LIMITED LIABILITY COMPANY AGREEMENT OF SUNTRUST MORTGAGE SECURITIZATION, LLC, a Delaware Limited Liability Company
Exhibit
3.2
OF
a
Delaware Limited Liability
Company
This
Limited Liability Company Agreement (together with the schedules attached
hereto, this “Agreement”) of
SunTrust Mortgage Securitization, LLC (the “Company”), is
adopted, executed and entered into by SunTrust Mortgage, Inc., as the sole
equity member (the “Member”), and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as the Independent Directors (as defined on
Schedule A
hereto). Capitalized terms used and not otherwise defined herein have
the meanings set forth on Schedule A
hereto.
Section
1. Formation.
The
Company has been formed as a Delaware limited liability company under and
pursuant to the Delaware Limited Liability Company Act (6 Del. C.§ 18-101 etseq.),
as amended
from time to time (the “Act”), by filing
a
Certificate of Formation of the Company with the office of the Secretary of
State of the State of Delaware.
Section
2. Term.
The
existence of the Company as a separate legal entity shall be perpetual, and
shall continue until cancellation of the Certificate of Formation as provided
in
the Act.
Section
3. Principal Business
Office.
The
principal business office of the Company shall be located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as may hereafter be determined
by the Member.
Section
4. Registered
Office.
The
address of the registered office of the Company in the State of Delaware is
c/o
Corporation Services Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section
5. Registered
Agent.
The
name
and address of the registered agent of the Company for service of process on
the
Company in the State of Delaware is Corporation Services Company, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section
6. Members; Special
Member.
(a) The
mailing address of the Member is set forth on Schedule B attached
hereto. The Member was admitted to the Company as a member of the
Company upon its execution of a counterpart signature page to this
Agreement.
(b) Subject
to Section
10(j) of this Agreement, the Member may act by written
consent.
(c) Upon
the occurrence of any event that causes the Member to cease to be a member
of
the Company (other than (i) upon an assignment by the Member of all of its
limited liability company interest in the Company and the admission of the
transferee pursuant to Sections 22 and
24 of
this Agreement, or (ii) the resignation of the Member and the admission of
an
additional member of the Company pursuant to Sections 23 and
24)
of this Agreement, each person acting as an Independent Director pursuant to
Section 11 of
this Agreement shall, without any action of any Person and simultaneously with
the Member ceasing to be a member of the Company, automatically be admitted
to
the Company as a Special Member and shall continue the Company without
dissolution. No Special Member may resign from the Company or
transfer its rights as Special Member unless (i) a successor Special Member
has
been admitted to the Company as Special Member by executing a counterpart to
this Agreement, and (ii) such successor has also accepted its appointment as
Independent Director pursuant to Section 11 of this
Agreement; provided, however,
the Special
Members shall automatically cease to be members of the Company upon the
admission to the Company of a new Member or a substitute Special
Member. Each Special Member shall be a member of the Company that has
no interest in the profits, losses and capital of the Company and has no right
to receive any distributions of Company assets. Pursuant to Section
18-301 of the Act, a Special Member shall not be required to make any capital
contributions to the Company and shall not receive a limited liability company
interest in the Company. A Special Member, in its capacity as Special
Member, may not bind the Company. Except as required by any mandatory
provision of the Act, each Special Member, in its capacity as Special Member,
shall have no right to vote on, approve or otherwise consent to any action
by,
or matter relating to, the Company, including, without limitation, the merger,
consolidation or conversion of the Company. In order to implement the
admission to the Company of each Special Member, each person acting as an
Independent Director pursuant to Section 11 of this
Agreement shall execute a counterpart to this Agreement. Prior to its
admission to the Company as Special Member, each person acting as an Independent
Director pursuant to Section 11 of this
Agreement shall not be a member of the Company.
Section
7. Certificates.
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇ is hereby designated as an “authorized person” within the meaning of
the Act, and has executed, delivered and filed the Certificate of Formation
of
the Company with the Secretary of State of the State of
Delaware. Upon the filing of the Certificate of Formation with the
Secretary of State of the State of Delaware, his powers as an “authorized
person” ceased, and the Member thereupon became the designated “authorized
person” and shall continue as the designated “authorized person” within the
meaning of the Act. The Member or an Officer shall execute, deliver
and file any other certificates (and any amendments and/or restatements thereof)
necessary for the Company to qualify to do business in any jurisdiction
in
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which
the
Company may wish to conduct business. The Member or an Officer shall
also execute, deliver and file any application or similar document necessary
for
the Company to obtain any license or registration required to conduct its
business in any jurisdiction in which the Company may wish to conduct
business.
Section
8. Purposes.
(a) The
purposes for which the Company is formed are limited solely as
follows:
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(i)
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to
purchase, accept or otherwise acquire, own, hold, pledge, finance,
refinance, convey, sell (or otherwise dispose of), service, transfer,
assign, and otherwise deal in or with Assets, or any combination
of the
foregoing;
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(ii)
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to
authorize, issue, sell, deliver, purchase, acquire, invest in and/or
enter
into agreements in connection with Securities, and to engage in the
establishment of one or more Trusts in connection with the issuance
or
sale of Securities from time to time, which Securities may be issued
and
sold in one or more series (each of which series may consist of one
or
more classes) and shall (A) be collateralized or otherwise secured
or
backed by, or otherwise represent interests in Assets, (B) be nonrecourse
to the Company and its assets other than the Assets, and (C) not
constitute a claim against the Company to the extent that funds produced
by the Assets are insufficient to allow full and/or timely payments
or
distributions to be made on such Securities or to allow full and/or
timely
payment of principal and interest thereon in accordance with the
terms
thereof;
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(iii)
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to
incur, assume, or guaranty indebtedness to the extent not prohibited
under
Section 10(j) of this Agreement;
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(iv)
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to
(1) acquire, own, hold, sell, transfer, assign, pledge, finance,
refinance, and otherwise deal in or with Securities, (2) acquire,
own,
hold, sell, transfer, assign, pledge, finance, refinance, and otherwise
deal in or with Assets, and (3) acquire, own, hold, sell, transfer,
assign, pledge, and otherwise deal in or with any or all of the ownership
interests in Trusts;
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(v)
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to
use the proceeds of the sale of the Securities to purchase or otherwise
acquire Assets or to loan the proceeds of the sale of the Securities to
entities that may or may not be affiliated with the Company or to
make
dividend payments to the extent permitted by
law;
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(vi)
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to
invest cash balances, from time to time, as provided in any Transaction
Document or similar document to which the Company may be a party
in
connection with the issuance of the Securities;
and
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(vii)
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subject
to the limitations contained in this Section 8 and in Section 10(j)
of
this Agreement, to engage in any activity and to exercise any power
that
is incidental to or that renders convenient the accomplishment of
any or
all
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of
the
foregoing and that is permitted to limited liability companies under the laws
of
the State of Delaware and that is not required to be set forth specifically
in
this Agreement.
