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EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
AVCO ABS RECEIVABLES CORP.
Under Chapter 78
of the
Nevada Revised Statutes
The undersigned, a natural person being at least 18 years of age, 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 Nevada Private Corporations Law hereby certifies that:
1. The name of the corporation is Avco ABS Receivables Corp. (the
"Corporation").
2. The purpose for which the Corporation is organized is to engage
exclusively in any of the following activities:
(a) to acquire, issue, cause to be issued, dispose of and or
hold certificates or other evidences of interests (the "Certificates")
in, or to issue notes or other evidences of indebtedness ("Notes," and
together with the Certificates, the "Securities") that may be secured by
certain payment obligations of dealers in consumer, commercial and
capital products ("Dealers") or payment obligations of buyers of such
products or of obligors under any notes, mortgages, installment
contracts or other payment obligations (collectively, "Obligors")
secured by such products, including but not limited to, new and
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used automobiles and trucks, recreational vehicles, new and used boats,
boat motors, boat trailers, manufactured housing, industrial machinery,
musical instruments, agricultural, household and garden equipment, or
payment obligations under notes, mortgages, installment contracts, or
other payment obligations, including but not limited to, leases, home
equity lines of credit, second mortgages, unsecured credit cards, other
obligations arising out of or relating to closed end and revolving loans
of money secured by first and second mortgages on one- to four-family
residential properties, proceeds from claims on insurance policies
related thereto, and related rights, and other installment obligations
(collectively, "Receivables");
(b) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the Receivables, collateral securing the
Receivables, related insurance policies and insurance certificates,
agreements with originators or servicers of Receivables and any proceeds
or further rights associated with any of the foregoing;
(c) to transfer Receivables to trusts (the "Trusts") pursuant to
one or more pooling and servicing agreements, sale and servicing
agreements, or other agreements (the "Agreements") to be entered into
by, among others, the Corporation, the trustee named therein (the
"Trustee") and any entity acting as servicer of the Receivables;
(d) to authorize, sell and deliver any class of certificates
("Certificates") or other securities issued by the Trusts under the
related Agreements;
(e) to acquire from the Trustee the Certificates issued by
Trusts to which the Corporation transferred Receivables;
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(f) to authorize, issue, sell and deliver one or more series and
classes of bonds, notes or other evidence of indebtedness secured or
collateralized by one or more pools of Receivables or by certificates of
any class issued by one or more Trusts or by certificates of any class
issued by a trust established by the Corporation (collectively, the
"Notes"), provided that the Corporation shall have no liability under
any Notes except to the extent of the Receivables or the certificates
securing or collateralizing such Notes;
(g) to hold and enjoy all of the rights and privileges of any
Certificates issued by Trustee to the Corporation under the related
Agreements and to hold and enjoy all of the rights and privileges of any
class of any series of Notes, including any class of Notes or
Certificates which may be subordinate to any other class of Notes or
Certificates, respectively;
(h) to perform its obligations under the Agreements and any
indenture or other agreement (each, an "Indenture") pursuant to which
any Notes are issued;
(i) to negotiate, authorize, execute, deliver, assume the
obligations under, and perform, any agreement or instrument or document
relating to the activities set forth in clauses (a) through (h) above;
and
(j) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of Nevada that are
related or incidental to the foregoing and necessary, convenient or
advisable to accomplish the foregoing. The Corporation shall not engage
in any business or activity other than in connection with or relating to
the activities described above.
3. The office of the Corporation is to be located in the State of
Nevada.
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4. The total number of shares of stock that the Corporation shall have
authority to issue is 25,000 shares of Common Stock, $1.00 par value.
5. The address of the Corporation's registered office is 502 East John
Street, Carson City, Nevada 89706. The name of the resident agent at this
address is CSC Services of Nevada, Inc..
6. (a) The affairs of the Corporation shall be managed by a Board of
Directors (the "Board" or the Board of Directors"), which shall at all times, no
later than immediately prior to the issuance of any Securities, include two
Outside Directors. The number of directors of the Corporation shall be no less
than three (3) and no more than twelve (12) as provided according to and in the
By-laws of the Corporation, with the initial Board consisting of three (3)
members. The name and post office box or street address, either residence or
business, of the members of the initial Board of Directors is as follows:...
NAME ADDRESS
Ronald Bukow 600 Anton Blvd., Costa Mesa, CA 92626
Gary L. Fite 600 Anton Blvd., Costa Mesa, CA 92626
Eugene R. Schutt, Jr. 600 Anton Blvd., Costa Mesa, CA 92626
The initial Board of Directors will serve as Directors until the first
annual meeting of the shareholders, or until their successors are elected and
qualified. When voting on matters subject to the vote of the Board, including
those matters specified in these Articles 6 and in Article 8 hereof,
notwithstanding that the Corporation is not then insolvent, the Outside
Directors shall take into account the interests of the creditors of the
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Corporation as well as the interests of the Corporation. An "Outside Director"
shall be an individual who, for at least five years prior to being appointed by
the Board, shall not have been, a director, officer or employee of, customer or
supplier or indirect beneficial owner of 5% or more of the immediate family of
any such director, officer, employee, beneficial owner, customer or supplier of,
Textron Inc., or any corporate affiliate of Textron Inc. Notwithstanding the
foregoing, an Outside Director may be a director or officer of one or more other
corporations that is an affiliate or are affiliates Textron Inc., provided that
(i) each such corporation is or was formed with limited purposes similar to the
Corporation and (ii) such person does not earn, in the aggregate, material
compensation for serving in such positions. For the purposes of the foregoing,
an "affiliate" of an entity is an entity controlling, controlled by, or under
common control with such entity. Notwithstanding any other provision of these
Articles of Incorporation or any other provision of law that so empowers the
Corporation, in the event of the death, incapacity, or resignation of an Outside
Director or such position is otherwise vacated, a successor Outside Director
shall be appointed by the remaining directors of the Corporation and no action
requiring the unanimous affirmative vote of the Board of Directors of the
Corporation shall be taken until a successor Outside Director is elected and
qualified and approves such action.
