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EXHIBIT 3.B
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
of
DaimlerChrysler Wholesale Receivables LLC
The undersigned hereby adopt this Amended and Restated Limited
Liability Company Agreement (the "Agreement") as of the 31st day of May, 2000,
in connection with the continuation of DaimlerChrysler Wholesale Receivables
LLC, a limited liability company (the "Company"). Definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such
terms. Each Independent Director joins in the execution of the Agreement and
agrees to be bound by its terms.
WHEREAS, the Company was formed by the filing of the Certificate of
Formation with the State of Delaware on February 24, 2000 and the execution and
delivery by U. S. Auto Receivables Company (the "Initial Member") of a limited
liability company agreement of the Company, dated as of February 29, 2000 (the
"Original Agreement"); and
WHEREAS, on the date hereof, the Initial Member merged into Chrysler
Financial Receivables Corporation with Chrysler Financial Receivables
Corporation suriving such merger; and
WHEREAS, Chrysler Financial Receivables Corporation is hereby being
admitted to the Company as a Member and Chrysler Auto Receivables Company is
hereby being admitted to the Company as the Independent Member and, together,
the Members and the Independent Directors are (i) continuing the Company without
dissolution, and (ii) amending and restating the Original Agreement in the form
of this Agreement.
NOW, THEREFORE, the Members and Independent Directors declare as
follows:
1. Organization of Company.
1.1 Formation. The Member hereby continues a limited liability company
pursuant to the provisions of the Act and this Agreement.
1.2 Name and Office. The name of the Company shall be DaimlerChrysler
Wholesale Receivables LLC, and its office shall
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be located at 27777 Franklin Road, Southfield, Michigan 48034 or such other
place as the Member may determine from time to time.
1.3 Duration. The Company shall continue in existence perpetually,
unless the Company shall be sooner dissolved and its affairs wound up in
accordance with this Agreement. The existence of the Company as a separate legal
entity shall continue until the cancellation of its Certificate of Formation in
accordance with the Act.
1.4 Registered Office and Resident Agent. The Company's initial
registered office shall be at the office of its resident agent at Corporation
Trust Center, 1209 Orange Street, Wilmington, Delaware, and the name of its
initial resident agent at such address shall be The Corporation Trust Company.
The registered office and resident agent may be changed from time to time in
accordance with the Act. If the resident agent shall ever resign, the Company
shall promptly appoint a successor.
1.5 Authorization. The Company by or through any Member on behalf of
the Company may enter into and perform any and all business and all documents,
agreements, certificates, or financing statements contemplated thereby or
related thereto, all without any further act, vote or approval of any other
person, notwithstanding any other provision of this Agreement, the Act or
applicable law, rule or regulation. The foregoing authorization shall not be
deemed a restriction on the powers of the Member to enter into other agreements
on behalf of the Company.
2. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
The "Act" means the Delaware Limited Liability Company Act, as amended
from time to time.
"Adjusted Deficit Capital Account Balance" means, with respect to any
Member, the deficit balance, if any, in such Member's capital account as of the
end of the relevant Company Fiscal Year, (1) increased by any amounts which such
Member is obligated to restore under Treasury Regulation Section
1.704-1(b)(2)(ii)(c), plus an amount equal to such Member's share of Company
Minimum Gain and such Member's share of Member Nonrecourse Debt Minimum Gain and
(2) decreased by the items described in Treasury Regulation Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6).
"Affiliate" means any person which directly or indirectly through one
or more intermediaries controls, is controlled by, or
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is under common control with the Member.
"Agreement" means this Amended and Restated Limited Liability Company
Agreement of the Company and any amendments adopted in accordance with this
Agreement and the Act.
The "Articles" means the Certificate of Formation of the Company,
including any restatements or amendments, which are filed with the Secretary of
State of the State of Delaware.
"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, reciever 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
stature, 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. With respect to a Member, the foregoing definition of
"Bankruptcy" is intended to replace and shall supersede and replace the
definition of "Bankruptcy" set forth in Section 18-101(1) and 18-304 of the Act.
"Book Value" means with respect to any asset, the asset's adjusted
basis for federal income tax purposes, except as follows:
(a) the initial Book Value of any asset contributed (or
deemed contributed) to the Company shall be such asset's
gross fair market value at the time of such
contribution;
(b) the Book Value of all Company assets shall be adjusted
to equal their respective gross fair market values at
the times specified in Treasury Regulations under Code
Section 704(b) if the
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Company so elects; and
(c) if the Book Value of an asset has been determined
pursuant to clause (a) or (b), such Book Value shall
thereafter be adjusted by the Depreciation taken into
account with respect to such asset for purposes of
computing Profits and Losses.
"Capital Accounts" shall have the meaning set forth in Section 7.1 of
this Agreement.
"Capital Contributions" means the amount of all cash or the agreed upon
value of other property of services contributed to the Company.
The "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Company Minimum Gain" means an amount determined in accordance with
Treasury Regulation Section 1.704-2(d) for partnership minimum gain by
computing, with respect to each nonrecourse liability of the Company (as defined
in Treasury Regulation Section 1.752-1(a)(2)), the amount of gain (of whatever
character), if any, that would be realized by the Company if (in a taxable
transaction) it disposed of property subject to such liability in full
satisfaction thereof, and by then aggregating the amounts so computed.
"Depreciation" means for each Fiscal Year of the Company or other
period, an amount equal to the depreciation, amortization or other cost recovery
deduction allowable under the Code with respect to an asset for such year or
other period, except that if the Book Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such year or
other period, Depreciation shall be an amount which bears the same ratio to such
beginning Book Value as the federal income tax depreciation, amortization or
other cost recovery deduction for such year or other period bears to such
beginning adjusted tax basis; provided, however, that if the federal income tax
depreciation, amortization or other cost recovery deduction for such year is
zero, Depreciation shall be determined with reference to such beginning Book
Value using any reasonable method selected by the Majority Interest.