(b) The
Company, by or through the Member, or any Director or Officer on behalf of
the
Company, may enter into and perform the indentures, trust agreements, purchase
and sale agreements, pooling and servicing agreements, servicing agreements,
swap agreements, credit enhancement agreements or similar agreements, and any
amendments to any of the foregoing or any documents similar to the foregoing
(all such agreements, the “Transaction
Documents”) and all documents, agreements, certificates or financing
statements contemplated thereby or related thereto, all without any further
act,
vote or approval of any other Person notwithstanding any other provision of
this
Agreement, the Act or applicable law, rule or regulation. The
foregoing authorization shall not be deemed a restriction on the powers of
the
Member or any Director or Officer to enter into other agreements on behalf
of
the Company.
Section
9. Powers.
Subject
to Section
10(j) of this Agreement, the Company, and the Board of Directors and the
Officers of the Company on behalf of the Company, (i) shall have and exercise
all powers necessary, convenient or incidental to accomplish its purposes as
set
forth in Section
8 of this Agreement and (ii) shall have and exercise all of the powers
and rights conferred upon limited liability companies formed pursuant to the
Act.
Section
10. Management.
(a) Board
of
Directors. Subject to Section 10(j) of
this
Agreement, the business and affairs of the Company shall be managed by or under
the direction of a Board of one or more Directors designated by the
Member. Subject to Section 11 of this
Agreement, the Member may determine at any time in its sole and absolute
discretion the number of Directors to constitute the Board. The
authorized number of Directors may be increased or decreased by the Member
at
any time in its sole and absolute discretion, upon notice to all Directors,
and
subject in all cases to Section 11 of this
Agreement. The initial number of Directors shall be five (5), at
least two of which shall be Independent Directors pursuant to Section 11 of this
Agreement. Each Director elected, designated or appointed by the
Member shall hold office until a successor is elected, designated or
appointed and qualified or until such Director’s earlier death,
resignation, expulsion or removal. Each Director shall execute and
deliver the Directors’ Agreement. Directors need not be a
Member. The initial Directors designated by the Member are listed on
Schedule D
hereto.
(b) Powers. Subject
to Section
10(j) of this Agreement, the Board of Directors shall have the power to
do any and all acts necessary, convenient or incidental to or for the
furtherance of the purposes described herein, including all powers attributed
to
“Managers” pursuant to the Act, or otherwise; provided, however,
all right,
power and authority of the Independent Directors shall be limited to those
matters expressly provided in Section
10(j). Subject to Section 8 of
this
Agreement, the Board of Directors has the authority to bind the
Company.
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(c) Meeting
of the Board of
Directors. The Board of Directors of the Company may hold
meetings, both regular and special, within or outside the State of
Delaware. Regular meetings of the Board may be held without notice at
such time and at such place as shall from time to time be determined by the
Board. Special meetings of the Board may be called by the President
on not less than one day’s notice to each Director by telephone, facsimile,
mail, telegram or any other means of communication, and special meetings shall
be called by the President or Secretary in like manner and with like notice
upon
the written request of any one or more of the Directors.
(d) Quorum: Acts
of
the Board. At all meetings of the Board, a majority of the
Directors entitled to vote shall constitute a quorum for the transaction of
business and, except as otherwise provided in any other provision of this
Agreement, the act of a majority of the Directors entitled to vote present
at
any meeting at which there is a quorum shall be the act of the
Board. If a quorum shall not be present at any meeting of the Board,
the Directors present at such meeting may adjourn the meeting from time to
time,
without notice other than announcement at the meeting, until a quorum shall
be
present. Any action required or permitted to be taken at any meeting
of the Board or of any committee thereof may be taken without a meeting if
all
members of the Board or committee entitled to vote, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes
of
proceedings of the Board or committee, as the case may be.
(e) Electronic
Communications. Members of the Board, or any committee
designated by the Board, may participate in meetings of the Board, or any
committee, by means of telephone conference or similar communications equipment
that allows all Persons participating in the meeting to hear each other, and
such participation in a meeting shall constitute presence in Person at the
meeting. If all the participants are participating by telephone
conference or similar communications equipment, the meeting shall be deemed
to
be held at the principal place of business of the Company.
(f) Committees
of
Directors.
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(i)
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The
Board may, by resolution passed by a majority of the whole Board,
designate one or more committees, each committee to consist of
one or more
of the Directors of the Company. The Board may designate one or
more Directors as alternate members of any committee, who may replace
any
absent or disqualified member at any meeting of the
committee.
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(ii)
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In
the absence or disqualification of a member of a committee, the
member or
members thereof present at any meeting and not disqualified from
voting,
whether or not such members constitute a quorum, may unanimously
appoint
another member of the Board to act at the meeting in the place
of any such
absent or disqualified member.
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(iii)
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Any
such committee, to the extent provided in the resolution of the
Board, and
subject to, in all cases, Sections 10(j) and 11 of this Agreement,
shall
have and may exercise all the powers and authority of the Board
in the
management of the business and affairs of the Company. Such
committee
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or
committees shall have such name or names as may be determined from time to
time
by resolution adopted by the Board. Each committee shall keep regular
minutes of its meetings and report the same to the Board when
required.
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(iv)
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For
the avoidance of doubt, any committee of the Board shall not have
any
power or powers prohibited the Board under Section
10(j)
of this Agreement.
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(g) Compensation
of Directors;
Expenses. The Board shall have the authority to fix the
compensation of Directors. The Directors may be paid their expenses,
if any, of attendance at meetings of the Board, which may be a fixed sum for
attendance at each meeting of the Board or a stated salary as
Director. No such payment shall preclude any Director from serving
the Company in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed
like compensation for attending committee meetings.
(h) Removal
of
Directors. Unless otherwise restricted by law, any Director or
the entire Board of Directors may be removed or expelled, with or without cause,
at any time by the Member, and, subject to Section 11 of this
Agreement, any vacancy caused by any such removal or expulsion may be filled
by
action of the Member.
