AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
OF
CHEC FUNDING, LLC.
This Amended and Restated Limited Liability Company Agreement (together
with the schedules attached hereto, this "Agreement") of CHEC Funding, LLC
(the "Company"), dated as of March 10, 2000 (the "Effective Date"), is
entered into by Centex Credit Corporation, a Nevada corporation d/b/a Centex
Home Equity Corporation ("CHEC") as the sole economic member of the Company
and Lord Securities Corporation, as the special member of the Company.
Capitalized terms used and not otherwise defined herein have the meanings set
forth in SCHEDULE A hereto, or, if not defined in SCHEDULE A, such terms have
the meanings set forth in the Basic Documents (as defined in SCHEDULE A
hereto).
RECITALS
1. The Company was formed as a Delaware limited liability company on
December 7th, 1999 (the "Formation Date") by filing the Certificate of
Formation with the Delaware Secretary of State. CHEC was admitted to the
Company as the initial member January 6, 2000 pursuant to that certain
Limited Liability Company Agreement of the Company, dated as of January 6,
2000 (the "Limited Liability Company Agreement").
2. CHEC and Lord Securities Corporation, as the Special Member, amended and
restated the Limited Liability Company Agreement in its entirety by entering
into an Amended and Restated Limited Liability Company Agreement of the
Company, dated as of January 25, 2000 (the "Original Amended and Restated
Limited Liability Company Agreement").
3. CHEC and Lord Securities Corporation, as the Special Member, desire to
continue the Company as a limited liability company under the Act and to
amend and restate the Original Amended and Restated Limited Liability Company
Agreement of the Company in its entirety.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good an valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, CHEC and Lord Securities
Corporation, as the Special Member, hereby agree as follows:
Section 1. FORMATION; AMENDMENT AND RESTATEMENT; NAME.
(a) The Company was formed as a Delaware limited liability company as
of the Formation Date by filing the Certificate of Formation.
(b) This Agreement supersedes and amends and restates the Original
Amended and Restated Limited Liability Company Agreement in its entirety. The
Original Amended and Restated Limited Liability Company Agreement shall have
no further force or effect.
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(c) The name of the limited liability company heretofore formed and
continued hereby is CHEC Funding, LLC and the business of the Company shall
be conducted solely under such name or any other name, to the extent
permitted by law.
Section 2. PRINCIPAL BUSINESS OFFICE.
The principal business office of the Company shall be located at ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ 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, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
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 Services
Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Section 5. MEMBER.
(a) The mailing address of the member is set forth on SCHEDULE B hereto.
(b) Subject to Section 9(b), the Member may act by written consent.
(c) The Member shall be the only member of the Company that has a limited
liability company interest in the Company which represents an interest in the
profits, losses, and capital of the Company and the right to receive
distributions of Company assets. The Member owns a 100% interest in the
profits, losses and capital of the Company. Except for the rights
specifically granted herein to the Special Member, the Member shall be the
only member of the Company with any voting rights. The Special Member shall
have no interest in the profits, losses and capital of the Company and shall
have no right to receive any distributions of Company assets. The Special
Member shall be admitted as a member of the Company within the meaning of the
Act upon execution and delivery of this Agreement or a counterpart signature
page to this Agreement. Pursuant to Section 18-301 of the Act, the Special
Member shall not be required to make any capital contribution to the Company
and shall not receive a limited liability company interest in the Company.
Upon the occurrence of an event that causes the Member to cease to be a
member of the Company, the Special Member shall, to the fullest extent
permitted by law, continue the business of the Company without dissolution.
Notwithstanding the last sentence of Section 18-402 of the Act and except as
expressly provided in this Agreement, the Special Member may not bind the
Company.
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Section 6. CERTIFICATES.
