FIRST AMENDMENT TO THE LIMITED LIABILITY COMPANY AGREEMENT OF CSFB ASSET REPACKAGING DEPOSITOR LLC
Exhibit
3.2
FIRST
AMENDMENT
TO
THE
OF
CSFB
ASSET REPACKAGING DEPOSITOR LLC
This
First Amendment to the Limited Liability Company Agreement of CSFB Asset
Repackaging Depositor LLC (the “Company”), dated as
of January 26, 2009 (this “Amendment”), is
entered into by Credit Suisse Management LLC (formerly Credit Suisse First
Boston Management LLC), a Delaware limited liability company, as the sole equity
member (the “Member”) and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, as the Special Member.
WHEREAS,
the Member has heretofore formed the Company pursuant to the Delaware Limited
Liability Company Act (6 Del. C. §§ 18-101,
et seq.), as amended
from time to time, by filing the Certificate of Formation with the office of the
Secretary of State of the State of Delaware on November 22, 2004 and entering
into a Limited Liability Company Agreement of the Company, dated as of November
22, 2004 (the “Agreement”);
WHEREAS,
the Certificate of Formation and the Agreement provide that the name of the
Company is CSFB Asset Repackaging Depositor LLC;
WHEREAS,
the Member desires to continue the Company as a limited liability company under
the Act and to amend the Agreement solely to change the name of the Company to
Credit Suisse Asset Repackaging Depositor LLC; and
WHEREAS,
on or about the date hereof, the Member has executed and filed a Certificate of
Amendment to the Certificate of Formation changing the name of the Company to
Credit Suisse Asset Repackaging Depositor LLC.
NOW,
THEREFORE, in consideration of the agreements and obligations set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
I. Amendment.
The name
of the Company is hereby changed to “Credit Suisse Asset Repackaging Depositor
LLC” and all references in the Agreement (including the Schedules thereto)
referencing CSFB Asset Repackaging Depositor LLC are hereby replaced in their
entirety with “Credit Suisse Asset Repacking Depositor LLC”.
II. Miscellaneous.
A. Binding
Effect. This Amendment constitutes a legal, valid and binding
agreement of the parties to the Agreement, as amended from time to time, and is
enforceable against such parties, in accordance with its terms.
B. Agreement
in Effect. Except as hereby amended, the Agreement shall remain in
full force and effect.
C. Governing
Law. This Amendment 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.
D. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original of this Amendment and all of which together shall constitute
one and the same instrument.
E. Severability
of Provisions. Each provision of this Amendment 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 Amendment which are valid,
enforceable and legal.
2
IN
WITNESS WHEREOF, the undersigned has caused this Amendment to be duly executed
as of the day and year first written above.
| MEMBER: | |||
|
CREDIT
SUISSE MANAGEMENT LLC
(formerly
known as Credit Suisse First Boston Management LLC)
|
|||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇. ▇’▇▇▇▇ | |||
| Title: Managing Director | |||
| SPECIAL MEMBER: | |||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
3
OF
CSFB
ASSET REPACKAGING DEPOSITOR LLC
This
Limited Liability Company Agreement (together with the schedules attached
hereto, this “Agreement”) of CSFB
Asset Repackaging Depositor LLC (the “Company”), is entered into by Credit
Suisse First Boston Management LLC, a Delaware limited liability company, as the
sole equity member (the “Member”) and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, as the Special Member (as defined on Schedule A
hereto). Capitalized terms used and not otherwise defined herein have
the meanings set forth on Schedule A
hereto.
The
Member, by execution of this Agreement, hereby forms the Company as a limited
liability company pursuant to and in accordance with the Delaware Limited
Liability Company Act (6 Del. C. §§ 18-101,
et seq.), as amended
from time to time (the “Act”), and this
Agreement, and the Member and the Special Member hereby agree as
follows:
Section
1. Name.
The name
of the limited liability company formed hereby is CSFB Asset Repackaging
Depositor LLC.
