EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
MILA MORTGAGE ACCEPTANCE, INC.
1. The name of the corporation incorporated hereby is MILA
Mortgage Acceptance, Inc. (the "Corporation").
2. The name and address of the Corporation's registered agent in
the State of Delaware is Corporation Service Company, 2711 Centerville Road,
Suite 400 in the City of Wilmington, County of New Castle.
3. The Corporation exists only for the purposes specified in this
paragraph 3. The Corporation has been formed for the sole purpose of conducting
the following activities:
(a) Acquiring as purchaser and/or by contribution to the
capital of the Corporation, or otherwise owning,
holding, transferring, assigning, selling,
contributing to capital, pledging and otherwise
dealing with (i) mortgage notes and similar such
instruments, related real property, mortgages, deeds
of trust and other related agreements, documents,
books and records, (ii) related rights to payment,
whether constituting cash, account, chattel paper,
instrument, general intangible or otherwise, and any
other related assets, property and rights, including
without limitation security interests, (iii) related
collection, deposit, custodial, trust and other
accounts, lock boxes and post office boxes and any
amounts and other items from time to time on deposit
therein, (iv) real property and any improvements
thereon and personal property acquired by
foreclosure, deed-in-lieu thereof or otherwise in
respect of any of the foregoing, (v) certificates,
notes, bonds or other securities, instruments and
documents evidencing ownership interests in or
obligations secured by all or any of the foregoing,
(vi) financing arrangements and (vii) proceeds and
other payments and distributions of any kind of, on
or in respect of any of the foregoing;
(b) Entering into financing arrangements of all types
with respect to the assets described in foregoing
paragraph (a) including without limitation borrowing
on a secured or unsecured basis and entering into
repurchase agreements, directly or indirectly through
corporations, partnerships, limited liability
companies, business trusts, common law trusts and
other special purpose entities established for such
purposes, and in connection therewith issuing notes,
bonds and other evidences of indebtedness and
granting security interests in assets pledged to
secure such indebtedness.
(c) Authorizing, issuing, selling and delivering,
directly or indirectly through corporations,
partnerships, limited liability companies, business
trusts, common law trusts or other special purpose
entities established solely for such purpose,
certificates, notes, bonds and other securities,
instruments and documents evidencing ownership
interests in or obligations secured by all or any
portion of the assets described in foregoing
paragraph (a), and in connection therewith entering
into servicing, insurance, credit enhancement,
reimbursement and other agreements related thereto;
and
(d) Taking any action necessary or reasonable to enable
the Corporation to engage in any lawful act or
activity and to exercise any powers permitted to
corporations organized under the laws of the State of
Delaware that are related or incidental to and
necessary, convenient or advisable to accomplish any
of the foregoing.
4. The total number of shares of stock which the Corporation
shall have authority to issue is one thousand (1,000) shares of common stock,
each of which shall have a par value of $1.00.
5. The election of directors of the Corporation need not be by
ballot unless the by-laws of the Corporation so provide. The books of the
Corporation may, subject to any statutory requirements, be kept at such place
within or outside the State under the laws of Delaware as may be designated by
the board of directors or the by-laws of the Corporation.
6. As used herein, (i) "person" means any individual,
proprietorship, trust, estate, partnership, joint venture, association, company,
corporation, limited liability company or other entity, (ii) "affiliate" means
any person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the person specified
and (iii) "control," including the terms "controlling," "controlled by" and
"under common control with," means the direct or indirect possession of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of at least 10% of the voting securities,
by contract or otherwise.
7. The Corporation shall at all times have at least one (1)
Independent Director. As used in this Certificate of Incorporation, "Independent
Director" means a director (i) who is not a current or former director, officer,
partner, member, shareholder, employee, creditor or customer of the Corporation
or of any affiliate of the Corporation, and is not a spouse, parent, brother,
sister, child, aunt, uncle or cousin of any such person, and (ii) who has not
received, and was not a director, officer, partner, member, shareholder or
employee of any person that has received, any fees or other income other than
fees for serving as such Independent Director from any affiliate of the
Corporation within the five (5) years immediately preceding, or any year during,
such director's incumbency as an Independent Director. However, an Independent
Director may serve, or may have served previously, with compensation therefor in
such a capacity for any other special purpose entity formed by any affiliate of
the Corporation. No resignation or removal of an Independent Director shall be
effective until a successor Independent Director has been elected to replace
such Independent Director.
8. A director of the Corporation shall not be personally 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 law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware or (iv) for any transaction from which the director
derived any improper personal benefit. If the General Corporation Law of the
State of Delaware is amended after the filing of this Certificate of
Incorporation to authorize corporate action eliminating or further limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the General Corporation Law of the State of Delaware as so amended. Any repeal
or modification of the foregoing portion of this 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.
