SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF QUALITY INVESTMENT PROPERTIES SANTA CLARA, LLC
Exhibit 3.66
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF QUALITY INVESTMENT PROPERTIES SANTA XXXXX, LLC
THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Quality Investment Properties Santa Xxxxx, LLC (the “Company”) is entered into as of the 10th day of December, 2014, by QualityTech, LP, a Delaware limited partnership, as the sole member (the “Member”).
WHEREAS, the Certificate of Formation of the Company (as amended or amended and restated from time to time, the “Certificate”) was filed with the Secretary of State of the State of Delaware on October 23, 2007 pursuant to and in accordance with the provisions of the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq.), as amended from time to time (the “Act”); and
WHEREAS, Quality Investment Properties Santa Xxxxx Holding, LLC (“QIP Santa Xxxxx Holding”), predecessor of the Member, entered into that certain Limited Liability Company Agreement of Quality Investment Properties Santa Xxxxx, LLC, dated as of October 2007 (the “Original LLC Agreement”); and
WHEREAS, QIP Santa Xxxxx Holding amended the Original LLC Agreement pursuant to that certain First Amendment to the Limited Liability Company Agreement of Quality Investment Properties Santa Xxxxx, LLC, dated as of October 23, 2009; and
WHEREAS, QIP Santa Xxxxx Holding entered into that certain Amended and Restated Limited Liability Company Agreement of Quality Investment Properties Santa Xxxxx, LLC, dated as of November 9, 2012 (the “First Amended and Restated LLC Agreement”); and
WHEREAS, QIP Santa Xxxxx Holding transferred all of its membership interests in the Company to the Member pursuant to that certain Assignment and Assumption Agreement between QIP Santa Xxxxx Holding and the Member, dated as of December 4, 2014; and
WHEREAS, the Member now wishes to amend and restate the limited liability agreement of the Company as set forth herein, which shall amend, restated and supersede the First Amended and Restated LLC Agreement in its entirety.
NOW THEREFORE, in consideration of the following and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Member hereby agrees to amend and restate the First Amended and Restated LLC Agreement in its entirety and agrees to continue the Company as a limited liability company under the Act, as amended from time to time, as follows:
1. Name. The name of the limited liability company is Quality Investment Properties Santa Xxxxx, LLC. The Member may change the name of the Company from time to time.
2. Certificates. Xxxx X. Xxxxxxxx was designated as an “authorized person” of the Company within the meaning of the Act, and executed, delivered and filed the Certificate with the Secretary of State of the State of Delaware. Upon QIP Santa Xxxxx Holding’s execution of the Original Agreement, the powers of Xxxx X. Xxxxxxxx as an “authorized person” of the Company ceased, and QIP Santa Xxxxx Holding was designated the “authorized person” of the Company within the meaning of the Act. Upon QIP Santa Xxxxx Holding’s transfer of all of its membership interests in the Company to the Member, the Member became and continues to be the “authorized person” of the Company within the meaning of the Act. The Member shall execute, deliver and file any amendments and/or restatements to the Certificate and any other certificates (and any amendments and/or restatements thereof) required or permitted to be filed with the Secretary of State of the State of Delaware or necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business.
3. Term. The Company was formed upon the filing of the Certificate with the Secretary of State of the State of Delaware and shall continue until the dissolution of the Company pursuant to the provisions of this Agreement.
4. Purpose. The nature of the business and the purposes of the Company are to engage in any lawful act or activity for which limited liability companies may be formed under the Act.
5. Powers. In furtherance of its purposes, but subject to all of the provisions of this Agreement, the Company shall have the power and is hereby authorized to:
a. acquire by purchase, lease, contribution of property or otherwise, own, hold, sell, convey, transfer or dispose of any real or personal property which may be necessary, convenient or incidental to the accomplishment of the purpose of the Company;
b. operate, purchase, maintain, finance, improve, own, sell, convey, assign, mortgage, lease or demolish or otherwise dispose of any real or personal property which may be necessary, convenient or incidental to the accomplishment of the purposes of the Company;
c. borrow money and issue evidences of indebtedness in furtherance of any or all of the purposes of the Company, and secure the same by mortgage, pledge or other lien on the assets of the Company;
d. invest any funds of the Company pending distribution or payment of the same pursuant to the provisions of this Agreement;
e. prepay in whole or in part, refinance, recast, increase, modify or extend any indebtedness of the Company and, in connection therewith, execute any extensions, renewals or modifications of any mortgage or security agreement securing such indebtedness;
f. enter into, perform and carry out contracts of any kind, including, without limitation, contracts with any person or entity affiliated with the Member, necessary to, in connection with, convenient to, or incidental to the accomplishment of the purposes of the Company;
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g. employ or otherwise engage employees, managers, contractors, advisors, attorneys and consultants and pay reasonable compensation for such services;
h. enter into partnerships, limited liability companies, associations, corporations or other ventures with other persons or entities in furtherance of the purposes of the Company, and acquire, own, hold and dispose of interests in, and to act as a partner, member or equity holder of, any such entity; and
i. do such other things and engage in such other activities related to the foregoing as may be necessary, convenient or incidental to the conduct, promotion or attainment of the business of the Company, and have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act.
