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EXHIBIT 3.1.2
ARTICLES OF INCORPORATION
OF
ADVANTA LEASING RECEIVABLES CORP. VIII
I, the person hereinafter named as incorporator, for the
purpose of establishing a corporation under the provisions and subject to the
requirements of Title 7, chapter 78 of the Nevada Revised Statutes and the acts
amendatory thereof, and hereinafter sometimes referred to as the General
Corporation Law of the State of Nevada, do hereby adopt and make the following
Articles of Incorporation:
ARTICLE FIRST
The name of this corporation is ADVANTA LEASING RECEIVABLES
CORP. VIII (the "Corporation").
ARTICLE SECOND
The address of the Corporation's registered office and
resident agent in the State of Nevada is as follows:
639 Isbell Road
Suite 390
Reno, Nevada 89509
The resident agent at the foregoing address is Griffin Corporate
Services, located in Washoe County.
ARTICLE THIRD
The total number of shares which this Corporation is
authorized to issue is one-thousand (1,000), all of which are of a par value of
One Cent ($0.01) per share. All of said shares are of one class and are
designated as common stock.
No holder of any of the shares of any class of the Corporation
shall be entitled as a right to subscribe for, purchase or otherwise acquire any
shares of any class of the Corporation which the Corporation proposes to issue,
or any rights to options which the Corporation proposes to grant for the
purchase of shares of any class of the Corporation or for the purchase of any
shares, bonds, securities, or obligations of the Corporation which are
convertible into or exchangeable for, or which carry any rights to subscribe
for, purchase or otherwise acquire shares of any class of the Corporation; and
any and all of such shares, bonds, securities or obligations of the Corporation,
whether now or hereafter authorized or created, may be issued or may be reissued
or transferred if the same have been reacquired and have treasury status, and
any and all of such rights and options may be granted by the
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Board of Directors to such persons, firms, corporations and associations for
such lawful consideration and on such terms as the Board of Directors in its
discretion may determine, without first offering the same, or any thereof, to
any said holder.
The capital stock of the Corporation, after the amount of the
consideration for the issuance of shares, as determined by the Board of
Directors, has been paid, is not subject to assessment to pay the debts of the
Corporation and no stock issued as fully paid up may ever be assessed, and the
Articles of Incorporation cannot be amended in this respect.
ARTICLE FOURTH
(a) The governing board of the Corporation shall be styled as
a "Board of Directors", and any member of said Board shall be styled as a
"Director" except as provided by statute.
(b) The number of members constituting the first Board of
Directors of the Corporation is six; and the name and post office box or street
address, either residence or business, of each of said members is as follows:
NAME ADDRESS
- ---- -------
George Deehan 1020 Laurel Oak Road
Voorhees, New Jersey 08043
John Paris 1020 Laurel Oak Road
Voorhees, New Jersey 08043
Michael Coco 1020 Laurel Oak Road
Voorhees, New Jersey 08043
Cole Silver 1020 Laurel Oak Road
Voorhees, New Jersey 08043
Janice C. George 639 Isbell Road, Suite 390
Reno, Nevada 89502
Francis B. Jacobs, II c/o Delaware Trust Capital Management
900 Market Street
Wilmington, DE 19801
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The number of directors of the corporation may be increased or
decreased in the manner provided in the By-laws of the Corporation, provided,
that the number of directors shall never be less than one, and provided, further
that the sole remaining director must be an Independent Director. The
Corporation shall at all times have at least two independent directors, (each an
"Independent Director") except where there is only one remaining director.
