EXHIBIT 3.1b
RESTATED CERTIFICATE OF INCORPORATION
OF
SEQUOIA RESIDENTIAL FUNDING, INC.
The undersigned, as the sole incorporator of Sequoia Residential
Funding, Inc., a corporation organized and existing under the laws of the State
of Delaware (the "Corporation"), hereby certifies as follows:
FIRST: The name of the Corporation is Sequoia Residential Funding, Inc.
and the original Certificate of Incorporation of the Corporation was filed with
the Secretary State of the State of Delaware on September 1, 1999.
SECOND: The Corporation has not received any payment for any of its
stock.
THIRD: On May 30, 2002, a resolution amending and restating the
Certificate of Incorporation of the Corporation, to read in its entirety as set
forth in Exhibit A attached hereto, was duly adopted by written consent of the
sole incorporator of the Corporation, all in accordance with the provisions of
Sections 241 and 245 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, this Certificate is signed by the Corporation's sole
incorporator, Phillip R. Pollock, who hereby acknowledges that the facts herein
stated are true and that this Certificate is his act and deed, this 31st day of
May, 2002.
/s/ Phillip R. Pollock
----------------------------
Phillip R. Pollock
Sole Incorporator
EXHIBIT A
FIRST: Name. The name of the corporation (the "Corporation") is Sequoia
Residential Funding, Inc.
SECOND: Delaware Office and Registered Agent. The address of its
registered office in the State of Delaware is The Corporation Trust Company,
1209 Orange Street, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Corporation Trust Company.
THIRD: Purpose. The nature of the business to be conducted is limited
solely to the following, to be conducted directly by the Corporation or through
one or more subsidiaries:
(a) to acquire mortgage loans and participations therein and
mortgage securities ("mortgage assets") from time to time by
contribution or purchase for the purpose of effecting the securitization
thereof, either directly or through other entities, and whether such
securitization involves the issuance of securities ("Securities") backed
by or evidencing an interest in, such mortgage assets;
(b) to enter into agreements for the servicing and administration
of mortgage assets;
(c) to hold, sell, transfer, pledge or otherwise dispose of
interests in mortgage assets and the proceeds thereof from time to time;
(d) to issue debt secured by mortgage assets;
(e) to hold, pledge or otherwise deal with Securities and to loan
or invest or otherwise apply proceeds from mortgage assets, funds
received in respect of Securities and any other income as determined by
the Board of Directors of the Corporation; and
(f) to engage in any activity and to exercise any powers
permitted to corporations under the laws of the State of Delaware,
provided that they are incident to the foregoing and necessary or
convenient to accomplish the foregoing.
FOURTH: Capitalization. The total number of shares of stock which the
Corporation shall have authority to issue is One Hundred (100) shares, all of
one class and designated Common Stock, and having a par value of One Cent
($0.01) per share.
FIFTH: Incorporator. The name and mailing address of the incorporator is
as follows: Phillip R. Pollock, Esq., c/o Tobin & Tobin, 500 Sansome Street, 8th
Floor, San Francisco, California 94111.
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SIXTH: Indemnification. The Corporation shall, to the full extent
permitted by Section 145 of the General Corporation Law of the State of
Delaware, as amended from time to time (the "Delaware General Corporation Law"),
indemnify all persons whom it may indemnify pursuant thereto.
