Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Option One Mortgage Acceptance Corporation 242 1.09M
2: EX-1.1 Underwriting Agreement 35 119K
3: EX-3.(I) Certificate of Incorporation 10 26K
4: EX-3.(II) By-Laws 13 54K
5: EX-4.1 Pooling and Servicing Agreement (Ver.1) 157 495K
6: EX-4.2 Pooling and Servicing Agreement (Ver. 2) 84 306K
7: EX-5.1 Opinion of Thacher Proffitt & Wood 3 12K
8: EX-24.1 Power of Attorney 1 8K
EX-3.(I) — Certificate of Incorporation
EX-3.(I) | 1st Page of 10 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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EXHIBIT 3.1
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CERTIFICATE OF INCORPORATION
OF
OPTION ONE MORTGAGE ACCEPTANCE CORPORATION
1. The name of the corporation is
OPTION ONE MORTGAGE ACCEPTANCE CORPORATION
2. The address of the corporation's registered office in the
State of Delaware is Corporation Trust Center, 1209 Orange Street in the City of
Wilmington, County of New Castle. The name of the corporation's registered agent
at such address is The Corporation Trust Company.
3. The nature of the business or purposes to be conducted or
promoted by the corporation is limited to the following activities and none
other:
A. To acquire, own, hold, transfer, assign, pledge and
otherwise deal with the following (collectively, the
"Mortgage Collateral"):
(i)(A) mortgage-backed certificates, mortgage
participation certificates or mortgage
pass-through certificates guaranteed and/or
issued by the Government National Mortgage
Association, the Federal National Mortgage
Association or the Federal Home Loan
Mortgage Corporation (collectively, the
"Agency Certificates"); (B) securities
representing interests in Agency
Certificates; or (C) mortgage pass-through
certificates or mortgage-collateralized
bonds issued by any other entity with
respect to or secured by a pool of mortgage
loans (collectively, "Certificates") which
are either
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owned by the Company or granted by a
Borrower (as defined below) to secure
payment of Mortgage Backed Notes (as defined
below);
(ii) mortgage notes and related mortgages, or
interests therein (including, but not
limited to, participation certificates with
respect to such mortgage notes or related
mortgages) ("Pledged Mortgages"), which are
either owned by the Company or granted by a
Borrower to secure payment of a Mortgaged
Backed Note;
(iii) mortgage backed notes evidencing loans made
by the Company to commercial banks, saving
and loan associations and savings banks, the
deposits of which are insured by the FDIC,
affiliates of FDIC insured institutions, and
other entities which are not FDIC insured
institutions but are engaged directly, or
through the owners of such entities or their
affiliates, in mortgage financing,
origination or funding activities (e.g.,
mortgage bankers, home builders and state
agencies), or to any other entity
(collectively, the "Borrowers"), which loans
(collectively, "Mortgage Backed Notes") are
secured by Pledged Mortgages or
Certificates; and
(iv) real property and any improvements thereon,
including commercial, multifamily and
residential properties;
B. To authorize, issue, sell and deliver bonds or other
evidences of indebtedness ("Bonds") that are secured
by a pledge or other assignment of Mortgage
Collateral, manufactured housing conditional sales
contracts,
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loan agreements, reserve funds, guaranteed investment
contracts, letters of credit, insurance contracts,
surety bonds or any other credit enhancement device
(collectively, "Collateral");
C. To serve as depositor of one or more trusts that may
authorize, issue, sell and deliver Bonds, mortgage
pass-through certificates or other certificates of
interest that are secured by a pledge or other
assignment of, or represents an interest in,
Collateral; and
D. To do all such things as are reasonable or necessary
to enable the Company to carry out any of the above,
including without limitation entering into loan
agreements, insurance agreements, servicing
agreements, reimbursement agreements, issuing debt
(subject to the provisions of this Article 3 and
Article 9 hereof) and selling residual interests in
Collateral or selling certificates of participation
in any trust for which the Company serves as
depositor.
The Company shall have the authority to engage in any other
acts or activities and to exercise any power permitted to corporations under the
General Corporation Law of the State of Delaware so long as the same are
incidental to, or connected with, the foregoing or are necessary, suitable or
convenient to accomplish the foregoing. The Company exists only for the purposes
specified in this Article 3, and may not conduct any other business without the
unanimous consent of its Board of Directors.
4. The total number of shares of stock which the corporation
shall have authority to issue is one thousand (1,000), all of which shall be
without par value.
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5. A. The corporation shall at all times have
at least one director who shall not be a
director, officer or employee of any direct
or ultimate parent or affiliate of Option
One Mortgage Corporation; provided, however,
that such independent director may serve in
similar capacities for other "special
purpose corporations" formed by Option One
Mortgage Corporation or its affiliates.
B. With respect to a vote for the filing of a
bankruptcy petition or other such action as
described in Section 6(ii) hereof, the
independent director shall owe his fiduciary
duty to the corporation itself, including
the corporation's creditors.
C. No resignation or removal (as described in
Article 15 below) of the independent
director shall be effective until a
successor independent director has been
elected to replace such resigning
independent director.
