Exhibit 3.2
LIMITED LIABILITY COMPANY AGREEMENT
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 ss. 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
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(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.
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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.
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(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 ss. 18-402
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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
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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.
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Failure of the Company, or the Member or Board on behalf of the
Company, to comply with any of the foregoing covenants or any
other covenants contained in this Agreement shall not affect
the status of the Company as a separate legal entity or the
limited liability of the Member or the Directors.
(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 ss.
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
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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
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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.
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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 ss. 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 ss. 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
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(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 ss. 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 ss.
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 ss. 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]
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: Vice President
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 ss. 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 ss. 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
------
-------------------------- -------------------------------- --------------------------- ----------------------------
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
-------------------------- -------------------------------- --------------------------- ----------------------------
Credit Suisse First Eleven Madison Avenue $100.00 100%
Boston Management LLC ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
-------------------------- -------------------------------- --------------------------- ----------------------------
B-1
SCHEDULE C
Management Agreement
--------------------
November 22, 2004
CSFB 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
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Vice President, Controller and
Principal Accounting Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President and
Deputy Director of Taxes
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Vice President and
Director of Taxes
▇▇▇▇ ▇. ▇▇▇▇▇ Secretary
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Vice President and Bank Account
Officer
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Assistant Secretary
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Assistant Secretary
E-1