Exhibit 3.1(ii)
LIMITED LIABILITY COMPANY AGREEMENT
OF
SUNTRUST REAL ESTATE TRUST, LLC,
a Delaware Limited Liability Company
This Limited Liability Company Agreement (together with the schedules
attached hereto, this "Agreement") of SunTrust Real Estate Trust, LLC (the
"Company"), is adopted, executed and entered into by SunTrust Xxxxxxxx Xxxxxxxx
Funding, LLC, as the sole equity member (the "Member"), and Xxxxxx X. Xxxxxxx
and Xxxxxx X. XxXxxx, 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. ss. 18-101
et seq.), 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 000
Xxxxxxxxx Xxxxxx, X.X, 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, 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 The Corporation Trust Company, Corporation Trust Center, 1209
Orange Street, County of Xxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
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 The Corporation Trust
Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000.
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.
XxXxxxx X. Xxxx 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 which the Company may wish to conduct
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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:
(i) 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;
(ii) 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;
(iii) to incur, assume, or guaranty indebtedness to the extent not
prohibited under Section 10(j) of this Agreement;
(iv) 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;
(v) 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;
(vi) 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
(vii) 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 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.
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(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.
(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
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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.
(i) 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.
(ii) 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.
(iii) 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 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) 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.
(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.
(i) 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.
(ii) 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.
(iii) 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 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.
(iv) 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;
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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:
(A) 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;
(B) observe all requirements of the Delaware Limited Liability
Company Act, the Certificate of Formation and this Agreement;
(C) 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;
(D) readily identify and allocate any sharing of overhead expenses
between the Company and the Member;
(E) 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;
(F) 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;
(G) declare and pay all distributions in accordance with law, the
provisions of its organic documents, and the provisions of the
Transaction Documents;
(H) 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;
(I) maintain its own books of account and records separate from the
Member or any other subsidiary or Affiliate of the Member;
(J) 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) properly reflect in its financial records all monetary
transactions between it and the Member or any other subsidiary or
Affiliate of the Member;
(L) maintain an arm's length relationship with its Affiliates and the
Member;
(M) not hold out its credit or assets as being available to satisfy
the obligations of others;
(N) use separate stationery and checks;
(O) except as contemplated by the Transaction Documents, not pledge
its assets for the benefit of any other Person;
(P) maintain adequate capital in light of its contemplated business
purpose, transactions and liabilities; and
(Q) 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.
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.
(v) So long as any Obligation is outstanding, the Board shall not cause or
permit the Company to:
(A) except as contemplated by the Transaction Documents, guarantee
any obligation of any Person, including any Affiliate;
(B) 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;
(C) incur, create or assume any indebtedness for borrowed money other
than as expressly permitted hereunder and under the Transaction
Documents;
(D) 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;
(E) 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
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expressly permitted pursuant to any provision of the Transaction
Documents; or
(F) except as contemplated by Section 8(a) of this Agreement, form,
acquire or hold any subsidiary (whether corporate, partnership,
limited liability company or other).
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 Xxxxxx X.
Xxxxxxx and Xxxxxx X. XxXxxx.
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.
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(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 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
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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 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.
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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:
(i) unless such quarter is the last fiscal quarter, a balance sheet of the
Company; and
(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:
(i) a balance sheet of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
(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.
12
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 provided further, 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 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 provided further, 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.
13
(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, 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.
14
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 ninety (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 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
15
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.
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.
16
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 July 18, 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 18th day
of July, 2007.