9. (a) The affirmative votes or written consents of the holders
of all of the outstanding common stock of the Corporation and of all of the
directors of the Corporation shall be necessary for (i) any amendment of this
Certificate of Incorporation or of the by-laws of the Corporation, (ii) a
consolidation or merger with or into any other person or dissolution or
liquidation in whole or in part, (iii) any purchase or other acquisition, or any
sale, pledge or other transfer, of any assets, or any creation, incurring or
guarantee of, or other assumption of liability for, any indebtedness, by the
Corporation, other than in a transaction within the scope of paragraph 5 above,
(iv) any institution by the Corporation of any action to have itself adjudicated
as bankrupt or insolvent, any consent to the institution of bankruptcy or
insolvency proceedings against it, any request or consent to the entry of any
order for relief or the appointment of a receiver, trustee or other similar
official for it or for any substantial part of its property, any liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, any making of any general assignment for
the benefit of creditors, or any admission in writing that it is unable to pay
its debts generally as they become due or (v) the taking of any corporate action
in furtherance of any of the actions set forth above in this paragraph. In such
voting or consents each Independent Director shall owe a fiduciary duty to the
Corporation itself, including the stockholders and the creditors of the
Corporation.
(b) If any outstanding certificates, notes, bonds or
other securities are then rated at the request of the Corporation by any
nationally recognized statistical rating organization (each, a "Rating Agency"),
the Corporation shall not amend or repeal any provision of this Certificate of
Incorporation unless either (i) the Corporation shall have received written
confirmation from each Rating Agency that such amendment or repeal will not
cause such Rating Agency to reduce or withdraw any rating then so assigned to
any such securities or (ii) the Corporation shall have received written consent
to any such amendment or repeal from the other parties to each agreement
pursuant to which such securities were issued.
10. The Corporation shall be operated in such a manner that its
assets and liabilities shall not be substantively consolidated with those of any
other person in the event of the bankruptcy or insolvency of the Corporation or
such other person. Without limiting the foregoing, the Corporation shall
maintain adequate capital in light of its contemplated business operations,
conduct its business in its own name and through its duly authorized officers or
agents, maintain and hold itself out as a separate entity and observe all
appropriate corporate and other organizational formalities, maintain its assets
separate from those of any other person or entity, maintain its books, records
and bank accounts separate from those of any other person, maintain separate
financial statements showing its assets and liabilities separate and apart from
those of any other person, use separate stationery, invoices and checks, pay its
own liabilities and expenses only out of its own funds, enter into a transaction
with an affiliate only if such transaction is intrinsically fair, commercially
reasonable and on the same terms as would be available in an arm's length
transaction with a person or entity that is not an affiliate, allocate fairly
and reasonably any overhead expenses that are shared with an affiliate, pay the
salaries of its employees and maintain a sufficient number of employees in light
of its contemplated business operations, not hold itself out as being liable for
the debts of any other person, not acquire obligations or securities of its
partners, members or shareholders, not pledge its assets for the benefit of any
other entity or make any loans or advances to any entity and not take any other
action or engage in any other activity that would be inconsistent with
maintaining the separate legal identity of the Corporation.
THE UNDERSIGNED has hereby signed this Certificate of Incorporation as
the sole incorporator of the Corporation pursuant to the General Corporation Law
of the State of Delaware as of June 21, 2005.
/s/ Nathan Schmidt
---------------------------------
Nathan Schmidt
c/o Thacher Proffitt & Wood LLP
2 World Financial Center
New York, New York 10281
MILA MORTGAGE ACCEPTANCE, INC.
CONSENT OF SOLE INCORPORATOR
IN LIEU OF
ORGANIZATIONAL MEETING
The undersigned, being the sole incorporator of the Corporation, hereby
consents to the adoption of the following resolutions as of June 23, 2005:
RESOLVED, that a copy of the Certificate of Incorporation of the
Corporation be inserted in the minute book of the Corporation.
RESOLVED, that the following persons are hereby elected as Directors of
the Corporation, each to hold office until the first annual meeting of
the shareholders of the Corporation and until such person's successor
has been elected and qualified, or until such person's earlier death,
resignation or removal:
Layne Sapp
William Dougherty
Beth L. Peoples
/s/ Nathan Schmidt
---------------------------------
Nathan Schmidt, Sole Incorporator
MILA MORTGAGE ACCEPTANCE, INC.
UNANIMOUS CONSENT OF DIRECTORS
The undersigned, constituting all the directors of the Corporation,
hereby consent to the adoption of the following resolutions as of June 23, 2005:
RESOLVED, that a certified copy of the Certificate of Incorporation of
the Corporation be inserted by the Secretary of the Corporation in the
corporate minute book.