(i) Directors
as
Agents. To the extent of their powers set forth in this
Agreement and subject to Section 10(j) of this
Agreement, the Directors are agents of the Company for the purpose of the
Company’s business, and the actions of the Directors taken in accordance with
such powers set forth in this Agreement shall bind the
Company. Notwithstanding the last sentence of Section 18-402 of the
Act, except as provided in this Agreement or in a resolution of the Directors,
a
Director may not bind the Company.
(j) Limitations
on the Company’s
Activities.
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(i)
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This
Section
10(j) of this Agreement is being adopted in order to comply with
certain provisions required in order to qualify the Company as a
“special
purpose” entity.
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(ii)
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The
Member shall not, so long as any Obligation is outstanding, amend,
alter,
change or repeal the definition of “Independent Director” or Sections
8,
9,
10,
11,
17,
21,
22,
23,
24,
25,
26,
27,
30
or 32
or Schedule
A of
this Agreement without the unanimous written consent of the Board
(including all Independent Directors). Subject to this Section
10(j)
of this Agreement, the Member reserves the right to amend, alter,
change
or repeal any provisions contained in this Agreement in accordance
with
Section
32 of this Agreement.
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(iii)
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Notwithstanding
any other provision of this Agreement and any provision of law that
otherwise so empowers the Company, the Member, the Board, any Officer
or
any other Person, neither the Member nor the Board nor any Officer
nor any
other Person shall be authorized or empowered, nor shall they permit
the
Company, without the prior unanimous written consent
of
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the
Member and the Board (including all Independent Directors), to take any Material
Action, provided, however,
that the
Board may not vote on, or authorize the taking of, any Material Action, unless
there are at least two Independent Directors then serving in such
capacity.
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(iv)
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The
Board and the Member shall cause the Company to do or cause to be
done all
things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided,
however,
that,
subject to the terms of the Transaction Documents, the Company shall
not
be required to preserve any such right or franchise if the Board
shall
determine that the preservation thereof is no longer desirable for
the
conduct of its business and that the loss thereof is not disadvantageous
in any material respect to the Company. The Board also shall
cause the Company to:
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(A)
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have
its own business office (which, however, may be within the premises
of the
Member) at which will be maintained its own separate limited liability
company books and records;
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(B)
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observe
all requirements of the Delaware Limited Liability Company Act, the
Certificate of Formation and this
Agreement;
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(C)
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compensate
all consultants and agents directly, from its own bank account, for
services provided to it by such consultants and agents and pay its
own
liabilities and expenses only out of its own
funds;
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(D)
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readily
identify and allocate any sharing of overhead expenses between the
Company
and the Member;
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(E)
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preserve
its limited liability company form and hold itself out to the public
and
all other Persons as a separate legal entity from the Member and
all other
Persons;
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(F)
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strictly
observe and maintain separate financial records which are and will
continue to be maintained to reflect its assets and liabilities which
will
be subject to audit by independent public
accountants;
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(G)
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declare
and pay all distributions in accordance with law, the provisions
of its
organic documents, and the provisions of the Transaction
Documents;
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(H)
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maintain
its assets and liabilities in such a manner that its individual assets
and
liabilities can be readily and inexpensively identified from those
of the
Member or any other Person, including any other subsidiary or Affiliate
of
the Member;
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(I)
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maintain
its own books of account and records separate from the Member or
any other
subsidiary or Affiliate of the
Member;
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(J)
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avoid
commingling or pooling of its funds or other assets or liabilities
with
those of the Member or any other subsidiary or Affiliate of the Member,
except with respect to the temporary commingling of collections and
except
with respect to the Member’s retention of certain books and records of the
Company and except to the extent that the provisions of the Transaction
Documents permit such commingling;
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(K)
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properly
reflect in its financial records all monetary transactions between
it and
the Member or any other subsidiary or Affiliate of the
Member;
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(L)
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maintain
an arm’s length relationship with its Affiliates and the
Member;
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(M)
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not
hold out its credit or assets as being available to satisfy the
obligations of others;
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(N)
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use
separate stationery and checks;
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(O)
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except
as contemplated by the Transaction Documents, not pledge its assets
for
the benefit of any other Person;
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(P)
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maintain
adequate capital in light of its contemplated business purpose,
transactions and liabilities; and
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(Q)
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cause
the Directors, Officers, agents and other representatives of the
Company
to act at all times with respect to the Company consistently and
in
furtherance of the foregoing and in the best interests of the
Company.
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Failure
of the Company, or the Member or Board on behalf of the Company, to comply
with
any of the foregoing covenants or any other covenants contained in this
Agreement shall not affect the status of the Company as a separate legal entity
or the limited liability of the Member or the Directors.
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(v)
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So
long as any Obligation is outstanding, the Board shall not cause
or permit
the Company to:
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(A)
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except
as contemplated by the Transaction Documents, guarantee any obligation
of
any Person, including any
Affiliate;
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(B)
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engage,
directly or indirectly, in any business other than the actions required
or
permitted to be performed under Section
8 of
this Agreement, the Transaction Documents or this Section
10(j)
of this Agreement;
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(C)
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incur,
create or assume any indebtedness for borrowed money other than as
expressly permitted hereunder and under the Transaction
Documents;
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(D)
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make
or permit to remain outstanding any loan or advance to, or own or
acquire
any stock or securities of, any Person, except that the Company may
invest
in those investments permitted under the Transaction Documents and
may
make any advance required or expressly permitted to be made pursuant
to
any provisions of the Transaction Documents and permit the same to
remain
outstanding in accordance with such
provisions;
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(E)
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to
the fullest extent permitted by law, engage in any dissolution,
liquidation, consolidation, merger, asset sale or transfer of ownership
interests other than such activities as are expressly permitted pursuant
to any provision of the Transaction Documents;
or
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(F)
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except
as contemplated by Section
8(a) of
this Agreement, form, acquire or hold any subsidiary (whether corporate,
partnership, limited liability company or
other).
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Section
11. Independent
Director.