The "Fiscal Year" of the Company, and its taxable year for Federal
income tax purposes, shall be the calendar year.
"Independent Director" means an individual who (i) either is not the
beneficial owner at the time of such individual's appointment as an Independent
Director or at any time thereafter
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while serving as an Independent Director of more than 100 shares in the
aggregate of all classes of common stock of DaimlerChrysler AG Corporation
("DCAG"), its subsidiaries and Affiliates , and (ii) is not at such time, and
shall not have been at any time during the preceding five years, a director,
officer, employee or Affiliate of DCAG or of any of its subsidiaries or
Affiliates or of a Major Creditor of DCAG; provided; however, that for purposes
of this definition, an individual shall not be deemed to be not independent
solely because such person acts as an Independent Director of DCAG or any of its
subsidiaries or Affiliates in accordance with the provisions of DCAG's or such
subsidiary's or Affiliate's certificate of incorporation, charter, by-laws or
other agreement requiring DCAG or such subsidiary or Affiliate to maintain one
or more Independent Directors. The term "Major Creditor" shall mean a financial
institution to which DCAG has outstanding indebtedness for borrowed money in a
sufficiently large amount as would reasonably be expected to influence adversely
the judgment of the proposed Independent Director with respect to the interests
of the Company when the Company's interests are adverse to those of DCAG.
"Independent Member" means a member of the Company that is a special
purpose corporation formed pursuant to a charter or certificate of incorporation
that (i) limits its business purposes and activities and (ii) requires the
consent of two or more Independent Directors before such corporation may (A)
institute proceedings to have itself or the Company adjudicated a bankrupt or
insolvent; consent to the institution of bankruptcy or insolvency proceedings
against it or the Company; file a petition seeking, or consent to, such
corporation's or the Company's reorganization or relief under any applicable
federal or state law relating to bankruptcy; consent to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such corporation or the Company or a substantial part of either's
property; make any assignment for the benefit of its or the Company's creditors,
admit in writing its inability to pay its or the Company's debts generally as
they become due, or take any corporate action in furtherance of any such action
or (B) institute, or join in any institution, against any entity in which such
corporation holds an ownership interest any bankruptcy, insolvency, liquidation,
reorganization or arrangement proceedings or other proceedings under any United
States federal or state bankruptcy or similar law.
"Majority Interest" or "Majority of the Members" means those Members
holding more than 50% of the Membership Percentages.
"Majority of the Remaining Members" means those Members
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holding more than 50% of the Membership Percentages and more than 50% of the
Capital Account balances of the Members.
"Managers" are the persons that may be designated from time to time by
the Members to perform such functions for the Company as may be determined from
time to time by the Members or by the Articles.
"Member Nonrecourse Debt" shall have the meaning, and be determined in
the same manner as, partner nonrecourse debt pursuant to Treasury Regulation
Section 1.704-2(b)(4).
"Member Nonrecourse Debt Minimum Gain" means the amount, with respect
to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would
result if such Member Nonrecourse Debt were treated as a nonrecourse liability
of the Company, determined in the same manner as partner nonrecourse debt
minimum gain in accordance with Treasury Regulation Section 1.704-2(I)(3).
"Member Nonrecourse Deductions" shall have the meaning, and be
determined in the same manner as, partner nonrecourse deductions pursuant to
Treasury Regulation Section 1.704-2(I)(2).
"Members" means Chrysler Financial Receivables Corporation and Chrysler
Auto Receivables Company and any other person designated as such in Exhibit A,
each in its capacity as a "member" of the Company within the meaning of the Act;
provided, however, the term "Member" shall not include Special Member. Any
reference to a Member shall, unless the context clearly requires otherwise,
include a reference to its predecessor and successor (other than a mere assignee
not made a substitute Member) in interest.
"Membership Percentages" means the Members' respective limited
liability company interests in the Company as set forth in Exhibit A.
"Nonrecourse Deductions" shall have the meaning set forth in Treasury
Regulation Section 1.704-2(c).
"person" shall have the meaning assigned to such term in the Act.
"Profits and Losses" means the Company's taxable income or loss for
each Fiscal Year (or other period) determined in accordance with the accounting
methods followed by the Company for federal income tax purposes (for this
purpose all items of income, gain, loss or deduction required to be separately
stated pursuant to Code Section 703(a)(1) shall be included in taxable
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income or loss) as determined by the independent certified public accountants
employed by the Company, with the following adjustments:
(a) any income of the Company that is exempt from
federal income tax and not otherwise taken into account in computing Profits and
Losses shall be added to such taxable income or loss;
(b) any expenditures of the Company described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures under
Code Section 704(b) and not otherwise taken into account in computing Profits
and Losses shall be subtracted from such taxable income or loss;
(c) in the event the Book Value of any Company asset is
adjusted, the amount of such adjustment shall be taken into account as gain or
loss from the disposition of such asset for purposes of computing Profits or
Losses;
(d) any gain or loss resulting from any disposition of
Company property with respect to which gain or loss is recognized for federal
income tax purposes shall be computed by reference to the Book Value of such
property rather than its adjusted tax basis;
(e) in lieu of the depreciation, amortization and other
cost recovery deductions taken into account in computing taxable income or loss,
there shall be taken into account Depreciation for such Fiscal Year or other
period; and
(f) notwithstanding the foregoing, any items which are
specially allocated pursuant to Section 7.4 shall not be taken into account in
computing Profits and Losses.
"Special Member" means, upon such person's admission to the Company as
a member of the Company pursuant to Section 9.4, 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.
All references to statutory provisions shall be deemed to include
reference to corresponding provisions of subsequent law.
