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EXHIBIT 3.3
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
GREEN TREE LEASE FINANCE II, INC.
The following Amended and Restated Articles of Incorporation shall
supersede and take the place of the existing Articles of Incorporation and all
amendments thereto and shall become effective as of August 1, 2000:
ARTICLE 1. Name. The name of the corporation is Green Tree Lease Finance
II, Inc. (hereinafter called the "Corporation").
ARTICLE 2. Registered Office. The address of the Corporation's registered
office is 1100 Landmark Towers, 345 Saint Peter Street, St. Paul, Minnesota
55102-1641.
ARTICLE 3. Purposes. The purposes for which the Corporation is organized
are as follows:
(a) to acquire a pool of equipment lease contracts ("Contracts") and
the ownership interest in the equipment related to such Contracts
("Equipment") from Conseco Finance Vendor Services Corporation and to hold,
sell, transfer or pledge such Contracts and an interest in such Equipment
or rights thereto and/or the proceeds thereof, to one or more special
purpose entities (which may take the form of corporations, limited
liability companies, trusts, or other forms);
(b) to form, and hold ownership or equity interests in, such special
purpose entities;
(c) to enter into any agreement relating to any Contracts and
Equipment that provides for the administration, servicing and collection of
amounts due on such Contracts;
(d) to sell, lease, transfer or otherwise dispose of Equipment,
provided that such sale, lease, transfer or other method of disposition
does not expose the Corporation to any liability; and
(e) to engage in any lawful act or activity and to exercise any powers
permitted to corporations laws of the State of Minnesota that are
incidental to and necessary, suitable or convenient for the accomplishment
of the foregoing.
The Corporation may not incur indebtedness other than liabilities incurred
in the ordinary course of the business described above.
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ARTICLE 4. Number of Shares. The total number of shares of all classes of
stock which the Corporation has the authority to issue is 10, all of which
shares are to be Common Stock, of the par value of $.01 per share. ARTICLE 5.
Board of Directors.
(a) The number of directors of the Corporation will not be less than
three nor more than seven, with the exact number to be fixed in the Bylaws.
The Board of Directors shall include at least two individuals who are
Independent Directors. As used herein, an "Independent Director" shall be
an individual who: (i) is not and has not been employed by Conseco Finance
Corp. ("Conseco Finance") or any of its subsidiaries or affiliates as a
director, officer or employee within the five years immediately prior to
such individual's appointment as an Independent Director (provided that
such individual may also serve as a director of other subsidiaries of
Conseco Finance); (ii) is not (and is not affiliated with a company or a
firm that is) a significant advisor or consultant to Conseco Finance or any
of its subsidiaries and affiliates; (iii) is not affiliated with a
significant customer or supplier of Conseco Finance or any of its
subsidiaries or affiliates; (iv) is not affiliated with a company of which
Conseco Finance or any of its subsidiaries and affiliates is a significant
customer or supplier; (v) does not have significant personal services
contract(s) with Conseco Finance or any of its subsidiaries or affiliates;
(vi) is not affiliated with a tax-exempt entity that receives significant
contributions from Conseco Finance or any of its subsidiaries or
affiliates; (vii) is not the beneficial owner at the time of such
individual's appointment as an Independent Director, or at any time
thereafter while serving as an Independent Director, of such number of
shares of any classes of common stock of Conseco Finance the value of which
constitutes more than 0.1% of the outstanding common stock of Conseco
Finance; and (viii) is not a spouse, parent, sibling or child of any person
described by (i) through (vii).
(b) As used in paragraph (a) of this Article 5, the following terms
shall have the meanings set forth in this section:
(i) An "affiliate" of a person, or a person "affiliated with" a
specified person, shall mean a person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or
is under common control with, the specified person.
(ii) The term "control" (including the terms "controlling,"
"controlled by" and "under common control with") shall mean the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a person, whether through
the ownership of voting securities, by contract, or otherwise;
provided, however, that a person shall not be deemed to control
another person solely because he or she is a director of such other
person.
(iii) The term "person" shall mean any individual, partnership,
firm, corporation, association, limited liability company, trust,
unincorporated organization or other entity, as well as any syndicate
or group deemed to be a person pursuant to Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, as in effect on January
1, 1996.
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(iv) A "subsidiary" of Conseco Finance shall mean any corporation
a majority of the voting stock of which is owned, directly or
indirectly through one or more other subsidiaries, by Conseco Finance.
(v) A person shall be deemed to be, or to be affiliated with, a
company or firm that is a "significant advisor or consultant to
Conseco Finance or any of its subsidiaries or affiliates" if he, she,
or it, as the case may be, received or would receive fees or similar
compensation from Conseco Finance or any of its subsidiaries or
affiliates in excess of the lesser of (A) 3% of the consolidated gross
revenues which Conseco Finance and its subsidiaries received for the
sale of their products and services during the last fiscal year of
Conseco Finance; (B) 5% of the gross revenues of the person during the
last calendar year if such person is a self-employed individual and
(C) 5% of the consolidated gross revenues received by such company or
firm for the sale of its products and services during its last fiscal
year, if the person is a company or firm; provided, however, that
director's fees and expense reimbursements shall not be included in
the gross revenues of an individual for purposes of this
determination.
