The
books and records of the Corporation may be kept (subject to Section 220 of the
DGCL) outside the State of Delaware.
THIRTEENTH: Each person who is or was a director or officer of the
Corporation, and each person who, while a director or officer of the
Corporation, serves or served at the request of the Corporation as a director,
officer, employee or agent (or its equivalent) of another enterprise, shall be
indemnified by the Corporation to the fullest extent authorized by the DGCL as
it may be in effect from time to time, except as to any action, suit or
proceeding brought (or portion thereof) by or on behalf of a director or officer
without prior approval of the Board Directors.
FOURTEENTH: The Corporation shall:
(A) maintain its own separate books and records and bank
accounts;
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(B) at all times hold itself out to the public as a legal
entity separate from each of its affiliate and any
other Person;
(C) file any tax returns required under applicable law,
and pay any taxes required to be paid under
applicable law;
(D) not commingle its assets with assets of any other
person, except as provided in Article THIRD;
(E) conduct its business in its own name;
(F) maintain separate financial statements in a manner
that such financial statements will be susceptible to
audit;
(G) pay its own liabilities only out of its own funds;
(H) maintain an arm's length relationship with its
affiliates;
(I) pay the salaries of its own employees, if any;
(J) not hold out its credit as being available to satisfy
the obligations of others, except as provided in
Article THIRD;
(K) allocate fairly and reasonably any overhead for
shared office space;
(L) use separate stationery, invoices and checks;
(M) not pledge its assets for the benefit of any other
person except as provided in Article THIRD;
(N) correct any known misunderstanding regarding its
separate identity; and
(O) not acquire any obligations or securities of a an
affiliate except as provided in Article THIRD.
FIFTEENTH: The Corporation shall not, other than as contemplated by
Article THIRD:
(A) guarantee any obligation of any person,
including any affiliate;
(B) engage, directly or indirectly, in any
business;
(C) incur, create or assume any indebtedness; or
(D) form, acquire or hold any subsidiary.
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SIXTEENTH: The Corporation reserves the right to amend, alter, change
or repeal any provisions 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; provided that no
such amendment of Articles THIRD, SEVENTH, EIGHTH, TENTH, FOURTEENTH, FIFTEENTH
or this Article SIXTEENTH shall be effective without the unanimous vote of the
entire Board of Directors.
SEVENTEENTH: The powers of the incorporator are to terminate upon the
filing of this Certificate of Incorporation with the Secretary of State of the
State of Delaware. The name and mailing address of the persons who are to serve
as the initial directors of the corporation until the first annual meeting of
stockholders of the corporation, or until their successors are duly elected and
qualified, are:
Director
John Rodehorst
100 Federal Street
Boston, MA 02110
Nancy O'Connor
100 Federal Street, 12th Floor
Boston, MA 02110
Jeffrey A. Lipson
200 Tournament Drive, Suite 303
Horsham, PA 19044
Sherri Jonas
200 Tournament Drive, Suite 303
Horsham, PA 19044
Independent Director
Dwight Jenkins
2 Wall Street, 7th Floor
New York, NY 10005
IN WITNESS WHEREOF, this Certificate of Incorporation has been signed
by its incorporator this 9th day of January, 2001.
FLEET NATIONAL BANK
/s/ Jill M. Sullivan
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Name: Jill M. Sullivan
Title: Authorized Officer
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