3. Purposes. The purposes for which the Company is formed are:
(a) to acquire, own, hold, service, sell, assign, pledge, finance,
refinance and otherwise deal with from time to time (motor vehicle wholesale
inventory loans or sales contracts
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secured by, among other things, new or used motor vehicles (the "Contracts");
(b) to acquire, own, hold, service, sell, assign, pledge, finance,
refinance and otherwise deal with collateral securing the Contracts, related
insurance policies, related agreements with affiliates, agreements with motor
vehicle dealers and other originators or servicers of Contracts and any proceeds
or further rights associated therewith;
(c) to sell, assign, pledge or otherwise transfer Contracts, rights and
properties referred to in paragraph (2) above, Certificates and notes to trusts
originated by the Company or one of its affiliates (each a "Trust") or to
affiliates of the Company;
(d) to authorize, sell and deliver or participate in the issuance of
one or more series or classes of participation certificates or other evidences
of interest ("Certificates") or one or more series or classes of bonds, notes or
other evidences of indebtedness ("Notes"), in either case issued by Trusts;
(e) to acquire Certificates or Notes or other property of a Trust,
including remainder interests in collateral or reserve accounts;
(f) to issue, authorize, sell and deliver Notes secured or
collateralized by Contracts, Certificates or Notes;
(g) to hold, and to enjoy all of the rights and privileges as a holder
of, any Certificates or Notes;
(h) to negotiate, authorize, execute, deliver or assume or perform the
obligations under any agreement, instrument or document relating to the
activities set forth in clauses (a) through (g) above, including but not limited
to any trust agreement, sale and servicing agreement, pooling and servicing
agreement, indenture, reimbursement agreement, credit support agreement,
receivables purchase agreement, indemnification agreement, placement agreement
or underwriting agreement; and
(i) to engage in any activity and to exercise any powers permitted to
limited liability companies under the laws of the State of Delaware that are
related or incidental to the foregoing and necessary, convenient or advisable to
accomplish the foregoing.
The Company shall have the authority to do all things necessary or
convenient to accomplish its purposes and to operate its business, including all
powers granted by the Act. The
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Company's business shall be limited to the purposes set forth in this Agreement.
No Member need afford the Company or any Member the opportunity of investing or
otherwise participating in any other enterprise, regardless of whether such
enterprises, but for this sentence, would be deemed an opportunity of the
Company. Moreover, nothing in this Agreement shall prohibit any Member from
engaging in any other business activity, whether or not competitive with,
similar to, or within the scope of the activities conducted by or on behalf of
the Company.
4. Capital Contributions; Borrowings.
4.1 Initial Contributions of Members. Each Member shall make or has
made the Capital Contributions set forth next to their name in Exhibit A upon
the date of their admission to the Company as a Member. No interest shall accrue
on any Capital Contribution made to the Company.
4.2 Additional Capital Contributions. A Member shall not be obligated
to make additional capital contributions except upon the consent of all the
Members.
4.3 Resignation. No Member shall be entitled to be repaid any portion
of its Capital Account or resign from the Company without the consent of all of
the Members or as otherwise provided in this Agreement.
4.4 Borrowings. The Company may borrow sums to be used for any of the
business purposes described in this Agreement; provided, however, that any such
borrowing shall require the prior approval of a Majority Interest of the Members
, shall not be prohibited by the Articles, any applicable law, regulation or
agreement, shall be subordinated in interest to all CARCO Auto Loan Master Trust
Series Certificateholders, and any unpaid borrowing shall not represent a claim
against the Company or CARCO Auto Loan Master Trust. Any Member may advance such
sums to the Company as approved in writing by a Majority Interest. Any amounts
borrowed from a Member shall not constitute a contribution to the capital of the
Company but shall constitute a debt of the Company which shall be repaid before
any distributions to the Members.
4.5 Additional Members. No additional Members shall be admitted to the
Company without the unanimous consent of the existing Members.
5. Management.
5.1 Powers of the Members.
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(a) The Company shall be managed by its Members. Subject to the other
provisions of this Section 5 and Section 6, each Member shall have the
authority, on behalf of the Company, to do all things appropriate to the
accomplishment of the purposes of the Company, including (but not limited to):
(1) acquiring and selling, assigning and transferring installment obligations,
leases, retail installment sales contracts, inventory loans, promissory notes,
security agreements and receivables, (2) disbursing Company funds for Company
purposes; (3) investing and reinvesting Company funds; (4) executing contracts,
notes, mortgages and other writings; (5) employing attorneys, accountants,
managers or other agents, which may include Affiliates of the Company; (6)
paying all Company obligations; (7) performing all ministerial acts and duties
relating to the payment of all indebtedness, taxes and assessments due or to
become due with regard to any property of the Company; (8) purchasing and
maintaining insurance on behalf of the Company against any liability or expense
asserted against or incurred by the Company; (9) transacting the Company's
business under an assumed name or name other than its name as set forth in the
Certificate of Formation and filing a certificate of assumed name in any
applicable jurisdiction; (10) appointing any Member or other person as agent for
service of process on the Company as required by the law of any state in which
the Company transacts business; (11) commencing, prosecuting or defending any
proceeding in the Company's name; and (12) doing such other acts as may
facilitate the Company's exercise of its powers, provided, however, that all
such acts shall fall within the business purposes of the Company as set forth in
this Agreement.
(b) Notwithstanding anything in this Agreement to the
contrary, the Members shall ensure that the Company shall at all times have at
least one Independent Member, which may be the sole Member, and no action of the
type described in Section 6 shall occur without the consent of each such
Independent Member.
(c) The Members, acting by Majority Interest and by a
written instrument, may from time to time delegate all or any of their powers or
duties hereunder (except as provided in Section 6) to one or more Members. Any
Member may by written instrument delegate any of its powers and duties (except
as provided in Section 6) to any other Member, in which event any exercise or
performance of such powers or duties by such Member shall be treated as the
action of the delegating Member as well as the acting Member.
