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Exhibit 3.2
ADVANTA BUSINESS RECEIVABLES CORP.
Bylaws
ARTICLE I
Meetings of Stockholders
Section 1.1 Annual Meetings. The annual meeting of the stockholders for the
election of directors and for the transaction of such other business as properly
may come before such meeting shall be held each year on such date, and at such
time and place within or out of the State of Nevada, as may be designated by the
Board of Directors.
Section 1.2 Special Meetings. Special meetings of the stockholders for any
proper purpose or purposes may be called at any time by the Board of Directors,
the President, any Vice President, to be held on such date, and at such time and
place within or out of the State of Nevada, as the Board of Directors, the
President, any Vice President, whichever has called the meeting, shall direct. A
special meeting of the stockholders shall be called by the President, any Vice
President whenever stockholders owning a majority of the shares of the
Corporation then issued and outstanding and entitled to vote on matters to be
submitted to stockholders of the Corporation shall make application therefor in
writing. Any such written request shall state a proper purpose or purposes of
the meeting and shall be delivered to the President or any Vice President.
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Section 1.3 Notice of Meeting. Written notice, signed by the President,
any Vice President, the Secretary or any Assistant Secretary, of every meeting
of stockholders stating the date and time when, and the place where, such
meeting is to be held, shall be delivered either personally or by mail to each
stockholder entitled to vote at such meeting not less than ten nor more than
sixty days before the date of such meeting, except as otherwise provided by law.
The purpose or purposes for which such meeting is called may, in the case of an
annual meeting, and shall in the case of a special meeting, also be stated in
such notice. If mailed, such notice shall be directed to a stockholder at such
Stockholder's address as it shall appear on the stock books of the Corporation,
unless such Stockholder shall have filed with the Secretary a written request
that notices intended for such Stockholder be mailed to some other address, in
which case it shall be mailed to the address designated in such request.
Whenever any notice is required to be given under the provisions of the General
Corporation Law of the State of Nevada, the Articles of Incorporation or these
Bylaws, a waiver thereof, signed by the stockholder entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent
thereto. Attendance of a stockholder at the meeting shall not be deemed
equivalent to a written waiver of notice of such meeting; a written waiver is
required.
Section 1.4 Quorum. The presence at any meeting of stockholders, in
person or by proxy, of the holders of
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record of a majority of the shares then issued and outstanding and
entitled to vote shall be necessary and sufficient to constitute
a quorum for the transaction of business.
Section 1.5 Adjournments. In the absence of a quorum a majority in
interest of the stockholders entitled to vote, present in person or by proxy,
or, if no stockholder entitled to vote is present in person or by proxy, any
officer entitled to preside at or act as secretary of a meeting of stockholders,
may adjourn such meeting from time to time until a quorum shall be present.
Section 1.6 Voting. Directors shall be chosen by a plurality of the
votes cast at the election, and, except as otherwise provided by law or by the
Articles of Incorporation, including provisions regarding Independent Directors,
all other questions shall be determined by a majority of the votes cast on such
question.
Section 1.7 Proxies. Any stockholder entitled to vote may vote by
proxy, provided that the instrument authorizing such proxy to act shall have
been executed in writing (which shall include telegraphing or cabling) by the
stockholder himself or by such Stockholder's duly authorized attorney and
delivered to the Secretary.
Section 1.8 Judges of Election. The Board of Directors may appoint
judges of election to serve at any election of directors and at balloting on
any other matter that may properly come before a meeting of stockholders. If no
such appointment shall be made, or if any of the judges so
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appointed shall fail to attend, or refuse or be unable to serve, then such
appointment may be made by the presiding officer at the meeting.
ARTICLE II
Board of Directors
Section 2.1 Number. The number of directors which shall constitute the
whole Board of Directors shall be fixed from time to time by resolution of the
Board of Directors or stockholders (any such resolution of either the Board of
Directors or stockholders being subject to any later resolution of either of
them). The first Board of Directors and subsequent Boards of Directors shall
consist of five directors, including two Independent Directors, until changed as
herein provided and subject to the provisions of the Articles of Incorporation
regarding Independent Directors.
Section 2.2 Election and Term of Office. Directors shall be elected at
the annual meeting of the stockholders, except as provided in Section 2.3 and
subject to the provisions of the Articles of Incorporation regarding Independent
Directors. Each director (whether elected at an annual meeting or to fill a
vacancy or otherwise) shall continue in office until such Director's successor
shall have been elected and qualified or until such Director's earlier death,
resignation or removal in the manner hereinafter provided.
