EXHIBIT 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
REMODELERS INVESTMENT CORPORATION
FIRST: The name of the corporation is REMODELERS INVESTMENT CORPORATION
(the "CORPORATION").
SECOND: Its registered office in the State of Nevada is located at One
East First Street, Reno, Nevada 89501. The name of its resident agent at
that address is The Corporation Trust Company of Nevada.
THIRD: The period of its duration is perpetual.
FOURTH: The sole purpose for which the Corporation is organized is to
engage in the following activities:
(a) to purchase or otherwise acquire, own, hold, sell, transfer,
assign, pledge, finance, refinance and otherwise deal with (i) mortgage
loans, certificates or other securities guaranteed by the Government National
Mortgage Association; (ii) mortgage loans, certificates or other securities
issued or guaranteed by the Federal National Mortgage Association; (iii)
mortgage loans, certificates or other securities issued or guaranteed by the
Federal Home Loan Mortgage Corporation; and (iv) mortgage loans (including,
among others, single family loans, manufactured housing contracts, Title I
loans, and senior and junior mortgage liens), mortgage pass-through
certificates, collateralized mortgage obligations, subordinated classes or
residual interests issued by any Person or entity, or any other types of
mortgage-related securities (collectively, clauses (i) through (iv) are
referred to as the "MORTGAGE COLLATERAL");
As used herein, the term "Person" means any individual, corporation,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
(b) to authorize, issue, hold, retain an interest in (including a
subordinated interest), sell, deliver or otherwise deal with (i) bonds, notes
or other obligations secured primarily by one or more types, as described in
paragraph (a) of this Article FOURTH, of Mortgage Collateral ("BONDS") or
(ii) pass-through or participation certificates which evidence an interest in
pools of Mortgage Collateral ("PASS-THROUGH CERTIFICATES");
(c) to act as settlor or depositor of trusts formed to issue Bonds or
Pass-Through Certificates and to invest in or sell the beneficial interest in
such trusts;
(d) to use proceeds of the sale of Bonds or Pass-Through Certificates
in connection with the funding or acquisition of Mortgage Collateral;
(e) to transfer, pledge or assign the rights to any amounts remitted or
to be remitted to the Corporation by any trustee under an indenture, pooling
and servicing agreement, trust agreement or other agreement entered into with
the Corporation in connection with the issuance of the Bonds or Pass-Through
Certificates by the Corporation or by any trust or partnership established by
the Corporation;
(f) to engage in and perform any actions which are necessary or
appropriate to (i) establish to the satisfaction of the Secretary of Housing
and Urban Development that the Corporation meets and will continue to meet
the requirements for approval as an eligible lender participating in the
programs under Title I of the National Housing Act or (ii) qualify under any
other programs relating to Mortgage Collateral; and
(g) to engage in any activity and to exercise any powers permitted to
corporations under the laws of the State of Nevada which are incidental to
the foregoing and necessary or convenient to accomplish the foregoing,
including the ability to hold or make such interim investments as may be
required to be pledged by the Corporation as a condition to receiving the
desired rating on any Bonds or Pass-Through Certificates issued by the
Corporation pursuant to paragraph (b) of this Article FOURTH, plus any
investment income on such investments, with such investments to include any
investments permitted under any indenture pursuant to which the Corporation
shall issue Bonds or under any pooling and servicing agreement or other
agreement pursuant to which the Corporation shall issue Pass-Through
Certificates.
FIFTH: The Corporation shall have the authority to issue one class of
shares to be designated "common". The total number of shares which the
Corporation is authorized to issue is One Thousand (1,000). The number of
common shares authorized is One Thousand (1,000) shares and the par value of
each share is One Cent ($.01).
SIXTH: The governing board of this Corporation shall be known as
directors, and the number of directors may from time to time be increased or
decreased in such manner as shall be provided by the bylaws of this
Corporation.
SEVENTH: The names and addresses of the current board of directors,
which is two in number, are as follows:
NAME ADDRESS
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Daniel T. Phillips 16901 Dallas Parkway, Suite 200
Dallas, Texas 75248
Ronald M. Mankoff 16901 Dallas Parkway, Suite 200
Dallas, Texas 75248
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EIGHTH: The power to adopt, alter, amend, or repeal the Bylaws of the
Corporation is hereby delegated to the Board of Directors and such power
shall be deemed to be vested exclusively in the Board of Directors and shall
not be exercised by the shareholders.