RESOLVED, that the Consent of Sole Incorporator in Lieu of
Organizational Meeting, dated June 23, 2005, and the resolutions
adopted thereby are hereby in all respects approved, ratified and
confirmed.
RESOLVED, that the following persons are hereby elected to the offices
of the Corporation set forth, each to serve until such person's
successor is elected and has qualified or until such person's earlier
death, resignation or removal:
President and Chief Executive Officer: Layne Sapp
Treasurer, Chief Financial Officer
and Chief Accounting Officer: William Dougherty
Vice President, Secretary
and General Counsel: Doug Schwed
Executive Vice President Mark Hikel
Vice President Barney Guy
RESOLVED, that the By-Laws in the form attached hereto are hereby
adopted as the By-Laws of the Corporation.
RESOLVED, that the specimen form of stock certificate annexed hereto is
hereby adopted as the form of stock certificate to represent the fully
paid and nonassessable shares of common stock, par value $1.00 per
share, to be issued by the Corporation.
RESOLVED, that the form of seal, an impression of which is made on the
margin of this page, is hereby adopted as the corporate seal of the
Corporation.
RESOLVED, that the fiscal year of the Corporation shall end on the last
day of December in each year.
RESOLVED, that each of the President and Secretary of the Corporation
is hereby authorized and directed to procure on behalf of the
Corporation all corporate books, books of account and stock books
required by the statutes of the State under the laws of which it was
incorporated or otherwise necessary or appropriate in connection with
the business of the Corporation.
RESOLVED, that each of the proper officers of the Corporation is hereby
authorized to pay on behalf of the Corporation all fees and expenses
incident to and necessary for the organization of the Corporation.
RESOLVED, that the officers of the Corporation be, and each of them
hereby is, authorized, empowered and directed, for, on behalf of, and
in the name of the Corporation, to make such filings and applications,
to execute such documents and instruments and to do such acts and
things as such officer or officers may deem necessary and desirable, in
their judgment, in order to obtain such licensees, authorizations and
permits in any state as necessary or desirable for the Corporation's
business, to fulfill such legal requirements as are applicable to the
Corporation or its business or to complete the organization of the
Corporation including, without limitation, an Application for Employer
Identification Number to be filed with the Internal Revenue Service;
that all resolutions required by any state with respect thereto be and
hereby are adopted; that the Secretary of the Corporation be and hereby
is authorized to certify to any state or official thereof as to the
adoption of this resolution or any resolution required by such state.
RESOLVED, that the proper officers of the Corporation are hereby
authorized and directed on behalf of the Corporation to issue to MILA,
Inc. a certificate evidencing one thousand (1,000) fully paid and
nonassessable shares of the Corporation's common stock in exchange for
the payment and receipt by the Corporation of one thousand dollars
($1,000.00).
RESOLVED, that each of the officers of the Corporation is hereby
authorized, empowered and directed to pay all charges and expenses
incident to or arising out of the incorporation and organization of the
Corporation, and to reimburse any person who has made any disbursements
therefor.
RESOLVED, that each of the officers of the Corporation is hereby
authorized, empowered and directed, for, on behalf of and in the name
of the Corporation, to open such bank accounts as, in their judgment,
may be necessary or desirable for the conduct of the business of the
Corporation, provided that any such bank accounts shall require the
signature of at least two officers of the Corporation on all checks
drawn upon such accounts or be on such other terms and conditions as
may be subsequently approved by the Board of Directors, that all
resolutions required by such banks withy respect thereto are hereby
adopted, and that the Secretary of the Corporation be and hereby is
authorized to certify to any bank as to the adoption of this resolution
or any resolution required by such bank; and that a copy of any such
resolution required by an bank and certified by the Secretary of the
Corporation be inserted in the minute book of the Corporation.
RESOLVED, that each of the President, the Vice President and any other
appropriate officer of the Corporation is hereby authorized and
directed on behalf of and in the name of the Corporation to take such
action, execute such documents and incur and pay such expenses as may
be necessary or appropriate to effect the intent of the foregoing
resolutions.
ACTION BY UNANIMOUS WRITTEN CONSENT
The undersigned, constituting all of the Directors of MILA Mortgage
Acceptance, Inc., hereby adopt, by unanimous written consent, the resolutions to
which this signature page is attached which are effective as of June 23, 2005.
This Consent may be signed in one or more counterparts, each of which shall be
deemed an original, and all of which shall constitute one instrument. This
Consent shall be filed with the minutes of the proceedings of the Board of
Directors of the Corporation.
The undersigned have signed this Consent as of the effective date of
the resolutions.
/s/ Layne Sapp
--------------------------
Layne Sapp
/s/ William Dougherty
--------------------------
William Dougherty
/s/ Beth L. Peoples
--------------------------
Beth L. Peoples