Section 2.3 Vacancies and Additional Directorships. If any vacancy
shall occur among the directors
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by reason of death, resignation or removal, or as the result of an increase in
the number of directorships, a majority of the directors then in office, or the
remaining directors, or sole remaining director, though less than a quorum, may
fill any such vacancy subject to the provisions of the Articles of Incorporation
regarding Independent Directors.
Section 2.4 Regular Meetings. A regular meeting of the Board of
Directors shall be held for organization, for the election of officers and for
the transaction of such other business as may properly come before such meeting,
within thirty days after each annual meeting of stockholders. The Board of
Directors by resolution may provide for the holding of other regular meetings
and may fix the times and places at which such meetings shall be held. Notice of
regular meetings shall not be required to be given, provided that whenever the
time or place of regular meetings shall be fixed or changed, notice of such
action shall be mailed promptly to each director who shall not have been present
at the meeting at which such action was taken, addressed to such Director at
such Director's residence or usual place of business.
Section 2.5 Special Meetings. Special meetings of the Board of
Directors shall be held upon call by or at the direction of the President, any
Vice President or any two directors, except that when the Board of Directors
consists of one director, then the one director may call a special meeting.
Except as otherwise required by law, notice of each special meeting shall be
mailed to each director, addressed to
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such Director at such Director's residence or usual place of business, at least
two days before the day on which the meeting is to be held, or shall be sent to
such Director at such place by telex, facsimile transmission, telegram, radio or
cable, or telephoned or delivered to him personally, not later than the day
before the day on which the meeting is to be held. Such notice shall state the
time and place of such meeting, but need not state the purposes thereof, unless
otherwise required by law, the Articles of Incorporation or these Bylaws.
Section 2.6 Waiver of Notice. Whenever any notice is required to be
given under the provisions of the General Corporation Law of the State of
Nevada, the Articles of Incorporation or these Bylaws, a waiver thereof, signed
by the director entitled to such notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Attendance of a director at a
meeting shall not be deemed equivalent to a written waiver of notice of such
meeting; a written waiver is required.
Section 2.7 Quorum and Manner of Acting. At each meeting of the Board
of Directors the presence of a majority of the total number of members of the
Board of Directors as constituted from time to time, shall be necessary and
sufficient to constitute a quorum for the transaction of business, except that
when the Board of Directors consists of one director, then the one director
shall constitute a quorum, provided that such director must be an Independent
Director.
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Meetings may be held by telephone. In the absence of a quorum, a majority of
those present at the time and place of any meeting may adjourn the meeting from
time to time until a quorum shall be present and the meeting may be held as so
adjourned without further notice or waiver. A majority of those present at any
meeting at which a quorum is present may decide any question brought before
such meeting, except as otherwise provided by law, the Articles of
Incorporation, including the provisions regarding Independent Directors, or
these Bylaws. The Board of Directors may also act without a meeting so long as
such action is taken with the unanimous written consent of the Board of
Directors.
Section 2.8 Resignation of Directors. Any director may resign at any
time by giving written notice of such resignation to the Board of Directors, the
President, any Vice President or the Secretary, subject to the provisions of the
Articles of Incorporation regarding Independent Directors. Unless otherwise
specified in such notice, such resignation shall take effect upon receipt
thereof by the Board of Directors or any such officer, and the acceptance of
such resignation shall not be necessary to make it effective.
Section 2.9 Removal of Directors. At any special meeting of the
stockholders, duly called as provided in these Bylaws, any director or directors
may be removed from office, either with or without cause, by a two-third
majority vote of the shareholders. At such meeting a successor or successors may
be elected by a plurality of the votes cast, or if any
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such vacancy is not so filled, it may be filled by the Board of Directors as
provided in Section 2.3, subject to the provisions of the Articles of
Incorporation regarding Independent Directors.
Section 2.10 Compensation of Directors. Directors shall receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor.
Section 2.11 General Powers. The Board of Directors shall have all
powers necessary or appropriate to the management of the business and affairs of
the Corporation, and, in addition to the power and authority conferred by these
Bylaws, may exercise all powers of the Corporation and do all such lawful acts
and things as are not by statute, these Bylaws or the Articles of Incorporation
directed or required to be exercised or done by the stockholders.
