Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SILVERLEAF FINANCE II, INC.
It is hereby certified that:
1. The name under which the corporation was originally
incorporated is SILVERLEAF FINANCE II, INC. (the "Corporation"); and the date of
filing of the original Certificate of Incorporation of the corporation with the
Secretary of State of the State of Delaware is November 7, 2003;
2. The Certificate of Incorporation of the Corporation
is hereby amended by striking from Article EIGHTH, the following language:
"(viii) accept any loans from any Person other than the Lender
or its assigns, make any loans to any Person or buy or hold
evidences of indebtedness issued by any Person (except to the
extent contemplated under the Loan Documents);"
and renumbering each clause of Article EIGHTH thereafter.
3. The provisions of the Certificate of Incorporation of
the Corporation as herein amended, are hereby amended, restated and integrated
into the single instrument which is hereinafter set forth, and which is entitled
Amended and Restated Certificate of Incorporation of Silverleaf Finance II,
Inc., without any further amendments other than the amendment herein certified
and without any discrepancy between the provisions of the Certificate of
Incorporation, as amended hereby, and the provisions of the said single
instrument hereinafter set forth.
4. The Corporation has received payment for its stock.
5. The amendment and the restatement herein certified
have been duly proposed by at least a majority of the duly elected and qualified
directors of the Corporation and adopted by the vote of the stockholders of the
Corporation as prescribed by Section 242 and 245 of the General Corporation Law
of the State of Delaware.
6. The Certificate of Incorporation of the Corporation,
as amended and restated herein, shall at the effective time of this Amended and
Restated Certificate of Incorporation, read as follows:
FIRST: The name of the corporation is SILVERLEAF FINANCE II,
INC. (the "Corporation").
SECOND: The address of the Corporation's registered office in
the State of Delaware is 615 South DuPont Highway, in the City of Dover, County
of Kent, Delaware 19901. The name of its registered agent at such address is
Capitol Services, Inc.
THIRD: The purpose of the Corporation is limited to (i)
acquiring or purchasing timeshare receivables (the "Receivables") and such other
assets as shall be ancillary to the ownership thereof ("Other Conveyed
Property") from Silverleaf Resorts, Inc. ("Silverleaf Resorts") pursuant to a
Transfer Agreement between Silverleaf Resorts and the Corporation (the
"Developer Transfer Agreement"), (ii) borrowing from Textron Financial
Corporation ("Lender") pursuant to a Loan and Security Agreement (the "SPV Loan
Agreement"), (iii) granting a security interest in the Receivables and Other
Conveyed Property pursuant to the Loan Documents, (iv) administering, servicing
and collecting amounts due under the Receivables and Other Conveyed Property, as
contemplated by the SPV Loan Agreement, the Developer Transfer Agreement, and
the Loan Documents (as defined in the SPV Loan Agreement); (v) entering into and
performing its obligations under the Loan Documents, and (vi) engaging in any
and all activities permitted under the general corporation laws of the State of
Delaware which are contemplated by the Loan Documents or incidental thereto. All
defined terms utilized herein shall have the definitions set forth in the Loan
Documents, unless the context otherwise requires. The corporation shall not
engage in any activities other than as permitted by this Article THIRD.
FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is three thousand (3,000) shares, all
of which shall be common stock, with no par value per share.
FIFTH:
(a) The Corporation shall at all times have at least two
Independent Directors (as defined below), and the Corporation shall be without
authority to take the actions specified herein as requiring a vote of the
Independent Directors absent the currently effective appointment and affirmative
vote of such Independent Directors.
(b) As referred to herein, an "Independent Director" shall
mean a director of the corporation who is not and has not been at any time
during the preceding five (5) years: (i) a shareholder, director, officer,
employee, partner, member, attorney or counsel, or beneficial interest holder of
the Corporation or any Affiliate of the Corporation; (ii) a customer, supplier
or other Person who derives more than 10% of its purchases or revenues from its
activities with the Corporation or any Affiliate of the Corporation; (iii) a
tenant under any lease with the Corporation; (iv) a Person controlling or under
common control with any Person identified in clauses (i) through (iii) above; or
(v) a member of the immediate family of any Person identified in clauses (i)
through (iv) above. As used herein, the following terms shall have the following
meanings: "control" means the possession, directly or indirectly, of the power
to direct or cause the direction of management, policies or activities of a
Person or entity, whether through ownership of voting securities, by contract or
otherwise; "Person" means a natural person, corporation or other entity,
government, or political subdivision, agency, or instrumentality of a
government; and an "Affiliate" of a Person is a Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the Person specified. Notwithstanding the
foregoing, (A) an indirect stock ownership of any Affiliate of the Corporation
by any person
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through a mutual fund or similar diversified investment pool shall not, by
itself, disqualify such person from being an Independent Director unless such
person maintains direct or indirect control of the investment decisions of such
mutual fund or similar diversified investment pool, and (B) an Independent
Director may serve in similar capacities for other "special purpose"
corporations formed by any Affiliate of the Corporation; and (C) a direct stock
ownership of less than one percent (1%) of the publicly traded shares of any
Affiliate of the Corporation shall not disqualify such person from being an
Independent Director.