Section
2. Principal Business
Office.
The
principal business office of the Company shall be located at Eleven ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or such other location as may hereafter be
determined by the Member.
Section
3. Registered
Office.
The
address of the registered office of the Company in the State of Delaware is c/o
Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, in the City of
Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section
4. Registered
Agent.
The name
and address of the registered agent of the Company for service of process on the
Company in the State of Delaware is Corporation Service Company, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, in the City of Wilmington, County of ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section
5. Members.
(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
9(j), 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 21 and
23, or (ii) the resignation of the Member and the admission of an
additional member of the Company pursuant to Sections 22 and 23),
the person acting as an Independent Director pursuant to Section 10 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 10;
provided, however, the Special Member shall automatically cease to be a member
of the Company upon the admission to the Company of a substitute
Member. The 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 § 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, the 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 the Special Member, the person acting as an
Independent Director pursuant to Section 10 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
10 shall not be a member of the Company.
Section
6. Certificates.
▇▇▇▇ ▇.
Park, 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
business.
The
existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate of Formation as provided in the
Act.
Section
7. Purposes. The
purpose to be conducted or promoted by the Company is to engage in the following
activities:
(a)
|
|
(i)
|
to
authorize, issue, sell, deliver, purchase and invest in (and enter into
agreements with), and/or engage in the establishment of one or more trusts
|
2
(each,
a “Trust”),
which will issue and sell debt or equity securities, obligations, certificates
or other securities or instruments in one or more series, each of which series
may consist of one or more classes (collectively, the “Securities”),
which Securities will (x) be collateralized or otherwise secured or backed by,
or otherwise represent interests in, the equity or assets of the related Trust
or other collateral pledged as security for or otherwise supporting the
Securities and the proceeds thereof, or (y) represent a warrant, option or other
right to purchase or sell such Securities described in clause (x);
|
|
(ii)
|
in
connection with the issuance and sale of the Securities or otherwise, to
purchase or otherwise acquire, own, hold, transfer, convey, pledge,
assign, sell (or otherwise dispose of), service, finance, refinance or
otherwise deal in or with the assets of each Trust or any other
collateral;
|
|
|
(iii)
|
to
arrange or otherwise provide for support for any series of Securities to
be issued by the Company or any Trust by various forms of credit
enhancement including arrangements whereby, for a given series, payments
on one or more classes of Securities (the “Subordinated
Securities”) are subordinated to, and constitute additional
security for, payments due on one or more other classes of Securities in
such series;
|
|
|
(iv)
|
to
invest certain proceeds from the Securities as determined by the Company’s
Board of Directors;
|
|
|
(v)
|
to
authorize, issue, sell and deliver instruments evidencing the Company's
indebtedness which is completely subordinated to any Securities, and to
enter into agreements by which the Company incurs such indebtedness;
and
|
|
|
(vi)
|
to
engage in any lawful act or activity and to exercise any powers permitted
to limited liability companies organized under the laws of the State of
Delaware that are related or incidental to and necessary, convenient or
advisable for the accomplishment of the above-mentioned purposes
(including the entering into of interest rate or basis swap, cap, floor or
collar agreements, currency exchange agreements or similar hedging
transactions and referral, management, servicing and administration
agreements).
|
(b) The
Company, and the Member, or any Director or Officer on behalf of the Company,
may enter into and perform the Basic Documents and all documents, agreements,
certificates, or financing statements contemplated thereby or related thereto,
all without any further act, vote or approval of any Member, Director, Officer
or 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.
3
Section
8. Powers.
Subject
to Section
9(j), the Company, 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 7 and (ii)
shall have and exercise all of the powers and rights conferred upon limited
liability companies formed pursuant to the Act.