Each Independent Director shall satisfy the following
conditions:
(i) Such Independent Director shall be an individual who
is not, and never was and does not have any family member who is or
ever was,
(A) a stockholder, director, officer, employee,
affiliate, associate, customer or supplier of, or any person
that has received any benefit (excluding, however, any
compensation received by the director, in such person's
capacity as director as required by this Article FOURTH) in
any form whatever from, or any person that has provided any
service (excluding, however, any service provided by the
director, in such person's capacity as director as required by
this Article FOURTH) in any form whatever to, Advanta Corp.,
Advanta Business Services Corp. or any of their affiliates,
subsidiaries, parents or associates, or
(B) (i) any person owning beneficially, directly or
indirectly, any outstanding shares of common stock of Advanta
Corp., Advanta Business Services Corp. or any of their
affiliates, subsidiaries, parents or (ii) a stockholder,
director, officer, employee, affiliate, associate, customer or
supplier of, or any person that has received any benefit
(excluding, however, any compensation received by the
director, in such person's capacity as director as required by
this Article FOURTH) in any form whatever from, or any person
that has provided any service (excluding, however, any service
provided by the director, in such person's capacity as
director as required by this Article FOURTH) in any form
whatever to, such beneficial owner or any of such beneficial
owner's affiliates or associates; provided, that, the
ownership of up to 5% of any class of stock (other than stock
of the Corporation) listed on a national securities exchange
shall not prevent an individual from meeting the requirements
of this Article FOURTH;
provided, that, such Independent Director may act as a director or
officer of other special purpose corporations or special purpose
entities.
Each Independent Director shall satisfy the following
conditions:
(i) No director serving pursuant to the requirements of
this Article FOURTH shall, with regard to any act, or failure to act,
in connection with any
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matter referred to in clause (iv) of Article EIGHTH, owe a fiduciary
duty or other obligation to the stockholders (except as may
specifically be required by the statutory law of any applicable
jurisdiction); instead, such director's fiduciary duty and other
obligations with regard to such act, or failure to act, in connection
with any matter referred to in clause (iv) of Article EIGHTH shall be
owed to the Corporation, including, without limitation, the creditors
of the Corporation. Every stockholder shall be deemed to have consented
to the foregoing by virtue of such stockholder's purchase of shares of
capital stock of the Corporation, no further act or deed of any
stockholder being required to evidence such consent;
(ii) As used in this Article FOURTH, the term "person"
means a natural person, corporation or other entity, government, or
political subdivision, agency, or instrumentality of a government; an
"affiliate" of a person is a person that directly, or indirectly
through one of more intermediaries, controls or is controlled by, or is
under common control with, or owns, directly or indirectly, 50% or more
of, the person specified; and the term "associate," when used to
indicate a relationship with any person, means (1) a corporation or
organization of which such person is an officer, director or partner or
is, directly or indirectly, the beneficial owner of 10% or more of any
class of equity securities, (2) any trust or other estate in which such
person serves as trustee or in a similar capacity, and (3) any relative
or spouse of such person, or any relative of such spouse, who has the
same home as such person;
(iii)When voting on matters subject to the vote of the
Board of Directors, including those matters specified in clause (iv) of
Article EIGHTH hereof, notwithstanding that the Corporation is not then
insolvent, the directors serving pursuant to the requirements of this
Article FOURTH shall take into account the interests of the creditors
of the Corporation as well as the interests of the Corporation.
(C) In the interim between elections of directors by
stockholders entitled to vote, all vacancies, including vacancies caused by an
increase in the number of directors and including vacancies resulting from the
removal of directors by the stockholders entitled to vote which are not filled
by said stockholders, may be filled by the remaining directors or the sole
remaining director, though less than a quorum.
ARTICLE FIFTH
The name and address of the incorporator is as follows:
Gregg Barnard
Woodburn & Wedge
One East First Street, Suite 1600
Reno, NV 89501
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ARTICLE SIXTH
The business in which the Corporation may engage and the
powers which the Corporation may exercise are restricted exclusively to the
following:
(a) to acquire from time to time all right, title and interest
in and to (i) financial contracts including but not limited to, lease
contracts, loans, accounts receivables, credit card receivables, credit
line receivables, insurance policy loans or premiums or installment
sale or lease contracts or promissory notes, arising out of or relating
to, the purchase or lease of equipment or goods, whether or not secured
by such equipment or goods, receivables or other rights to monies due
or to become due under any such financial contracts, security interests
therein, proceeds form claims on insurance policies related thereto, or
(ii) the equipment and/or goods which are the subject of any of such