6. The affirmative unanimous vote of the holders of all of the
corporation's outstanding common stock and the unanimous vote of the whole board
of directors at any meeting of the board of directors shall be necessary (i) for
the amendment of the Certificate of Incorporation of the corporation and for the
amendment of the by-laws of the corporation; or (ii) before the corporation may
take any action to institute proceedings to have itself adjudicated as bankrupt
or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or seek or consent to the entry of any order for relief
or the appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property, or seek liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
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composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or make any general assignment for the
benefit of creditors, or take any corporate action in furtherance of any of the
actions set forth above in this paragraph; or (iii) to take any corporate action
in furtherance of any of the actions set forth above in this Article 6(ii).
7. A director of the corporation shall not be personally
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is amended
after the filing of this Certificate of Incorporation to authorize corporate
action eliminating or further limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended. Any repeal or modification of the foregoing portion of this paragraph
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.
8. Elections of directors need not be by written ballot unless
the by-laws of the corporation shall so provide.
9. Notwithstanding any other provision of this Certificate of
Incorporation and any provision of law which otherwise so empowers the
corporation, the corporation shall not perform any act in contravention of any
of the following:
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A. The corporation shall not (i) consolidate or merge
with or into any other entity or person or dissolve
or liquidate in whole or in part or transfer its
properties and assets substantially as an entirety to
any entity or (ii) engage in any other action that
bears on whether the separate legal identity of the
corporation and Option One Mortgage Corporation will
be respected, including, without limitation (a)
holding itself out as being liable for the debts of
any other party; (b) forming, or causing to be
formed, any subsidiaries or (c) acting other than in
its corporate name and through its duly authorized
officers or agents;
B. The corporation shall not engage in any joint
activity or transaction of any kind with or for the
benefit of any Related Company (as defined below),
including loans to or from any Related Company and
any guarantee of the indebtedness of any Related
Company, except for (i) entering into the agreements
referenced in Article 3, (ii) purchasing management
services and leasing office space or equipment, in
each case only to the extent necessary for the
conduct of the corporation's business, and (iii)
payment of lawful dividends and capital distributions
to its shareholder or shareholders;
C. The corporation shall not create, incur, assume,
guarantee or in any manner become liable in respect
of any indebtedness, except as stated in Article 3,
other than trade payables and expense accruals
incurred in the ordinary course of business and which
are incident to the business purpose of the
corporation as stated in Article 3 above; and
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D. The corporation shall not commingle its funds and
assets with those of any Related Company.
"Related Company" means the shareholder or shareholders of this
corporation or any entity other than this corporation now or hereafter
controlled directly or indirectly by, or under direct or indirect common control
with, the shareholders of this corporation.
10. The corporation (A) shall maintain its financial and
accounting books and records separate from those of any other entity or person,
(B) shall pay from its assets all obligations and indebtedness of any kind
incurred by it, and shall not pay from its assets any obligations or
indebtedness of any other entity or person, and (C) shall observe all corporate
formalities required by its Certificate of Incorporation, by-laws and the laws
of the State of Delaware.
11. The name and mailing address of the sole incorporator is
as follows:
____________________________
Thacher Proffitt & Wood
Two World Trade Center, 39th floor
New York, New York 10048
12. The corporation is to have perpetual existence.
13. Meetings of stockholders may be held within or without the
State of Delaware, as the by-laws 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. 14. Except as otherwise provided by statute, any action which might
have been taken by a vote of the stockholders at a meeting thereof (including
any action under Articles 6, 15 and 17 hereof) may be taken with the written
consent of such of the holders of stock who
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would have been entitled to vote upon the action if a meeting were held as have
not less than the minimum percentage of the total vote required for the proposed
action by statute, this Certificate of Incorporation or the by-laws of the
corporation, as may be applicable (but in the case of the election of a director
or directors, not less than a majority of the stock of the corporation entitled
to vote); provided that prompt notice shall be given to all stockholders of the
taking of such corporate action without a meeting if less than unanimous written
consent is obtained.
15. Any director may be removed from office either with or
without cause at any time by the affirmative vote of stockholders of record
holding a majority of the outstanding shares of the stock of the corporation
entitled to vote, given at a meeting of the stockholders called for that purpose
(or as provided in Article 14 above).
16. Any action required or permitted to be taken at a meeting
of the Board of Directors, other than an action requiring shareholder approval,
may be taken by written action signed by the number of directors that would be
required to take the same action at a meeting of the Board of Directors at which
all directors were present.
17. In furtherance and not in limitation of the power
conferred upon the Board of Directors by law, the Board of Directors shall have
power to make, adopt, alter, amend and repeal from time to time by-laws of the
corporation, subject to the right of the stockholders entitled to vote with
respect thereto to alter, amend and repeal by-laws made by the Board of
Directors.
18. Subject to the limitations in Article 6 of this
Certificate of Incorporation, 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
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and powers conferred upon stockholders, directors and officers herein are
granted subject to this reservation.
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THE UNDERSIGNED, being the incorporator, for the purpose of
forming a corporation pursuant to the provisions of the Delaware General
Corporation Law, does make this certificate, hereby declaring and further
certifying that this is the undersigned's act and deed and that the facts herein
stated are true, and, accordingly, have hereunto set the undersigned's hand this
7th day of October, 1996.
/s/ Susan T. Tice
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SUSAN T. TICE
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Thacher Proffitt & Wood
Two World Trade Center
New York, New York 10048
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