Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3 Registration Statement for Securities Offered 92 444K
Pursuant to a Transaction
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 9 27K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 16 61K
4: EX-4.1 Instrument Defining the Rights of Security Holders 7 21K
5: EX-4.2 Instrument Defining the Rights of Security Holders 7 20K
6: EX-4.3 Instrument Defining the Rights of Security Holders 16 62K
7: EX-10.1 Material Contract 52 215K
8: EX-10.2 Material Contract 74 320K
9: EX-10.3 Material Contract 69 338K
10: EX-10.4 Material Contract 34 126K
11: EX-21.1 Subsidiaries of the Registrant 1 5K
12: EX-24.1 Power of Attorney 1 11K
EX-3.1 — Articles of Incorporation/Organization or By-Laws
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EXHIBIT 3.1
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 06/14/2001
010286316 - 3403652
CERTIFICATE OF INCORPORATION
OF
A/P I DEPOSIT CORPORATION
The undersigned, for the purpose of organizing a corporation under
the General Corporation Law of the State of Delaware, hereby certifies as
follows:
FIRST: The name of the corporation is A/P I Deposit Corporation (the
"Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 30 Old Rudnick Lane, Suite 100, Dover, Delaware 19901.
The name and address of the Corporation's registered agent is Lexis Document
Services Inc., 30 Old Rudnick Lane, Suite 100, Dover, Delaware 19901, County of
Kent.
THIRD: The purpose of the Corporation is to engage exclusively in
(a) loaning the funds of this Corporation to Penn Station Leasing, LLC, a
Delaware limited liability company, in connection with the grant of a mortgage
of Penn Station Leasing, LLC's leasehold interest in Pennsylvania Station, New
York, New York and owning and holding the rights and property related to such
mortgage loan, (b) transferring and selling such mortgage loan and related
rights and property to Amtrak/Pennsylvania Station Lease Finance Trust - 2001
(the "Trust"), (c) acquiring, owning, holding, selling, transferring or
otherwise dealing with the sale of certificates of beneficial ownership of the
Trust, and (d) the taking of any and all actions and the doing of any and all
things necessary or appropriate to accomplish the foregoing. For so long as the
Corporation is able to pay its debts generally as they become due, the
Corporation shall
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not institute proceedings to be adjudicated bankrupt or insolvent; or consent to
the institution of bankruptcy or insolvency proceedings against it; or file a
petition seeking, or consent to, reorganization or relief under any applicable
federal or state law relating to bankruptcy; or consent to the appointment of a
receiver, liquidator, assignee, trustee (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 any corporate action in furtherance of any
such action. The Corporation shall not engage in any activities other than as
permitted under this Article THIRD.
FOURTH: The total number of shares of stock which the Corporation
shall have the authority to issue is 1,000 shares of Common Stock, par value One
Dollar ($1.00) per share. Each share of Common Stock shall be entitled to one
vote.
FIFTH: The name and mailing address of the incorporator are as
follows:
NAME ADDRESS
---- -------
Andrew L. Stidd c/o Global Securitization Services, LLC
400 West Main Street, Suite 338
Babylon, New York 11702
The power of the incorporator as such shall terminate upon the filing of the
Certificate of Incorporation.
SIXTH: Elections of directors need not be by written ballot unless
the By-Laws of the Corporation so provide.
SEVENTH: The Board of Directors of the Corporation is authorized to
make, adopt, alter, amend or repeal the By-Laws of the Corporation, except as
may otherwise be provided in said By-Laws. When voting on matters subject to the
vote of the Board of Directors, including those matters specified in Article
TENTH hereof, notwithstanding that the Corporation
3
is not then insolvent, the directors serving pursuant to the requirements of
Article NINTH shall take into account the interests of the creditors of the
Corporation as well as in the interests of the Corporation, to the extent not
inconsistent with Delaware law.
EIGHTH: (l) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that exculpation from liability is not
permitted under the General Corporation Law of the State of Delaware as in
effect at the time such liability is determined.
