EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
NATIONSLINK FUNDING CORPORATION
ARTICLE FIRST
The name of the corporation is NationsLink Funding Corporation.
ARTICLE SECOND
The address of the corporation's registered office in the State of
Delaware is Corporation Trust Center, 11209 Orange Street, Wilmington, New
Castle County, Delaware 19801. The name of its registered agent at such address
is The Corporation Trust Company.
ARTICLE THIRD
The nature of the business or purposes to be conducted or promoted
by the corporation is to engage solely in the following activities:
(a) to acquire, own, hold, sell, transfer, assign, issue, pledge, finance,
refinance, administer and otherwise deal with (i) mortgage-backed securities,
mortgage participation certificates, or any other certificate or security, and
the beneficial ownership interest evidenced by such certificate or security,
backed by or evidencing an interest in a pool of single family or multifamily
residential or commercial mortgage loans; (ii) mortgage loans secured by
mortgages, deeds of trust or similar first or junior liens on single family or
multifamily residential properties, commercial properties or real estate
projects under construction, whether or not guaranteed or insured, in whole or
in part, by any governmental agency; and (iii) related insurance policies, cash,
marketable securities and any other assets designed to assure the servicing or
timely distribution of proceeds of such mortgage loans and any proceeds or
further rights associated with any of the foregoing (collectively, the "Mortgage
Assets");
(b) to establish one or more trusts (each, a "Trust") to engage in any one
or more of the activities described in (a) above, each of which Trusts will
deliver to the corporation certificates ("Trust Certificates") representing the
ownership interest in the assets of such Trust, and to acquire, own, hold, sell,
transfer, assign, pledge, finance, and otherwise deal with any or all of the
Trust Certificates in any Trust that it establishes; and
(c) to engage in any activity and to exercise any powers permitted to
corporations under the laws of the State of Delaware that are related or
incidental to the foregoing and necessary, convenient or advisable to accomplish
the foregoing.
ARTICLE FOURTH
Notwithstanding any other provision of this certificate of
incorporation and any provision of law that otherwise so empowers the
corporation, without the affirmative vote of 100% of the members of the board of
directors of the corporation, including the affirmative vote of any Independent
Directors (as defined in the by-laws), the corporation shall not do any of the
following:
(a) engage in any business or activity other than those set forth in
Article Third;
(b) incur any indebtedness, or assume or guaranty any indebtedness of any
other entity, other than (i) capital stock liabilities, (ii) indebtedness
secured by a security interest in one or more mortgage-backed certificates or
securities, or mortgage loans, the terms of payment of which indebtedness are
such that payments of principal and interest payable on such mortgage backed
certificates or securities, or such mortgage loans, as the case may be, will, if
paid in a timely manner, repay such indebtedness when due, (iii) indebtedness to
NationsBanc Mortgage Capital Corporation or any affiliate thereof incurred or
guaranteed in connection with the corporation's acquisition of Mortgage Assets,
which indebtedness will be nonrecourse to the corporation but secured by such
Mortgage Assets purchased thereby with such indebtedness and (iv) indebtedness
with respect to which the person to whom the indebtedness is owing has delivered
to the corporation an undertaking that it will not institute against, or join
any other person in instituting against, the corporation any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law, that it will
not look to property or assets of the corporation in respect to such
obligations, and that such obligations shall not constitute a claim against the
corporation in the event that the corporation's assets are insufficient to pay
in full such obligation;
(c) dissolve or liquidate, in whole or in part;
(d) 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, the indebtedness of the
corporation, and has a certificate of incorporation containing provisions
substantially identical to the provisions of Article Third and this
Article Fourth; 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;
(e) 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 consent to reorganization or relief under any
applicable federal or state law relating to
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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 corporate action in furtherance of any such action;
(f) issue any shares of stock in the corporation except to NationsBanc
Mortgage Capital Corporation or an affiliate of NationsBanc Mortgage Capital
Corporation; or
(g) amend this certificate of incorporation to alter in any manner or
delete Article Third or this Article Fourth.
ARTICLE FIFTH
The total number of shares of stock which the corporation has
authority to issue is 1,000 shares of Common Stock, with a par value of $1.00
per share.
ARTICLE SIXTH
The name and mailing address of the sole incorporator are as
follows:
NAME MAILING ADDRESS
- ------------------------------ ---------------------------------------
Robert W. Long, Jr. NationsLink Funding Corporation
NationsBank Corporate Center
100 North Tryon Street, NCl-007-20-01
Charlotte, North Carolina 28255
ARTICLE SEVENTH
The corporation is to have perpetual existence.
ARTICLE EIGHTH
In furtherance and not in limitation of the powers conferred by
statute, the board of directors of the corporation is expressly authorized to
make, alter or repeal the by-laws of the corporation.
ARTICLE NINTH
Meetings of stockholders may be held within or without the State of
Delaware, as the by-laws of the corporation may provide. The books of the
corporation may be kept outside the State of Delaware at such place or places as
may be designated from time to time by the board of directors or in the by-laws
of the corporation. Election of directors need not be by written ballot unless
the by-laws of the corporation so provide.
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ARTICLE TENTH
To the fullest extent permitted by the General Corporation Law of
the State of Delaware as the same exists or may hereafter be amended, a director
of the corporation shall not be liable to the corporation or its director. Any
repeal or modification of this Article Tenth shall not adversely affect any
right or protection of a director of the corporation existing at the time of
such repeal or modification.
ARTICLE ELEVENTH
The corporation expressly elects not to be governed by Section 203
of the General Corporation Law of the State of Delaware.
/s/ Robert W. Long, Jr.
---------------------------------
Robert W. Long, Jr.
Incorporator
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CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
NATIONSLINK FUNDING CORPORATION
------------------------------------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
------------------------------------------------
NationsLink Funding Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
desires to change its name to "Banc of America Commercial Mortgage Inc." and
accordingly hereby certifies as follows:
1. The Certificate of Incorporation of the Corporation was filed in the
office of the Secretary of State of Delaware on December 13, 1995.
2. ARTICLE FIRST of the Certificate of Incorporation is amended to read in
full as follows:
ARTICLE FIRST
The name of the corporation is Banc of America Commercial Mortgage
Inc.
3. The aforesaid amendment was duly adopted in accordance with the
provisions of Section 242 of the General Corporation Law of the State of
Delaware and by the written consent of the sole stockholder of the Corporation
in accordance with the provisions of Section 228 of the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to
be affixed hereto and this certificate to be signed by its President and
attested by its Secretary this 24th day of August 2000.
NATIONSLINK FUNDING CORPORATION
By: /s/ James E. Naumann
-----------------------------------
James E. Naumann
Senior Vice President
[Corporate Seal]
Attest:
By: /s/ Mary-Ann Lucas
--------------------
Mary-Ann Lucas
Secretary