<PAGE>
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
BOMBARDIER CREDIT RECEIVABLES CORPORATION
The undersigned, a natural person, for the purpose of organizing a
corporation under the General Corporation Law of the State of Delaware, hereby
certifies that:
FIRST: The name of the corporation (hereinafter, the "Corporation") is
"Bombardier Credit Receivables Corporation."
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1200 Orange Street, City of Wilmington, County of New
Castle. The name of the registered agent of the Corporation at such address is
The Corporation Trust Company.
THIRD: The nature of business or purposes to be conducted or promoted
by the Corporation is to engage solely in the following activities:
a. To acquire, own, hold, sell, transfer, pledge or otherwise dispose
of:
(1) interests in accounts receivable generated from advances,
extensions of credit, revolving credit arrangements or evidences of
indebtedness (the "Receivables"), including, without limitation,
recreational, consumer and commercial product receivables and other
trade receivables; and
(2) loan agreements, promissory notes or other evidences of
indebtedness secured by Receivables or Participation Interests (defined
below) ("Loans"); and
(3) participation interests and pass through certificates in
pools of Receivables ("Participation Interests"), in each case together
with any related collateral and agreements with dealers (or other
obligors), originators and servicers of such Receivables.
b. To act as settlor or depositor of trusts formed under a trust
agreement, pooling and servicing agreement or other agreement ("Agreements") to
issue series (any of which series may be issued in one or more classes) of trust
certificates ("Certificates") representing undivided interests in Receivables,
Loans, Participation Interests, Subordinated Interests (defined below) and/or
Residual Interests (defined below) 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 ("Debt Obligations") collateralized by Receivables, Loans,
Participation Interests, Subordinated Interests and/or
<PAGE>
Residual Interests and to enter into any other agreement in connection with the
authorization, issuance, sale and delivery of such Certificates or Debt
Obligations.
c. To use proceeds from the Certificates as provided in the Agreements.
d. To hold, pledge, transfer or otherwise deal with Certificates and
Debt Obligations, including Certificates or Debt Obligations representing a
subordinated interest in Receivables, Loans and/or Participation Interests
("Subordinated Interests") or a residual interest in Receivables ("Residual
Interests").
e. To loan or invest or otherwise apply proceeds from Receivables,
Loans and/or Participation Interests, funds received in respect to Certificates,
Debt Obligations, Subordinated Interests or Residual Interests and any other
income, as determined by the Corporation's Board of Directors.
f. To purchase, hold, and reissue any of the shares of its capital
stock.
g. To engage in any lawful act or activity to exercise any powers
permitted to corporations organized under the General Corporation Law of the
State of Delaware that are incidental to and necessary or convenient for the
accomplishment of the foregoing purposes.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is one thousand (1,000) shares, all of which shall be
designated Common Stock, par value one cent ($.01) per share.
FIFTH: The name and the mailing address of the incorporator are as
follows:
<TABLE>
<CAPTION>
Name Mailing Address
---- ---------------
<S> <C>
Richard F. Morris c/o Lord Day & Lord, Barrett Smith
1675 Broadway
New York, NY 10019
</TABLE>
SIXTH: The Board of Directors is expressly authorized to adopt, amend
or repeal By- Laws, subject to the reserved power of the stockholders to amend
and repeal any By-Laws adopted by the Board of Directors.
SEVENTH: Unless and except to the extent required by the By-Laws, the
election of directors of the Corporation need not be by written ballot.
EIGHTH: For so long as the Certificates are outstanding, in order to
preserve and ensure its separate and distinct corporate identity, in addition
to the other provisions set forth in this Certificate of Incorporation, the
Corporation shall conduct its affairs in accordance with the following
provisions:
2
<PAGE>
It shall establish and maintain an office through which its
business shall be conducted separate and apart from those of its
parent. It shall maintain separate corporate records and books of
account from those of its parent and any affiliate thereof.
At least one director of the Corporation shall not be a
director, officer, or employee of its parent or any affiliate thereof.
Its Board of Directors shall hold appropriate meetings (or act
by unanimous consent) to authorize all appropriate corporate actions.