Notwithstanding anything in these Bylaws to the contrary, except to the
extent prohibited by law, the Board of Directors shall have the right (which, to
the extent exercised, shall be exclusive) to establish the rights, powers,
duties, rules and procedures that from time to time shall govern the Board of
Directors and each of its members, including without limitation, the vote
required for any action
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by the Board of Directors, and that from time to time shall affect the
Directors' power to manage the business and affairs of the Company; and no Bylaw
shall be adopted by stockholders which shall impair or impede the implementation
of the foregoing, and provided further, that no right, duty, rule or procedure
established by the Board of Directors, and no Bylaw adopted by the stockholders
shall have the effect of amending, altering or changing Article TENTH of the
Articles of Incorporation.
Section 2.12 Specific Powers. Without limiting the general powers
conferred by the last preceding clause and the powers conferred by the Articles
of Incorporation and Bylaws of the Corporation, but subject to the limitations
set forth in Section 2.13, it is hereby expressly declared that the Board of
Directors shall have the following powers to engage in the following activities:
A. to acquire from time to time all right, title and interest in and to
(i) receivables including but not limited to, lease contracts, commercial
loans or leases, loans to franchise operations, accounts receivables,
credit card 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, monies due thereunder, equipment
financed thereby or security interests therein, proceeds from claims on
insurance policies related thereto, or (ii) any participation interest
(including,
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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) and (a)(ii)), collectively, the "Assets");
B. 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;
C. to transfer from time to time Assets to trusts (the "Trusts")
pursuant to one or more pooling and servicing 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;
D. to transfer from time to time Assets pursuant to one or more
receivables transfer 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;
E. to authorize, and cause the issuance of one or more series of
certificates or other securities issued pursuant to Securitization
Agreements or Receivables Transfer Agreements;
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F. to authorize, 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 an Indenture or
similar agreement (each, an "Indenture") or by certificates of any class
issued by any Trust established by the Corporation (collectively, the
"Notes") , provided that the Corporation shall have no liability under any
Notes except to the extent of the Assets or the certificates securing or
collateralizing such Notes;
G. to acquire from the Trustee certificates issued by Trusts to which
the Corporation transferred Assets;
H. to hold and enjoy all of the rights and privileges of any
certificates issued to the Corporation under the related agreements and to
hold and enjoy all of the rights and privileges of any class of any series
of Notes, including any class of Notes or certificates which may be
subordinate to any other class of Notes or certificates, respectively;
I. to purchase Assets from and sell Assets to any Related Company or
any third party as defined in Article EIGHTH of the Articles of
Incorporation in connection with Securitization Agreements or Receivables
Transfer Agreements;
J. to perform its obligations under each Securitization Agreement,
Receivables Transfer Agreement,
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Interim Agreement (as defined below) or other agreement entered into by the
Corporation;
K. to invest proceeds from any Assets, and any other income as
determined by the Board of Directors, including investing in other Assets;
L. 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
M. to engage in any acts and activities and exercise any powers
permitted to corporations under the laws of the State of Delaware which are
incidental to, or connected with, the foregoing, and necessary, suitable or
convenient to accomplish any of the foregoing.
Section 2.13 Forbidden Actions. So long as the Corporation owns (i) any
Assets pursuant to any agreement or (ii) is liable for any obligations under any
such or a related agreement, notwithstanding any other provision of the Articles
of Incorporation and any provision of law which otherwise so
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empowers the Corporation, the Corporation shall not perform any act in
contravention of any of the following:
(a) The Corporation shall not (i) consolidate or merge with or into any
other entity or convey, transfer or assign any residual or subordinate interest
to any Related Company, or dissolve or transfer its properties and assets
substantially as an entirety to any entity (other than to a trust formed
pursuant to a Pooling and Servicing Agreement or similar agreement and only to
the extent that the trust is deemed to be a subsidiary of the Corporation), or
lend or advance any moneys to, or make an investment in, any person or amend or
repeal these bylaws or its Articles of Incorporation or (ii) engage in any other
action that bears on whether the separate legal identity of the Corporation and
Advanta Business Services will be respected including, without limitation (a)
holding itself out as being liable for the debts of any other part; (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; (e) failing
to hold meetings of the stockholders at least one time per annum;
(b) incur any indebtedness, or assume or guaranty any indebtedness of
any other entity, other than Notes and any indebtedness to Advanta Business
Services Corp., a Delaware
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corporation, or other affiliate thereof in connection with the acquisition of
Assets.