Section
9. Management.
(a) Board of
Directors. Subject to Section 9(j), 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 10,
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
10. The initial number of Directors shall be four, one of
which shall be an Independent Director pursuant to Section
10. Each Director elected, designated or appointed by the
Member shall hold office until a successor is elected and qualified or until
such Director's earlier death, resignation, expulsion or
removal. Each Director shall execute and deliver the Management
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
9(j), 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, statutory or
otherwise. Subject to Section 7, 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,
Secretary or any Director on not less than one day's notice to each Director by
telephone, facsimile, mail, telegram or any other means of
communication.
(d) Quorum: Acts of
the Board. At all meetings of the Board, a majority of the
Directors 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 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, 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.
4
(e) Electronic or Telephonic
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 9(j)
and 10,
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.
|
(g) Compensation of Directors;
Expenses. The Board shall have the authority to fix the
compensation of Directors with the consent of the Member. 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 10, 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 9(j), 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 § 18-402
5
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
9(j) 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 5(c), 7, 8, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 29, 31 or 35 or Schedule A of
this Agreement without the unanimous written consent of the
Board. Subject to this Section 9(j),
the Member reserves the right to amend, alter, change or repeal any
provisions contained in this Agreement in accordance with Section
31.
|
|
|
(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, to take any Material Action, provided, however, that
the Board may not vote on, or authorize the taking of, any Material
Action, unless there is at least one Independent Director 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; provided, however, that
the Company shall not be required to preserve any such right or franchise
if: (1) the Board shall determine that the preservation thereof
is no longer desirable for the conduct of its business and (2) the Rating
Agency Condition is satisfied. The Board also shall cause the
Company to:
|
|
|
(A)
|
maintain
its own separate books and records and bank
accounts;
|
|
|
(B)
|
at
all times hold itself out to the public and all other Persons as a legal
entity separate from the Member and any other
Person;
|
|
|
(C)
|
have
a Board of Directors separate from that of the Member and any other
Person;
|
|
|
(D)
|
file
its own tax returns, if any, as may be required under applicable law, to
the extent (1) not part of a consolidated group filing a consolidated
return or returns or (2) not treated as a division for tax
|
6
purposes of another
taxpayer, and pay any taxes so required to be paid under applicable
law;
|
|
(E)
|
except
as contemplated by the Basic Documents, not commingle its assets with
assets of any other Person;
|
|
|
(F)
|
conduct
its business in its own name and strictly comply with all organizational
formalities to maintain its separate
existence;
|
|
|
(G)
|
maintain
separate financial statements;
|
|
|
(H)
|
pay
its own liabilities out of its own
funds;
|
|
|
(I)
|
maintain
an arm's length relationship with its Affiliates and the
Member;
|
|
|
(J)
|
pay
the salaries of its own employees, if
any;
|
|
|
(K)
|
not
hold out its credit or assets as being available to satisfy the
obligations of others;
|
|
|
(L)
|
allocate
fairly and reasonably any overhead for shared office
space;
|
|
|
(M)
|
use
separate stationery, invoices and
checks;
|
|
|
(N)
|
except
as contemplated by the Basic Documents, not pledge its assets for the
benefit of any other Person;
|
|
|
(O)
|
correct
any known misunderstanding regarding its separate
identity;
|
|
|
(P)
|
maintain
adequate capital in light of its contemplated business purpose,
transactions and liabilities;
|
|
|
(Q)
|
cause
its Board of Directors to meet at least annually or act pursuant to
written consent and keep minutes of such meetings and actions and observe
all other Delaware limited liability company
formalities;
|
|
|
(R)
|
not
acquire any securities of the Member;
and
|
|
|
(S)
|
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.
|
7
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 or Security is outstanding, the Board shall not
cause or permit the Company to:
|
|
|
(A)
|
except
as contemplated by the Basic 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 7, the
Basic Documents or this Section
9(j);
|
|
|
(C)
|
incur,
create or assume any indebtedness other than as expressly permitted under
the Basic 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 Basic Documents and may make any
advance required or expressly permitted to be made pursuant to any
provisions of the Basic 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 expressly permitted pursuant
to any provision of the Basic Documents;
or
|
|
|
(F)
|
form,
acquire or hold any subsidiary (whether corporate, partnership, limited
liability company or other).
|
Section
10. Independent
Director.