For purposes of this ARTICLE EIGHTH, the following terms shall
have the following meanings:
"affiliate" means any person controlling or
controlled by or under common control with the parent, but
shall not include the Corporation. For purposes of this
definition, "control," when used with respect to any specified
person, means the power to direct the management and policies
of such person,
directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to
the foregoing.
"parent" means, with respect to the Corporation, any
other corporation owning or controlling, directly or
indirectly, fifty percent (50%) or more of the voting stock of
the Corporation.
"person" means any individual, corporation,
partnership, joint venture, association, joint stock
company, trust (including any beneficiary thereof),
unincorporated organization, or government or any agency or
political subdivision thereof.
NINTH: The Corporation shall not commence any case, proceeding or other
action relating to bankruptcy, insolvency, reorganization or relief of debtors,
or seek to have an order for relief entered with respect to it, or seek to
adjudicate it a bankrupt or insolvent, or seek reorganization, arrangement,
adjustment, winding up, liquidation, dissolution, composition or other relief
with respect to it or its debts or make a general assignment for the benefit of
creditors without the unanimous vote of the entire Board of Directors.
3
<PAGE>
TENTH: 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 General Corporation Law of the
State of Delaware) 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.
ELEVENTH: No person who is or was a director of the Corporation shall
be personally liable to the Corporation for monetary damages for breach of
fiduciary duty as a director unless, and only to the extent that, such director
is liable (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) under
Section 174 of the General Corporation Law of the State of Delaware or any
amendment thereto or successor provision thereto, or (iv) for any transaction
from which the director derived an improper personal benefit. No amendment to,
repeal or adoption of any provision of this Certificate of Incorporation
inconsistent with this article shall apply to or have any effect on the
liability of any director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment, repeal or adoption
of an inconsistent provision.
TWELFTH: Each person who at any time is or shall have been a director,
officer, employee or agent of the Corporation and is threatened to be or is made
a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the Corporation or
is or was serving at the request of the Corporation as a director, officer,
employee, trustee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall be indemnified against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with any such action, suit or
proceeding to the fullest extent authorized under Section 145 of the General
Corporation Law of the State of Delaware. The foregoing right of indemnification
shall in no way be exclusive of any other rights of indemnification to which
such director, officer, employee or agent may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors, or otherwise.
THIRTEENTH: Any and all right, title, interest and claim in or to any
dividends declared by the Corporation, whether in cash, stock or otherwise,
which are unclaimed by the stockholder entitled thereto for a period of six (6)
years after the close of business on the payment date, shall be and be deemed to
be extinguished and abandoned, and such unclaimed dividends in the possession of
the Corporation, its transfer agents or other agents or depositaries, shall at
such time become the absolute property of the Corporation, free and clear of any
and all claims of any persons whatsoever.
FOURTEENTH: 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. All rights at any time conferred
upon the stockholders of the Corporation by this
4
<PAGE>
Certificate of Incorporation are granted subject to the foregoing reservation;
provided that no such amendment of Articles THIRD, EIGHTH, NINTH or FOURTEENTH
shall be effective without the Corporation having received confirmation from
each rating agency rating any outstanding Certificates or Debt Obligations that
such amendment shall not result in the termination or lowering of the rating of
such Certificates or Debt Obligations.
THE UNDERSIGNED, for the purpose of forming a Corporation under the
laws of the State of Delaware, does hereby make, file and record this
Certificate, and certify that the facts herein stated are true, and I have
accordingly set my hand hereto this 9th day of November, 1993.
/s/ Richard F. Morris
-------------------------------
Richard F. Morris
5
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION OF
BOMBARDIER CREDIT RECEIVABLES CORPORATION
NOVEMBER 24, 1993
BOMBARDIER CREDIT RECEIVABLES CORPORATION (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY THAT:
FIRST: Article Eighth of the Corporation's Certificate of Incorporation
is hereby amended to read as follows:
EIGHTH: For so long as the Certificates are outstanding, in
order to preserve and ensure its separate and distinct corporate
identity, in addition to the other provisions set forth in this
Certificate of Incorporation, the Corporation shall conduct its affairs
in accordance with the following provisions:
It shall establish and maintain an office through which its
business shall be conducted separate and apart from those of its
parent.
It shall maintain separate corporate records and books of
account from those of its parent and any affiliate thereof.