SEVENTH: Special Provisions. The following provisions are for the
management of the business and for the conduct of the affairs of the Corporation
and for the further creation, definition, limitation and regulation of the
powers of the Corporation and of its directors and stockholders:
(a) Subject to the remainder of this subparagraph (a), the number of
directors of the Corporation shall be fixed by, or in the manner provided in,
the Bylaws of the Corporation. At all times, there shall be not fewer than two
(2) Independent Directors on the board of directors of the Corporation. For
purposes of this Certificate of Incorporation, "Independent Director" shall mean
an individual who is not (and is not an associate of) any direct, indirect or
beneficial stockholder, officer, director, employee, affiliate, associate,
customer, advisor or supplier of RWT Holdings, Inc., a Delaware corporation
("RWT"), or any affiliate or subsidiary of RWT or of any charitable organization
to which RWT or any of its affiliates or subsidiaries make charitable
contributions (RWT and each such affiliate, subsidiary or charitable
organization is herein referred to as an "RWT Person"), provided, however, that
notwithstanding the foregoing, any individual who would otherwise qualify as an
Independent Director except for his or her acting as a director of a limited
purpose, bankruptcy remote entity formed by RWT, any affiliate of RWT or Redwood
Trust, Inc., a Maryland corporation, shall be deemed to qualify as an
Independent Director of the Corporation; "associate" shall mean, when used to
indicate a relationship with any person (a) any corporation or organization of
which such person is an officer, director or partner or is, directly or
indirectly, the beneficial owner of 10% or more of any class of equity
securities, (b) any trust or other estate in which such person serves as trustee
or in a similar capacity, and (c) any relative or spouse of such person, or any
relative of such spouse, who resides at the same address as such person;
"affiliate" of an entity shall mean a person that directly, or indirectly
through one or more intermediaries, controls or is controlled by, or is under
the common control with such entity, but such term excludes the Corporation and
any subsidiary of the Corporation; "person" shall mean any individual,
partnership, firm, corporation, association, trust, unincorporated organization
or other entity, as well as any syndicate or group deemed to be a person
pursuant to Section 13(d)(3) of the Securities Exchange Act of 1934, as amended;
and "subsidiary" shall mean any corporation a majority of the voting stock of
which is owned, directly or indirectly, through one or more other subsidiaries,
by RWT, but excluding the Corporation and any subsidiary of the Corporation.
(b) The directors of the Corporation may from time to time adopt, amend
or repeal any of the Bylaws of the Corporation, including Bylaws adopted by the
stockholders, but stockholders may from time to time specify provisions of the
Bylaws that may not be amended or repealed by the directors.
(c) Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws provide.
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(d) Notwithstanding any other provision of this Certificate of
Incorporation and any provision of law that otherwise so empowers the
Corporation, the Corporation shall not, without the prior approval of the board
of directors of the Corporation, which approval shall include the affirmative
vote of all of the directors of the Corporation (including each Independent
Director), do any of the following:
(1) amend or change this Certificate of Incorporation (including
adoption of any new provisions or the repeal of any existing provisions
hereto);
(2) enter into any transaction with any RWT Person;
(3) dissolve, liquidate, consolidate, merge or sell all or
substantially all of the Corporation's assets unless (A) the entity (if
other than the Corporation) formed or surviving the consolidation or
merger or which acquires the properties and assets of the Corporation,
is organized and existing under the laws of the State of Delaware,
expressly assumes the due and punctual payment of, and all obligations
of the Corporation, and has a Certificate of Incorporation containing
provisions identical to the provisions of Articles THIRD, SEVENTH and
NINTH of this Certificate of Incorporation, (B) immediately after giving
effect to the transaction, no default or event of default has occurred
and is continuing under any indebtedness of the Corporation or any
agreements relating to such indebtedness and (C) the Corporation
receives written confirmation from each rating agency then ratify any
outstanding Securities that such merger or consolidation will not result
in the downgrade or withdrawal of the rating then assigned to any
Securities then rated by such rating agency;
(4) commence a voluntary case or other proceeding with respect to the
Corporation under any applicable bankruptcy, insolvency, reorganization,
debt, arrangement, dissolution, or other similar law, or permit or
arrange for the appointment of, or the taking of possession of any of
the Corporation's property by, a receiver, liquidator, assignee,
trustee, custodian or other similar official;
(5) approve a reduction in, or transfer to surplus of, any of the
capital of the Corporation pursuant to Section 244 of the Delaware
General Corporation Law; or
(6) issue, assume or guarantee any debt securities or undertake any
direct or indirect debt obligations of any kind; provided, however, that
the Corporation shall not issue, assume or guarantee any debt or other
liability (regardless of unanimous board of directors approval) unless
such debt or other liability will not result in the downgrade or
withdrawal of the rating then assigned to any outstanding Securities
then rated by any rating agency.
(e) In approving any of the actions in clauses (3), (4) or (6) or clause
(1) (to the extent the proposed action would affect such clause (3), (4) or (6))
of subparagraph (d) above, the directors of the Corporation shall, to the extent
permitted by applicable law, take into account the interests of the secured
creditors of the Corporation.