So
long
as any Obligation is outstanding, the Member shall cause the Company at all
times to have at least two (2) Independent Directors who will be appointed
by
the Member. All right, power and authority of the Independent
Directors shall be limited to those matters expressly provided in Section
10(j). To the fullest extent permitted by law, including
Section 18-1101(c) of the Act, the Independent Directors shall consider only
the
interests of the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section 10(j)(iii) of
this Agreement. No resignation or removal of an Independent Director,
and no appointment of a successor Independent Director, shall be effective
until
such successor (i) shall have accepted his or her appointment as an
Independent Director by a written instrument, which may be a counterpart
signature page to the Directors’ Agreement, and (ii) shall have executed a
counterpart to this Agreement as required by Section 6(c) of this
Agreement. In the event of a vacancy in the position of Independent
Director, the Member shall, as soon as practicable, appoint a successor
Independent Director. All right, power and authority of the
Independent Directors shall be limited to the extent necessary to exercise
those
rights and perform those duties specifically set forth in this
Agreement. Except as provided in the second sentence of this Section 11, in
exercising their rights and performing their duties under this Agreement, any
Independent Director shall have a fiduciary duty of loyalty and care similar
to
that of a director of a business corporation organized under the General
Corporation Law of the State of Delaware. No Independent Director
shall at any time serve as trustee in bankruptcy for the Company or any
Affiliate of the Company. The initial Independent Directors of the
Company designated by the Member are ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇.
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Section
12. Officers.
(a) Officers. The
initial Officers of the Company shall be designated by the Member. The
additional or successor Officers of the Company shall be chosen by the Board
and
shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice
Presidents, Assistant Secretaries and Assistant Treasurers. Any
number of offices may be held by the same person. The Board may
appoint such other Officers and agents as it shall deem necessary or advisable
who shall hold their offices for such terms and shall exercise such powers
and
perform such duties as shall be determined from time to time by the
Board. The salaries of all Officers and agents of the Company shall
be fixed by or in the manner prescribed by the Board. The Officers of
the Company shall hold office until their successors are chosen and
qualified. Any Officer may be removed at any time, with or without
cause, by the affirmative vote of a majority of the Board. Any
vacancy occurring in any office of the Company shall be filled by the
Board. The initial Officers of the Company designated by the Member
are listed on Schedule
E hereto.
(b) President. The
President shall be the chief executive officer of the Company, shall preside
at
all meetings of the Board, shall be responsible for the general and active
management of the business of the Company and shall see that all orders and
resolutions of the Board are carried into effect.
(c) Vice
President. In the absence of the President or in the event of
the President’s inability to act, the Vice President, if any (or in the event
there be more than one Vice President, the Vice Presidents in the order
designated by the Directors, or in the absence of any designation, then in
the
order of their election), shall perform the duties of the President, and when
so
acting, shall have all the powers of and be subject to all the restrictions
upon
the President. The Vice Presidents, if any, shall perform such other
duties and have such other powers as the Board may from time to time
prescribe. The Vice Presidents-Tax shall have the power and authority
to prepare, sign and otherwise deal with the Company’s tax returns.
(d) Secretary
and Assistant
Secretary. The Secretary shall be responsible for filing legal
documents and maintaining records for the Company. The Secretary
shall attend all meetings of the Board and record all the proceedings of the
meetings of the Company and of the Board in a book to be kept for that purpose
and shall perform like duties for the standing committees when
required. The Secretary shall give, or shall cause to be given,
notice of all meetings of the Member, if any, and special meetings of the Board,
and shall perform such other duties as may be prescribed by the Board or the
President, under whose supervision the Secretary shall serve. The
Assistant Secretary, or if there be more than one, the Assistant Secretaries
in
the order determined by the Board (or if there be no such determination, then
in
order of their election), shall, in the absence of the Secretary or in the
event
of the Secretary’s inability to act, perform the duties and exercise the powers
of the Secretary and shall perform such other duties and have such other powers
as the Board may from time to time prescribe.
(e) Treasurer
and Assistant
Treasurer. The Treasurer shall have the custody of the Company
funds and securities and shall keep full and accurate accounts of receipts
and
disbursements in books belonging to the Company and shall deposit all moneys
and
other valuable effects in the name and to the credit of the Company in such
depositories as may be
10
designated
by the Board. The Treasurer shall disburse the funds of the Company
as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the President and to the Board, at its regular meetings
or
when the Board so requires, an account of all of the Treasurer’s transactions
and of the financial condition of the Company. The Assistant
Treasurer, or if there shall be more than one, the Assistant Treasurers in
the
order determined by the Board (or if there be no such determination, then in
the
order of their election), shall, in the absence of the Treasurer or in the
event
of the Treasurer’s inability to act, perform the duties and exercise the powers
of the Treasurer and shall perform such other duties and have such other powers
as the Board may from time to time prescribe.
(f) Officers
as Agents;
Execution of Documents. The Officers, to the extent of their
powers set forth in this Agreement or otherwise vested in them by action of
the
Board not inconsistent with this Agreement, are agents of the Company for the
purpose of the Company’s business and, subject to Section 10(j) of this
Agreement, the actions of the Officers taken in accordance with such powers
shall bind the Company. Without limiting the foregoing, the
President, any Senior Vice President or Vice President or any other Officer
authorized by the President or the Board shall execute all bonds, mortgages
and
other contracts, except: (i) where required or permitted by law or
this Agreement to be otherwise signed and executed, including Section 8(b) of this
Agreement; or (ii) where signing and execution thereof shall be expressly
delegated by the Board to some other Officer or agent of the
Company.
(g) Duties
of Board and
Officers. Except to the extent otherwise provided herein, each
Director and Officer shall have a fiduciary duty of loyalty and care similar
to
that of directors and officers of business corporations organized under the
General Corporation Law of the State of Delaware.
Section
13. Limited
Liability.
Except
as
otherwise expressly provided by the Act, the debts, obligations and liabilities
of the Company, whether arising in contract, tort or otherwise, shall be the
debts, obligations and liabilities solely of the Company, and neither the Member
nor the Special Members nor any Director shall be obligated personally for
any
such debt, obligation or liability of the Company solely by reason of being
a
Member, Special Member or Director of the Company.
Section
14. Capital
Contributions.
The
Member has contributed to the Company property of an agreed value as listed
on
Schedule B
attached hereto. In accordance with Section 6(c) of this
Agreement, the Special Members shall not be required to make any capital
contributions to the Company.
Section
15. Additional
Contributions.
The
Member is not required to make any additional capital contribution to the
Company. However, the Member may make additional capital contributions to the
Company at any time. The provisions of this Section 15 are
intended to benefit the Member and the Special Members and, to the fullest
extent permitted by law, shall not be construed as conferring any benefit upon
any creditor of the Company (and no such creditor of the Company shall be a
third-party beneficiary of this Agreement) and the Member and the Special
Members shall not have any
11
duty
or
obligation to any creditor of the Company to make any contribution to the
Company or to issue any call for capital pursuant to this Agreement (it being
understood that the Member may agree separately in writing to make capital
contributions to the Company, any limitations on such contributions to be
described in such writing).