From and after the time of the initial issuance of the
Certificates (as defined above in Article Third Section b), at least
one director of the Corporation shall not be a director, officer, or
employee of its parent or any affiliate thereof.
Its Board of Directors shall hold appropriate meetings (or act
by unanimous consent) to authorize all appropriate corporate actions.
For purposes of this ARTICLE EIGHTH, the following terms shall
have the following meanings:
"affiliate" means any person controlling or
controlled by or under common control with the parent, but
shall not include the Corporation. For purposes of this
definition, "control," when used with respect to any specified
person, means the power to direct the management and policies
of such person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
<PAGE>
"parent" means, with respect to the Corporation, any
other corporation owning or controlling, directly or
indirectly, fifty percent (50%) or more of the voting stock of
the Corporation.
"person" means any individual, corporation,
partnership, joint venture, association, joint stock company,
trust (including any beneficiary thereof), unincorporated
organization, or government or any agency or political
subdivision thereof.
SECOND: The Corporation has not received any payment for any of its
stock.
THIRD: This amendment was duly adopted, by written consent of the sole
incorporator, in accordance with the provisions of Section 241 of the General
Corporation Law of the State of Delaware.
The undersigned sole incorporator of the Corporation does hereby make,
file and record this Certificate of Amendment with respect to the Corporation's
Certificate of Incorporation (the initial directors not having been yet elected
or named), and certifies that the facts stated herein are true and I have
accordingly set my hand hereto this 24th day of November, 1993.
/s/ Richard F. Morris
-----------------------------------------
Richard F. Morris
Sole Incorporator of Bombardier Credit
Receivables Corporation
2
<PAGE>
CERTIFICATE OF THE AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BOMBARDIER CREDIT RECEIVABLES CORPORATION
JANUARY 14, 1994
BOMBARDIER CREDIT RECEIVABLES CORPORATION (the "Corporation"), a
corporation organized and existing under the General Corporation Law of the
State of Delaware, DOES HEREBY CERTIFY THAT:
FIRST: By the written consent of the Board of Directors of the
Corporation resolutions were duly adopted setting forth a proposed amendment of
the Corporation's Certificate of Incorporation, declaring such amendment to be
advisable and soliciting the written consent in lieu of a special meeting of the
sole stockholder of the Corporation to effect the amendment, pursuant to Section
228 of the General Corporation Law of Delaware, the resolution setting forth the
proposed amendment is as follows:
EIGHTH: For so long as the Certificates are outstanding, in
order to preserve and ensure its separate and distinct corporate
identity, in addition to the other provisions set forth in this
Certificate of Incorporation, the Corporation shall conduct its affairs
in accordance with the following provisions:
It shall establish and maintain an office through which its
business shall be conducted separate and apart from those of any
affiliate. If such office is leased from an affiliate, such lease shall
be on terms no more or less favorable to the Corporation than could be
obtained elsewhere and such office shall be conspicuously identified as
the Corporation's office so it can be easily located by outsiders.
It shall maintain full and complete corporate books, records
and financial statements separately from those of any affiliate. The
Corporation's financial statements shall comply with generally accepted
accounting principles. To the extent possible, the Corporation shall
inform any affiliate that includes the Corporation within such
affiliate's consolidated financial statements that the existence of the
Corporation and the ownership of its assets shall be disclosed in a
footnote to such financial statements.
From and after the time of the initial issuance of the
Certificates (as defined above in Article Third Section b), at least
one-fourth of the total number of directors of the Corporation, but no
less than two directors, shall be special directors.
<PAGE>
Its Board of Directors shall hold regular meetings (or act by
unanimous consent) to authorize appropriate corporate action. A quorum
of the Board of Directors must be present in person, and not by means
of conference telephone or similar communications equipment at least
one meeting each year. The Corporation shall keep complete minutes of
all Board of Director and stockholder meetings.
It shall independently make decisions with respect to its
business and daily operations without interference by or from any
affiliate. The Corporation shall not enter into any business
transactions with any affiliate except upon terms that are not more or
less favorable to the Corporation than terms and conditions available
at the time to the Corporation for comparable transactions with
unaffiliated persons and upon the approval of a majority of the Board
of Directors including each director who is a special director. The
declaration of dividends by the Corporation shall be approved by a
majority of the Board of Directors, including each director who is a
special director.