financial contracts or the residual value of such equipment or goods or
rights in such equipment or goods or any interest therein and the right
to acquire equipment in goods or an interest therein or proceeds from
the sale or other disposition of such equipment or goods or any other
interest in such equipment or goods and the proceeds thereof and rights
therein or value thereof, or (iii) any participation interest
(including, without limitation, interest only strips) in or security
based on or backed by any of the foregoing and related rights and other
property appurtenant thereto (items in (a)(i), (a)(ii) and (a)(iii),
collectively, the "Assets");
(b) enter into agreements to acquire assets by purchase,
contribution or any other method;
(c) to acquire, own, hold, service, sell, assign, pledge and
otherwise deal with the Assets, collateral securing or otherwise
relating to the Assets, related insurance policies, agreements with
vendors or lessors or other originators or servicers of Assets and any
proceeds or further rights associated with any of the foregoing;
(d) from time to time to transfer, pledge and/or grant a
security interest or other lien on Assets to one or more trusts, banks,
financial institutions, commercial paper issuers, insurance companies
or similar entities pursuant to one or more pooling and servicing
agreements, indentures, master facility agreements or other agreements
("Securitization Agreements"), to be entered into by, among others, the
Corporation, the trustee named therein (the "Trustee"), and any entity
acting as servicer of the Assets;
(e) to transfer from time to time Assets pursuant to one or
more receivables transfer agreements, sale and purchase agreements or
other agreements ("Receivables Transfer Agreements"), to be entered
into by, among other things, the Corporation, any entity acting as
placement agent, the transferor of the Assets, and any entity acting as
servicer of the Assets;
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(f) to authorize, and cause the issuance of one or more series
of notes, certificates or other securities issued pursuant to
Securitization Agreements or Receivables Transfer Agreements;
(g) to authorize, borrow, issue, sell and deliver one or more
series and classes of bonds, notes or other evidences of indebtedness
secured or collateralized by one or more pools of Assets issued under a
Securitization Agreement or Receivables Transfer Agreement by
certificates of any class issued by any trust established by the
Corporation (collectively, the "Asset-Backed Securities"), provided
that the Corporation shall have absolutely no liability under any
Asset-Backed Securities except to the extent of the Assets or the
certificates securing or collateralizing such Asset-Backed Securities
and to enter into interest rate swaps, interest rate caps or other
hedging transactions;
(h) to acquire from the Trustee certificates or other
subordinate Asset-Backed Securities issued under the Securitization
Agreements or Receivables Transfer Agreement pursuant to which the
Corporation transferred Assets or granted security interests;
(i) to hold and enjoy all of the rights and privileges of any
certificates or other subordinate Asset-Backed Securities issued to the
Corporation under the related agreements;
(j) to purchase Assets from and sell Assets to any Related
Company or any third party as defined in Article EIGHTH in connection
with Securitization Agreements or Receivables Transfer Agreements;
(k) to perform its obligations under each Securitization
Agreement, Receivables Transfer Agreement, Interim Agreement (as
defined below) or other agreement entered into by the Corporation;
(l) to invest proceeds from any Assets, and any other income
as determined by the Board of Directors, including investing in other
Assets;
(m) to enter from time to time into interim arrangements
relating to the Assets whereby assets are transferred to a custodian on
behalf of the entity providing financing, pursuant to one or more
repurchase agreements or other agreements (each, an "Interim
Agreement") to be entered into by, among others, the Corporation, the
entity providing financing, the custodian named therein and any entity
acting as servicer of the Assets; provided, however, that the
Corporation shall have no liability under any Interim Agreement except
to the extent of the Assets funded thereby; and
(n) to engage in any acts and activities and exercise any
powers permitted to corporations under the laws of the State of Nevada
which are incidental
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to, or connected with, the foregoing, and necessary, suitable or
convenient to accomplish any of the foregoing.
ARTICLE SEVENTH
No Director or, to the extent specified from time to time by
the Board of Directors, officer of the Corporation will be liable to the
Corporation or its stockholders for damages for breach of fiduciary duty as a
director or officer, excepting only (a) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law or (b) the payment
of dividends in violation of 78.300 of the Nevada Revised Statutes. No amendment
or repeal of this Article SEVENTH applies to or has any effect on the liability
or alleged liability of any Director or officer of this Corporation for or with
respect to any acts or omissions of the Director or officer occurring prior to
the amendment or repeal, except as otherwise required by law. In the event that
Nevada law is amended to authorize the further elimination or limitation of
liability of directors or officers, then this Article SEVENTH shall also be so
amended to provide for the elimination or limitation of liability to the fullest
extent permitted by Nevada law.