(d) Each Member irrevocably appoints the other Members
as its attorney-in-fact on its behalf and in its stead to execute, swear to and
file the Certificate of Formation and any amendment or revocation of the
Certificate of Formation and to
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execute, sign any Member's name to, swear to and file any writing, and to give
any notice which may be required by any rule or law and which may be appropriate
in order to effect any action by or on behalf of the Company or the Members
taken as provided in this Agreement or which may be necessary or appropriate to
correct any errors or omissions. This power of attorney is coupled with an
interest and shall not be revoked by the act of any Member. This power of
attorney shall survive (i) the subsequent dissolution or incapacity of the
appointing Member and (ii) an assignment by any Member of its interest in the
Company; provided, however, that where a Member's entire interest is assigned to
an assignee who becomes a substitute Member in its stead this power shall
survive for the sole purpose of enabling such Member to effect such
substitution. Each Member shall provide 7-days' prior written notice of actions
to be taken as attorney-in-fact on behalf of another Member and the acting
Member shall be authorized to take such actions unless the other Member objects
in writing within the 7-day notice period.
(e) James G. Leyden, Jr. 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 Members, acting jointly or singly, thereupon
became the designated "authorized persons" and shall continue as the designated
"authorized persons" within the meaning of the Act. The Members, acting jointly
or singly, 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 Michigan and in any other jurisdiction in which the Company may
wish to conduct business. A copy of the Certificate of Formation or amendments
will be provided to each Member upon his written request to the Company.
(f) Subject to the other provisions of this Section 5
and Section 6, the Members shall have full power to act for and to bind the
Company to the extent provided by Delaware law and this Agreement. Every
contract, note, mortgage, lease, deed or other instrument executed by any Member
shall be conclusive evidence that at the time of execution, this Company was
then in existence, that this Agreement had not theretofore been terminated or
amended in any manner and that the execution and delivery of such instrument was
duly authorized by the Members.
(g) Chrysler Financial Receivables Corporation and any
successor member shall act as "tax matters partner" of the Company, as defined
in Code Section 6231(a)(7).
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5.2 Limitations on Powers. Notwithstanding the foregoing and any other
provision contained in this Agreement to the contrary, no act shall be taken,
sum expended, decision made, obligation incurred or power exercised by any
Member on behalf of the Company without prior written notice to all Members
outlining the proposed action followed by the written consent of a Majority
Interest of the Members with respect to: (a) any mortgage, grant of security
interest, pledge or encumbrance of any asset of the Company; (b) any merger of
the Company with another entity; (c) a transaction involving an actual or
potential conflict of interest between a Member and the Company; (d) any change
in the character of the business and affairs of the Company; (e) the commission
of any act which would make it impossible for the Company to carry on its
ordinary business and affairs; or (f) any act that would contravene any
provision of the Certificate of Formation or this Agreement or the Act.
5.3 Self Dealing. Any Member and any Affiliate of a Member may deal
with the Company, directly or indirectly, as vendor, purchaser, employee, agent
or otherwise. No contract or other act of the Company shall be voidable or
affected in any manner by the fact that a Member or his Affiliate is directly or
indirectly interested in such contract or other act apart from his interest as a
Member, nor shall any Member or his Affiliate be accountable to the Company or
the other Members in respect of any profits directly or indirectly realized by
him by reason of such contract or other act, and such interested Member shall be
eligible to vote or take any other action as a Member in respect of such
contract or other act as it would be entitled were he or his Affiliate not
interested therein. Notwithstanding the foregoing provisions of this Section
5.3, (a) any direct or indirect interest of a Member or Affiliate of a Member in
any contract or other act, other than his interest as a Member, shall be
disclosed to all other Members, (b) such contract or other act shall be approved
by a Majority Interest of the Members unless the same is specifically authorized
herein, and (c) the Members shall not receive or hold any property of the
Company as collateral security in respect of any claim against the Company.
5.4 Standard of Care; Liability. Each Member shall discharge his duties
in good faith, with the care an ordinarily prudent person in a like position
would exercise under similar circumstances, and in a manner he reasonably
believes to be in the best interests of the Company. A Member shall not be
liable for monetary damages to the Company for any breach of any such duties
except for receipt of a financial benefit to which the Member is not entitled,
voting for or assenting to a distribution to Members in violation of this
Agreement or the Act, or a knowing violation of the law.
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5.5 Compensation. The Company shall reimburse a Member for any
reasonable out-of-pocket expenses incurred by the Member on behalf of the
Company, provided, however, the Member shall not have any recourse against the
Company for such expenses until all CARCO Auto Loan Master Trust Series
Certificateholders are paid in full and, in addition, any unpaid expense shall
not represent a claim against the Company or CARCO Auto Loan Master Trust. In
addition, any Member may receive reasonable compensation for any specific
services rendered to the Company as approved by the Majority Interest.
5.6 Meetings of Members. All Members shall be entitled to vote on any
matter submitted to a vote of the Members. Unless a greater vote is required by
the Act or this Agreement, the affirmative vote of a Majority Interest of all
the Members entitled to vote on such matter shall be required. Meetings of
Members for the transaction of such business as may properly come before the
Members may be held at such place, on such date and at such time as the Majority
Interest shall determine. Special meetings of Members for any proper purpose or
purposes may be called at any time by the holders of at least twenty-five
percent (25%) of the Membership Percentages of all Members. The Company shall
deliver or mail written notice stating the date, time, place and purposes of any
meeting to each Member entitled to vote at the meeting. Such notice shall be
given not less than ten (10) nor more than sixty (60) days before the date of
the meeting.
5.7 Consent. Any action required or permitted to be taken at an annual
or special meeting of the Members may be taken without a meeting and without
prior notice, if 100% of the Members unanimously consent, in writing, to take
the proposed action. Every written consent shall bear the date of consent in
lieu of meeting and the signature of each Member who signs the consent.
6. Power to Institute Bankruptcy or Insolvency Proceedings.
6.1 Unanimous Vote Required. Notwithstanding any other provision of
this Agreement and any provision of law that otherwise so empowers the Company,
the Company shall not, and no Member or other person on behalf of the Company
shall, without the prior vote or written consent of 100% of the Members of the
Company, including each Independent Member and with respect to each Independent
Member, two or more of its Independent Directors, institute proceedings to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against it, or file a petition seeking, or
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consent to, reorganization or relief 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, or admit in writing its inability to pay its debts generally as they
become due, or take any corporate action in furtherance of any such action.