(b) The Corporation shall not, without the affirmative vote of
100% of the members of the Board of Directors of the Corporation
(including at least two Outside Directors), 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
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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, and if such office is
located in identifiable space within an affiliate of Textron Inc.,
allocate fairly and reasonably any overhead for shared office space.
(d) The Corporation shall maintain corporate records and books
of account separate from any other person or entity and shall not
commingle its corporate records and books of account with the corporate
records and books of account any other entity.
(e) The Board of Directors of the Corporation shall hold
appropriate meetings to authorize all of its corporate actions. Regular
meetings of the Board of Directors shall be held not less frequently
than three times per annum.
(f) The funds and other assets of the Corporation shall not be
commingled with those of any other entity.
(g) The Corporation shall pay its own expenses and shall not
guarantee or hold itself out as being liable for the debts of Textron
Inc. or any of its affiliates.
(h) The Corporation shall not form, or cause to be formed, any
subsidiaries.
(i) The Corporation shall act solely in its corporate name and
through its
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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 shareholders 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.
(l) The Corporation shall maintain separate financial statements
from any other entity.
(m) The Corporation shall observe all corporate formalities.
(n) The Corporation shall maintain an arm's length relationship
with its affiliates.
(o) The Corporation shall use separate stationery, invoices and
checks.
(p) The Corporation shall not pledge its assets for the benefit
of any other entity.
7. In furtherance and not in limitation of the powers conferred upon the
Board of Directors by law, the Board of Directors shall have the power to adopt,
amend and repeal from time to time By-laws of the Corporation.
8. Notwithstanding any other provision of these Articles of
Incorporation and any provision of law that otherwise so empowers the
Corporation, the Corporation shall not, without (i) satisfaction of the Rating
Agency Condition if any Securities are outstanding and (ii) unanimous approval
of the Board of Directors of the Corporation (which shall include, at all times
following the initial appointment of Outside Directors
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pursuant to Article 6, the approval of at least two Outside Directors), 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 2;
(b) incur any indebtedness, or assume or guaranty any
indebtedness of any other entity other than in connection with the
issuance of Securities pursuant to Agreements;
(c) merge or consolidate with or into any other entity or convey
or transfer its properties and assets substantially as an entirety to an
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 expressly assumes the
due and punctual payment of, and all obligations of the
Corporation in connection with the indebtedness of the
Corporation, and has Articles or a Certificate of Incorporation
containing provisions identical to the provisions of Articles 2,
6, 10 and this Article 8; and
(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; or
(d) amend these Articles of Incorporation to alter in any manner
or delete Article 2, Article 6, Article 10 or this Article 8.
"Rating Agency Condition" means, with respect to any action, (i) that
each nationally recognized rating agency (other than Standard & Poor's
Ratings Services, a
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division of the McGraw-Hill Company ("S&P")), 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 to
the 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 the Notes or Certificates and (ii) that S&P, if it has
rated any Securities, shall have notified the Corporation, in writing
that such action will not, in and of itself, result in a reduction or
withdrawal of the then current rating of any class of the Notes or
Certificates .
9. The Corporation is to have perpetual existence.
10. Subject to the limitations set forth in Article 8(d), 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.
11. No director or officer of the Corporation shall be personally liable
to the Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director or officer; provided, that nothing contained in
this provision shall eliminate or limit the liability of a director or officer
for (a) acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law, or (b) the payment of distributions in violation of
Nevada Revised Statutes Section 78.300. If the Nevada Private Corporations Law
is amended to authorize corporate action further eliminating or 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 Nevada Private Corporations Law, as so amended. No amendment or repeal of
this provision
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applies to or has any effect on the liability or alleged liability of any
director or officer of this Corporation for or with respect to any acts or
omissions of the director or officer occurring prior to the amendment or repeal,
except as otherwise required by law.
12. The Corporation shall, to the fullest extent permitted by Nevada
Private Corporations Law, 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 and 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 the Nevada
Private Corporations Law. 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 shareholders or disinterested directors or
otherwise.
13. The name and post office address of the incorporator signing these
Articles of Incorporation is as follows:
NAME ADDRESS
Jon C. Frojen. 600 Anton Blvd., Costa Mesa, CA 92626
IN WITNESS WHEREOF, these Articles of Incorporation has been subscribed
the day of October, 1997 by the undersigned, being the sole incorporator of the
Corporation, who affirms that the statements made herein are true under the
penalties of perjury.
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Jon C. Frojen
Sole Incorporator
600 Anton Blvd., Costa Mesa, CA 92626
STATE OF CALIFORNIA )
)
COUNTY OF ORANGE )
This instrument was acknowledged before me on October __,
1997, Jon C. Frojen as Incorporator of Avco ABS Receivables Corp.
(Seal, if any) .
Notary
(My commission expires: )
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