EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
ORIGEN RESIDENTIAL SECURITIES, INC.
The undersigned, for the purpose of organizing a corporation under the
General Corporation Law of the State of Delaware, does hereby certify:
ARTICLE I
NAME
The name of the Corporation is:
ORIGEN RESIDENTIAL SECURITIES, INC.
ARTICLE II
REGISTERED OFFICE
The address of the registered office of the Corporation in the State of
Delaware is Corporation Service Company, 2711 Centerville Road, Suite 400,
Wilmington, Delaware, 19808, New Castle County. The name of its registered agent
at that address is Corporation Service Company.
ARTICLE III
DEFINITIONS
For all purposes of this Certificate of Incorporation, the following terms
have the meanings assigned to them in this Article III and such definitions
extend to the plural as well as the singular forms of the defined terms.
(a) "Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with any holder of
common stock of the Corporation.
(b) "Assets" means one or more of the following types of collateral
pledged or sold to secure payment of Securities:
(1) manufactured housing installment sales contracts and installment
loan agreements ("Contracts");
(2) mortgage loans (including deeds of trust) secured by senior or
subordinate liens on residential property;
(3) participation interests in mortgage loans and/or Contracts;
(4) mortgage loans (including deeds of trust) secured by senior or
subordinate liens on multifamily residential properties;
(5) mortgage loans (including deeds of trust) secured by senior or
subordinate liens on mixed residential and commercial real estate
properties;
(6) apartment cooperative loans;
(7) closed-end or revolving home equity loans or balances secured by
senior or subordinate loans on residential property;
(8) pass-through, mortgage-backed or Contract-backed certificates as
to which the Fannie Mae guarantees the timely payment of interest at the
pass-through rate and the timely payment of principal;
(9) pass-through, mortgage-backed or Contract-backed certificates as
to which Freddie Mac guarantees timely payment at the participation
certificate rate and the ultimate collection of all principal;
(10) pass-through, mortgage-backed or Contract-backed certificates
as to which the Government National Mortgage Association guarantees timely
payment of principal installments and interest fixed on the certificates;
(11) pass-through, mortgage-backed or Contract-backed certificates
as to which the United States Department of Veterans Affairs guarantees
the timely payment of interest at the pass-through rate and the timely
payment of principal;
(12) regular or residual interests in real estate mortgage
investment conduits or regular or ownership interests in financial asset
securitization investment trusts;
(13) any other mortgage and/or Contract pass-through certificates,
mortgage or Contract participations, mortgage-backed or Contract-backed
securities, mortgage-collateralized or Contract-collateralized
obligations, or mortgage-related security; and
(14) entitlements to payments on or other interests in Contracts,
mortgage loans, certificates, or obligations or interests in real property
or manufactured housing units.
(c) "Corporation" means the corporation organized under this Certificate
of Incorporation and identified in Article I.
(d) "Government Securities" means any securities issued or guaranteed by
the United States government or any agency, subdivision or instrumentality
thereof.
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(e) "Indenture" shall mean any indenture, trust agreement, pooling and
servicing agreement or similar agreement pursuant to which Securities are issued
by the Corporation or by Trusts established by the Corporation.
(f) "Independent Director" means a Person:
(1) who, except in his or her capacity as a director of the
Corporation, is not and has not been at any time in the preceding five
years an employee, director, or officer of the Corporation or any
Affiliate; provided, however, that such person may have served as an
Independent Director or an independent manager (meaning the equivalent of
an Independent Director for a limited liability company) of an Affiliate
of the Corporation;
(2) who is not and has not been at any time in the preceding five
years a direct, indirect or beneficial holder of 5% of more of the
outstanding stock or any other equity interest in the Corporation or any
Affiliate;
(3) who is not a spouse, parent, child, grandchild, or sibling of
any individual encompassed within clause (1) or clause (2) above;
(4) who is not a trustee in bankruptcy of the Corporation or any
Affiliate; and
(5) who has not received, and was not a member or employee of a firm
or business that has received, in any year within the five years
immediately preceding or any years during such person's incumbency as a
director of the Corporation, fees or other income from the Corporation or
any Affiliate in the aggregate in excess of 10% of the gross income, for
any applicable year, of such person, firm or business (not including any
fees received by such person for his or her service as a director of the
Corporation).