(c) 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
(i) 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
(ii) immediately after giving effect to the transaction, no default or
event of default has occurred and is continuing under any indebtedness of
the Corporation, any Securitization Agreement or any Receivables Transfer
Agreement;
(d) without the affirmative vote of 100% of the members of the Board
of Directors of the Corporation (including the Independent Directors, as set
forth in the Articles of Incorporation) institute proceedings to be adjudicated
bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against it, or consent to, or file a petition seeking,
reorganization or relief under applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver,
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liquidator, assignee, trustee, sequestrator (or other similar official) of the
Corporation or a substantial part of its property, or make any 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, provided that if there shall not be two directors required by
Article FOURTH (b) of the Articles of Incorporation then in office and acting, a
vote upon any matter set forth in this Section 2.13(d) shall not be taken unless
and until two directors meeting the requirements of Article FOURTH of the
Articles of Incorporation shall have been elected and shall be present and
acting at such vote;
(e) commingle the Corporation's assets with those of any direct or
ultimate parent of the Corporation or any subsidiary or affiliate of any such
parent;
(f) fail to maintain separate corporate records and books of account
from those of any direct or ultimate parent of the Corporation or any subsidiary
or affiliate of any such parent;
(g) fail to conduct its business from an office separate from any
direct or ultimate parent of the Corporation or any subsidiary or affiliate of
any such parent;
(h) fail to maintain its assets separately from the accounts of any
other person (including through maintenance of a separate bank account); and
(i) fail to pay from its assets all obligations and indebtedness of any
kind incurred by it, nor pay from its
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assets any obligations or indebtedness of any other entity or person.
For purpose of this Section 2.13, "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 III
Committees of the Board
Section 3.1 Designation, Power, Alternate Members and Term of Office.
The Board of Directors may, by resolution passed by a majority of the whole
Board of Directors, designate one or more committees, including but not limited
to an Executive Committee, each committee to consist of one or more of the
directors of the Corporation. Any such committee, to the extent provided in such
resolution and permitted by law, shall 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 or a
facsimile thereof to be affixed to or reproduced on all such papers as said
committee shall designate; but no such committee shall have power or authority
in reference to amending the Articles of Incorporation, adopting an agreement of
merger of consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
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recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, amending the Bylaws of the Corporation, declaring a
dividend or authorizing the issuance of stock. The Board of Directors may
designate one or more directors as alternate members of any committee who, in
the order specified by the Board of Directors, may replace any absent or
disqualified member at any meeting of such committee. If at a meeting of any
committee one or more of the members thereof should be absent or disqualified,
and if either the Board of Directors has not so designated any alternate member
or members, or the number of absent or disqualified members exceeds the number
of alternate members who are present at such meeting, then the member or members
of such committee (including alternates) present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another director to act at such meeting in the place of any
such absent or disqualified member. The term of office of the members of each
committee shall be as fixed from time to time by the Board of Directors, subject
to these Bylaws; provided, however, that any committee member who ceases to be a
member of the Board of Directors shall ipso facto cease to be a committee
member. Each committee shall appoint a secretary, who may be a Director or an
officer of the Corporation.
Section 3.2 Meetings, Notices and Records. Each committee may provide
for the holding of regular meetings, with or without notice, and may fix the
times and places at
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which such meetings shall be held. Special meetings of each committee shall be
held upon call by or at the direction of its chairman or, if there be no
chairman, by or at the direction of any one of its members. Except as otherwise
provided by law, notice of each special meeting of a committee shall be mailed
to each member of such committee, addressed to such member at such member's
residence or usual place of business, at least two days before the day on which
the meeting is to be held, or shall be sent to him at such place by telex,
facsimile transmission, telegram, radio or cable, or telephoned or delivered to
such member personally, not later than the day before the day on which the
meeting is to be held. Such notice shall state the time and place of such
meeting, but need not state the purposes thereof, unless otherwise required by
law, the Articles of Incorporation of the Corporation or these Bylaws.
Notice of any meeting of a committee need not be given to any member
thereof who shall attend such meeting in person or who shall waive notice
thereof, before or after such meeting, in a signed writing. Each committee shall
keep a record of its proceedings.