(2)(a) The Corporation shall, to the maximum extent permitted from
time to time under the law of the State of Delaware, indemnify and hold harmless
and upon request shall advance expenses to any person (and heirs, executors or
administrators of such person) who is or was a party or is threatened to be made
a party to any threatened, pending or completed action, suit, proceeding or
claim, whether civil, criminal, administrative or investigative, by reason of
the fact that such person is or was or has agreed to be a director or officer of
the Corporation or while a director or officer is or was serving at the request
of the Corporation as a director, officer, partner, trustee, employee or agent
of any corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against expenses
(including attorneys' fees and expenses), judgments, fines, penalties and
amounts paid in settlement incurred in connection with the investigation,
preparation to defend or defense of such action, suit, proceeding or claim;
provided that the foregoing shall not require the Corporation to indemnify or
advance expenses to any person in connection with any action, suit, proceeding,
claim or counterclaim initiated by or on behalf of such person. Such
indemnification shall not be exclusive of other indemnification rights arising
under any by-law, agreement, vote of directors or stockholders or otherwise and
shall inure to the benefit of the
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heirs and legal representatives of such person. Any person seeking
indemnification under this Article EIGHTH shall be deemed to have met the
standard of conduct required for such indemnification unless the contrary shall
be established. Any repeal or modification of the foregoing provisions of this
Article EIGHTH shall not adversely affect any right or protection of a director
or officer of the Corporation with respect to any acts or omissions of such
director or officer occurring prior to such repeal or modification.
(b) The Corporation may, by action of its Board of Directors,
provide indemnification to such of the employees and agents of the Corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by the law of the State of Delaware.
(3) The Corporation shall have power to purchase and maintain
insurance on behalf of any person who 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 of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the law of the State of Delaware.
(4) The rights and authority conferred in this Article EIGHTH shall
not be exclusive of any other right which any person may otherwise have or
hereafter acquire.
(5) Neither the amendment nor repeal of this Article EIGHTH, nor the
adoption of any provision of the Certificate of Incorporation or the By-Laws
of the Corporation, nor, to the fullest extent permitted by the law of the State
of Delaware, any modification of law,
5
shall eliminate or reduce the effect of this Article EIGHTH in respect of any
acts or omissions occurring prior to such amendment, repeal, adoption or
modification.
NINTH: (1)(a) The Board of Directors of the Corporation shall
consist of three directors. At all times, one of the directors of the
Corporation shall be an Independent Director (as defined below). The Corporation
shall maintain its financial statements, accounting records and other corporate
documents separate from those of any Affiliate (as defined below) or any other
entity. The Corporation shall prepare quarterly and annual financial statements,
the Corporation's financial statements shall substantially comply with generally
accepted accounting principles (except as noted) and such financial statements
shall be issued separately from, but may be consolidated with, any reports
prepared for any of its Affiliates. The Corporation shall maintain its own bank
accounts, payroll and correct, complete and separate books of account. The
Corporation shall at all times hold itself out to the public (including any
Affiliate's creditors) under the Corporation's own name and as a separate and
distinct corporate entity. All customary formalities regarding the corporate
existence of the Corporation, including holding all regular and special meetings
of or obtaining the consent of its Board of Directors, as appropriate, and its
stockholders, maintaining current, separate and accurate minute books, passing
all resolutions or consents necessary to authorize actions taken or to be taken
and maintaining accurate and separate books, records and accounts, including
intercompany transaction accounts, shall be observed. The Corporation shall
retain as its accountants a nationally recognized firm of independent certified
public accountants, provided that such accountants may also serve as accountants
of any Affiliate. The Corporation shall maintain stationery through which all
business correspondence and communication are conducted, in each case separate
from those of an Affiliate. The Corporation shall act solely in its own
corporate name and through its own
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duly authorized officers and agents; no Affiliate shall act as an agent of the
Corporation (provided that an officer or director of an Affiliate may also serve
as an officer or director of the Corporation and an Affiliate may act as a
servicing agent or collection agent, provided that such Affiliate has agreed to
remit, promptly upon receipt, assets of the Corporation to the Corporation or
its agent which is not an Affiliate). Investments shall be made directly by the
Corporation or on its behalf by brokers engaged and paid by the Corporation or
its agents.
(b) All material business transactions entered into by the
Corporation with any Affiliate shall be on terms and conditions that are not
more or less favorable to the Corporation than terms and conditions available at
the time to the Corporation for comparable transactions with unaffiliated
persons and must be approved by the Board of Directors, including the
Independent Director. The Corporation shall not guarantee or assume or hold
itself out or permit itself to be held out as having guaranteed or assumed any
liabilities or obligations of any Affiliate.