(g) "Person" means any individual, corporation, association, company,
limited liability company, joint-stock company, business trust, partnership,
joint venture, unincorporated organization, or government or any agency or
political subdivision thereof.
(h) "Rated Securities" means any Security rated by any nationally
recognized statistical rating organization at the request of the Corporation or
the issuer thereof.
(i) "Securities" means any certificates, bonds, notes, debt or equity
securities, obligations, and other investment securities or instruments that are
collateralized or otherwise secured or backed by Assets, or otherwise represent
interests in, any Trust or Assets.
(j) "Trust" means each trust established by or on behalf of the
Corporation or other Person in connection with the issuance or sale of any
Securities.
(k) "Trustee" means any Person acting as trustee of a Trust established by
or on behalf of the Corporation in connection with the issuance or sale of any
Securities.
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ARTICLE IV
PURPOSES
The purposes for which the Corporation is formed are limited solely as
follows:
(a) to purchase or otherwise acquire, own, hold, pledge, finance,
refinance, convey, sell (or otherwise dispose of), service, transfer, assign,
and otherwise deal in or with Assets, or any combination of the foregoing;
(b) to authorize, issue, sell, deliver, purchase, acquire, invest in,
enter into agreements in connection with Securities, and to engage in the
establishment of one or more Trusts in connection with the issuance or sale of
Securities from time to time, which Securities may be issued and sold in one or
more series (each of which series may consist of one or more classes) and shall
(A) be collateralized or otherwise secured or backed by, or otherwise represent
interests in Assets, (B) be nonrecourse to the Corporation and its assets other
than the Assets, and (C) not constitute a claim against the Corporation to the
extent that funds produced by the Assets are insufficient to allow full and/or
timely payments or distributions to be made on such Securities or to allow full
and/or timely payment of principal and interest thereon in accordance with the
terms thereof;
(c) to incur, assume, or guaranty indebtedness to the extent not
prohibited under paragraph (b) of Article V below;
(d) to (1) acquire, own, hold, sell, transfer, assign, pledge, finance,
refinance, and otherwise deal in or with Securities, (2) acquire, own, hold,
sell, transfer, assign, pledge, finance, refinance, and otherwise deal in or
with Assets, and (3) acquire, own, hold, sell, transfer, assign, pledge, and
otherwise deal in or with any or all of the ownership interests in Trusts;
(e) to use the proceeds of the sale of the Securities to purchase or
otherwise acquire Assets or to loan the proceeds of the sale of the Securities
to entities that may or may not be affiliated with the Corporation or to make
dividend payments to the extent permitted by law;
(f) to invest cash balances, from time to time, as provided in any
Indenture or similar document to which the Corporation may be a party in
connection with the issuance of the Securities; and
(g) subject to the limitations contained in this Article IV and in Article
V of this Certificate of Incorporation, to engage in any activity and to
exercise any power that is incidental to or that renders convenient the
accomplishment of any or all of the foregoing and that is permitted to
corporations under the laws of the State of Delaware and that is not required to
be set forth specifically in this Certificate of Incorporation.
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ARTICLE V
PROVISIONS FOR DEFINING, LIMITING, AND
REGULATING CERTAIN POWERS OF THE
CORPORATION AND OF THE DIRECTORS AND STOCKHOLDERS
Notwithstanding any other provision in this Certificate of Incorporation
and any provision of law that otherwise so empowers the Corporation, until such
time as all indebtedness of the Corporation evidenced by Securities shall be
indefeasibly paid in full, the Corporation shall not perform any act in
contravention of any of the following clauses of this Article V without (i) the
express prior written unanimous consent of the Board of Directors, including
each Independent Director, and (ii) the written consent of each insurer that
insures any outstanding Securities; provided, however, the Corporation shall not
perform any act in contravention of any of the following clauses of this Article
V if such act would cause a reduction or withdrawal of any credit rating
assigned to any Rated Security:
(a) The Corporation shall not engage in any business or activity other
than as authorized in Article IV hereof.