6.2 Voting on Bankruptcy or Insolvency. All Members, including each
Independent Member, shall be entitled to vote on any proposal of the type
described in Section 6.1. The affirmative vote of 100% of all the Members,
including each Independent Member, entitled to vote on such a proposal shall be
required for such a proposal to be adopted.
7. Capital Accounts; Profits and Losses; Distributions.
7.1 Capital Accounts. A capital account shall be maintained for each
Member, to which contributions, Profits and any items of income and gain under
Section 7.4 shall be credited and against which distributions and Losses and any
items of deduction and loss under Section 7.4 shall be charged. Capital accounts
shall be maintained in accordance with the accounting principles of Code Section
704 and the regulations thereunder.
7.2 Allocation of Profits and Losses.
(a) The Profits and Losses of the Company shall be
determined as of the end of each Fiscal Year of the Company and, except as
provided in Section 7.4, shall be allocated among the Members in proportion to
their respective Membership Percentages.
(b) If there is an addition, withdrawal or substitution
of, or any other change in the interest of, any Member during the period covered
by an allocation, then subject to any agreement between the persons affected,
the Profits and Losses for the period shall be allocated among the varying
interests consistent with the provisions of Code Section 706(d) and any
regulations promulgated thereunder. If Code Section 706(d) or any regulation
thereunder allows alternative methods of allocation, the Majority Interest shall
determine which alternative methods to use in allocating Profits and Losses
among the varying interests.
7.3 Distributions.
(a) The Company shall distribute to the Members
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from time to time such sums as the Majority Interest determines to be available
for distribution and not required to provide for current or anticipated Company
needs. Except as provided in Section 10, all distributions shall be made to the
Members in proportion to their respective Membership Percentages on the date of
the distribution.
(b) No distributions shall be declared and paid unless
the distribution is made in accordance with the Act and, after the distribution
is made, the Company would be able to pay its debts as they become due in the
usual course of business and the assets of the Company are in excess of the sum
of: (I) the Company's liabilities, plus (ii) the amount that would be needed to
satisfy the preferential rights of other Members upon dissolution that are
superior to the rights of the Members receiving the distribution. No Member
shall have the status of a creditor of the Company with respect to any
distribution.
7.4 Other Allocations. Notwithstanding the foregoing provisions of this
Section 7 or any other provision of this Agreement, the following provisions
shall apply:
(a) Compliance With Treasury Regulations. It is
anticipated that the Company may eventually be treated as a partnership for
federal income tax purposes and, accordingly, the partnership tax provisions of
the Code shall apply to the Company and its Members. It is the intent of the
Members that each Member's distributive share of income, gain, loss, deduction,
or credit (or item thereof) shall be determined and allocated in accordance with
this Section 7 to the fullest extent permitted by Section 704(b) of the Code. In
order to preserve and protect the determinations and allocations provided for in
this Section 7, the Majority Interest is authorized and directed to allocate
income, gain, loss, deduction, or credit (or item thereof) arising in any year
differently than otherwise provided for in this Section 7 to the extent that
allocation of income, gain, loss, deduction, or credit (or item thereof) in the
manner provided for in this Section 7 would cause the determinations and
allocations of each Member's distributive share of income, gain, loss,
deduction, or credit (or item thereof) not to be permitted by Section 704(b) of
the Code and Treasury Regulations promulgated thereunder. Any allocation made
pursuant to this Section 7.4 shall be deemed to be a complete substitute for any
allocation otherwise provided for in this Section 7 and no amendment of this
Agreement or approval of any Member shall be required. The terms used in this
Section 7 shall have the same meaning as in such Treasury Regulations.
(b) Only Required Modifications. In making any
allocation (the "new allocation") under Section 7.4, the Majority
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Interest is authorized to act only after having been advised by the Company's
accountants that, under Section 704(b) of the Code and the Treasury Regulations
thereunder (i) the new allocation is necessary, and (ii) the new allocation is
the minimum modification of the allocations otherwise provided for in this
Section 7 necessary in order to assure that, either in the then current year or
in any preceding year, each Member's distributive share of income, gain, loss,
deduction, or credit (or item thereof) is determined and allocated in accordance
with this Section 7 to the fullest extent permitted by Section 704(b) of the
Code and the Treasury Regulations thereunder.
(c) Minimum Gain Chargeback Attributable to Decrease in
Company Minimum Gain. If there is a net decrease in Company Minimum Gain during
a Company Fiscal Year so that an allocation is required by Treasury Regulation
Section 1.704-2(f), then each Member shall be specially allocated items of
income and gain for such year (and, if necessary, subsequent years) equal to
such Member's share of the net decrease in Company Minimum Gain as determined by
Treasury Regulation Section 1.704-2(g)(2). Such special allocation shall satisfy
the requirements of Treasury Regulation Section 1.704-2(f), or the corresponding
provisions of subsequently adopted Treasury Regulations, in order that the
allocations provided for in this Section 7 will be recognized for federal income
tax purposes.
(d) Minimum Gain Chargeback Attributable to Decrease in
Member Nonrecourse Debt Minimum Gain. If there is a net decrease in the Member
Nonrecourse Debt Minimum Gain during any Fiscal Year, any Member who has a share
of such Member Nonrecourse Debt Minimum Gain (as determined in the same manner
as partner nonrecourse debt minimum gain under Treasury Regulation Section
1.704-2(i)(5)) shall be specially allocated items of income or gain for such
year (and, if necessary, subsequent Fiscal Years) equal to such Member's share
of the net decrease in the Member Nonrecourse Debt Minimum Gain in the manner
and to the extent required by Treasury Regulation Section 1.704-2(i)(4).