The Corporation shall indemnify the officers and directors of
the Corporation to the fullest extent permitted by the Nevada Private
Corporations Law as the same exists or may hereafter be amended. In the event
that the Nevada Private Corporations Law is amended, after the filing of these
Articles of Incorporation, to authorize corporate action further eliminating or
limiting the personal liability of an officer or director, then the liability of
an officer or director of the Corporation shall be eliminated or limited to the
fullest extent permitted by the Nevada Private Corporations Law, as so amended.
The Corporation shall pay the expenses incurred by an officer
or director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such
officer or director to repay such amount if it should be ultimately determined
that he/she is not entitled to be indemnified by the Corporation as authorized
by Nevada Private Corporations Law.
Any amendment to or repeal of any of the provisions in this
Article SEVENTH shall not adversely affect any right or protection of an officer
or director of the Corporation for or with respect to any act or omissions of
such director occurring prior to such amendment or repeal.
ARTICLE EIGHTH
Notwithstanding any other provision of these Articles of
Incorporation and any provision of law that otherwise so empowers the
Corporation, the Corporation shall not, without the prior written consent of the
Trustee under any applicable Securitization Agreement (and any supplements
thereto) and the purchaser under any applicable Receivables Transfer Agreement,
do any of the following:
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(i) (x) consolidate or merge with or into any other
entity or convey, transfer or assign to any Related Company (as defined
below), or dissolve or transfer its properties and assets substantially
as an entirety to any entity (other than pursuant to a Securitization
Agreement or a Receivables Transfer Agreement) , or lend or advance any
moneys to, or make an investment in, any person or amend or repeal
Article FOURTH (b), Article SIXTH, Article NINTH or this Article EIGHT
of these Articles of Incorporation or (y) engage in any other action
that bears on whether the separate legal identity of the Corporation
and any Related Company 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;
(c) acting other than in its corporate name and through its duly
authorized officers or agents; (d) failing to hold appropriate meetings
of the Board of Directors at least three times per annum and otherwise
as necessary to authorize all corporate action; and (e) failing to hold
meetings of the stockholders at least one time per annum;
(ii) incur any indebtedness, or assume or guaranty any
indebtedness of any other entity, in either such case which involves a
pledge of the Corporation's general corporate credit; the Corporation
may only incur indebtedness in the form of the non-recourse
Asset-Backed Securities authorized pursuant to Article SIXTH;
(iii)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
(A) 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 Nevada, expressly
assumes the due and punctual payment of all obligations of the
Corporation, including those obligations of the Corporation
under each Securitization Agreement and each Receivables
Transfer Agreement and has Articles of Incorporation
containing provisions substantially identical to the
provisions of Articles FOURTH, SIXTH and this Article EIGHTH;
and
(B) immediately after giving effect to the
transaction, no default or event of default has occurred and
is continuing under any Securitization Agreement or any
Receivables Transfer Agreement; or
(iv) without (A) the affirmative vote of 100% of the
members of the Board of Directors of the Corporation (including an
affirmative vote of each Independent Director required by Article
FOURTH) and (B) the affirmative vote of the holders of 100% of the
common stock outstanding of the Corporation, make an assignment for the
benefit of creditors, file a petition in bankruptcy, petition or apply
to any tribunal for the appointment of a custodian, receiver or any
trustee for it or for a substantial part of its property, commence any
proceeding under any
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bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, whether
now or hereinafter in effect, consent or acquiesce to the entry of an
order for relief, or in the filing of any such petition, application,
proceeding or appointment of or taking possession by the custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Corporation or any substantial part of its property,
or admit its inability to pay its debts generally as they become due or
authorize any of the foregoing to be done or taken on behalf of the
Corporation; provided that if there shall not be two directors required
by Article FOURTH (b) of these Articles of Incorporation then in office
and acting, a vote upon any matter set forth in this Article EIGHTH
shall not be taken unless and until two directors meeting the
requirements of Article FOURTH (b) of these Articles of Incorporation
shall have been elected.
For purpose of these Articles of Incorporation, "Related
Company" means the stockholder or stockholders 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 stockholders of this
Corporation.
ARTICLE NINTH
In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors of the Corporation is expressly authorized:
(a) To make, alter, amend or repeal the By-laws of the
Corporation, except that such By-laws or any alteration, amendment or
repeal thereof shall not in any manner impair the intent of, Article
SIXTH, Article EIGHTH or this Article NINTH of these Articles of
Incorporation.