NINTH: No shareholder shall have preemptive right to acquire any shares
or securities of any kind, whether now or hereafter authorized, which may at
any time be issued, sold or offered for sale by the Corporation.
TENTH: No shareholder shall have the right to cumulate his or her votes
in an election of directors or for any other matter(s) to be voted upon by
the shareholders of the Corporation.
ELEVENTH: Notwithstanding any provision of the General Corporation Law
of the State of Nevada, now or hereafter in force, requiring for any purpose
the affirmative vote of two-thirds, or any other percentage, of the
outstanding shares entitled by law to vote thereon, or of the outstanding
shares of a class and series entitled by law to vote thereon, such action
may, to the extent permitted by law, be authorized and taken by the
affirmative vote of the holders of a majority of such outstanding shares, or
such outstanding shares of a class or series, as applicable. Except as
provided in the preceding sentence, or as otherwise required by law, the vote
of the holders of a majority of the shares entitled to vote and represented
in person or by proxy at any shareholders' meeting at which a quorum is
present shall be the act of the shareholders' meeting.
TWELFTH: To the fullest extent permitted by Nevada statutory or
decisional law, as the same exists or may hereafter be amended or
interpreted, a director of the Corporation shall not be liable to the
Corporation or its shareholders for any act or omission in such director's
capacity as a director. Any repeal or amendment of this Article, or any
adoption of any other provision of these Articles of Incorporation,
inconsistent with this Article, by the shareholders of the Corporation shall
be prospective only and shall not adversely affect any limitation on the
liability to the Corporation or its shareholders of a director of the
Corporation existing at the time of such repeal or amendment or such adoption
of an inconsistent provision.
THIRTEENTH: The Corporation shall indemnify its officers and directors
and may, in the discretion of the Board of Directors, indemnify its other
employees and agents to the fullest extent permitted by Nevada statutory and
decisional law if any such person was or is a party, or is threatened to be
made a party, to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative, or
investigative, by reason of the fact that such person 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, partner, venturer,
proprietor, trustee, employee or agent of another Corporation, partnership,
joint venture, trust, limited liability company, or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding. Such right of indemnification shall not be
deemed exclusive of any other rights to which such person may be entitled
under any bylaws, agreement, vote of shareholders, or otherwise.
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FOURTEENTH: Any action which may be taken at any annual or special
meeting of shareholders of the Corporation may be taken without a meeting,
without prior notice, and without a vote, if a written consent or consents,
setting forth the action so taken, shall be signed by the holders of shares
having not less than the minimum number of votes necessary to take such
action at a meeting at which the holders of all shares entitled to vote on
the action were present and voted.
FIFTEENTH: Subject to the limitation in Article SIXTEENTH of these
Amended and Restated Articles of Incorporation, the Corporation reserves the
right to amend, alter, change or repeal any provision contained in these
Amended and Restated Articles of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
SIXTEENTH: (a) At all times at which the directors of the Corporation
shall take, or shall be required to take, any action with respect to the
Bonds or Pass-Through Certificates and until such time as no Bonds or
Pass-Through Certificates are outstanding, there shall be at least one
Independent Director. An "Independent Director" shall be an individual who,
except in his or her capacity as an Independent Director of the Corporation
is not, and has not been during the two years immediately before such
individual's appointment as an Independent Director, (i) a stockholder,
director, partner, officer, or employee of the Corporation or its Affiliates;
(ii) affiliated with a significant customer or supplier of the Corporation or
its Affiliates; (iii) a spouse, parent, sibling, or child of any person
described by (i) or (ii) above; provided, however, that an individual shall
not be deemed to be ineligible to be an Independent Director solely because
such individual owns 1% or less of the outstanding stock of an Affiliate that
is a publicly-traded company.
As used herein, the term "Affiliate" shall mean any Person other than
the Corporation (i) which owns beneficially, directly or indirectly, any
outstanding shares of the Corporation's stock, or (ii) which controls or is
under common control with the Corporation. The term "control" 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
ownership of voting securities, by contract or otherwise.