Section 3.3 Quorum and Manner of Acting. At each meeting of any
committee the presence of a majority of its members then in office shall be
necessary and sufficient to constitute a quorum for the transaction of business,
except that when a committee consists of one member, then the one member shall
constitute a quorum. In the absence of a quorum,
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a majority of the members present at the time and place of any meeting may
adjourn the meeting from time to time until a quorum shall be present and the
meeting may be held as so adjourned without further notice or waiver. The act of
a majority of the members present at any meeting at which a quorum is present
shall be the act of such committee. Subject to the foregoing and other
provisions of these Bylaws and except as otherwise determined by the Board of
Directors, each committee may make rules for the conduct of its business.
Section 3.4 Resignations. Any member of a committee may resign at any
time by giving written notice of such resignation to the Board of Directors, the
President, any Vice President or the Secretary. Unless otherwise specified in
such notice, such resignation shall take effect upon receipt thereof by the
Board of Directors or any such officer, and the acceptance of such resignation
shall not be necessary to make it effective.
Section 3.5 Removal. Any member of any committee may be removed at any
time with or without cause by the Board of Directors.
Section 3.6 Vacancies. If any vacancy shall occur in any committee by
reason of death, resignation, disqualification, removal or otherwise, the
remaining member or members of such committee, so long as a quorum is present,
may continue to act until such vacancy is filled by the Board of Directors.
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Section 3.7 Compensation. Committee members shall receive such
reasonable compensation for their services as such, whether in the form of
salary or a fixed fee for attendance at meetings, with expenses, if any, as the
Board of Directors may from time to time determine. Nothing herein contained
shall be construed to preclude any committee member from serving the Corporation
in any other capacity and receiving compensation therefor.
ARTICLE IV
Officers
Section 4.1 Officers. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Secretary, a Treasurer, and such other
officers as may be appointed in accordance with the provisions of Section 4.3.
Section 4.2 Election. Term of Office and Qualifications. Each officer
(except such officers as may be appointed in accordance with the provisions of
Section 4.3) shall be elected by the Board of Directors. Each such officer shall
hold such office until such officer's successor shall have been elected and
shall qualify, or until such officer's death, or until such officer shall have
resigned in the manner provided in Section 4.4 or shall have been removed in the
manner provided in Section 4.5.
Section 4.3 Subordinate Officers and Agents. The Board of Directors
from time to time may appoint other officers or agents (including one or more
Assistant Vice Presidents, one or more Assistant Secretaries and one or more
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Assistant Treasurers), to hold office for such periods, have such authority and
perform such duties as are provided in these Bylaws or as may be provided in the
resolutions appointing them. The Board of Directors may delegate to any officer
or agent the power to appoint any such subordinate officers or agents and to
prescribe their respective terms of office, authorities and duties.
Section 4.4 Resignations. Any officer may resign at any time by giving
written notice of such resignation to the Board of Directors, the President, any
Vice President or the Secretary. Unless otherwise specified in such written
notice, such resignation shall take effect upon receipt thereof by the Board of
Directors or any such officer, and the acceptance of such resignation shall not
be necessary to make it effective.
Section 4.5 Removal. Any officer specifically designated in Section 4.1
may be removed with or without cause at any meeting of the Board of Directors by
affirmative vote of a majority of the directors then in office. Any officer or
agent appointed in accordance with the provisions of Section 4.3 may be removed
with or without cause at any meeting of the Board of Directors by affirmative
vote of a majority of the directors present at such meeting, or at any time by
any superior officer or agent upon whom such power of removal shall have been
conferred by the Board of Directors.
Section 4.6 Vacancies. A vacancy in any office by reason of death,
resignation, removal, disqualification or
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any other cause shall be filled for the unexpired portion of the term in the
manner prescribed by these Bylaws for regular election or appointment to such
office.
Section 4.7 The President. The President shall be the chief executive
officer of the Corporation, subject to the direction of the Board of Directors,
shall have general charge of the business, affairs and property of the
Corporation and general supervision over its officers and agents. If present,
the President shall preside at all meetings of stockholders and the President
shall see that all orders and resolutions of the Board of Directors are carried
into effect. The President may sign, with any other officer thereunto duly
authorized, certificates representing stock of the Corporation the issuance of
which shall have been duly authorized (the signature to which may be a facsimile
signature), and may sign and execute in the name of the Corporation deeds,
mortgages, bonds, contracts, agreements or other instruments duly authorized by
the Board of Directors, except in cases where the signing and execution thereof
shall be expressly delegated by the Board of Directors to some other officer or
agent or shall be required by law to be otherwise executed. From time to time
President shall report to the Board of Directors all matters within the
President's knowledge which the interests of the Corporation may require to be
brought to their attention. The President shall have such other powers and
perform such other duties as may from time to time be prescribed by the Board of
Directors or these
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Bylaws. If no Treasurer shall have been appointed by the Board of Directors the
President shall have, in addition to and not in limitation of the foregoing, the
powers afforded the Treasurer pursuant to Section 4.10 hereof.