As long
as any Obligation is outstanding, the Member shall cause the Company at all
times to have at least one Independent Director who will be appointed by the
Member. To the fullest extent permitted by law, including §
18-1101(c) of the Act, the Independent Director shall consider only the
interests of the Company, including its respective creditors, in acting or
otherwise voting on the matters referred to in Section
9(j)(iii). 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 Management Agreement, and (ii) shall have executed a
counterpart to this Agreement as required by Section
5(c). In the event of a vacancy in the position of Independent
Director, the Member shall, as soon as
8
practicable,
appoint a successor Independent Director. All right, power and
authority of the Independent Director 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 10, 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 any Affiliate of the
Company.
Section
11. Officers.
(a) Officers. The
initial Officers of the Company shall be and are hereby designated by the
Member. The additional or successor Officers of the Company shall be chosen by
the Board and shall consist of at least a President, a Secretary and a
Treasurer. The Board of Directors may also choose one or more Vice
Presidents, Assistant Secretaries and Assistant Treasurers. Any
number of offices may be held by the same person. The Board may
appoint such other Officers and agents as it shall deem necessary or advisable
who shall hold their offices for such terms and shall exercise such powers and
perform such duties as shall be determined from time to time by the
Board. The salaries of all Officers and agents of the Company shall
be fixed by or in the manner prescribed by the Board. The Officers of
the Company shall hold office until their successors are chosen and
qualified. Any Officer may be removed at any time, with or without
cause, by the affirmative vote of a majority of the Board. Any
vacancy occurring in any office of the Company shall be filled by the
Board. The initial Officers of the Company designated by the Member
are listed on Schedule
E hereto.
(b) President. The
President shall be the chief executive officer of the Company, shall preside at
all meetings of the Board, shall be responsible for the general and active
management of the business of the Company and shall see that all orders and
resolutions of the Board are carried into effect. The President or
any other Officer authorized by the President or the Board shall execute all
bonds, mortgages and other contracts, except: (i) where required or
permitted by law or this Agreement to be otherwise signed and executed,
including Section
7(b); (ii) where signing and execution thereof shall be expressly
delegated by the Board to some other Officer or agent of the Company, and (iii)
as otherwise permitted in Section
11(c).
(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.
(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
9
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. 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 9(j), the
actions of the Officers taken in accordance with such powers shall bind 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
12. 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 Member 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
13. 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 5(c), the
Special Member shall not be required to make any capital contributions to the
Company.
10
Section
14. 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 upon the written consent of such Member. To the
extent that the Member makes an additional capital contribution to the Company,
the Member shall revise Schedule B of this
Agreement. The provisions of this Agreement, including this Section 14, are
intended to benefit the Member and the Special Member 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 Member
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.
Section
15. Allocation of Profits and
Losses.
The
Company's profits and losses shall be allocated to the Member.
Section
16. 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 § 18-607 of the Act or any other applicable law or any Basic
Document.
Section
17. Books and
Records.
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 by 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 § 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
18. Reports.
(a) Within
90 days after the end of each fiscal quarter, at the request of the Member, the
Board shall 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
|
11
|
|
(ii)
|
unless
such quarter is the last fiscal quarter, an income statement of the
Company for such fiscal quarter.
|
(b) At
the request of the Member, the Board shall use diligent efforts to cause to be
prepared and mailed to the Member, within 120 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
Board 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.
Section
19. Other
Business.
The
Member, the Special Member and any Affiliate of the Member or the Special 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
notwithstanding any provision to the contrary at law or in
equity. The Company shall not have any rights in or to such
independent ventures or the income or profits therefrom by virtue of this
Agreement.
Section
20. Exculpation and
Indemnification.