Section
16. Allocation of Profits
and
Losses.
The
Company’s profits and losses shall be allocated to the Member.
Section
17. Distributions.
Distributions
shall be made to the Member at the times and in the aggregate amounts determined
by the Board. Notwithstanding any provision to the contrary contained
in this Agreement, the Company shall not be required to make a distribution
to
the Member on account of its interest in the Company if such distribution would
violate Section 18-607 of the Act or any other applicable law or any Transaction
Document.
Section
18. Books and
Records.
The
Company, under the direction of the Board, shall keep or cause to be kept
complete and accurate books of account and records with respect to the Company’s
business. The books of the Company shall at all times be maintained
under the direction of the Board. The Member and its duly authorized
representatives shall have the right to examine the Company books, records
and
documents during normal business hours. The Company, and the Board on
behalf of the Company, shall not have the right to keep confidential from the
Member any information that the Board would otherwise be permitted to keep
confidential from the Member pursuant to Section 18-305(c) of the
Act. The Company’s books of account shall be kept using the method of
accounting determined by the Member. The Company’s independent
auditor, if any, shall be an independent public accounting firm selected by
the
Member.
Section
19. Reports.
(a) Within
sixty (60) days after the end of each fiscal quarter, the Company shall prepare
or cause to be prepared an unaudited report setting forth as of the end of
such
fiscal quarter:
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(i)
|
unless
such quarter is the last fiscal quarter, a balance sheet of the Company;
and
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(ii)
|
unless
such quarter is the last fiscal quarter, an income statement of the
Company for such fiscal quarter.
|
(b) The
Company shall use diligent efforts to cause to be prepared and mailed to the
Member, within ninety (90) days after the end of each fiscal year, an audited
or
unaudited report setting forth as of the end of such fiscal year:
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(i)
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a
balance sheet of the Company;
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(ii)
|
an
income statement of the Company for such fiscal year;
and
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12
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(iii)
|
a
statement of the Member’s capital
account.
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(c) The
Company shall, after the end of each fiscal year, use reasonable efforts to
cause the Company’s independent accountants, if any, to prepare and transmit to
the Member as promptly as possible any such tax information as may be reasonably
necessary to enable the Member to prepare its federal, state and local income
tax returns relating to such fiscal year. Nothing in this Section 19 shall
limit the Company from hiring a person or company to perform its bookkeeping,
accounting or other related services.
Section
20. Other
Business.
The
Member, the Special Members and any Affiliate of the Member or the Special
Members may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently
or
with others. The Company shall not have any rights in or to such
independent ventures or the income or profits therefrom by virtue of this
Agreement.
Section
21. Exculpation and
Indemnification.
(a) To
the fullest extent permitted by law, neither the Member nor the Special Members
nor any Officer, Director, employee or agent of the Company nor any employee,
representative, agent or Affiliate of the Member or the Special Members
(collectively, the “Covered Persons”)
shall be liable to the Company or any other Person who has an interest in or
claim against the Company for any loss, damage or claim incurred by reason
of
any act or omission performed or omitted by such Covered Person in good faith
on
behalf of the Company and in a manner reasonably believed to be within the
scope
of the authority conferred on such Covered Person by this
Agreement.
(b) To
the fullest extent permitted by applicable law, a Covered Person shall be
entitled to indemnification from the Company for any loss, damage or claim
incurred by such Covered Person by reason of any act or omission performed
or
omitted by such Covered Person in good faith on behalf of the Company and in
a
manner reasonably believed to be within the scope of the authority conferred
on
such Covered Person by this Agreement, except that no Covered Person shall
be
entitled to be indemnified in respect of any loss, damage or claim incurred
by
such Covered Person by reason of such Covered Person’s gross negligence or
willful misconduct with respect to such acts or omissions; provided, however,
that any
indemnity under this Section 21 by the
Company shall be provided out of and to the extent of Company assets only,
and
the Member and the Special Members shall not have personal liability on account
thereof; and providedfurther,
that so long
as any Obligation is outstanding, no indemnity payment from funds of the Company
(as distinct from funds from other sources, such as insurance) of any indemnity
under this Section
21 shall be payable from amounts allocable to any other Person pursuant
to the Transaction Documents.
(c) To
the fullest extent permitted by applicable law, expenses (including legal fees)
incurred by a Covered Person defending any claim, demand, action, suit or
proceeding shall, from time to time, be advanced by the Company prior to the
final disposition of such claim, demand, action, suit or proceeding upon receipt
by the Company of an undertaking by or on
13
behalf
of
the Covered Person to repay such amount if it shall be determined that the
Covered Person is not entitled to be indemnified as authorized in this Section 21; provided,
however,
that any
indemnity under this Section 21 by the
Company shall be provided out of and to the extent of Company assets only,
and
the Member and the Special Members shall not have personal liability on account
thereof; and providedfurther,
that so long
as any Obligation is outstanding, no indemnity payment from funds of the Company
(as distinct from funds from other sources, such as insurance) of any indemnity
under this Section
21 shall be payable from amounts allocable to any other Person pursuant
to the Transaction Documents.
(d) A
Covered Person shall be fully protected in relying in good faith upon the
records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person’s professional or expert
competence and who has been selected with reasonable care by or on behalf of
the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To
the extent that, at law or in equity, a Covered Person has duties (including
fiduciary duties) and liabilities relating thereto to the Company or to any
other Covered Person, a Covered Person acting under this Agreement shall not
be
liable to the Company or to any other Covered Person for its good faith reliance
on the provisions of this Agreement or any approval or authorization granted
by
the Company or any other Covered Person.
(f) The
foregoing provisions of this Section 21 shall
survive any termination of this Agreement.
(g) Until
the date which is one year and one day after the date on which no Obligation
remains outstanding, each of the Covered Persons, solely in its capacity as
a
creditor of the Company on account of any indemnification or other payment
owing
to the Covered Person by the Company, shall be deemed to agree by such Covered
Person’s acceptance of the rights and benefits provided by this Section 21 (i) not
to
acquiesce, petition or otherwise invoke or cause the Company to invoke the
process of any court or governmental authority for the purpose of commencing
or
sustaining a case against the Company under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or
any
substantial part of the property of the Company, or ordering the winding up
or
liquidation of the affairs of the Company, and (ii) not to join with or
cooperate or encourage any other Person to do any of the foregoing.