(e) Qualified Income Offset. If a Member unexpectedly
receives an adjustment, allocation, or distribution described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), any of which causes or
increases an Adjusted Deficit Capital Account Balance in such Member's capital
account, then he will be specially allocated items of income and gain in an
amount and manner sufficient to eliminate such deficit balance created or
increased by such adjustment, allocation, or distribution as quickly as
possible.
(f) Gross Income Allocation. If a Member has
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an Adjusted Deficit Capital Account Balance at the end of a Company taxable
year, such Member shall be allocated items of income and gain in the amount of
such Adjusted Deficit Capital Account Balance as quickly as possible in order to
eliminate it.
(g) Allocation of Nonrecourse Deductions. Nonrecourse
Deductions shall be allocated among the Members in proportion to their
respective Membership Percentages.
(h) Allocation of Member Nonrecourse Deductions. Any
Member Nonrecourse Deductions shall be allocated to the Member who bears the
economic risk of loss with respect to the Member Nonrecourse Debt to which such
Member Nonrecourse Deductions are attributable in accordance with Treasury
Regulation Section 1.704-2(i)(1).
(i) Curative Allocations. If the Company is required by
Section 7.4(a),(c),(d),(e),(f),(g), or (h) to make any new allocation in a
manner other than as provided for in this Section 7 without regard thereto, then
the Majority Interest is authorized and directed, insofar as it is permitted to
do so by Section 704(b) of the Code, to allocate income, gain, loss, deduction,
or credit (or item thereof) arising in the current Fiscal Year (or subsequent
Fiscal Years, if necessary) in such manner so as to bring the proportions of
income, gain, loss, deduction, or credit (or item thereof) allocated to the
Members as nearly as possible to the proportion otherwise contemplated by this
Section 7 without regard thereto; provided, however, that Nonrecourse Deductions
shall not be taken into account except to the extent that there has been a
reduction in Company Minimum Gain and Member Nonrecourse Deductions shall not be
taken into account except to the extent that there has been a reduction in
Member Minimum Gain; and provided, further that such Nonrecourse Deductions and
Member Nonrecourse Deductions shall not in any event be taken into account to
the extent that the Majority Interest reasonably determines that such
allocations are likely to be offset by subsequent allocations pursuant to
Section 7.4(c) or (d).
(j) Advice of Accountants. Allocations made by the
Majority Interest under this Section 7.4 in reliance upon the advice of the
Company's accountants shall be deemed to be made pursuant to any fiduciary
obligation to the Company and the Members.
(k) Section 754 Election. To the extent an adjustment to
the adjusted tax basis of any Company asset pursuant to Code Section 734(b) or
Code Section 743(b) is required to be taken into account pursuant to Regulations
Section 1.704-1(b)(2)(iv)(m) in determining capital accounts, the amount
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of such adjustment to the capital accounts shall be treated as an item of gain
(if the adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis), and such gain or loss shall be specially allocated to the
Members in a manner consistent with the manner in which their capital accounts
are required to be adjusted pursuant to such Section of the Regulations.
(l) Imputed Interest. If any Member makes a loan to the
Company, or the Company makes a loan to any Member, and interest in excess of
the amount actually payable is imputed under Code Sections 7872, 483, or 1271
through 1288 or corresponding provisions of subsequent Federal income tax law,
then any item of income or expense attributable to any such imputed interest
shall be allocated solely to the Member who made or received the loan and shall
be credited or charged to his capital account, as appropriate.
(m) Contributed Property. Income, gain, loss or
deduction with respect to any property contributed by a Member shall, solely for
tax purposes, be allocated among the Members, to the extent required by Code
Section 704(c) and the regulations thereunder, to take account of the variation
between the adjusted tax basis of such property and its Book Value at the time
of contribution to the Company. If the Book Value of any Company property is
adjusted as provided in Treasury Regulation Section 1.704-1(b)(2)(iv),
subsequent allocations of income, gain, loss and deduction and the Book Value of
such property shall be adjusted as provided in Code Section 704(c) and the
regulations thereunder. If Code Section 704(c) and the regulations thereunder
allow alternative methods of making such acquired allocations, the Majority
Interest shall determine which alternative method to use.
7.5 Share of Excess Nonrecourse Liabilities. For purposes of
calculating the Members' share of "excess nonrecourse liabilities" of the
Company (within the meaning of Treasury Regulation Section 1.752-3(a)(3)), the
Members intend that they be considered as sharing profits of the Company in
proportion to their respective Membership Percentages.
8. Exculpation of Liability; Indemnification.
8.1 Limitation of Liability. Except as provided by the Act or expressly
assumed, a person who is a Member shall not be liable for the acts, debts or
liabilities of the Company solely by reason of being a member of the Company.
8.2 Indemnification. To the fullest extent permitted by law, the
Company hereby indemnifies each Member, employee or
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agent of the Company, who was or is a party or is threatened to be made a party
to a threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, or investigative, and whether formal or informal
(other than an action by or in the right of the Company) by reason of the fact
that such person is or was a Member, employee or agent of the Company against
expenses (including reasonable attorneys' fees), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with the action, suit or proceeding, provided, however, that such
indemnification of the expenses is subordinated to the amounts owing CARCO Auto
Loan Master Trust Series Certificateholders and will not represent a claim
against the Company or CARCO Auto Loan Master Trust and will only be made out of
the assets of the Company and no Member shall be liable for such
indemnification.
9. Term of Company.
9.1 Commencement. The term of the Company shall commence upon the
filing of the Certificate of Formation with the Delaware Secretary of State.