Section 4.8 The Vice Presidents. At the request of the President or in
the absence or disability of the President, the Vice President designated by the
Board of Directors shall perform all the duties of the President and, when so
acting, shall have all the powers of and be subject to all restrictions upon the
President. Any Vice President may also sign, with any other officer thereunto
duly authorized, certificates representing stock of the Corporation the issuance
of which shall have been duly authorized (the signature to which may be a
facsimile signature), and may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts, agreements or other instruments duly
authorized by the Board of Directors, except in cases where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent or shall be required by law to be otherwise executed.
Each Vice President shall have such other powers and perform such other duties
as may from time to time be prescribed by the Board of Directors, the President
or these Bylaws.
Section 4.9 The Secretary. The Secretary shall:
(a) record all the proceedings of the meetings of the
stockholders, the Board of Directors, and any
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committees of the Board of Directors in a book or books to be kept for
that purpose;
(b) cause all notices to be duly given in accordance with the
provisions of these Bylaws and as required by law;
(c) whenever any committee shall be appointed in pursuance of
a resolution of the Board of Directors, furnish the chairman of such
committee with a copy of such resolution;
(d) be custodian of the records and of the seal of the
Corporation, and cause such seal to be affixed to or a facsimile to be
reproduced on all certificates representing stock of the Corporation
prior to the issuance thereof and to all instruments the execution of
which on behalf of the Corporation under its seal shall have been duly
authorized;
(e) see that its lists, books, reports, statements,
certificates and other documents and records required by law are
properly kept and filed;
(f) have charge of the stock and transfer books of the
Corporation, and exhibit such stock book at all reasonable times to
such persons as are entitled by law to have access thereto;
(g) sign certificates representing stock of the Corporation
the issuance of which shall have been duly authorized (the signature to
which may be a facsimile signature); and
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(h) in general, perform all duties incident to the office of
Secretary and have such other powers and perform such other duties as
may from time to time be prescribed by the Board of Directors, the
President or these Bylaws.
Section 4.10 The Treasurer. The Treasurer shall be the chief financial
officer of the Corporation and shall:
(a) have charge of and supervision over and be responsible for
the funds, securities, receipts and disbursements of the Corporation;
(b) cause the moneys and other valuable effects of the
Corporation to be deposited in the name and to the credit of the
Corporation in such banks or trust companies or with such bankers or
other depositories as shall be selected in accordance with Section 5.3
or to be otherwise dealt with in such manner as the Board of Directors
may direct;
(c) cause the funds of the Corporation to be disbursed by
checks or drafts upon the authorized depositories of the Corporation,
and cause to be taken and preserved proper vouchers for all moneys
disbursed;
(d) render to the Board of Directors or the President,
whenever requested, a statement of the financial condition of the
Corporation and of all his transactions as Treasurer;
(e) cause to be kept at the Corporation's principal office
correct books of account of all its business and
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transactions and such duplicate books of account as the Treasurer shall
determine and upon application cause such books or duplicates thereof
to be exhibited to any director;
(f) be empowered, from time to time, to require from the
officers or agents of the Corporation reports or statements giving such
information as the Treasurer may desire with respect to any and all
financial transactions of the Corporation;
(g) sign certificates representing stock of the Corporation
the issuance of which shall have been duly authorized (the signature to
which may be a facsimile signature); and
(h) in general, perform all duties incident to the office of
Treasurer and have such other powers and perform such other duties as
may from time to time be prescribed by the Board of Directors, the
President or these Bylaws.
Section 4.11 Salaries. The salaries of the officers of the Corporation
shall be fixed from time to time by the Board of Directors, except that the
Board of Directors may delegate to any person the power to fix the salaries or
other compensation of any officers or agents appointed in accordance with the
provisions of Section 4.3. No officer shall be prevented from receiving such
salary by reason of the fact that such officer is also a director of the
Corporation.