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 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, her 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 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 the State of Texas and in any other
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 solely in the following activities:
(a) to acquire, own, hold, sell, transfer, pledge or otherwise dispose of:
(i) interests in (A) loan agreements, promissory notes or evidences of
indebtedness (the "Mortgage Loans") secured by mortgages, deeds of trust,
pledge agreements or other security devices creating first, second and/or
more subordinate liens on one-to-four-family residential properties,
detached or semi-detached one-to-four-family dwelling units, townhouses,
rowhouses, individual condominium units, individual units in planned unit
developments, and certain other dwelling units (the "Single Family
Properties") or mixed use properties which consist of structures of not
more than three stories which include one-to-four-family residential
dwelling units and space used for retail, professional or other
commercial uses (together with the Single Family Properties, the
"Properties"), (B) closed-end and/or revolving home equity loans (the
"Home Equity Loans") secured by first, second and/or subordinate liens on
Single Family Properties, (C) home improvement sale contracts and
installment loan agreements (the "Home Improvement Contracts") that are
either unsecured or secured by first, second and/or more subordinate
liens on Single Family Properties or by purchase money security interests
in the home improvements financed thereby, and (D) manufactured housing
installment sales contracts and installment loan agreements (the
"Manufactured Housing Contracts") and together with the Home Equity
Loans, Home Improvement Contracts and the Mortgage Loans, the "Loans")
secured by first, second, and/or more subordinate liens or by mortgages
on real estate on which the manufactured homes are located; such Loans
may include cooperative apartment loans secured by shares issued by
private, nonprofit, cooperative housing corporations ("Cooperatives") and
the related proprietary leases or occupancy agreements granting exclusive
rights to occupy specific dwelling units in such Cooperative buildings;
(ii) mortgage-backed securities insured and/or guaranteed as to timely
payment, of interest and/or principal by the Government National Mortgage
Association, Federal
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National Mortgage Association or Federal Home Loan Mortgage Corporation,
and privately issued mortgage-backed securities; and
(iii) mortgage pass-through certificates and other collateralized mortgage
obligations issued by a financial institution or other entity engaged
generally in the business of mortgage lending, a public agency or
instrumentality of a state, local or federal government, or a limited
purpose corporation engaged in the business of establishing trusts and
acquiring and selling residential loans to such trusts and selling
beneficial interests in such trusts.
(b) To act as settler or depositor of one or more trusts (each a "Trust")
formed under a trust agreement, pooling and servicing agreement or other
agreement (the "Trust Agreements") to be entered into by, among others,
the Company, the trustee named therein (the "Trustee") and any entity
acting as servicer of the receivables, to issue one or more series (any
of which series may be issued in one or more classes) of trust
certificates ("Certificates") representing interests in Loans and/or to
issue pursuant to an indenture or other agreement one or more series (any
of which series may be issued in one or more classes) of bonds, notes or
other evidences of indebtedness ("Debt Obligations") collateralized by
Loans and/or other property and to enter into any other agreement in
connection with the authorization, issuance, sale and delivery of
Certificates and/or Debt Obligations ("Securities"), including
arrangements for support for any series of Securities by various forms or
credit enhancement.
(c) To hold, pledge, finance, transfer or otherwise deal with Securities,
including Securities representing a senior interest in Loans ("Senior
Interests"), representing a subordinated interest in Loans ("Subordinated
Interests") or a residual interest in Loans ("Residual Interests").
(d) To loan or invest or otherwise apply proceeds from Loans, funds received
in respect of Securities, Senior Interests, Subordinated Interests or
Residual Interests and any other income, as determined by the Member, in
its sole discretion. The sale and repurchase of Acquired Assets in
accordance with the terms thereof.
(e) To negotiate, authorize, execute, deliver, assume the obligations under,
and perform, any agreement or instrument or document relating to the
activities set forth in clauses (a) through (d) above.
(f) To engage in any activity and to exercise any powers permitted to limited
liabilities 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 not engage in
any business or activity other than in connection with or relating to the
activities described above.
(g) The Company, by or through the Member, or any officer on behalf of the
Company, may enter into and perform the Basic Documents and all
documents, agreements, certificates, or
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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 or officer to enter into other agreements on behalf of the
Company.
Section 8. RESERVED.
Section 9. MANAGEMENT.
(a) Subject to Section 9(b), the management of the Company is fully
vested in the Member, and except as otherwise provided in this Agreement,
such Member shall have full power and authority to manage the business and
affairs of the Company in accordance with Section 7.
(b) LIMITATIONS ON THE COMPANY'S ACTIVITIES.