(b) The Corporation shall not incur, assume, or guaranty any indebtedness
except for:
(1) such indebtedness as (A) may be incurred by the Corporation in
connection with the issuance of the Securities, (B) provides for recourse
solely to the Assets pledged to secure such indebtedness or to entities
other than the Corporation, and (C) 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 91 days after every
indebtedness of the Corporation evidenced by the Securities is
indefeasibly paid in full; and
(2) indebtedness that by its terms (A) is subordinated to
indebtedness of the Corporation evidenced by Securities issued by the
Corporation and (B) 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 91 days after every indebtedness of the
Corporation evidenced by the Securities is indefeasibly paid in full.
(c) The Corporation shall not 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:
(1) the entity (if other than the Corporation) formed in or
surviving such consolidation or merger or that acquires by conveyance or
transfer the properties and assets of the Corporation substantially as an
entirety (A) shall be organized and existing under the laws of the United
States of America or any state or the District of Columbia, and (B) shall
expressly assume, by amendment, supplement or other written instrument or
agreement, the obligations, if any, of the Corporation under any
Indentures pursuant to which the Securities that are then outstanding may
have been issued by the Corporation or by Trusts established by or on
behalf of the Corporation, which amendment,
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supplement or other written instrument or agreement is executed and
delivered to each related Trustee, in form satisfactory to such Trustee;
(2) immediately after giving effect to such transaction, no default
or event of default under any the Indenture shall have occurred and be
continuing;
(3) the Corporation shall have delivered to each Trustee an
officers' certificate and an opinion of counsel each stating that such
consolidation, merger, conveyance, or transfer and such supplemental
indentures are not prohibited under the terms of the related Indenture and
that all conditions precedent provided for in the Indenture relating to
such transaction have been complied with; and
(4) the Corporation shall have received written confirmation from
each rating agency that has rated any of the outstanding Rated Securities
that such consolidation, merger, conveyance, or transfer will not
adversely affect such rating agency's ratings of the outstanding Rated
Securities;
provided, however, that the provisions of this Article V shall not limit
the ability of the Corporation to sell the Assets securing any outstanding
series of Securities, subject to the lien in favor of such Securities, to
a special purpose finance Person.
Upon any consolidation or merger with respect to the Corporation, or any
conveyance or transfer of the properties and assets of the Corporation
substantially as an entirety as provided above, the entity formed by or
surviving such consolidation or merger (if other than the Corporation) or the
entity to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Corporation
under each Indenture with the same effect as if such entity had been an original
party to such Indenture. In the event of any such conveyance or transfer, the
Corporation may be dissolved, wound-up, and liquidated at any time thereafter,
and the Corporation thereafter shall be released from its liabilities and its
obligations under each of the Indentures.
(d) The Corporation shall not amend, alter, change or repeal any provision
contained in Article III, IV, V, VI, X, XI, or XIII of this Certificate of
Incorporation.
(e) The Corporation shall not issue any additional Securities if such
issuance would result in the downgrading or withdrawal of any ratings assigned
to the outstanding Rated Securities by any nationally-recognized statistical
rating organization that rated such outstanding Rated Securities at the request
of the Corporation.
(f) For so long as any Securities issued by the Corporation are
outstanding, the Corporation shall not dissolve or liquidate in whole or in part
except in connection with a merger, consolidation, or sale of assets as provided
in this Article V.