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ARTICLE V
Execution of Instruments and
Deposit of Corporate Funds
Section 5.1 Execution of Instruments Generally. Subject to the
restrictions set forth in Sections 2.12 and 2.13 hereof, which such Sections
shall control, the President, any Vice President or the Secretary or the Chief
Financial Officer, subject to the approval of the Board of Directors, may enter
into any contract or execute and deliver any instrument in the name and on
behalf of the Corporation. Subject to the restrictions set forth in Sections
2.12 and 2.13 hereof, which such Sections shall control, the Board of Directors
may authorize any officer or officers, or agent or agents, to enter into any
contract or execute and deliver any instrument in the name and on behalf of the
Corporation, and such authorization may be general or confined to specific
instances.
Section 5.2 Borrowing. Subject to the restrictions set forth in
Sections 2.12 and 2.13 hereof, which such Sections shall control, no loans or
advance shall be obtained or contracted for, by or on behalf of the Corporation
and no negotiable paper shall be issued in its name, unless and except as
authorized by the Board of Directors. Such authorization may be general or
confined to specific instances. Subject to the restrictions set forth in
Sections 2.12 and 2.13 hereof, which such Sections shall control, any officer or
agent of the Corporation thereunto so authorized
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may obtain loans and advances for the Corporation, and for such loans and
advances may make, execute and deliver promissory notes, bonds, or other
evidences of indebtedness of the Corporation. Subject to the restrictions set
forth in Sections 2.12 and 2.13 hereof, which such Sections shall control, any
officer or agent of the Corporation thereunto so authorized may pledge,
hypothecate or transfer as security for the payment of any and all loans,
advances, indebtedness and liabilities of the Corporation, any and all stocks,
bonds, other securities and other personal property at any time held by the
Corporation, and to that end may endorse, assign and deliver the same and do
every act and thing necessary or proper in connection therewith.
Section 5.3 Deposits. All funds of the Corporation not otherwise
employed shall be deposited from time to time to its credit in such banks or
trust companies or with such bankers or other depositories as the Board of
Directors may select, or as may be selected by any officer or officers or agent
or agents authorized so to do by the Board of Directors. Endorsements for
deposit to the credit of the Corporation in any of its duly authorized
depositories shall be made in such manner as the Board of Directors from time to
time may determine.
Section 5.4 Checks, Drafts, etc. All checks, drafts or other orders for
the payment of money, and all notes or other evidences of indebtedness issued in
the name of the Corporation, shall be signed by such officer or officers or
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agent or agents of the Corporation, and in such manner, as from time to time
shall be determined by the Board of Directors.
Section 5.5 Proxies. Proxies to vote with respect to shares of stock of
other Corporations owned by or standing in the name of the Corporation may be
executed and delivered from time to time on behalf of the Corporation by the
President or any Vice President or by any other person or persons thereunto
authorized by the Board of Directors.
ARTICLE VI
Record Dates
Section 6.1 Record Dates. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall be not more than sixty nor less than ten days before the date of
such meeting, nor more than sixty days prior to any other action. Only those
stockholders of record on the date so fixed shall be entitled to any of the
foregoing rights, notwithstanding the transfer of any such stock on the books of
the Corporation after any such record date fixed by the Board of Directors.
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ARTICLE VII
Corporate Seal
Section 7.1 Corporate Seal. The corporate seal shall be circular in
form and shall bear the name of the Corporation and words and figures denoting
its organization under the laws of the State of Nevada and the year thereof and
otherwise shall be in such form as shall be approved from time to time by the
Board of Directors.
ARTICLE VIII
Fiscal Year
Section 8.1 Fiscal Year. The fiscal year of the Corporation shall be as
designated by the Board of Directors.
ARTICLE IX
Amendments
Section 9.1 Amendments. All Bylaws of the Corporation may be amended or
repealed, and new Bylaws may be made, by an affirmative majority of the votes
cast at any annual or special stockholders' meeting by holders of outstanding
shares of stock of the Corporation entitled to vote, or by an affirmative vote
of a majority of the directors present at any organizational, regular, or
special meeting of the Board of Directors.