(i) This section 9(b) is being adopted in order to comply with
certain provisions required in order to qualify the Company as a
"special purpose entity."
(ii) RESERVED.
(iii) The Member shall not, so long as any Obligation is outstanding,
amend, alter, change or repeal the definition of "Independent Manager"
or Sections 7, 9, 10, 16, 20, 21, 22, 23, 24, 25, 26, 29, or 31 or
SCHEDULE A of this Agreement without the written consent of the
Independent Manager. Subject to this Section 9(b), the Member reserves
the right to amend, alter, change or repeal any provisions contained
in this Agreement in accordance with Section 31.
(iv) RESERVED.
(v) 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 the Member shall determine that the preservation thereof is no longer
desirable for the conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the Company. The Member also shall
cause the Company to:
(A) maintain its own books and records and bank accounts
separate from those of any other Person or its Member;
(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) 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;
(D) not commingle its assets with assets of any other
Person;
(E) conduct its business in its own name and strictly
comply with all organizational formalities to maintain its
separate existence;
(F) maintain separate financial statements;
(G) pay its liabilities only out of its funds;
(H) transact all business with its Affiliates and the
Member on an arm's length basis and pursuant to written,
enforceable agreements;
(I) pay the salaries of its own employees, if any;
(J) not hold out its credit or assets as being available to
satisfy the obligations of others;
(K) allocate fairly and reasonably any overhead for shared
office space;
(L) use separate stationary, invoices and checks;
(M) except as contemplated by the Basic Documents, not pledge
its assets for the benefit of any other Person;
(N) correct any known misunderstanding regarding its
separate identity and refrain from engaging in any activity
that compromises the separate legal identity of the Company;
(O) maintain adequate capital in light of its contemplated
business purpose, transaction and liabilities;
(P) cause the managers, officers, agents and other
representatives of the Company, if any, 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;
and
(Q) not acquire or assume any obligation or liability of
any of its members.
Failure by the Company or the Member or the Independent Manager, on
behalf of the Company, to comply with any of the foregoing (A) through (Q) or
any other covenant set forth in
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this Agreement shall not affect the status of the Company as a separate legal
entity or the limited liability of the Member, the Special Member or the
Independent Manager.
(vi) RESERVED.
(vii) So long as any Obligations are outstanding or any amounts are
owed by the Company under any Basic Document, the Member 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;
(C) except as contemplated by the Basic Documents or as
permitted under Section 7, incur, create, assume or
guarantee any indebtedness;
(D) except as contemplated by the Basic Documents or as
permitted under Section 7, make or permit to remain
outstanding any loan or advance to, or own or acquire
any stock or securities of, any Person;
(E) form, acquire or hold any subsidiary (whether
corporate, partnership, limited liability company or
other); and
(F) sell, pledge, transfer, assign or otherwise convey the
interest of the Member of the Company.
(viii) NEGATIVE COVENANTS. Without the consent of the Independent
Manager, neither the Company, the Member, nor any other Person
on behalf of the Company shall have the authority to:
(A) do any act in contravention of this Agreement;
(B) do any act which would make it impossible to carry on
the ordinary business of the Company, except as
otherwise provided in this Agreement;
(C) confess a judgment against the Company;
(D) possess Company Property, or assign rights in specific
Company Property, for other than Company purpose;
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(E) knowingly perform any act that would subject (1) the
Member to liabilities of the Company in any
jurisdiction or (2) the Company to taxation as a
corporation under relevant provisions of the Code;
(F) except as otherwise provided for herein or as
contemplated by the Basic Documents, sell, pledge,
transfer, assign or otherwise convey the Company
Property;
(G) take any Material Action, notwithstanding any other
provision of this Agreement and any provision of law
that otherwise so empowers the Company or the Member;
(H) amend, alter, change or repeal its Certificate of
Formation or any provision therein; and
(I) to the fullest extent permitted by law, engage in any
dissolution, liquidation, consolidation, merger, asset
sale, transfer of ownership interests or sale or
disposal of all or substantially all of the Company's
assets, other than (i) in the ordinary course of
business; and (ii) as permitted or contemplated
pursuant to any provision of the Basic Documents.
Section 10. INDEPENDENT MANAGER.