It shall act solely in its own corporate name and through its
own authorized officers and agents. No affiliate shall be appointed
agent of the Corporation except as agent to invoice and service
receivables purchased by the Corporation under agreements authorized in
Article Third Section b.
It shall directly manage its own liabilities, including paying
its own payroll and operating expenses. In the event that employees of
the Corporation participate in pension, insurance and other benefit
plans of an affiliate, the Corporation shall on a current basis
reimburse such affiliate, as the case may be, for the Corporation's pro
rata share of the costs thereof.
It shall not guarantee the debts of any affiliate. The
Corporation's debts shall not be guaranteed by any affiliate. The
Corporation shall not acquire obligations or securities of, or make
loans or advances to, any affiliate.
It shall not commingle any of its money or other assets with
the money or assets of any affiliate. The Corporation shall maintain
bank accounts in its own name separate from any affiliate.
Investment guidelines and criteria shall be established by a
majority of the Board of Directors including at least one director who
is a special director. Investments shall be made by the Corporation
directly or by brokers engaged and paid by the Corporation. Investments
shall be carried by the Corporation in its own name, except to the
extent necessary to perfect the lien thereof in favor of an entity
which purchase receivables pursuant to agreements authorized in Article
Third Section b.
2
<PAGE>
For purposes of this ARTICLE EIGHT, the following terms shall
have the following meanings:
"affiliate" means any entity other than the Corporation itself
(a) which owns beneficially, directly or indirectly, 10% or more of the
outstanding shares of the common stock of the Corporation, or which is
otherwise in control of the Corporation, (b) of which 10% or more of
the outstanding voting securities are owned beneficially, directly or
indirectly, by any entity described in clause (a) above or (c) which
otherwise controls or is otherwise controlled by any entity described
in clause (a) above. For purposes of this definition of affiliate, the
term "control," when used with respect to any specified person, means
the power to direct the management and policies of such person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the term "controlled by" has
meanings correlative to the foregoing.
"person" means individual, corporation, partnership, joint
venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization, or government or any
agency or political subdivision thereof.
"special director" mean a person who is not and has not at any
time within five years preceding been an officer, director, 10 percent
or more stockholder or employee of any Affiliate of the Corporation.
SECOND: The sole stockholder of the Corporation consented in writing to
such amendment, in satisfaction of the requirements of Section 228 of the
General Corporation Law of Delaware.
THIRD: Such amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be signed by William P. Brady, its Vice President and Treasurer,
and attested by Andrew Baranowsky, its Assistant Secretary, this 14th day of
January, 1994.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION
By /s/ William P. Brady
---------------------------------------
William P. Brady
Vice President and Treasurer
3
<PAGE>
ATTEST:
By /s/ Andrew Baranowsky
------------------------------------------------------
Andrew Baranowsky
Assistant Secretary
4
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BOMBARDIER CREDIT RECEIVABLES CORPORATION
Bombardier Credit Receivables Corporation, a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware (the "Corporation"), for the purpose of amending its Certificate of
Incorporation pursuant to Section 242 of the Delaware General Corporation Law
does hereby certify as follows:
1. The Corporation's Certificate of Incorporation is hereby amended so
that the first sentence of the seventh paragraph of Article EIGHTH of the
Certificate of Incorporation, as amended, shall read as follows:
It shall act solely in its own corporate name and through its
own authorized officers and agents, except that it may from
time to time act on behalf of any trust formed under a trust
agreement, pooling and servicing agreement or other agreement
for which it is acting as a depositor in accordance with
Article THIRD hereof.
2. The Corporation hereby certifies that the amendment set forth above
has been duly adopted in accordance with the provisions of Section 242 of the
Delaware General Corporation Law and has been consented to in writing by the
sole stockholder of the Corporation in accordance with the provisions of Section
228 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment of Certificate of Incorporation to be duly adopted and executed in its
corporate name and on its behalf by its duly authorized officer as of the 12th
day of September, 2000.
BOMBARDIER CREDIT RECEIVABLES
CORPORATION
By /s/ Jean C. O'Neill
-------------------------------------
Jean C. O'Neill
Secretary
5