(g) For so long as any Securities issued by the Corporation are
outstanding, the Corporation shall not take any action that is reasonably likely
to cause the Corporation to become insolvent in either the balance-sheet or
equity sense.
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ARTICLE VI
BANKRUPTCY
Notwithstanding any other provision in this Certificate of Incorporation
and any provision of law that otherwise so empowers the Corporation, until such
time as all indebtedness of the Corporation evidenced by Securities shall be
indefeasibly paid in full, and for so long as any Securities issued by the
Corporation are outstanding, the Corporation shall not, without the express
prior written unanimous consent of the Board of Directors, including each
Independent Director, file a voluntary or involuntary petition for relief under
any chapter of the United States Bankruptcy Code, institute proceedings for the
Corporation to be adjudicated bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Corporation, or
file a petition or consent to a petition seeking reorganization or relief under
any applicable federal or state law relating to bankruptcy or insolvency, 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 for itself, or, except as required by law, admit in writing it's
inability to pay its debts generally as they become due, or take any corporate
action in furtherance of any of the foregoing.
ARTICLE VII
CAPITAL STOCK
(a) The total number of shares of capital stock which the Corporation
shall have authority to issue is 100 shares of Common Stock with $1.00 par
value. All shares of Common Stock will be identified and will entitle the
holders thereof to the same rights and privileges.
(b) Except as set forth herein or as otherwise required by law, each
outstanding share of Common Stock shall be entitled to vote on each matter on
which the stockholders of the Corporation shall be entitled to vote, and each
holder of Common Stock shall be entitled to one vote for each share of such
stock held by such holder.
(c) The Board of Directors of the Corporation may cause dividends to be
paid to holders of shares of Common Stock out of funds legally available for the
payment of dividends. Any dividend or distribution on the Common Stock shall be
payable on shares of all Common Stock share and share alike.
(d) In the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Corporation, after payment or provision for payment of the
debts and other liabilities of the Corporation, the holders of shares of Common
Stock shall be entitled to share ratably, share alike, in the remaining net
assets of the Corporation.
(e) The Corporation shall have the right by appropriate action to impose
restrictions upon the transfer of any shares of its stock, or any interest
therein, that it may from time to time issue, provided that such restrictions
shall be set forth upon the face or back of the certificates evidencing such
shares.
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(f) Cumulative voting for Directors shall not be permitted.
ARTICLE VIII
INCORPORATOR
The name and mailing address of the Sole Incorporator are as follows:
Name Mailing Address
Thomas Y. Hiner 951 E. Byrd Street
Richmond, Virginia 23219
ARTICLE IX
DIRECTORS
The business and affairs of the Corporation shall be managed by or under
the direction of the Board of Directors of the Corporation. The organization and
the conduct of the Board shall be in accordance with the following:
(a) The Directors of the Corporation shall have concurrent power with the
holders of the Common Stock to make, alter, amend, change, add to, or repeal the
Bylaws of the Corporation.
(b) The number of Directors of the Corporation shall be as from time to
time fixed by, or set in the manner provided in, the Bylaws of the Corporation.
Election of Directors need not be by written ballot unless the Bylaws so
provide.
(c) No Director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty as a
Director, except for liability (1) for any breach of the Director's duty of
loyalty to the Corporation or its stockholders, (2) for acts or omissions not in
good faith or that involve intentional misconduct or a knowing violation of law,
(3) pursuant to the Delaware General Corporation Law, relating to dividends,
stock purchases, and redemptions, or (4) for any transaction from which the
Director derived an improper personal benefit. Any repeal or modification of
this Article IX by the stockholders of the Corporation shall not adversely
affect any right or protection of a Director of the Corporation existing at the
time of such repeal or modification with respect to acts or omissions occurring
prior to such repeal or modification.