MEMBER:
SUNTRUST XXXXXXXX XXXXXXXX
FUNDING, LLC
By: SunTrust Bank, its sole member
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
ACKNOWLEDGED AND AGREED:
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
/s/ Xxxxxx X. XxXxxx
-------------------------------------------
Name: Xxxxxx X. XxXxxx
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:
(1) mortgage loans (including deeds of trust) secured by senior or
subordinate liens on residential property;
(2) participation interests in mortgage loans;
(3) mortgage loans subject to temporary interest subsidy agreements;
(4) mortgage loans (including deeds of trust) secured by senior or
subordinate liens on multifamily residential properties;
(5) mortgage loans (including deeds of trust) secured by senior or
subordinate liens on mixed residential and commercial real estate
properties;
(6) apartment cooperative loans;
(7) manufactured housing installment sales contracts and installment
loan agreements;
(8) mortgage loans subject to temporary buy down plans;
A-1
(9) closed-end or revolving home equity loans or balances secured by
senior or subordinate loans on residential property;
(10) 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;
(11) pass-through, mortgage-backed certificates as to which Xxxxxx Mae
guarantees the timely payment of interest at the pass-through rate and the
timely payment of principal;
(12) pass-through, mortgage-backed certificates as to which Xxxxxxx
Mac guarantees timely payment at the participation certificate rate and the
ultimate collection of all principal;
(13) 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;
(14) 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;
(15) regular or residual interests in real estate mortgage investment
conduits;
(16) swaps, xxxxxx, cap contracts, guarantees and any other derivative
instruments or credit enhancement products;
(17) 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;
(18) entitlements to payments on or other interests in mortgage loans,
certificates, or obligations or interests in real property; and
(19) 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
A-2
or 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 ninety (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 ninety (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 July 18,
2007, as amended or amended and restated from time to time.
"Company" means SunTrust Real Estate Trust, 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.
"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 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
A-3
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 Xxxxxxxx Xxxxxxxx Funding, LLC, 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 ten (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
"Trust" means each trust established by or on behalf of the Company or
other Person in connection with the issuance or sale of any Securities.
B. Rules of Construction
Definitions in this Agreement apply equally to both the singular and plural
forms of the defined terms. The words "include" and "including" shall be deemed
to be followed by the phrase "without limitation." The terms "herein," "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a
whole and not to any particular Section, paragraph or subdivision. The Section
titles appear as a matter of convenience only and shall not affect the
interpretation of this Agreement. All Section, paragraph, clause, Exhibit or
Schedule references not attributed to a particular document shall be references
to such parts of this Agreement.
A-5
SCHEDULE B
Member
------
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
---- --------------- -------------------- --------
SunTrust Xxxxxxxx 000 Xxxxxxxxx Xxxxxx, $1,000 100%
Xxxxxxxx Funding, N.E., 23rd Floor, Atlanta,
LLC GA 30308
B-1
SCHEDULE C
Directors' Agreement
--------------------
________, 2007
SunTrust Real Estate Trust, LLC
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Re: Directors' Agreement - SunTrust Real Estate Trust, LLC
------------------------------------------------------
Ladies and Gentlemen:
For good and valuable consideration, each of the undersigned Persons, who
have been designated as directors of SunTrust Real Estate Trust, LLC, a Delaware
limited liability company (the "Company"), in accordance with the Limited
Liability Company Agreement of the Company, dated as of ________, 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. Xxxxxx X. Xxxxxxx and
Xxxxxx X. XxXxxx 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: Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. XxXxxx
C-2
SCHEDULE D
DIRECTORS
---------
Xxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. XxXxxx
X-0
SCHEDULE E
OFFICERS TITLE
-------- -----
Xxxx X. Xxxxxxxxx President
Xxxx X. Xxxxxx Vice President
Xxxxx X. Xxxx Vice President
Xxxxx X. Xxxxxxxxx Vice President
Xxxxxx X. Panther Vice President and Principal Accounting
Officer
Xxxxxxxx X. Xxxx Secretary
Xxxxx X. Xxxxxxx Vice President - Tax
Xxxx X. Xxxxxxxxxx Vice President - Tax
Xxxxxxx Xxxx Xxxxx Vice President - Tax
Xxxxxxxx X. Xxxxxxxx Vice President - Tax
Xxxxxxx X. Xxxxxx Vice President - Tax
Xxxxx X. Xxxxx Vice President - Tax
Xxxxxxxx Xxxxx Vice President - Tax
Xxxxxxx X. Xxxxxxx Vice President - Tax
Xxxxxxx X. Xxxxxx Vice President - Tax
Xxxxxx X. Xxxxxx Xx. Vice President - Tax
Xxxx X. Xxxxxxx Vice President - Tax
Xxxxxx X. Xxxxx Vice President - Tax
Xxxxx X. Xxxxx Vice President - Tax
E-1