(c) The Corporation shall pay its own liabilities, indebtedness and
obligations of any kind, other than organizational expenses, from its own
separate assets.
(d) Assets of the Corporation shall be separately identified,
maintained and segregated. The Corporation's assets shall at all times be held
by or on behalf of the Corporation and, if held on behalf of the Corporation by
another entity, shall at all times be kept identifiable (in accordance with
customary usages) as assets owned by the Corporation. In no event shall any of
the Corporation's assets be held on its behalf by any Affiliate, except if such
Affiliate is acting as a servicing agent or collection agent and has agreed to
remit, promptly upon its receipt, such assets to the Corporation or its agent
which is not an Affiliate.
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(e) The Corporation shall not take any action if, as a result of
such action, the Corporation would be required to register as an investment
company under the Investment Company Act of 1940, as amended.
(f) "Affiliate" means with respect to the Corporation, any other
entity which, directly or indirectly, owns, is in control of, is controlled by,
or is under common control with, the Corporation or the National Railroad
Passenger Corporation, in each case whether beneficially, or as a trustee,
guardian or other fiduciary. An entity shall be deemed to control another entity
if the controlling entity possesses, directly or indirectly, the power to direct
or cause the direction of the management or policies of the other entity,
whether through the ownership of voting securities or membership interests, by
contract, or otherwise.
(g) An Independent Director shall mean a director of the Corporation
who is not, never was and never shall be: (A) a partner, stockholder, director,
officer, employee, Affiliate, associate, customer or supplier of, or any person
that has received any benefits (excluding, however, any compensation received by
the directors, in such persons' capacity as such directors, required by this
Article) in any form whatever from, or any person that has provided any service
(excluding, however, any service provided by the directors, in such persons'
capacity as such directors, required by this Article) in any form whatever to or
any of its Affiliates or associates, or (B) any person owning beneficially,
directly or indirectly, any outstanding partnership interests of or any common
stock of its Affiliates, or a stockholder, director, officer, employee,
Affiliate, associate, customer or supplier of, or any person who derives more
than 2% of its purchases or revenues from its activities with the Corporation,
or any Affiliate of any of them (excluding, however, any compensation received
by the directors, in such persons' capacity as such directors, required by this
Article), in any form whatever from, or
8
any person that has provided any service (excluding, however, any service
provided by the directors, in such person's capacity as such directors, required
by this Article) in any form whatever to such beneficial owner or any of such
beneficial owner's Affiliates or associates; PROVIDED, HOWEVER, that a person
shall not be disqualified for appointment as Independent Director if such person
has provided professional services to the Corporation and has not derived more
than 2% of its purchases or revenues from providing any service to the
Corporation. 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; and "person" means a natural person, corporation or other entity,
government, or political subdivision, agency or instrumentality of a government.
Notwithstanding the foregoing, an Independent Director may serve in similar
capacities for other "special purpose" corporations or entities formed by the
National Railroad Passenger Corporation, Global Securitization Services, LLC or
any Affiliate of either.
TENTH: The Corporation shall not, without the affirmative vote of
100% of the Board of Directors without any vacancies, institute proceedings to
be adjudicated bankrupt or insolvent; or consent to the institution of
bankruptcy or insolvency proceedings against it; or file a petition seeking, or
consent to or join in any reorganization or relief under any applicable federal
or state law relating to bankruptcy; or consent to the appointment of a
receiver, 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 dissolve, liquidate,
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consolidate, merge or sell all or substantially all of the assets of the
Corporation or take any corporate action in furtherance of any such action.
ELEVENTH: The Corporation reserves the right to amend this
Certificate of Incorporation in any manner permitted by the law of the State of
Delaware, provided that 100%o of the Board of Directors approves such amendment,
and, subject to the provisions of Article EIGHTH, all rights and powers
conferred herein on stockholders, directors and officers, if any, are subject to
this reserved power.
IN WITNESS WHEREOF, the undersigned, being the incorporator
hereinabove named, for the purpose of forming a corporation pursuant to the
General Corporation Law of the State of Delaware, does make and file this
Certificate of Incorporation, hereby declaring and certifying that this is my
act and deed and the facts herein stated are true, and accordingly have hereunto
set my hand this 14th day of June, 2001.
/s/ Andrew L. Stidd
--------------------------
Sole Incorporator
Andrew L. Stidd
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