EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
Deutsche Mortgage & Asset Receiving Corporation, a corporation duly
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware,
DOES HEREBY CERTIFY THAT:
FIRST: The original Certificate of Incorporation of the corporation
was filed in the office of the Secretary of State of Delaware on March 22, 1996
under the name of Deutsche Mortgage & Asset Receiving Corporation. A Certificate
of Amendment of Certificate of Incorporation of the corporation was filed in the
office of the Secretary of State of Delaware on April 16, 1996. This Amended and
Restated Certificate of Incorporation was duly adopted by the sole stockholder
of the corporation pursuant to and in accordance with the provisions of Sections
228, 242 and 245 of the General Corporation Law of the State of Delaware.
SECOND: That in lieu of a meeting and vote of stockholders, the sole
stockholder of the corporation has given its written consent to the adoption of
a resolution proposing and declaring advisable the following amendment to and
restatement of the Certificate of Incorporation of said corporation:
RESOLVED, that the sole stockholder of the Corporation hereby
proposes and declares it advisable that the Certificate of
Incorporation of this Corporation be, and it hereby is, amended and
restated to read in its entirety as follows:
"ARTICLE I
The name of the corporation is Deutsche Mortgage & Asset Receiving
Corporation.
ARTICLE II
The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. The name of its registered agent at such address is The
Corporation Trust Company.
ARTICLE III
The purpose of this corporation is to engage in the following
activities:
(a) to acquire, own, hold, sell, transfer, assign, pledge and
otherwise deal with the following:
(i) "fully modified pass-through" certificates ("GNMA
Certificates") issued and guaranteed as to timely
payment of principal and interest by the Government
National Mortgage Association ("GNMA"), a wholly owned
corporate instrumentality of the United States within
the Department of Housing and Urban Development
organized and existing under Title III of the National
Housing Act of 1934;
(ii) Guaranteed Mortgage Pass-Through Certificates ("FNMA
Certificates") issued and guaranteed as to timely
payment of principal and interest by the Federal
National Mortgage Association ("FNMA"), a federally
chartered, privately owned corporate instrumentality of
the United States organized and existing under the
Federal National Mortgage Association Charter Act;
(iii) Mortgage Participation Certificates ("FHLMC
Certificates") issued and guaranteed as to timely
payment of interest and ultimate or full payment of
principal by the Federal Home Loan Mortgage Corporation
("FHLMC"), a federally chartered instrumentality of the
United States organized and existing under Title III of
the Emergency Home Finance Act of 1970;
(iv) Any other participation certificates, pass-through
certificates or other obligations or interests backed
directly or indirectly by mortgage loans and issued or
guaranteed by GNMA, FNMA or FHLMC (collectively with the
GNMA Certificates, FNMA Certificates and FHLMC
Certificates, the "Agency Securities");
(v) Mortgage-backed securities, which securities need not be
issued or guaranteed, in whole or in part, by any
governmental entity, issued by one or more private
entities (hereinafter referred to as "Private
Securities");
(vi) Mortgage loans secured by first, second or more junior
liens on (A) one- to four-family residential properties,
(B) multifamily properties that are either rental or
cooperative apartment buildings or projects containing
five or more residential units or (C) commercial
properties, regardless of whether insured or guaranteed
in whole or in part by any governmental entity, or
participation interests or stripped interests in such
mortgage loans ("Mortgage Loans");
(vii) Conditional sales contracts and installment sales or
loan agreements or participation interests therein
secured by manufactured housing ("Contracts"); and
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(viii) Receivables of third-parties or other financial assets
of third-parties, either fixed or revolving, that by
their terms convert into cash within a finite time
period ("Other Assets");
(b) To loan the funds of this corporation to any person under loan
agreements and other arrangements which are secured by Agency
Securities, Private Securities, Mortgage Loans, Contracts
and/or Other Assets;
(c) To authorize, issue, sell and deliver bonds or other evidences
of indebtedness that are secured by Agency Securities, Private
Securities, Mortgage Loans, Contracts and/or Other Assets; and
(d) To authorize, issue, sell and deliver certificates evidencing
beneficial ownership interests in pools of Agency Securities,
Private Securities, Mortgage Loans, Contracts and/or Other
Assets; and
(e) To engage in any activity and to exercise any powers permitted
to corporations under the laws of the State of Delaware that
are incident to the foregoing and necessary or convenient to
accomplish the foregoing.