(vi) A "significant customer of Conseco Finance or any of its
subsidiaries or affiliates" shall mean a customer from which Conseco
Finance and any of its subsidiaries or affiliates collectively in the
last fiscal year of Conseco Finance received payments in consideration
for the products and services of Conseco Finance and its subsidiaries
or affiliates which are in excess of 3% of the consolidated gross
revenues of Conseco Finance and its subsidiaries during such fiscal
year.
(vii) A "significant supplier of Conseco Finance or any of its
subsidiaries or affiliates" shall mean a supplier to which Conseco
Finance and any of its subsidiaries or affiliates collectively in the
last fiscal year of Conseco Finance made payments in consideration for
the supplier's products and services in excess of 3% of the
consolidated gross revenues of Conseco Finance and its subsidiaries
during such fiscal year.
(viii) Conseco Finance or any of its subsidiaries and affiliates
shall be deemed a "significant customer" of a company if Conseco
Finance and any of its subsidiaries and affiliates collectively were
the direct source during such company's last fiscal year of in excess
of 5% of the gross revenues which such company received for the sale
of its products and services during such fiscal year.
(ix) Conseco Finance or any of its subsidiaries and affiliates
shall be deemed a "significant supplier" of a company if Conseco
Finance and any of its subsidiaries and affiliates collectively
received in such company's last fiscal year payments from such company
in excess of 5% of the gross revenues which such company received
during such fiscal year for the sale of its products and services.
(x) A person shall be deemed to have "significant personal
services contract(s) with Conseco Finance or any of its subsidiaries
or affiliates" if the fees and other compensation received by the
person pursuant to personal services contract(s) with Conseco Finance
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and any of its subsidiaries or affiliates exceeded or would exceed 5%
of his or her gross revenues during the last calendar year.
(xi) A tax-exempt entity shall be deemed to receive "significant
contributions from Conseco Finance or any of its subsidiaries or
affiliates" if such tax-exempt entity received during such tax-exempt
entity's last fiscal year contributions from Conseco Finance or its
subsidiaries or affiliates in excess of the lesser of (A) 3% of the
consolidated gross revenues of Conseco Finance and its subsidiaries
during such fiscal year and (B) 5% of the contributions received by
the tax-exempt entity during such fiscal year.
(c) To the fullest extent permitted by the Minnesota Business
Corporation Act, as the same exists or may hereafter be amended, a director
of the Corporation shall not be liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a
director.
ARTICLE 6. Internal Affairs. The Corporation will conduct its affairs in
accordance with the following provisions:
(a) it will establish an office through which its business will be
conducted, which office will be separate and apart from that of any person
or entity owning beneficially more than 50% of the outstanding shares of
Common Stock of the Corporation and will be separate and apart from that of
any of such owner's subsidiaries or affiliates other than the Corporation;
(b) it will maintain separate corporate records and books of account
from those of such owner, subsidiaries and affiliates as are referred to in
(a);
(c) its assets will not be commingled with those of any other
corporation; and
(d) its Board of Directors will hold regular meetings, not less
frequently than once every calendar quarter, to review the actions of the
officers of the Corporation and to authorized and approve (1) all
transactions outside the ordinary course of the Corporation's business, and
(2) such other transactions, agreements and actions of the Corporation as
the Board of Directors deems appropriate in connection with its review and
supervision of the Corporation's actions. The Board of Directors must
consider the interests of the creditors of the Corporation in connection
with all corporate actions.
ARTICLE 7. Written Action By Directors. An action required or permitted to
be taken at a meeting of the Board of Directors of the Corporation may be taken
by a written action signed, or counterparts of a written action signed, in the
aggregate by all of the directors unless the action need not be approved by the
shareholders of the Corporation, in which case the actions may be taken by a
written action signed, or counterparts of a written action signed in the
aggregate, by the number of directors that would be required to take the same
action at a meeting of the Board of Directors of the Corporation at which all of
the directors were present.
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ARTICLE 8. Limitations on Actions. Notwithstanding any other provision of
the Articles of Incorporation, Bylaws or any provision of law that otherwise so
empowers the Corporation, the Corporation shall not, without (i) the affirmative
vote of 100% of the members of the Board of Directors of the Corporation,
including the affirmative vote of the Independent Director:
(a) 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 bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or
statute of any jurisdiction, whether now or hereinafter in effect, consent
or acquiesce 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 Independent Directors then in office and acting,
a vote upon any matter set forth in this paragraph (a) of this Article 8
shall not be taken unless and until two Independent Directors shall have
been appointed and qualified;
(b) amend, alter, change or repeal any of the following articles of
these Articles of Incorporation: Article 3, Article 5, Article 6 or this
Article 8; or
(c) (i) engage in any business or activity other than as authorized by
Article 3 hereof, (ii) dissolve or liquidate, in whole or in part or (iii)
consolidate with or merge into any other entity or convey, transfer or
lease its properties and assets substantially as an entirety to any entity,
or permit any entity to merge into it or convey, transfer or lease its
properties and assets substantially as an entirety to it.
ARTICLE 9. Amendment, Alteration or Repeal. The Corporation reserves the
right to amend, alter, or repeal any other provision contained in these Articles
of Incorporation in the manner now or hereafter prescribed by statute, and all
rights of shareholders herein are subject to this reservation; provided,
however, that Article 3, Article 5, Article 6 and Article 8 may be amended only
in accordance with Article 8 of these Articles of Incorporation.
Dated: July 24, 2000 GREEN TREE LEASE FINANCE II, INC.
/s/ Brian F. Corey
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Brian F. Corey
Senior Vice President and Secretary
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