Section
22. Assignments.
Subject
to Section 24
of this Agreement, the Member may assign in whole or in part its limited
liability company interest in the Company. If the Member transfers
all of its limited liability company interest in the Company pursuant to this
Section 22, the
transferee shall be admitted to the Company as a member of the Company upon
its
execution of an instrument signifying its agreement to be bound by the terms
and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective
immediately prior to the transfer and, immediately following such
admission,
14
the
transferor Member shall cease to be a member of the
Company. Notwithstanding anything in this Agreement to the contrary,
any successor to the Member by merger or consolidation in compliance with the
Transaction Documents shall, without further act, be the Member hereunder,
and
such merger or consolidation shall not constitute an assignment for purposes
of
this Agreement and the Company shall continue without dissolution.
Section
23. Resignation.
So
long
as any Obligation is outstanding, the Member may not resign, except as permitted
under the Transaction Documents and if the Rating Agency Condition is
satisfied. If the Member is permitted to resign pursuant to this
Section 23, an
additional member of the Company shall be admitted to the Company, subject
to
Section 24 of
this Agreement, upon its execution of an instrument signifying its agreement
to
be bound by the terms and conditions of this Agreement, which instrument may
be
a counterpart signature page to this Agreement. Such admission shall
be deemed effective immediately prior to the resignation and, immediately
following such admission, the resigning Member shall cease to be a member of
the
Company.
Section
24. Admission of Additional
Members.
One
or
more additional members of the Company may be admitted to the Company with
the
written consent of the Member; provided, however,
that,
notwithstanding the foregoing, so long as any Obligation remains outstanding,
no
additional Member may be admitted to the Company unless the Rating Agency
Condition is satisfied.
Section
25. Dissolution.
(a) Subject
to Section
10(j) of this Agreement, the Company shall be dissolved, and its affairs
shall be wound up upon the first to occur of the following: (i) the
termination of the legal existence of the last remaining member of the Company
or the occurrence of any other event which terminates the continued membership
of the last remaining member of the Company in the Company unless the business
of the Company is continued in a manner permitted by this Agreement or the
Act
or (ii) the entry of a decree of judicial dissolution under Section 18-802
of
the Act. Upon the occurrence of any event that causes the last
remaining Member to cease to be a member of the Company, to the fullest extent
permitted by law, the personal representative of such Member is hereby
authorized to, and shall, within 90 days after the occurrence of the event
that
terminated the continued membership of such Member in the Company, agree in
writing (i) to continue the Company and (ii) to the admission of the
personal representative or its nominee or designee, as the case may be, as
a
substitute member of the Company, effective as of the occurrence of the event
that terminated the continued membership of the last remaining Member in the
Company.
(b) Notwithstanding
any other provision of this Agreement, the Bankruptcy of the Member or a Special
Member shall not cause the Member or Special Member, respectively, to cease
to
be a member of the Company and upon the occurrence of such an event, the
business of the Company shall continue without dissolution.
(c) Notwithstanding
any other provision of this Agreement, each of the Member and the Special
Members waives any right it might have to agree in writing to dissolve the
Company
15
upon
the
Bankruptcy of the Member or a Special Member, or the occurrence of an event
that
causes the Member or a Special Member to cease to be a member of the
Company.
(d) In
the event of dissolution, the Company shall conduct only such activities as
are
necessary to wind up its affairs (including the sale of the assets of the
Company in an orderly manner), and the assets of the Company shall be applied
in
the manner, and in the order of priority, set forth in Section 18-804 of the
Act.
(e) The
Company shall terminate when (i) all of the assets of the Company, after payment
of or due provision for all debts, liabilities and obligations of the Company
shall have been distributed to the Member in the manner provided for in this
Agreement and (ii) the Certificate of Formation shall have been canceled in
the
manner required by the Act.
Section
26. Waiver of Partition;
Nature
of Interest.
Except
as
otherwise expressly provided in this Agreement, to the fullest extent permitted
by law, each of the Member and the Special Members hereby irrevocably waives
any
right or power that such Person might have to cause the Company or any of its
assets to be partitioned, to cause the appointment of a receiver for all or
any
portion of the assets of the Company, to compel any sale of all or any portion
of the assets of the Company pursuant to any applicable law or to file a
complaint or to institute any proceeding at law or in equity to cause the
dissolution, liquidation, winding up or termination of the
Company. The Member shall not have any interest in any specific
assets of the Company, and the Member shall not have the status of a creditor
with respect to any distribution pursuant to Section 17 of this
Agreement. The interest of the Member in the Company is personal
property.
Section
27. Benefits of Agreement;
No
Third-Party Rights.
None
of
the provisions of this Agreement shall be for the benefit of or enforceable
by
any creditor of the Company or by any creditor of the Member or a Special Member
except for the provisions of Sections 6(c), 10(j),
11,
21(b),
22,
23,
24,
25(b)
and (c), 27
and 32 of this
Agreement
(such provisions, the “Third-Party Benefit
Provisions”). Nothing in this Agreement other than the
Third-Party Benefit Provisions shall be deemed to create any right in any Person
(other than Covered Persons) not a party hereto, and this Agreement shall not
be
construed in any respect to be a contract in whole or in part for the benefit
of
any third Person (except as provided in Section 30 of this
Agreement and except for the Third-Party Benefit Provisions).
Section
28. Severability of
Provisions.
Each
provision of this Agreement shall be considered severable and if for any reason
any provision or provisions herein are determined to be invalid, unenforceable
or illegal under any existing or future law, such invalidity, unenforceability
or illegality shall not impair the operation of or affect those portions of
this
Agreement which are valid, enforceable and legal.
Section
29. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof.
16
Section
30. Binding
Agreement.
Notwithstanding
any other provision of this Agreement, the Member agrees that this Agreement,
including, without limitation, Sections 8, 9,
10,
11,
21,
22,
23,
24,
25,
27,
30
and 32 of this
Agreement,
constitutes a legal, valid and binding agreement of the Member, and is
enforceable against the Member by the Independent Directors, in accordance
with
its terms. In addition, the Independent Directors shall be intended
beneficiaries of this Agreement.
Section
31. Governing
Law.
This
Agreement shall be governed by and construed under the laws of the State of
Delaware.