9.2 Dissolution. The Company shall be dissolved and its affairs wound
up upon the occurrence of any of the following events:
(a) By the written consent of all of the Members; or
(b) Upon entry of a decree of judicial dissolution; or
(c) The termination of the legal existence of the last remaining
member of the Company or the occurrence of any other event
which terminates the continued membership of the last
remaining member of the Company in the Company unless the
business of the Company is continued in a manner permitted
by this Agreement or the Act. Upon the occurrence of any
event that causes the last remaining member of the Company
to cease to be a member of the Company, to the fullest
extent permitted by law, the personal representative of such
member is hereby authorized to, and shall, within 90 days
after the occurrence of the event that terminated the
continued memberhsip of such member in the Company, agree in
writing (i) to continue the Company and (ii) to the
admission of the personal representative or
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its nominee or designeee, 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 in
the Company.
9.3 Bankruptcy. Notwithstanding any other provision of this Agreement,
the Bankruptcy of a Member or a Special Member shall not cause a Member or
Special Member, respectively, to cease to be a member of the Company and upon
the occurrence of such an event, the business of the Company shall continue
without dissolution.
9.4 Special Members. Upon the occurrence of any event that causes
there to be no members of the Company, each person acting as an Independent
Director shall, without any action of any Person and simultaneously with the
last 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 an Independent
Director: provided , however, the Special Members shall automatically cease to
be members of the Company upon the admission to the Company of a substitute
Member. Each Special Member shall be a member of the Company that has no
interest in the profits, losses and capital of the Company and has no right to
receive any distributions of the Company assets. Pursuant to Section 18-301 of
the Act, a Special Member shall not be required to make any capital
contributions to the Company and shall not receive a limited liability company
interest in the Company. A Special Member, in its capacity as Special Member,
may not bind the Company. Except as required by any mandatory provision of the
Act, each Special Member, in its capacity as Special Member, shall have no right
to vote on, approve or otherwise consent to any action by, or matter relating
to, the Company, including, without limitations, the merger, consolidation or
conversion of the Company. In order to implement the admission to the Company of
each Special Member, each Independent Member shall cause each person acting as
an Independent Director to execute a counterpart to this Agreement. Prior to its
admission to the Company as Special Member, each person acting as an Independent
Director shall not be a member of the Company.
10. Distribution of Assets. Upon dissolution of the Company, the
Company shall cease carrying on its business and affairs and shall commence
winding up of the Company's business
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and affairs and complete the winding up as soon as practicable. The Company's
affairs shall be concluded by a Member or Members selected in writing by the
Majority Interest. The assets of the Company may be liquidated or distributed in
kind, as determined by the Majority Interest, and the same shall first be
applied to the payment of, or to a reserve for the payment of, the Company's
liabilities (including such provision for contingent conditional or unmatured
liabilities known to the Company) and then to the Members in accordance with
their respective positive Capital Accounts after allocations pursuant to
Sections 7.2 and 7.4 for the current Fiscal Year. If the assets of the Company
shall not be sufficient to pay all of the liabilities of the Company, to the
fullest extent permitted by law, no assets of the Company may be sold or
disposed of without the written consent of all of the holders of outstanding
securities issued by CARCO Auto Loan Master Trust and any trust formed in the
future in respect of a transaction to which the Company is a party. If Company
assets are distributed in kind, the assets so distributed shall be valued at
their current fair market values and the unrealized appreciation or depreciation
in value of the assets shall be allocated to the Members' Capital Accounts in
the manner described in Sections 7.2 and 7.4 as if such assets had been sold,
and such assets shall then be distributed to the Members in accordance with
their respective positive capital accounts as so adjusted. To the extent that
Company assets cannot either be sold without undue loss or readily divided for
distribution in kind to the Members, then the Company may, as determined by the
Majority Interest, convey those assets to a trust or other suitable holding
entity established for the benefit of the Members in order to permit the assets
to be sold without undue loss and the proceeds thereof distributed to the
Members at a future date. The legal form of the holding entity, the identity of
the trustee or other fiduciary, and the terms of its governing instrument shall
be determined by the Majority Interest.
11. Restriction on Transfers of Interests.
11.1 No Transfers Permitted. No Independent Member may assign, pledge
or otherwise transfer his interest in the Company in whole or part except to
another Independent Member, and upon approval by all the other Members. Any
attempt by an Independent Member to transfer his interest to anyone but another
Independent Member shall be null and void. There are no transfer restrictions
with respect to Members other than Independent Members. If a Member transfers
its limited liability company interest in the Company pursuant to this Section
11.1, the transferee shall be admitted to the Company as a member of the Company
upon (I) 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, and (ii)
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its designation as a Member in Exhibit A. If a Member transfers all of its
limited liability company interest in the Company pursuant to this Section 11.1,
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.
12. Investment Representation. The Members represent to each other and
to the Company that they are acquiring their respective limited liability
company interests in the Company for their own accounts, and without a view to
selling or pledging them.
13. Amendments.
This Agreement may be amended only by written agreement of all the Members. The
Company shall not, without the prior written consent of each Trustee of any
Trust or Indenture which the Company is a party and of each nationally
recognized rating agency that has rated any Certificates or Notes issued by such
Trust or pursuant to such Indenture, amend, alter, change or repeal the
definition of Independent Member, the definition of Special Member, or Section
3, Article 6 or this Section 13. Subject to the foregoing limitation, the
Members reserve the right to amend, alter, change or repeal any provision
contained in this Agreement or the Articles in the manner now or hereafter
prescribed by statute, and all rights conferred upon Members herein are granted
subject to this reservation.
14. Miscellaneous Provisions.
14.1 Institution of Bankruptcy Proceedings. The Company shall not
without the consent of all its Members, including each Independent Member,
institute against, or join in any institution against, any entity in which the
Company holds an ownership interest, any bankruptcy, insolvency, liquidation,
reorganization or arrangement proceedings or other proceedings under any United
States, federal or state bankruptcy or similar law. When acting on matters
subject to a vote of the Members under this Agreement, the Members shall to the
fullest extent permitted by law, including Section 18-1101(c) of the Act, take
into account the interests of the creditors of the Company as well as that of
the Members.
