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EXHIBIT 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
CENTERIOR FUNDING CORPORATION
The undersigned, in order to amend and restate the Certificate of
Incorporation, as amended, of Centerior Funding Corporation (the "Corporation")
which was originally filed with the Secretary of State of Delaware on August
30, 1995 and amended on October 4, 1995, do hereby certify that the following
Restated Certificate of Incorporation of the Corporation was duly adopted by
the directors and the stockholders of the Corporation in accordance with the
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware:
FIRST. The name of the Corporation is Centerior Funding Corporation.
SECOND. The address of the Corporation's registered office in the
State of Delaware is 1013 Centre Road, City of Wilmington, County of New
Castle, State of Delaware. The name of its registered agent at such address is
Corporation Service Company.
THIRD. The purposes for which the Corporation is formed are (i) to
engage in acquiring, owning, holding, transferring, assigning, pledging and
otherwise dealing with such assets as may, from time to time, constitute all or
part of the trust estate (the "Trust") established from time to time pursuant
to the trust agreement entered into between the Corporation and an entity
serving as eligible lender trustee, providing for, among other things, the
issuance of securities representing beneficial ownership interests in, or
secured by, one or more pools of receivables and related assets, (ii) to
acquire, own, hold, transfer, assign, pledge and otherwise deal with trust
certificates and other securities issued by the Trust, and (iii) 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; provided, however, that the
Corporation shall not have the power to issue debt obligations or incur, assume
or guarantee any additional debt. The Corporation shall not engage in any
business or activity other than in connection with or relating to the
activities described above.
FOURTH. The total number of shares of stock which the Corporation
shall have authority to issue is 3,000 shares of Common Stock with a par value
of One Cent ($.01) per share.
FIFTH. (a) The affairs of the Corporation shall be managed by a
Board of Directors consisting of five members. At least two directors of the
Corporation (the "Outside Directors") shall not be a director, officer or
employee of, or direct or indirect beneficial owner of any securities of, or
members of the immediate family of any such director, officer, employee or
beneficial owner of the Corporation's parent, The Cleveland Electric
Illuminating Company ("CEI"), or any affiliate of CEI. For purposes of the
foregoing, an "affiliate" is an
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entity controlling, controlled by or under common control with another entity.
Should any Outside Director resign, die, become disabled or incapacitated, or
be prevented from acting, the affairs of the Corporation shall and may be
managed by the remaining directors, who shall promptly replace the
aforementioned Outside Director with a person meeting the requirements set
forth above. Should any Outside Director resign, die, become disabled or
incapacitated, or be prevented from acting, the remaining directors shall take
no action to acquiesce, petition, or otherwise invoke or cause the Corporation
to invoke the process of any governmental authority for the purpose of
commencing or sustaining a case against the Corporation under any Federal or
state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official,
before replacing the aforementioned Outside Director with a person meeting the
requirements set forth above.
(b) The Corporation shall maintain a principal office
through which its business shall be conducted.
(c) The Corporation shall maintain corporate records and
books of account and shall not commingle its corporate records and books of
account with the corporate records and books of account of CEI.
(d) 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.
(e) The funds and other assets of the Corporation shall
not be commingled with those of any other corporation.
(f) The Corporation shall pay its own expenses and shall
not hold itself out as being liable for the debts of any other party.
(g) The Corporation shall not form, or cause to be
formed, any subsidiaries.
(h) The Corporation shall act solely in its corporate
name and through its duly authorized officers or agents in the conduct of its
business, shall prepare financial statements separate from those of CEI, and
shall conduct its business so as not to mislead others as to the identity of
the entity with which they are concerned. The Corporation shall hold itself
out to creditors, the public and all others as a corporate entity separate from
CEI.
(i) Meetings of the stockholders of the Corporation shall
be held not less frequently than one time per annum.
(j) The Corporation shall operate in such a manner that
it would not be substantively consolidated in the trust estate of any other
entity.
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SIXTH. Notwithstanding any other provision of this Restated
Certificate of Incorporation and any provision of law that otherwise so
empowers the Corporation, the Corporation shall not do any of the following:
(i) dissolve or liquidate, in whole or in part;
(ii) merge or consolidate with any other corporation
other than a corporation wholly owned, directly or
indirectly, by any entity owning 100% of the stock
of the Corporation and having a certificate of
incorporation containing provisions identical to the
provisions of Articles THIRD and FIFTH and this
Article SIXTH;
(iii) without the approval of the 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 or answer or consent seeking
reorganization or relief under the Federal
Bankruptcy laws, or consent to the filing of any
such petition or to the appointment of a receiver,
liquidator, assignee, trustee, conservator,
sequestrator (or other similar official) of the
Corporation or of any substantial part of the
Corporation's property, or make an 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
(iv) amend this Restated Certificate of Incorporation to
alter, in any manner that would have a material
adverse effect on the creditors of the Corporation,
or to delete Articles THIRD, FIFTH or this Article
SIXTH without, in each case, a letter from Moody's
Investors Service, Inc. and Standard & Poor's
Ratings Services, or their respective successors,
confirming that such amendment will not result in
the reduction or withdrawal of their ratings of any
series or class of debt securities of the
Corporation then outstanding;
PROVIDED, HOWEVER, that the actions of the Corporation shall not be so
restricted or prohibited if, at the time the action is taken, there are no
outstanding trust certificates or other securities issued by the Trust.
SEVENTH. The Corporation is to have perpetual existence.
EIGHTH. Election of directors need not be by written ballot unless
the by-laws of the Corporation shall so provide.
NINTH. The Board of Directors of the Corporation is expressly
authorized to adopt, amend or repeal the by-laws of the Corporation.
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TENTH. No director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that this limitation of
liability of a Director shall not apply with respect to (i) any breach of the
director's duty of loyalty to the Corporation or its stockholder, (ii) acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) any liability rising under Section 174 of the
DGCL or (iv) for any transaction from which the director derives an improper
personal benefit.
ELEVENTH. The Corporation shall, to the fullest extent permitted by
the General Corporation Law of the State of Delaware, as it may be amended and
supplemented from time to time, indemnify any and all persons whom it shall
have power to indemnify under such law against any expenses, liabilities or
other matters referred to in or covered by that section; provided, however,
that the Corporation shall indemnify any such person only if such proceeding
was authorized by the Board of Directors. The indemnification provided for
herein shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
their official capacities and as to action in another capacity while holding
such office, and 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.
TWELFTH. Subject to the restrictions in Article SIXTH, the
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Restated 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.
IN WITNESS WHEREOF, The Corporation has caused this Restated
Certificate of Incorporation to be signed by David M. Blank, its President, and
to be attested by Kevin P. Murphy, its Assistant Secretary, this 9th day of
April, 1996.
CENTERIOR FUNDING
CORPORATION
By: /s/ David M. Blank
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Name: David M. Blank
Title: President
Attest: /s/ Kevin P. Murphy
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Name: Kevin P. Murphy
Title: Assistant Secretary
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STATE OF OHIO )
) SS:
COUNTY OF CUYAHOGA )
On the 9th day of April, 1996, before me personally came David M. Blank
to me known, who, being by me duly sworn, did depose and say that he is the
President of Centerior Funding Corporation, the corporation described in and
which executed the foregoing Restated Certificate of Incorporation; and that
he signed his name thereto by authority of the Board of Directors of said
Corporation.
/s/ Sondra Y. Clarke
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Notary Public
My commission expires Nov. 25, 1998
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