(a) Neither
the Member nor the Special Member nor any Officer, Director, employee or agent
of the Company nor any employee, representative, agent or Affiliate of the
Member or the Special Member (collectively, the “Covered Persons”) shall, to
the fullest extent permitted by law, be liable to the Company or any other
Person that is a party to 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 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 a Covered Person shall be liable
for any such loss, damage or claim incurred by reason of such Covered Person's
gross negligence or willful misconduct.
(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 20 by the
Company shall be provided out of and to the extent of Company assets
12
only, and
the Member and the Special Member 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
20 shall be payable from amounts allocable to any other Person pursuant
to the Basic 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
20.
(d) A
Covered Person shall be fully protected in relying in good faith upon the
records of the Company and upon such information, opinions, reports or
statements presented to the Company by any Person as to matters the Covered
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, or any other facts pertinent to the
existence and amount of assets from which distributions to the Member might
properly be paid.
(e) To
the extent that, at law or in equity, a Covered Person has duties (including
fiduciary duties) and liabilities relating thereto to the Company or to any
other Covered Person, a Covered Person acting under this Agreement shall not be
liable to the Company or to any other Covered Person for its good faith reliance
on the provisions of this Agreement or any approval or authorization granted by
the Company or any other Covered Person. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person otherwise existing at law or in equity, are agreed by the Member
and the Special Member to replace such other duties and liabilities of such
Covered Person.
(f) The
foregoing provisions of this Section 20 shall
survive any termination of this Agreement.
Section
21. Assignments.
The
Member may assign in whole or in part its limited liability company interest in
the Company. Subject to Section 23, if the
Member transfers all of its limited liability company interest in the Company
pursuant to this Section 21, 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
Basic 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.
13
Section
22. Resignation.
So long
as any Obligation is outstanding, the Member may not resign, except as permitted
under the Basic Documents and if the Rating Agency Condition is
satisfied. If the Member is permitted to resign pursuant to this
Section 22, an
additional member of the Company shall be admitted to the Company, subject to
Section 23,
upon its execution of an instrument signifying its agreement to be bound by the
terms and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. Such admission shall be deemed
effective immediately prior to the resignation and, immediately following such
admission, the resigning Member shall cease to be a member of the
Company.
Section
23. 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 pursuant to Sections 21, 22 or 23 unless the Rating
Agency Condition is satisfied.
Section
24. Dissolution.
(a) Subject
to Section
9(j), 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 Company is continued without
dissolution in a manner permitted by this Agreement or the Act or (ii) the entry
of a decree of judicial dissolution under § 18-802 of the Act. Upon
the occurrence of any event that causes the last remaining member of the Company
to cease to be a member of the Company or 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 21 and 23,
or (ii) the resignation of the Member and the admission of an additional member
of the Company pursuant to Sections 22 and 23),
to the fullest extent permitted by law, the personal representative of such
member is hereby authorized to, and shall, within 90 days after the occurrence
of the event that terminated the continued membership of such member in the
Company, agree in writing (i) to continue the Company and (ii) to the admission
of the personal representative or its nominee or designee, as the case may be,
as a substitute member of the Company, effective as of the occurrence of the
event that terminated the continued membership of the last remaining member of
the Company or the Member in the Company.
(b) Notwithstanding
any other provision of this Agreement, the Bankruptcy of the Member or the
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 Company shall continue without dissolution.
(c) Notwithstanding
any other provision of this Agreement, each of the Member and the Special Member
waives any right it might have to agree in writing to dissolve the Company
14
upon the
Bankruptcy of the Member or the Special Member, or the occurrence of an event
that causes the Member or the 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 § 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
25. 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 Member hereby irrevocably waives any
right or power that such Person might have to cause the Company or any of its
assets to be partitioned, to cause the appointment of a receiver for all or any
portion of the assets of the Company, to compel any sale of all or any portion
of the assets of the Company pursuant to any applicable law or to file a
complaint or to institute any proceeding at law or in equity to cause the
dissolution, liquidation, winding up or termination of the
Company. The Member shall not have any interest in any specific
assets of the Company, and the Member shall not have the status of a creditor
with respect to any distribution pursuant to Section 16
hereof. The interest of the Member in the Company is personal
property.