(d) In addition to the powers and authority expressly provided herein or
by statute expressly conferred upon them, the Directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the
Delaware General Corporation Law, this Certificate of Incorporation, and any
Bylaws adopted by the stockholders or the Board of Directors; provided, however,
that no Bylaws hereafter adopted by the stockholders or the Board of Directors
shall invalidate any prior act of the Directors which would have been valid if
such Bylaws had not
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been adopted. The Corporation's Board of Directors will duly authorize all of
the Corporation's actions.
ARTICLE X
MANAGEMENT OF THE
BUSINESS OF THE CORPORATION
Notwithstanding any other provision in this Certificate of Incorporation
and any other provision of law to the contrary, until such time as all
indebtedness of the Corporation evidenced by Securities shall be indefeasibly
paid in full, the Corporation at all times shall:
(a) maintain its books, records, and bank accounts separate and apart from
those of all other Persons;
(b) not commingle any of its assets with those of any other Person;
(c) pay its own liabilities out of its own funds;
(d) maintain financial statements separate and apart from those of all
other Persons;
(e) observe all corporate formalities, organizational formalities, and
other applicable or customary formalities;
(f) not guarantee or become obligated for the debts of any other Person
except as provided in Article V or hold out its credit as being available to
satisfy the obligations of any other Person;
(g) not pledge its assets for the benefit of any other Person or make any
loans or advances to any other Person;
(h) except in accordance with Article IV and V, not acquire the direct
obligations of, or securities issued by, its shareholders or any Affiliate;
(i) allocate fairly and reasonably any overhead for expenses that are
shared with an Affiliate, including paying for the office space and services
performed by any employee of any Affiliate;
(j) conduct business in its own name, promptly correct any known
misunderstandings regarding its separate identity, and not identify itself as a
division of any other Person; and
(k) maintain adequate capital in light of its contemplated business
operations.
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ARTICLE XI
INDEPENDENT DIRECTORS
The Board of Directors of the Corporation shall include at least one
Independent Director at all times when any Securities are outstanding. When
voting on matters subject to the vote of the Board of Directors, notwithstanding
whether the Corporation is not then insolvent in either the balance sheet or
equity sense, each Independent Director shall take into account the interests of
the creditors of the Corporation, including, but not limited to, the interests
of all holders of Rated Securities.
ARTICLE XII
ADMINISTRATIVE MATTERS
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be kept
(subject to any provision contained in the Delaware General Corporation Law)
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 Bylaws of the Corporation.
ARTICLE XIII
EXISTENCE
The Corporation is to have perpetual existence.
ARTICLE XIV
INDEMNIFICATION
The Corporation shall indemnify, to the full extent permitted by the
Delaware General Corporation Law, as amended from time to time, all persons who
may be indemnified pursuant thereto. As part of such indemnification, the
Corporation shall advance the expenses of such indemnified persons to the full
extent permitted by the Delaware General Corporation Law, as amended from time
to time. Notwithstanding any other provision in this Article XIV, (a) the
Corporation's indemnification and advance obligations shall be fully subordinate
to all indebtedness of the Corporation evidenced by Securities and (b) none of
the Corporation's indemnification and advance obligations shall constitute a
"claim" against the Corporation within the meaning of United States Bankruptcy
Code until all indebtedness of the Corporation evidenced by Securities is
indefeasibly paid in full.
The Corporation and any Affiliate may purchase and maintain insurance on
behalf of any Person who is or was a director or officer of the Corporation
against any liability asserted against such Person and incurred by such Person
in any such capacity, or arising out of such Person's status as such, regardless
of whether the Corporation would have the power to indemnify such Person against
such liability under the provisions of this Article or applicable law.
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ARTICLE XV
AMENDMENTS
Except as provided in Article V, 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.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, I, THE UNDERSIGNED, being the sole incorporator of the
Corporation hereinbefore named, do hereby declare and certify that the
Corporation has duly authorized this Certificate of Incorporation and the facts
herein stated are true, and accordingly have hereunto set my hand as of this
15th day of July, 2004.
By: /s/ Thomas Y. Hiner
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Thomas Y. Hiner
Sole Incorporator