ARTICLE X
Action Without A Meeting
Section 10.1 Action Without A Meeting. Any action which might have been
taken under these Bylaws by a vote of the stockholders at a meeting thereof may
be taken without a
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meeting, without prior notice and without a vote, if a consent in writing
setting forth the action so taken, shall be individually signed and dated by the
holders of outstanding shares of stock of the Corporation having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted, provided that no written consent will be effective unless the
necessary number of written consents is delivered to the Corporation within
sixty days of the earliest delivered consent to the Corporation, and provided
further that prompt notice shall be given to those stockholders who have not so
consented if less than unanimous written consent is obtained. Any action which
might have been taken under these Bylaws by vote of the directors at any meeting
of the Board of Director or any committee thereof may be taken without a meeting
if all the members of the Board of Directors or such committee, as the case may
be, consent thereto in writing, and the writing or writings are filed with the
minutes of the Board of Directors or such committee.
ARTICLE XI
Indemnification
Section 11.1 Indemnification. The Corporation shall indemnify, in the
manner and to the full extent permitted by law, any person (or the estate of any
person) who was or is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or
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proceeding, whether or not by or in the right of the Corporation, and whether
civil, criminal, administrative, investigative or otherwise, by reason of the
fact that such person is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent or another Corporation, partnership, joint
venture, trust or other enterprise. Where required by law, the indemnification
provided for herein shall be made only as authorized in the specific case upon a
determination, in the manner provided by law, that indemnification of the
director, officer, employee or agent is proper in the circumstances. The
Corporation may, to the full extent permitted by law, purchase and maintain
insurance on behalf of any such person against any liability which may be
asserted against such person. To the full extent permitted by law, the
indemnification provided herein shall include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement, and, in the manner
provided by law, any such expenses may be paid by the Corporation in advance of
the final disposition of such action, suit or proceeding. The indemnification
provided herein shall not be deemed to limit the right of the Corporation to
indemnify any other person for any such expenses to the full extent permitted by
law, nor shall it be deemed exclusive of any other rights to which any person
seeking indemnification from the Corporation may be entitled under any
agreement, vote of stockholders or disinterested directors or otherwise, both as
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to action in his official capacity and as to action in another capacity while
holding such office. Such indemnification 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 person.
Section 11.2 No director shall be personally liable to the Corporation
or any of its stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for acts or omissions which involve
intentional misconduct, fraud, or a knowing violation of law, or (ii) for the
payment of distributions in violation of the Section 78.300 of the Nevada
Revised Statutes. Any repeal or modification of this Section 11.2 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 with respect to acts or omissions occurring prior to such repeal
or modification.
ARTICLE XII
Offices
Section 12.1 Resident Office and Resident. The Corporation shall
maintain a resident office and resident within the State of Nevada, which may be
changed by the Board of Directors from time to time.
Section 12.2 Other Offices. The Corporation may also have offices at
such other place, within or without the State of Nevada, as the Board of
Directors may from time to time determine.
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ADVANTA BUSINESS RECEIVABLES CORP.
(a Nevada corporation)
UNANIMOUS CONSENT IN WRITING OF
THE BOARD OF DIRECTORS
The Undersigned, being all of the members of the Board of Directors of
Advanta Business Receivables Corp. (the "Corporation"), in accordance with
Section 78.315(2) of the Nevada General Corporation Law ("GCL"), as amended,
without the formality of a meeting, do hereby consent in writing to the
following resolutions:
WHEREAS, the Board of Directors has determined that it is advisable to
amend Section 2.12 of the Bylaws of the Corporation and to delete Section 2.13
of the Bylaws of the Corporation to remove certain restrictions on the powers
of the Board of Directors; and
NOW THEREFORE, BE IT
<PAGE> 35
RESOLVED, that Section 2.12 of the Bylaws of the Corporation be amended
by deleting the clause "but subject to the limitations set forth in Section
2.13," where it appears in the first sentence of such Section.
FURTHER RESOLVED, that Section 2.13 of the Bylaws of the Corporation be
amended and restated to read as follows:
Section 2.13 [RESERVED]
Dated: August 25, 1999
/s/ Michael Coco
-------------------------------
Name: Michael Coco
/s/ Janice C. George
-------------------------------
Name: Janice C. George
/s/ Francis B. Jacobs, II
-------------------------------
Name: Francis B. Jacobs, II
/s/ Mark Hales
-------------------------------
Name: Mark Hales
/s/ John L. Richards
-------------------------------
Name: John L. Richards
Constituting All the Directors of the Corporation