Section
26. 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 the Special
Member. Nothing in this Agreement 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
29).
Section
27. 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
28. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof.
Section
29. Binding
Agreement.
15
Notwithstanding
any other provision of this Agreement, the Member agrees that this Agreement,
including, without limitation, Sections 7, 8, 9, 10, 20, 21, 22, 23, 24, 26, 29 and 31, constitutes a
legal, valid and binding agreement of the Member, and is enforceable against the
Member by the Independent Director, in accordance with its terms. In
addition, the Independent Director shall be intended beneficiaries of this
Agreement.
Section
30. 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.
Section
31. Amendments.
Subject
to Section 9(j), 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
other Basic Documents.
Section
32. 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
33. 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 2, (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
34. Effectiveness.
Pursuant
to § 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 November 22, 2004.
Section
35. Tax
Treatment.
(a) It
is the intention of the Member that, for United States federal income tax
purposes, (i) at all times that the Member is the sole equity member of the
Company, the
16
Company
shall be disregarded as an entity separate from the Member and (ii) if at any
time there is more than one equity member of the Company, the Company shall be
treated as a partnership and not as an association taxable as a corporation. At
no time will any Member make an election to treat the Company as an association
taxable as a corporation. The Board of Directors and the officers of
the Company shall take no action pursuant to this Agreement that is inconsistent
with this treatment of the Company.
(b) In
the event that the Company is treated as a partnership for federal income tax
purposes, the Member will serve as “tax matters person” (the “Tax Matters Person”)
of the Company pursuant to Section 6231(a) of the Internal Revenue Code of 1986,
as amended.
The Tax
Matters Person shall prepare or cause to be prepared all federal, state, and
local income or other tax returns that the Trust is required to file. Within 75
days after the end of the calendar year, the Tax Matters Person shall send or
deliver to each other Member such tax information as shall be reasonably
necessary for the preparation by such Member of such Member’s federal income tax
return and state income or other tax returns.
[SIGNATURE
PAGE FOLLOWS]
17
IN
WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly
executed this Limited Liability Company Agreement as of the 22nd day of
November, 2004.
| MEMBER: | |||
| CREDIT SUISSE FIRST BOSTON MANAGEMENT LLC | |||
|
|
By:
|
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
| Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | |||
| SPECIAL MEMBER: | |||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
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
set forth in the preamble to this Agreement.
“Affiliate” means,
with respect to any Person, any other Person directly or indirectly Controlling
or Controlled by or under direct or indirect common Control with such
Person.
“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.
“Bankruptcy” means,
with respect to any Person, if such Person (i) makes an assignment for the
benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is
adjudged a bankrupt or insolvent, or has entered against it an order for relief,
in any bankruptcy or insolvency proceedings, (iv) files a petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation or similar relief under any statute, law or 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 120 days after the commencement of any proceeding against the Person
seeking reorganization, arrangement, composition, readjustment, liquidation or
similar relief under any statute, law or regulation, if the proceeding has not
been dismissed, or if within 90 days after the appointment without such Person's
consent or acquiescence of a trustee, receiver or liquidator of such Person or
of all or any substantial part of its properties, the appointment is not vacated
or stayed, or within 90 days after the expiration of any such stay, the
appointment is not vacated. The foregoing definition of “Bankruptcy”
is intended to replace and shall supersede and replace the definition of
“Bankruptcy” set forth in § 18-101(1) and 18-304 of the Act.
“Basic Documents”
means this Agreement, the Management Agreement, the trust agreement, any other
document being executed by Company at closing and all documents and certificates
contemplated thereby or delivered in connection therewith.
“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 November 22, 2004, as amended
or amended and restated from time to time.
“Company” means CSFB
Asset Repackaging Depositor LLC, a Delaware limited liability
company.