(b) To determine the use and disposition of any surplus and
net profits of the Corporation, including the determination of the
amount of working capital required, to set apart out of any of the
funds of the Corporation, whether or not available for dividends, a
reserve or reserves for any proper purpose and to abolish any such
reserve in the manner in which it was created.
(c) By a majority of the Board of Directors, to designate one
or more committees, each committee to consist of one or more of the
directors of the Corporation. The Board of Directors may designate one
or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of the
committee. The By-laws may provide that in the absence or
disqualification of a member of a committee, the member or members
thereof present at any meeting and not disqualified from voting,
whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the
place of any such absent or disqualified member. Any such committee, to
the extent provided in the resolution of the Board of Directors, or in
the By-laws of the Corporation, shall
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have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it; and no such committee shall
have the power or authority in reference to amending the Articles of
Incorporation, to authorize or take any action described in Article
SIXTH, Article EIGHTH and this Article NINTH, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale,
lease, or exchange of all or substantially all of the Corporation's
property and assets, recommending to the stockholders a dissolution of
the Corporation or a revocation of a dissolution, or amending the
By-laws of the Corporation; and no such committee shall have the power
or authority to declare a dividend or to authorize the issuance of
stock.
(d) When and as authorized by the stockholders in accordance
with statute, to sell, lease or exchange all or substantially all of
the property and assets of the Corporation, including its good will and
its corporate franchise, upon such terms and conditions and for such
consideration, which may consist in whole or in part of money or
property including shares of stock in, and/or other securities of, any
other corporation or corporations, as the Board of Directors shall deem
expedient for the best interests of the Corporation.
(e) To exercise, in addition to the powers and authorities
hereinbefore or by law conferred upon it, any such powers and
authorities and do all such acts and things as may be exercised or done
by the Corporation, subject, nevertheless, to the provisions of the
laws of the State of Nevada and of these Articles of Incorporation and
of the By-laws of the Corporation.
In addition to the foregoing, the Corporation shall, except as
otherwise provided in the documents relating to the securitization of
the Assets, conduct its affairs in the following manner:
(i) it shall not commingle the Corporation's assets with those
of any Related Company;
(ii) it shall maintain separate corporate records and books of
account from those of any Related Company;
(iii) it shall conduct its business from an office separate
from any Related Company;
(iv) it shall maintain its assets separately from the accounts
of any other Person (including through the maintenance of a separate
bank account); and
(v) it shall pay from its assets all Asset-Backed Securities
issued by it, and shall not pay from its assets any obligations or
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indebtedness of any other entity or person.
ARTICLE TENTH
Without (i) the prior written consent of each Trustee under
any Securitization Agreement (and any supplements thereto), (ii) the affirmative
vote of 100% of the members of the Board of Directors of the Corporation,
including, without limitation, the affirmative vote of each of the directors
required by Article FOURTH (b) of these Articles of Incorporation, and (iii) the
affirmative vote of the holders of 100% of the Common Stock outstanding, the
Corporation shall not amend, alter, change or repeal Article FOURTH, Article
SIXTH, Article EIGHTH, Article NINTH or this Article TENTH; provided, however,
that if the two directors required by Article FOURTH (b) of these Articles of
Incorporation are not then in office and acting, a vote upon any matter set
forth in this Article TENTH shall not be taken unless and until two directors
meeting the requirements of Article FOURTH (b) of these Articles of
Incorporation shall have been elected and shall be present and acting at such
vote.
ARTICLE ELEVENTH
The Corporation is to have perpetual existence.
I, THE UNDERSIGNED, being the incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the laws of the State of
Nevada, as amended, do make this certificate, hereby declaring and certifying
that this is my act and deed and that the facts herein stated are true and that
I have accordingly hereunto affixed my signature this 5th day of May, 1999.
/s/ Gregg P. Barnard
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Gregg P. Barnard
Incorporator
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STATE OF NEVADA )
)
COUNTY OF WASHOE )
This instrument was acknowledged before me on May 5, 1999, by Gregg P.
Barnard.
/s/ Victoria Crisologo
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NOTARY PUBLIC
My Commission Expires: 2/10/2003
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