(b) With the consent of the initial and current sole stockholder of the
Corporation, which consent the initial stockholder believes to be in the best
interest of the initial stockholder and the Corporation, no Independent
Director shall, with regard to any action to be taken under or in connection
with this Article SIXTEENTH, owe a fiduciary duty or other obligation to the
initial stockholder nor to any successor stockholders (except as may
specifically be required by the statutory law of any applicable
jurisdiction), and every stockholder, including each successor stockholder,
shall consent to the foregoing by virtue of such stockholder's purchase of
shares of capital stock of the Corporation, no further act or deed of any
stockholder being required to evidence such consent. Instead, such
director's fiduciary duty and other obligations with regard to such action
under or in connection with this Article SIXTEENTH shall be owed to the
Corporation (including its creditors). In addition, no Independent Director
may be removed unless his or her successor has been elected.
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(c) Notwithstanding any other provision of these Amended and Restated
Articles of Incorporation and any provision of law that otherwise so empowers
the Corporation, and so long as any Bonds or Pass-Through Certificates remain
outstanding and not paid in full, the Corporation shall not, without the
unanimous consent of the Board of Directors, including the Independent
Directors, do any of the following:
(i) engage in any business or activity other than those set forth in
Article FOURTH;
(ii) incur or assume any indebtedness except for (a) such
indebtedness that (i) may be incurred by the Corporation in
connection with the issuance of Bonds or Pass-Through
Certificates and (ii) provides for recourse solely to the
assets pledged to secure such indebtedness or provides for no
recourse to the Corporation and does not constitute a claim
against the Corporation in the event that its assets are
insufficient to repay such indebtedness; and (b) indebtedness
that by its terms (i) is fully subordinated to any Bonds and
(ii) provides that the holder thereof may not cause the filing
of a petition in bankruptcy or take any similar action against
the Corporation until at least 121 days after the last day on
which any Bond is outstanding;
(iii) dissolve or liquidate, in whole or in part;
(iv) consolidate or merge with or into any other Person or convey
or transfer or lease its property and assets substantially as
an entirety to any Person;
(v) institute proceedings to be adjudicated bankrupt or insolvent,
or consent to the institution or bankruptcy or insolvency
proceedings against the Corporation, or file a petition
seeking or consenting 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 the property of the
Corporation, 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 corporate action in
furtherance of any such action; or
(vi) amend Articles FOURTH, FIFTEENTH or SIXTEENTH of these Amended
and Restated Articles of Incorporation.
So long as any obligation with respect to the Bonds or Pass-Through
Certificates remains outstanding and not paid in full, the Corporation shall
have no authority to take any action in items (i) through (iv) and (vi) above
without the written consent of the majority of the holders of such Bonds
and/or Pass-Through Certificates.
Pursuant to the Nevada General Corporation Law, the amendments to the
Articles of Incorporation as set forth in these Amended and Restated Articles
of Incorporation were
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unanimously approved by Written Consent of the Sole Stockholder, dated
December 14, 1995, following the recommendation of the Board of Directors via
a Unanimous Written Consent of the Board of Directors, dated December 14,
1995. This Certificate sets forth the Articles of Incorporation as amended
and is executed by the President and the Secretary of the Corporation this
15th day of December, 1995.
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By: Daniel T. Phillips
President
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By: Ronald M. Mankoff
Secretary
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THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared Daniel T. Phillips, known to me to be the person and
officer whose name is subscribed to the foregoing instrument and acknowledged
to me that the same was the properly authorized act of the said Remodelers
Investment Corporation, a Nevada corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _____ day of December,
1995.
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Notary Public, State of Texas
Commission Expires:
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THE STATE OF TEXAS )
)
COUNTY OF DALLAS )
BEFORE ME, the undersigned authority, a Notary Public, on this day
personally appeared Ronald M. Mankoff, known to me to be the person and officer
whose name is subscribed to the foregoing instrument and acknowledged to me that
the same was the properly authorized act of the said Remodelers Investment
Corporation, a Nevada corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _____ day of December,
1995.
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Notary Public, State of Texas
Commission Expires:
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