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(f) An Independent Director of the Corporation shall not act as a
trustee in bankruptcy for any RWT Person.
(g) If an Independent Director resigns or otherwise ceases to be a
director of the Corporation, a replacement Independent Director of the
Corporation shall be selected pursuant to the provisions of the Bylaws of the
Corporation.
(h) Notwithstanding any provision set forth herein or in the Bylaws of
the Corporation which may be to the contrary, the board of directors of the
Corporation shall not vote at a meeting or by unanimous consent without a
meeting pursuant to Section 141 of the Delaware General Corporation Law with
respect to any of the actions set forth in any of clauses (1) through (6)
inclusive of subparagraph (d) of this paragraph, or subparagraph (f) of this
paragraph unless, at the time of such vote, at least one Independent Director is
serving as a member of said board of directors.
(i) The following provisions shall be applicable to the Corporation's
conduct of business:
(1) the Corporation's assets shall not be commingled with those of
any other entity, including any corporate parent or other affiliate of
the Corporation, provided that such restriction shall not preclude the
Corporation from repaying indebtedness or making distributions to any
shareholder of the Corporation, so long as all such transactions are
properly reflected on the books and records of the Corporation;
(2) the Corporation shall pay from its own funds all obligations and
indebtedness incurred by it, provided that the organizational expenses
of the Corporation may be initially paid by affiliates of the
Corporation so long as they are promptly reimbursed by the Corporation;
(3) if the Corporation maintains offices in the office of any
affiliate of the Corporation, the Corporation shall pay fair market rent
for any such office space of such affiliate;
(4) the Corporation shall conduct its own business in its own name;
(5) the Corporation shall maintain separate bank accounts, books,
records and financial statements;
(6) the Corporation shall maintain its books, records, resolutions
and agreements as official records;
(7) the Corporation shall maintain adequate capital in light of its
contemplated business operations;
(8) the Corporation shall observe all corporate and other
organizational formalities;
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(9) the Corporation shall maintain an arm's-length relationship with
affiliates;
(10) the Corporation shall not guarantee or become obligated for the
debts of any other entity or hold out its credit as being available to
satisfy the obligations of others except as may be required in
connection with conducting its business in accordance with Article
THIRD;
(11) the Corporation shall not acquire obligations or securities of
affiliates except in connection with conducting its business in
accordance with Article THIRD;
(12) the Corporation shall not make any loans to any other person or
entity;
(13) the Corporation shall use separate stationery, invoices and
checks;
(14) the Corporation shall not pledge its assets to secure the
obligations of any other entity;
(15) the Corporation shall hold itself out as a separate entity, and
not fail to correct any known misunderstanding regarding its separate
identity; and
(16) the Corporation shall not identify itself or any of its
affiliates as a division or part of the other.
(j) In addition to the powers and authorities hereinabove or by law
expressly conferred upon them, the directors of the Corporation are hereby
empowered to exercise all such powers and to do all such acts and things as may
be exercised or done by the Corporation, subject to the provisions of the
Delaware General Corporation Law, of this Certificate of Incorporation and of
the Bylaws of the Corporation; provided, however, that no bylaw, whether adopted
by the stockholders or by the directors of the Corporation, shall invalidate any
prior act of the directors which would have been valid if such bylaw had not
been adopted.
EIGHTH: Personal Liability of Directors. A director of this Corporation
shall not be personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability:
(a) for any breach of the director's duty of loyalty to the
Corporation or its stockholders,
(b) for acts or omissions not in good faith, or which involve
intentional misconduct or a knowing violation of law,
(c) under Section 174 of the Delaware General Corporation Law, or
(d) for any transaction from which the director derived an improper
personal benefit.
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NINTH: Amendments. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation in
the manner now or hereafter prescribed by law, subject to the restrictions
contained in subparagraphs (d) and (e) of Article SEVENTH hereof, and all rights
and powers conferred hereby on stockholders, directors and officers of the
Corporation are subject to this reservation; provided, however, that no
amendment to Articles THIRD, SEVENTH and NINTH shall be effective without the
Corporation having received confirmation from each rating agency rating any
outstanding Securities that such amendment will not result in the termination or
lowering of the rating of such Securities.
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