ARTICLE IV
The total number of shares of stock that this corporation shall have
authority to issue is 1,000 shares of Common Stock, par value $1.00 per share.
Each share of Common Stock shall be entitled to one vote.
ARTICLE V
Except as provided to the contrary in the provisions establishing a
class or series of stock, the amount of the authorized stock of this corporation
of any class or classes may be increased or decreased by the affirmative vote of
the holders of a majority of the stock of this corporation entitled to vote.
ARTICLE VI
The election of directors need not be by ballot unless the by-laws
shall so require.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly authorized
and empowered to make, alter and repeal the by-laws of the corporation, subject
to the power of the stockholders of the corporation to alter or repeal any
by-law made by the Board of Directors.
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ARTICLE VIII
A director of this corporation shall not be liable to this
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that exculpation from liability is not
permitted under the General Corporation Law of the State of Delaware as in
effect at the time such liability is determined. No amendment or repeal of this
ARTICLE VIII shall apply to or have any effect on the liability or alleged
liability of any director of this corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment or repeal.
ARTICLE IX
This corporation shall, to the maximum extent permitted from time to
time under the law of the State of Delaware, indemnify and upon request shall
advance expenses to any person who is or was a party or is threatened to be made
a party to any threatened, pending or completed action, suit, proceeding or
claim, whether civil, criminal, administrative or investigative, by reason of
the fact that such person is or was or has agreed to be a director or officer of
this corporation or while a director or officer is or was serving at the request
of this corporation as a director, officer, partner, trustee, employee or agent
of any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorneys' fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim;
provided, however, that the foregoing shall not require this corporation to
indemnify or advance expenses to any person in connection with any action, suit,
proceeding, claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights arising
under any by-law, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the heirs and legal representatives of such
person. Any person seeking indemnification under this ARTICLE IX shall be deemed
to have met the standard of conduct required for such indemnification unless the
contrary shall be established. Any repeal or modification of the foregoing
provisions of this ARTICLE IX shall not adversely affect any right or protection
of a director or officer of this corporation with respect to any acts or
omissions of such director or officer occurring prior to such repeal or
modification.
ARTICLE X
The books and records of this corporation may (subject to any
statutory requirements) be kept outside the State of Delaware as may de
designated by the Board of Directors or in the by-laws of this corporation.
ARTICLE XI
This corporation shall not, without the affirmative vote of one
hundred percent (100%) of the members of the board of directors of this
corporation, institute proceedings to be adjudicated 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.
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ARTICLE XII
The corporation shall at all times have at least one (1) Independent
Director. As used in this Amended and Restated 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 who has received any fees or other income
other than fees for serving as such Independent Director from any affiliate of
the corporation in any year 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 an 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.
ARTICLE XIII
Without the affirmative vote of one hundred percent (100%) of the
members of the board of directors of this corporation, this corporation shall
not amend ARTICLE XI, ARTICLE XII or this ARTICLE XIII of this Certificate of
Incorporation."
IN WITNESS WHEREOF, said Deutsche Mortgage & Asset Receiving
Corporation has caused this certificate to be signed by James O. Wilhelm, an
Assistant Secretary of the Corporation this 16th day of January, 2004.
DEUTSCHE MORTGAGE & ASSET RECEIVING CORPORATION
By: /s/JAMES O. WILHELM
--------------------
James O. Wilhelm
Assistant Secretary
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