(c) No Independent Director shall be a trustee, conservator
or receiver for the Corporation, any Affiliate of the Corporation or
any Person identified in clauses (b)(i) through (v) above.
(d) An Independent Director may not be removed unless (i) for
cause and (ii) a successor Independent Director has been elected.
SIXTH: (a) Notwithstanding any other provision of this
Certificate of Incorporation to the contrary and any provision of law that
otherwise so empowers the corporation, the Corporation shall not do any of the
following without the affirmative vote of 100 percent of its Board of Directors,
including the affirmative vote of the Independent Directors, which shall be in
writing and given prior to such action: (i) institute any "Bankruptcy Action"
(as defined below); or (ii) amend, alter, change or repeal Article THIRD,
Article FIFTH, this Article SIXTH, Article SEVENTH, Article EIGHTH, Article
ELEVENTH, Article TWELFTH, or Article THIRTEENTH of this Certificate of
Incorporation or adopt, amend or change any section of this Certificate of
Incorporation so as to be inconsistent with such Article THIRD, Article FIFTH,
this Article SIXTH, Article SEVENTH, Article EIGHTH, Article ELEVENTH, Article
TWELFTH or Article THIRTEENTH.
(b) "Bankruptcy Action" means:
(i) taking any action that might cause the
Corporation to become insolvent;
(ii) commencing any case, proceeding or other
action on behalf of the Corporation under
any existing or future law of any
jurisdiction relating to bankruptcy,
insolvency, reorganization or relief of
debtors;
(iii) filing a petition in bankruptcy;
(iv) consenting to the institution of a
bankruptcy or insolvency case or proceeding
against the Corporation;
(v) filing a petition or application or
consenting to a petition or application
seeking reorganization, arrangement,
adjustment, winding-up, dissolution,
composition, liquidation, or other relief on
behalf of the Corporation of its debts under
any federal or state law relating to
bankruptcy or insolvency;
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(vi) seeking, consenting to or acquiescing the
appointment of a receiver, liquidator,
assignee, trustee, sequestrator, custodian
or any similar official for the Corporation
or a substantial portion of it property;
(vii) making any assignment for the benefit of the
Corporation's creditors;
(viii) instituting a case or proceedings to have
the Corporation adjudicated as, or
determined to be bankrupt or insolvent;
(ix) filing an answer or other pleading,
admitting or failing to contest the material
allegations of a petition filed against the
Corporation in any proceedings of the type
described in clauses (ii) through (viii)
above;
(x) a proceeding seeking reorganization,
arrangement, composition, readjustment,
liquidation, dissolution, or similar relief
under any statute, law or regulation has
been commenced against the Corporation and
sixty (60) days have expired without
dismissal thereof; or a trustee, receiver or
liquidator of the Corporation or all or any
substantial part of the Corporation's assets
has been appointed and sixty (60) days have
expired without the appointment having been
vacated or stayed, or sixty (60) days have
expired after the date of expiration of a
stay, if the appointment has not previously
been vacated.
(xi) taking any action in furtherance of any of
the foregoing.
SEVENTH: The business and affairs of the Corporation shall be
managed by and under the direction of its Board of Directors. The Corporation
shall respect and appropriately document the separate and independent natures of
its activities, as compared with those of any other Person, take all reasonable
steps to continue its identity as a separate legal entity, and make it apparent
to third persons that the Corporation on one hand, and each of the holders of
shares of the Corporation, on the other hand, is a Person with assets and
liabilities distinct from those of any other Person. Without limiting the
foregoing, the Corporation shall: (i) pay or cause to be paid its own
liabilities and expenses, including the salaries of its own employees, only out
of its own funds and assets; (ii) observe or cause to be observed all applicable
corporate formalities, including, without limitation, requiring its directors
and officers, if any, to duly authorize all actions of the Corporation to the
extent required by Delaware law; (iii) allocate or cause to be allocated fairly
and reasonably any overhead for any office space shared with any other Person
and services performed by any employee of any other Person; (iv) use separate
stationery, invoices, business forms, and checks bearing its own name (or a name
franchised or licensed to it by an entity that is not an Affiliate of the
Corporation (collectively, the "Tradename"); (v) maintain or cause to be
maintained correct and complete accounts, books, records, financial statements,
accounting records and other entity documents separate from any other Person and
file its own separate tax returns (except that the Corporation shall have the
right to file consolidated or combined federal, state and city tax returns which
shall provide that the Corporation is a separate legal entity and pays it
respective proportionate share of the taxes shown on such returns); (vi) hold
its assets in its own name; (vii)
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conduct its business, enter into contracts and transactions and otherwise act in
its own name (or in the Tradename) in a manner designed to inform third parties
of the identity of the entity with which they are dealing; (viii) maintain arm's
length relationships with each of its Affiliates and enter into transactions
with its Affiliates only on commercially reasonable terms; (ix) hold itself out
and identify itself as a separate and distinct entity under its own name (or in
the Tradename) and not as a division or department of any other Person; (x)
correct any known misunderstanding regarding its name or separate identity; (xi)
remain qualified to do business under the laws of the State of Delaware; (xii)
remain solvent and maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations; (xiii) maintain separate from any other
Person its books, records, resolutions and agreements as official records; (xiv)
maintain separate financial statements, showing its assets and liabilities
separate and apart from those of any other Person and not have its assets listed
on the financial statements of any other Person, except as required by generally
accepted accounting principles; provided, however, that any such consolidated
financial statements shall contain a note indicating that the separate assets
and liabilities of the Corporation and the other Person or Persons have been
consolidated therein and that the Corporation has separate financial statements;
(xv) enter into contracts and other transactions only to the extent that it
intends to be responsible or liable for such contract or other transaction and
in a manner designed to inform the other party or parties thereto of the
identity of the entity that is responsible and liable therefor; (xvi) use solely
its own name (or the Tradename) for purposes of obtaining any required
governmental registrations, licenses, and permits necessary to the conduct of
its business; and (xvii) maintain its bank account or bank accounts in its own
name, separate and apart from any bank account or cash concentration account or
system of any other.
