Exhibit 3.1
FORM OF CERTIFICATE OF INCORPORATION
OF
DB DEPOSITOR INC.
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Adopted in accordance with the provisions
of Section 242 of the
Delaware General Corporation Law
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The undersigned, a natural person, for the purpose of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "General Corporation Law of the State of Delaware") hereby
certifies that:
FIRST: The name of this Corporation (hereinafter called the "Corporation")
is DB Depositor Inc.
SECOND: The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is 1209 Orange
Street, City of Wilmington, County of New Castle (zip code 19801); and
THIRD: the name of the registered agent of the Corporation in the State of
Delaware at such address is The Corporation Trust Company.
FOURTH: The nature of the business or purposes to be conducted or promoted
by the Corporation is to engage in any of the following acts or activities:
(a) to authorize, issue, sell, deliver, purchase and invest in (and
enter into agreements in connection with), and/or to engage in the
establishment of one or more trusts (each, a "Trust") which will issue and sell
debt or equity securities, obligations, and other securities and instruments
(in one or more series, each of which series may consist of one or more
classes) (the "Securities"), which Securities will (1) be collateralized or
otherwise secured or backed by, or otherwise represent interests in, the equity
or assets of such Trust or other collateral pledged as security for or
otherwise supporting the Securities and the proceeds thereof, or (2) relate to
such Securities described in clause (1), including but not limited to,
warrants, options or other rights to purchase or sell such Securities; in each
case the Securities of a series which are distributed through one or more
public offerings (with the exception of the Securities (as defined in Article
THIRD (c)) of such series, which may or not be rated) shall, when issued, be
rated in one of the four highest rating categories by any one or more
nationally recognized rating agencies;
(b) in connection with the issuance and sale of the Securities or
otherwise, to purchase or otherwise acquire, own, hold, transfer, convey,
pledge, assign, sell (or otherwise dispose of), service, finance, refinance or
otherwise deal in or with the assets of each Trust or any other collateral;
(c) to arrange or otherwise provide for support for any series of
Securities to be issued by the Corporation or any Trust by various forms of
credit enhancement including arrangements whereby, for a given series, payments
on one or more classes of Securities (the "Subordinated Securities") are
subordinated to, and constitute additional security for, payments due on one or
more other classes of Securities in such series;
(d) to invest certain proceeds from the Securities as determined by
the Corporation's Board of Directors;
(e) to authorize, issue, sell and deliver instruments evidencing the
Corporation's indebtedness which is completely subordinated to any Securities,
and to enter into agreements by which the Corporation incurs such indebtedness;
and
(f) to engage in any lawful act or activity and to exercise any powers
permitted to corporations organized under the General Corporation Law of
Delaware (currently codified at Title 8 of the Delaware Code) (as the same may
be amended, herein referred to as the "General Corporation Law of Delaware")
that are incidental to and necessary or convenient for the accomplishment of
the above mentioned business and purposes.
FIFTH: The total number of shares of stock which the Corporation shall have
authority to issue is one hundred (100) shares, all of which are of a par value
of one dollar ($1.00) each, and all of which are of one class and are designated
as Common Stock.
SIXTH: Elections of Directors need not be by ballot unless the By-Laws of
the Corporation shall so provide. The books of the Corporation may (subject to
any statutory requirements) be kept at such place whether within or outside the
State of Delaware as may be designated by the Board of Directors or in the
By-Laws of the Corporation.
SEVENTH: The original By-Laws of the Corporation shall be adopted by the
incorporator. Thereafter, the power to make, alter, or repeal the By-Laws, and
to adopt any new By-Law, shall be vested in the Board of Directors.
EIGHTH: Notwithstanding any other provision of this Certificate of
Incorporation or any provision of law that otherwise so empowers the
Corporation, the Corporation shall not, without satisfaction of the Rating
Agency Condition, do any of the following:
(a) engage in any business or activity other than the business and
activities which the Corporation is permitted to engage in under Article Third;
(b) incur any indebtedness, or assume or guaranty any indebtedness of
any other entity, other than in connection with the issuance of Securities and
other than indebtedness incurred pursuant to an agreement with an affiliate to
support any obligation of the Corporation;
(c) 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:
(i) the entity (if other than the Corporation) formed or
surviving the consolidation or merger or which acquires the properties
and assets of the Corporation is organized and existing under the laws
of the State of Delaware, expressly assumes the due and punctual
payment of, and all obligations of the Corporation in connection with
indebtedness of the Corporation, and has a Certificate of
Incorporation containing provisions identical to the provisions of
Article Third, this Article Seventh, Article Eighth, and Article
Tenth; and
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(ii) immediately after giving effect to the transaction, no
default or event of default has occurred and is continuing under any
indebtedness of the Corporation or any agreements relating to such
indebtedness.