Section
32. Amendments.
Subject
to Section
10(j) of this Agreement, this Agreement may be modified, altered,
supplemented or amended pursuant to a written agreement executed and delivered
by the Member. Notwithstanding anything to the contrary in this
Agreement, so long as any Obligation is outstanding, this Agreement may not
be
modified, altered, supplemented or amended unless the Rating Agency Condition
is
satisfied except: (i) to cure any ambiguity or (ii) to convert or supplement
any
provision in a manner consistent with the intent of this Agreement and the
Transaction Documents.
Notwithstanding
any other provision of this Agreement, Schedule B hereto may
be amended without the prior written consent of any party.
Section
33. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original of this Agreement and all of which together shall constitute
one and the same instrument.
Section
34. Notices.
Any
notices required to be delivered hereunder shall be in writing and personally
delivered, mailed or sent by telecopy, electronic mail or other similar form
of
rapid transmission, and shall be deemed to have been duly given upon receipt
(a)
in the case of the Company, to the Company at its address in Section 3 of this
Agreement, (b) in the case of the Member, to the Member at its address as listed
on Schedule B
attached hereto and (c) in the case of either of the foregoing, at such other
address as may be designated by written notice to the other party.
Section
35. Effectiveness.
Pursuant
to Section 18-201(d) of the Act, this Agreement shall be effective as of the
time of the filing of the Certificate of Formation with the Office of the
Delaware Secretary of State on August 20, 2007.
[signature
page follows]
17
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have
duly executed this Limited Liability Company Agreement as of the 20th
day of August,
2007.
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MEMBER:
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SUNTRUST
MORTGAGE, INC.
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
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Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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|||
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Title:
Senior Vice President
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ACKNOWLEDGED
AND AGREED:
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| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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|||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
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Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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S-1
SCHEDULE
A
Definitions
A. Definitions
When
used
in this Agreement, the following terms not otherwise defined herein have the
following meanings:
“Act”
has
the meaning
assigned to such term in Section 1 of this
Agreement.
“Affiliate”
means,
with respect to any specified Person, any other Person controlling, controlled
by or under common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing. A Person shall not be deemed
to be an Affiliate of any specified Person solely because such other Person
has
the contractual right or obligation to manage such specified Person or act
as
servicer with respect to the financial assets of such specified Person unless
such other Person controls the specified Person through equity ownership or
otherwise.
“Agreement”
means
this
Limited Liability Company Agreement of the Company, together with the schedules
attached hereto, as amended, restated or supplemented or otherwise modified
from
time to time.
“Assets”
means
one or
more of the following types of collateral pledged or sold to secure payment
of
Securities:
(i) mortgage
loans (including deeds of trust) secured by senior or subordinate liens on
residential property;
(ii) participation
interests in mortgage loans;
(iii) mortgage
loans subject to temporary interest subsidy agreements;
(iv) mortgage
loans (including deeds of trust) secured by senior or subordinate liens on
multifamily residential properties;
(v) mortgage
loans (including deeds of trust) secured by senior or subordinate liens on
mixed
residential and commercial real estate properties;
(vi) apartment
cooperative loans;
(vii) manufactured
housing installment sales contracts and installment loan
agreements;
(viii) mortgage
loans subject to temporary buy down plans;
A-1
(ix) closed-end
or revolving home equity loans or balances secured by senior or subordinate
loans on residential property;
(x) mortgage
loans that, in addition to being secured by the related Mortgaged Property,
are
also secured by an interest in marketable securities; (i) insurance policies,
annuities, certificates of deposit, cash, accounts, real estate of a third
party
guarantor or other personal property (“Pledged Assets”) or (ii) supported by a
third party guarantee which in turn is supported by a security interest in
certain Pledged Assets owned by such third party guarantor;
(xi) pass-through,
mortgage-backed certificates as to which ▇▇▇▇▇▇ ▇▇▇ guarantees the timely
payment of interest at the pass-through rate and the timely payment of
principal;
(xii) pass-through,
mortgage-backed certificates as to which ▇▇▇▇▇▇▇ Mac guarantees timely payment
at the participation certificate rate and the ultimate collection of all
principal;
(xiii) pass-through,
mortgage-backed certificates as to which the Government National Mortgage
Association guarantees timely payment of principal installments and interest
fixed on the certificates;
(xiv) pass-through,
mortgage-backed certificates as to which the United States Department of
Veterans Affairs guarantees the timely payment of interest at the pass-through
rate and the timely payment of principal;
(xv) regular
or residual interests in real estate mortgage investment conduits;
(xvi) swaps,
▇▇▇▇▇▇, cap contracts, guarantees and any other derivative instruments or credit
enhancement products;
(xvii) any
other interests in mortgage loans or mortgage-related assets, including
ownership interests in trusts or other Persons that own mortgage loans or
mortgage-related assets, mortgage pass-through certificates, mortgage
participations, mortgage-backed securities, mortgage-collateralized obligations,
or any other mortgage-related securities;
(xviii) entitlements
to payments on or other interests in mortgage loans, certificates, or
obligations or interests in real property; and
any
and
all other property, proceeds, supporting obligations, documents or instruments
related to any of the foregoing.
“Bankruptcy”
means,
with respect to any Person, if such Person (i) makes an assignment for the
benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii)
is
adjudged a bankrupt or insolvent, or has entered against it an order for relief,
in any bankruptcy or insolvency proceedings, (iv) files a petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation or similar relief under any statute, law or
A-2
regulation,
(v) files an answer or other pleading admitting or failing to contest the
material allegations of a petition filed against it in any proceeding of this
nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator of the Person or of all or any substantial part of its
properties, or (vii) if one hundred twenty (120) days after the commencement
of
any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute,
law
or regulation, if the proceeding has not been dismissed, or if within 90 days
after the appointment without such Person’s consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial
part
of its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not
vacated. The foregoing definition of “Bankruptcy” is intended to
replace and shall supersede and replace the definition of “Bankruptcy” set forth
in Sections 18-101(1) and 18-304 of the Act.
“Board”
or
“Board
of Directors”
means the Board of Directors of the Company.
“Certificate
of
Formation” means the Certificate of Formation of the Company filed with
the Secretary of State of the State of Delaware on August 20, 2007, as amended
or amended and restated from time to time.
“Company”
means
SunTrust Mortgage Securitization, LLC, a Delaware limited liability
company.
“Covered
Persons” has
the meaning set forth in Section 21(a) of this
Agreement.