The Company shall not, without the prior written consent of each
nationally recognized rating agency which has an outstanding rating in effect
with respect to Notes or Certificates that are issued by a Trust or pursuant to
an Indenture to which the Company is a party, amend, alter, change
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or repeal this Section 14.1.
14.2 Books of Account; Reports. (a) The Company shall keep true and
complete books of account and records of all Company transactions. The books of
account and records shall be kept at the principal office of the Company. The
Company shall maintain at such office (i) a list of names and addresses of all
Members; (ii) a copy of the Articles together with executed copies of all powers
of attorney, if any, pursuant to which the Articles have been executed; (iii)
copies of the Company's federal, state and local income tax returns and reports
for the three most recent years; (iv) copies of the Company's current Agreement;
and (v) copies of the financial statements of the Company for the three most
recent years. Such Company records shall be available to any Member or his
designated representative during ordinary business hours at the reasonable
request and expense of such Member.
(b) The Company will use its best efforts to furnish, or
cause to be furnished, to Members the following items on the date indicated:
(1) an annual report consisting of an income
statement for the prior year and a balance sheet as of the year ended.
(2) such other information concerning the Company
and the property of the Company as may be appropriate in order to make
full and fair disclosure to the members of the current financial and
operating conditions of the Company - as required.
(3) member information tax returns.
14.3 Bank Accounts and Investment of Funds. All funds of the Company
shall be deposited in its name in such checking accounts, savings accounts, time
deposits, or certificates of deposit or shall be invested in such other manner,
as shall be designated by the Majority Interest from time to time. Withdrawals
shall be made upon such signature or signatures as the Majority Interest may
designate.
14.4 Accounting Decisions. All decisions as to accounting matters,
except as specifically provided to the contrary herein, shall be made by the
Majority Interest in accordance with generally accepted accounting principles
consistently applied. Such decisions shall be acceptable to the accountants
retained by the Company, and the Majority Interest may rely upon the advice of
the accountants as to whether such
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decisions are in accordance with generally accepted accounting principles.
14.5 Federal Income Tax Elections. The Company shall, to the extent
permitted by applicable law and regulations and upon obtaining any necessary
approval of the Commissioner of Internal Revenue, elect to use such methods of
depreciation, and make all other Federal income tax elections in such manner, as
the Majority Interest determines to be most favorable to the Members. The
Majority Interest may rely upon the advice of the accountants retained by the
Company as to the availability and effect of all such elections.
14.6 Entire Agreement. This Agreement constitutes the entire Agreement
between the parties and may be modified only as provided herein. No
representations or oral or implied agreements have been made by any party hereto
or his agent, and no party to this Agreement relies upon any representation or
agreement not set forth herein. This Agreement supersedes any and all other
agreements, either oral or written, by and among the Company and its Members,
including the Original Agreement.
14.7 Notices. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
physically delivered, telephonically transmitted by telecopier or other similar
means, one (1) day after having been delivered to a delivery courier for next
day delivery, with proof of delivery to the recipient received by the courier in
the form of a signature of recipient, or three (3) days after having been
deposited in the United States mail, as certified mail with return receipt
requested and with postage prepaid, addressed to the Members at the addresses
listed in Exhibit A. The addresses and other information so indicated for any
Member may be changed by written notice.
14.8 Further Execution. Upon request of the Company from time to time,
the Members shall execute and swear to or acknowledge any amended Articles and
any other writing which may be required by any rule or law or which may be
appropriate to the effecting of any action by or on behalf of the Company or the
Members which has been taken in accordance with the provisions of this
Agreement.
14.9 Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the parties, their successors and permitted assigns.
None of the provisions of this Agreement shall be construed as for the benefit
of or as enforceable by any creditor of the Company or the Members or any other
person not a party to this Agreement.
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14.10 Severability. The invalidity or unenforceability of any provision
of this Agreement in a particular respect shall not affect the validity and
enforceability of any other provision of this Agreement or of the same provision
in any other respect.
14.11 Captions. All captions are for convenience only, do not form a
substantive part of this Agreement and shall not restrict or enlarge any
substantive provisions of this Agreement.
14.12 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one instrument. The Company shall have custody of the counterparts
executed in the aggregate by all Members.
14.13 Delaware Law to Control. The validity and interpretation of, and
the sufficiency of performance under, this Agreement shall be governed by
Delaware law, without regard to principal of conflict of laws.
14.14 Binding Agreement. Notwithstanding any other provision of this
Agreement, the Members agree that this Agreement constitutes a legal, valid and
binding agreement of the Members, and is enforceable against the Members by the
Independent Directors, in accordance with its terms. In addition, the
Independent Directors shall be intended beneficiaries of the Agreement.
The parties have executed this Agreement effective as of the date first
above written.
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DaimlerChrysler Wholesale Receivables LLC
EXHIBIT A
Members Capital Membership
Name and Address Contributions Percentages
- ---------------- ------------- -----------
Chrysler Financial Receivables
Corporation
27777 Franklin Road
Southfield, Michigan 48034 $49,000 99%
------- ---
Chrysler Auto Receivables
Company
27777 Franklin Road
Southfield, Michigan 48034 $ 1,000 1%
------- ---
Total $50,000 100%
======= ===
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DaimlerChrysler Wholesale Receivables LLC
Member Signature Page
Chrysler Financial Receivables Corporation
By: /s/ Byron C. Babbish
-------------------------------
Name: Byron C. Babbish
Title: Assistant Secretary
Chrysler Auto Receivables Company
By: /s/ Byron C. Babbish
-------------------------------
Name: Byron C. Babbish
Title: Assistant Secretary
STATE OF MICHIGAN )
) SS.
COUNTY OF OAKLAND )
The foregoing instrument was subscribed and sworn to before me
on May 31, 2000 by:
/s/ Notary Public
-------------------------------
INDEPENDENT DIRECTORS/SPECIAL MEMBERS:
/s/ M. A. Kickham
-------------------------------
/s/ J. A. Sellgran
-------------------------------
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