EIGHTH: The Corporation shall not do any of the following: (i)
engage in any activity other than activity authorized by its governing corporate
documents (the "Governing Documents"); (ii) amend, modify, terminate or fail to
comply with its Governing Documents in a manner which would adversely affect its
existence as a special purpose entity; (iii) commingle or permit to be
commingled its assets with those of any Person; (iv) identify the shareholders
or any of their Affiliates as a division or part of it; (v) pledge its assets to
any Person other than the Lender or its assigns except as contemplated in the
Loan Documents; (vi) assume, guaranty or become obligated for the debts of, or
hold out its assets or credit as being available to satisfy the obligations of,
any Person; (vii) acquire obligations or securities of any of its Affiliates or
shareholders, as the case may be, including its directors if applicable; (viii)
enter into or be a party to any transaction with its shareholders or Affiliates,
as the case may be, except in the ordinary course of its business when the
transaction has legitimate business purposes for all parties and is on terms
that are commercially reasonable and are no less favorable to its shareholders
or Affiliates, as the case may be, than would be obtained in a comparable
arms-length transaction with an unrelated third party; (ix) take any action not
authorized by the directors pursuant to this Certificate of Incorporation; (x)
transfer any assets without fair consideration and proper documentation; (xi)
transfer any assets with the intent to hinder, delay or defraud creditors; (xii)
except to the extent necessary and appropriate under a property management
services agreement, permit any of its Affiliates (other than solely as an
officer, director or shareholder, as the case may be, thereof) to make decisions
with respect to the ordinary course of its business and affairs; (xiii) hold
itself out to third parties in such a manner as to be confused with any
Affiliate or any Person in connection with its transactions with third parties;
(xiv) merge into or consolidate with any Person or entity or dissolve, terminate
or liquidate the Corporation in whole or in part or transfer or otherwise
dispose of all or substantially all of the
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Corporation's assets or change the Corporation's legal structure; (xv) permit
any contract or other transaction relating to its business to be entered into
other than clearly in the name of the entity that is intended to be responsible
and liable for that contract or transaction in a manner designed to inform the
other parties to the transaction of the identity of the entity that is
responsible and liable; (xvi) incur any debt on the basis of the assets or
creditworthiness of any Person except as permitted pursuant to the SPV Loan
Agreement; or (xvii) require, as a routine matter, the guaranty of its
obligations by any Person to enable it to operate or transact business.
NINTH: The name and mailing address of the sole incorporator
is as follows:
Name Mailing Address
Sara Lankford 901 Main Street
Suite 3700
Dallas, Texas 75202
TENTH: 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.
ELEVENTH: Any one or more directors, with the exception of an
Independent Director, may be removed, with or without cause, by the vote or
written consent of the holders of a majority of the issued and outstanding
shares of stock of the Corporation entitled to be voted at an election of
directors. An Independent Director may be removed only for cause by the vote or
written consent of the holders of a majority of the issued and outstanding
shares of stock of the Corporation entitled to vote at an election of directors.
TWELFTH: During such time as the Obligations or Parallel
Claims are outstanding, the Corporation shall not amend this Certificate of
Incorporation without the prior written consent of the Lender, the
Administration Agent and their assigns. Except as set forth in this Article
TWELFTH and Article SIXTH, the Corporation reserves the right to amend, alter,
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights of stockholders
herein are subject to this reservation.
THIRTEENTH: The effective date upon which the Corporation
shall come into existence shall be the date on which this Certificate is filed
with the Department of State, and it shall exist perpetually thereafter unless
dissolved according to law.
THE UNDERSIGNED, being the Chief Financial Officer of the Corporation
above named for the purposes of amending a restating the Corporation's
Certificate of Incorporation pursuant to the General Corporation Law the State
of Delaware, has signed this instrument this 23rd day of December, 2003, and
does hereby acknowledge that it is his act and deed and that the facts stated
therein are true.
/S/ HARRY J. WHITE, JR.
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Harry J. White, Jr.
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