“Control” means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities or general partnership or managing member
interests, by contract or otherwise. “Controlling” and “Controlled” shall have
correlative meanings. Without limiting the generality of the
foregoing, a Person shall be deemed to Control any other Person in which it
owns, directly or indirectly, a majority of the ownership
interests.
“Covered Persons” has
the meaning set forth in Section
20(a).
“Directors” means the
Persons elected to the Board of Directors from time to time by the Member,
including the Independent Director, in their capacity as managers of the
Company. A Director is hereby designated as a “manager” of the
Company within the meaning of § 18-101(10) of the Act.
“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, direct stockholder, partner or officer of the Company or any of its
Affiliates (other than his or her service as an Independent Director for such
Affiliate); (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).
“Management Agreement”
means the agreement of the Directors in the form attached hereto as Schedule
C. The Management Agreement shall be deemed incorporated into,
and a part of, this Agreement.
“Material Action”
means to consolidate or merge the Company with or into any Person, or sell all
or substantially all of the assets of the Company, or 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 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 take action in furtherance of any such action, or, to the
fullest extent permitted by law, dissolve or liquidate the
Company.
“Member” means Credit
Suisse First Boston Management 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 Member.
“Obligations” shall
mean the indebtedness, liabilities and obligations of the Company under or in
connection with this Agreement, the other Basic Documents or any related
document in effect as of any date of determination.
“Officer” means an
officer of the Company described in Section
11.
A-2
“Officer's
Certificate” means a certificate signed by any Officer of the Company who
is authorized to act for the Company in matters relating to the
Company.
“Person” means any
individual, corporation, partnership, joint venture, limited liability company,
limited liability partnership, association, joint stock company, trust,
unincorporated organization, or other organization, whether or not a legal
entity, and any governmental authority.
“Rating Agency” has
the meaning assigned to that term in the Basic Documents.
“Rating Agency
Condition” means that each Rating Agency shall have been given ten days
prior notice thereof and that each of the Rating Agencies shall have notified
the Company in writing that such action will not result in a reduction or
withdrawal of the then current rating by such Rating Agency of any of securities
issued by such securitization trust.
“Security” means any
certificate or note that is issued by the Depositor and sold to third-party
investors.
“Special Member”
means, upon such person's admission to the Company as a member of the Company
pursuant to Section
5(c), 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.
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-3
SCHEDULE
B
Member
|
Name
|
Mailing Address
|
Agreed
Value of
Capital Contribution
|
Membership
Interest
|
|
Credit
Suisse First Boston Management LLC
|
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
|
$100.00
|
100%
|
▇-▇
▇▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇
▇▇▇▇
Asset Repackaging Depositor LLC
Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Management Agreement –
CSFB Asset Repackaging Depositor
LLC
|
Ladies
and Gentlemen:
For good
and valuable consideration, each of the undersigned Persons, who have been
designated as directors of CSFB Asset Repackaging Depositor LLC, a Delaware
limited liability company (the “Company”), in accordance with the Limited
Liability Company Agreement of the Company, dated as of November 22, 2004, 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.
2. So
long as any Obligation is 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, 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.
3. THIS
MANAGEMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF DELAWARE, AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY
SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Initially
capitalized terms used and not otherwise defined herein have the meanings set
forth in the LLC Agreement.
C-1
This
Management Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Management Agreement and all of which
together shall constitute one and the same instrument.
IN
WITNESS WHEREOF, the undersigned have executed this Management Agreement as of
the day and year first above written.
|
|
||
C-2
SCHEDULE
D
|
DIRECTORS
|
||
| 1. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| 2. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
| 3. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
| 4. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
D-1
SCHEDULE
E
| OFFICERS | TITLE |
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
President
|
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
Vice
President
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Vice President |
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
Vice
President
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
Vice
President
|
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | Vice President |
|
▇▇▇▇▇
▇. ▇▇▇▇▇▇
|
Treasurer
|
|
▇▇▇▇
▇. ▇▇▇▇▇
|
Secretary
|
| ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | Assistant Secretary |
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
Assistant
Secretary
|
|
|
|
E-1