6. Principal Business Office. The principal business office of the Company shall be located at 00000 Xxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxx 00000, or at such other location as may hereafter be determined by the Member.
7. Registered Office. The address of the registered office of the Company in the State of Delaware is c/o Corporation Service Company, 0000 Xxxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, XX 00000.
8. 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 are Corporation Service Company, 0000 Xxxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, XX 00000.
9. Member. The name and the mailing address of the Member is as follows:
| Name | Address | |
| QualityTech, LP |
00000 Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxx Xxxx, XX 00000 |
10. Limited Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member of the Company.
11. Capital Contribution. The Member is deemed to have contributed to the Company the capital contribution listed on Exhibit A hereto.
12. 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.
13. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to the Member.
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14. Distributions. Distributions shall be made to the Member at the times and in the aggregate amounts determined by the Member. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to the Member on account of its interest in the Company if such distribution would violate Section 18-607 or 18-804 of the Act or other applicable law.
15. Management. In accordance with Section 18-402 of the Act, management of the Company shall be vested in the Member. The Member 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, statutory or otherwise, possessed by members of a limited liability company under the laws of the State of Delaware. Notwithstanding any other provision of this Agreement, the Member is authorized to execute, deliver and perform any document on behalf of the Company without any vote or consent of any other person or entity.
16. Other Business. The Member and any person or entity affiliated with the Member 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.
17. Officers. The Member may from time to time, in its discretion, appoint such officers of the Company as the Member may determine. Officers shall act at the pleasure of and under the discretion of the Member. Notwithstanding anything contained herein to the contrary, the Member, in its discretion, may continue to exercise any rights, powers and duties delegated to such officers, any such delegation being non-exclusive. The initial Officers of the Company are set forth on Exhibit B.
18. Exculpation and Indemnification. No Member shall be liable to the Company or any other person or entity who is a party or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by the Member in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on the Member by this Agreement, except that the Member shall be liable for any such loss, damage or claim incurred by reason of such Member's gross negligence or willful misconduct. To the full extent permitted by applicable law, the Member shall be entitled to indemnification from the Company for any loss, damage or claim incurred by the Member by reason of any act or omission performed or omitted by the Member in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on the Member by this Agreement, except that the Member shall not be entitled to be indemnified in respect of any loss, damage or claim incurred by the Member by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 18 shall be provided out of and to the extent of Company assets only, and the Member shall not have personal liability on account thereof.
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19. Assignments. The Member may assign in whole or in part its limited liability company interest in the Company. If the Member transfers all of its interest in the Company pursuant to this Section, the transferee shall be admitted to the Company upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of 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.
20. Resignation. The Member may resign from the Company. If the Member resigns from the Company pursuant to this Section, an additional member shall be admitted to the Company, subject to Section 21, upon its execution of an instrument signifying its agreement to be bound by the terms and conditions of 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.
21. Admission of Additional Members. One (1) or more additional members of the Company may be admitted to the Company with the written consent of the Member.
22. Dissolution.
a. The Company shall dissolve, and its affairs shall be wound up upon the first to occur of the following: (i) the written consent of the Member, (ii) at any time that there are no members of the Company, unless the business of the Company is continued in accordance with the Act, or (iii) the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act.
b. 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.
c. The winding up of the Company shall be completed when all of its debts, liabilities, and obligations have been paid and discharged or reasonably adequate provision therefor has been made, and all of the remaining property and assets of the Company have been distributed to the Member. Upon the completion of the winding up of the Company, a Certificate of Cancellation of the Company shall be filed with the Secretary of State of the State of Delaware.
23. 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.
24. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior understandings or agreements between the parties.
25. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws.
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26. Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by the Member.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has executed this Agreement as of the date first set forth above.
| MEMBER: | ||
| QUALITYTECH, LP | ||
| By: | /s/ Xxxxxxx X. Xxxx | |
| Name: | Xxxxxxx X. Xxxx | |
| Title: | Secretary and General Counsel | |
Signature Page to Limited Liability Company Agreement of Quality Technology Services Santa Xxxxx XX, LLC
EXHIBIT A
Capital Contribution
| Name | Mailing Address | Capital Contribution | ||||
| QualityTech, LP | 00000 Xxxxxx Xxxxxx Xxxxxxxx Xxxx, XX 00000 | $ | 1,000 | |||
EXHIBIT B
Xxxx X. Xxxxxxxx, Chairman and Chief Executive Officer
Xxxxxxx X. Xxxxxxx, Chief Financial Officer
Xxx X. Xxxxxxxxxx, Vice President and Treasurer
Xxxxxxx X. Xxxx, Vice President, General Counsel and Secretary
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