“Directors”
means
the
Persons elected to the Board of Directors from time to time by the Member,
including the Independent Directors, in their capacity as managers of the
Company. A Director is hereby designated as a “manager” of the
Company within the meaning of Section 18-101(10) of the Act.
“Directors’
Agreement”
means the agreement of the Directors in the form attached hereto as Schedule
C. The Directors’ Agreement shall be deemed incorporated into,
and a part of, this Agreement.
“Independent
Director”
means a natural person who, for the five-year period prior to his or
her
appointment as Independent Director has not been, and during the continuation
of
his or her service as Independent Director is not: (i) an employee,
director, stockholder, partner or officer of the Company or any of its
Affiliates (other than his or her service as an Independent Director of the
Company or any of its Affiliates); (ii) a customer or supplier of the Company
or
any of its Affiliates; or (iii) any member of the immediate family of a person
described in (i) or (ii). A natural person who satisfies the
foregoing definition other than subparagraph (ii) shall not be disqualified
from
serving as an Independent Director if such individual is an Independent Director
provided by a nationally-recognized company that provides professional
independent directors.
“Issuer”
has
the
meaning assigned to such term in Section 8(a)(iv) of
this Agreement.
“Material
Action”
means to institute proceedings to have the Company be adjudicated bankrupt
or
insolvent, or consent to the institution of bankruptcy or insolvency
proceedings
A-3
against
the Company or file a petition seeking, or consent to, reorganization or relief
with respect to the Company 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 Company
or a
substantial part of its property, or make any assignment for the benefit of
creditors of the Company, or admit in writing the Company’s inability to pay its
debts generally as they become due, or, to the fullest extent permitted by
law,
take action in furtherance of any such action.
“Member”
means
SunTrust Mortgage, Inc., as the initial member of the Company, and includes
any
Person admitted as an additional member of the Company or a substitute member
of
the Company pursuant to the provisions of this Agreement, each in its capacity
as a member of the Company; provided, however,
the term “Member”
shall not include the Special Members.
“Obligations”
shall
mean any Securities and the indebtedness, liabilities and obligations of the
Company under or in connection with this Agreement, the other Transaction
Documents or any related document in effect as of any date of
determination.
“Officer”
means
an
officer of the Company described in Section 12 of this
Agreement.
“Person”
means
an
individual, partnership, joint venture, corporation, national banking
association, trust, limited liability company, other entity, association or
unincorporated organization, and a government or agency or political subdivision
thereof.
“Rating
Agencies”
means, at any time, the nationally recognized statistical rating organizations
which are then providing a rating for any rated Securities.
“Rating
Agency
Condition” means, with respect to any action, that each Rating Agency
shall have been given 10 days’ prior notice thereof (or such shorter period as
shall be acceptable to the Rating Agencies) and that none of the Rating Agencies
shall have notified the Company or the applicable master servicer, owner trustee
or indenture trustee in writing that such action will, in and of itself, result
in a reduction, qualification or withdrawal of the then current rating of any
Securities.
“Securities”
means
any
certificates, bonds, notes, debt or equity securities, obligations, and other
investment securities or instruments issued by a Trust that are collateralized
or otherwise secured or backed by Assets, or that otherwise represent interests
in any Trust.
“Special
Member”
means, upon such person’s admission to the Company as a member of the Company
pursuant to Section
6(c) of this Agreement, a person acting as Independent Director, in such
person’s capacity as a member of the Company. A Special Member shall
only have the rights and duties expressly set forth in this
Agreement.
“Third
Party Benefit
Provisions” has the meaning assigned to such term in Section 27 of
this
Agreement.
“Transaction
Documents” has the meaning assigned to such term in Section 8(b) of
this
Agreement.
A-4
B. Rules
of
Construction
A-5
SCHEDULE
B
Member
|
Name
|
Mailing
Address
|
Agreed
Value of
Capital
Contribution
|
Membership
Interest
|
|
SunTrust
Mortgage, Inc.
|
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
$1,000
|
100%
|
B-1
SCHEDULE
C
Directors’
Agreement
________,
2007
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Re: Directors’
Agreement
–
SunTrust
Mortgage Securitization, LLC
Ladies
and Gentlemen:
For
good
and valuable consideration, each of the undersigned Persons, who have been
designated as directors of SunTrust Mortgage Securitization, LLC, a Delaware
limited liability company (the “Company”), in
accordance with the Limited Liability Company Agreement of the Company, dated
as
of August 20, 2007, as it may be amended or restated from time to time (the
“LLC
Agreement”), hereby agree as follows:
1. Each
of the undersigned accepts such person’s rights and authority as a Director
under the LLC Agreement and agrees to perform and discharge such person’s duties
and obligations as a Director under the LLC Agreement, and further agrees that
such rights, authorities, duties and obligations under the LLC Agreement shall
continue until such person’s successor as a Director is designated or until such
person’s resignation or removal as a Director in accordance with the LLC
Agreement. Each of the undersigned agrees and acknowledges that it
has been designated as a “manager” of the Company within the meaning of the
Delaware Limited Liability Company Act. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ represent and warrant that they are Independent
Directors.
2. Until
the date which is one year and one day after the date on which no
Obligation (as defined in the LLC Agreement) remains outstanding,
each of the undersigned agrees, solely in its capacity as a creditor of the
Company on account of any indemnification or other payment owing to the
undersigned by the Company, (A) not to acquiesce, petition or otherwise invoke
or cause the Company to invoke the process of any court or governmental
authority for the purpose of commencing or sustaining a case against the Company
under any federal or state bankruptcy, insolvency or similar law or appointing
a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Company or any substantial part of the property of
the
Company, or ordering the winding up or liquidation of the affairs of the
Company, and (B) not to join with or cooperate or encourage any other Person
to
do any of the foregoing.
3. THIS
DIRECTORS’ AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE.
Capitalized
terms used and not otherwise defined herein have the meanings set forth in
the
LLC Agreement.
C-1
This
Directors’ Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Directors’ Agreement and all of which
together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the undersigned have executed this Directors’ Agreement as of
the day and year first above written.
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇.
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
|
|
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
C-2
SCHEDULE
D
DIRECTORS
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
▇-▇
SCHEDULE
E
|
OFFICERS
|
TITLE
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
President
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇.
|
Vice
President
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Vice
President and Principal Accounting
Officer
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Secretary
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇.
|
Vice
President-Tax
|
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Vice
President-Tax
|
|
▇▇▇▇▇
▇. ▇▇▇▇▇
|
Vice
President-Tax
|
|
|
E-1