"Rating Agency Condition" means, with respect to any action, that each
nationally recognized rating agency that has rated the Securities (each, a
"Rating Agency") shall have been given 10 days' prior notice thereof (or such
shorter period as shall be acceptable tot he Rating Agencies) and that none of
the Rating Agencies shall have notified the Corporation in writing that such
action will, in and of itself, result in a reduction or withdrawal of the then
current rating of any class of Securities.
NINTH: (a) The affairs of the Corporation shall be managed by a Board of
Directors consisting of at least three members. At least one Director of the
Corporation (an "Independent Director") shall be none of (i) a director,
officer, employee or 10% beneficial owner of the outstanding common stock, of
any person or entity owning beneficially more than 10% of the outstanding shares
of Common Stock of the Corporation (an "Affiliated Entity") or (ii) a director,
officer, employee or 10% beneficial owner of the outstanding common stock, of
any such Affiliated Entity's subsidiaries or affiliates other than the
Corporation; provided, however, that an Independent Director may be a director
or officer of one or more other corporations that is an affiliate or are
affiliates of DBAH Capital, LLC (the "Parent") provided that each such
corporation is or was formed with limited purposes similar to the Corporation.
For purposes hereof, an "affiliate" shall mean any person controlled by,
controlling or under common control with another person and the term "control"
(including the terms "controlling", "controlled by" and "under common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a person, whether through
the ownership of voting securities or otherwise.
(b) Without the affirmative vote of 100% of the members of the Board
of Directors of the Corporation (including at least one Independent Director),
institute proceedings to be adjudicated a 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 take any corporate action in
furtherance of any such action.
(c) The Corporation shall maintain a separate principal office through
which its business shall be conducted, which office may be located in the
headquarters of the Parent.
(d) The Corporation shall maintain corporate records and books of
account and shall not commingle its corporate records and books of account with
the corporate records and books of account of its Parent.
(e) The Board of Directors of the Corporation shall hold appropriate
meetings to authorize all of its corporate actions.
(f) The funds and other assets of the Corporation shall not be
commingled with those of any other corporation.
(g) The Corporation shall pay its own expenses and shall not hold
itself out as being liable for the debts of any other party.
(h) The Corporation shall not form, or cause to be formed, any
subsidiaries.
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(i) The Corporation shall act solely in its corporate name and through
its duly authorized officers or agents in the conduct of its business, and shall
conduct its business so as not to mislead others as to the identity of the
entity with which they are concerned.
(j) Meetings of the stockholders of the Corporation shall be held not
less frequently than one time per annum.
(k) The Corporation shall operate in such a manner that it would not
be substantively consolidated with any other entity.
TENTH: The Corporation is to have perpetual existence.
ELEVENTH: The Corporation shall not amend, alter, change or repeal Articles
Third, Seventh, Eighth, or this Article Tenth without satisfying the Rating
Agency Condition. Subject to the foregoing limitation, 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.
TWELFTH: No director shall have any personal liability to the Corporation
or its stockholders for any monetary damages for breach of fiduciary duty as a
director, except that this Article shall not eliminate or limit the liability of
each director (i) for any breach of such 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 Delaware General Corporation Law, or (iv) for any transaction
from which such director derived an improper personal benefit. This Article
shall not eliminate or limit the liability of such director of any act or
omission occurring prior to the date when this Article becomes effective. If the
Delaware General Corporation Law is amended hereafter to further eliminate or
limit the personal liability of directors, the liability of a director of this
corporation shall be limited or eliminated to the fullest extent permitted by
the Delaware General Corporation Law, as amended.
THIRTEENTH: The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, or by any successor thereto, indemnify any and
all persons whom it shall have power to indemnify under said section from the
against any and all of the expenses, liabilities or other matters referred to in
or covered by said section. The Corporation shall advance expenses to the
fullest extent permitted by said section. Such right to indemnification and
advancement of expenses shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person. The indemnification and
advancement of expenses provided for herein shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any By-Law, agreement, vote of stockholders or
disinterested directors or otherwise.
FOURTEENTH: The incorporator of the Corporation is _______________, whose
mailing address is c/o Sidley Austin Brown & Wood LLP, 875 Third Avenue, New
York, New York 10022.
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IN WITNESS WHEREOF, the undersigned, being the sole incorporator of the
Corporation, does make this certificate, hereby declaring and certifying that
this is my act and deed and that the facts herein stated are true, and
accordingly have hereunto set my hand this ____ day of __________, 2001.
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Incorporator
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