As long as any Obligation is outstanding, the Member shall cause the
Company at all times to have a least one (1) Independent Manager who will be
appointed by the Member. All right, power and authority of the Independent
Manager shall be limited to the extent necessary to exercise those rights and
perform those duties specifically set forth in this Agreement. To the fullest
extent permitted by law, including Section 18-1101(c) of the Act, the
Independent Manager 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(b). Except as provided in the preceding
sentence, in exercising its rights and performing its duties under this
Agreement, the Independent Manager shall have 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 Manager
shall at any time serve as trustee in bankruptcy for any Affiliate of the
Company. No resignation or removal of the Independent Manager, and no
appointment of a successor Independent Manager, shall be effective until the
successor Independent Manager shall have accepted his or her appointment by a
written instrument, which may be a counterpart signature page to this
Agreement. In the event of death, incapacity or other termination of the
Independent Manager, the Company shall appoint a successor Independent
Manager within ten (10) days. At such time as all Obligations of the Company
have been paid in full, any provision of Section 9(b) or otherwise herein
requiring the consent of the Independent Manager shall no longer be effective.
Section 11. OFFICERS.
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The Member may, from time to time as it deems advisable, appoint
Officers of the Company and assign in writing titles (including, without
limitation, president, vice president, secretary, and treasurer) to any such
person. Unless the Member decides otherwise, if the title is one commonly
used for officers of a business corporation formed under the Delaware General
Corporation Law, the assignment of such title shall constitute the delegation
to such person of the authorities and duties that are normally associated
with that office. Any delegation pursuant to this Section 11 may be revoked
at any time by the Member. The Officers listed on SCHEDULE C hereto are
hereby appointed the Officers of the Company by the Member. The Member may
revise SCHEDULE C in its sole discretion at any time.
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, the Special Member nor the Independent
Manager shall be obligated personally for any such debt, obligation or
liability of the Company solely by reason of being a Member, Special Member
or Independent Manager of the Company.
Section 13. CAPITAL CONTRIBUTIONS.
The Member shall contribute to the Company property of an agreed value
as listed on SCHEDULE B hereto. In accordance with SECTION 5(c), the Special
Member shall not be required to make any capital contributions to the Company.
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 solely to benefit
the 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 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. The
Special Member shall not be allocated any profits or losses.
Section 16. DISTRIBUTIONS.
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Distributions shall be made to the Member at the times and in the
aggregate amounts determined by the Member. Notwithstanding any provision to
the contrary contained in this Agreement, the Company shall not be required
to make a distribution to the Member on account of its interest in the
Company if such distribution would violate Section 18-607 of the Act or any
other applicable law or any Basic Document.
Section 17. BOOKS AND RECORDS.
The Member 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 Member. The Company shall
not have the right to keep confidential from the Member any information that
any manager of the Company would otherwise be permitted to keep confidential
from the Member pursuant to Section 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. The books and records and bank
accounts of the Company may be kept inside or outside of the State of Texas,
at such place or places as may be designated from time to time by the Member,
subject to any statutory limitations set forth in the Act.
Section 18. REPORTS.
(a) Within sixty (60) days after the end of each fiscal quarter, the Company
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
(ii) unless such quarter is the last fiscal quarter, an income
statement of the Company for such fiscal quarter.
(b) The Company shall use diligent efforts to cause to be prepared and mailed
to the Member, within on hundred twenty (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 statement of financial condition of the Company;
(ii) an income statement of the Company for such fiscal year; and
(iii) a statement of the Member's capital account.
The Company 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.
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Section 19. OTHER BUSINESS.
The Member and any Affiliate of the Member may engage in or possess an
interest in other business ventures (unconnected with the Company) of every
kind and description, independently or with others. The Company shall not
have any rights in or to such independent ventures or the income or profits
therefrom by virtue of this Agreement. Notwithstanding the foregoing, the
Member shall account to the Company, and hold in trust for it, any property,
profit or benefit received by the Member in the conduct or winding up of the
Company's business or from use or appropriation by the Member of any Company
Property, including, without limitation, any information developed
exclusively for the Company and opportunities offered exclusively to the
Company.
Section 20. EXCULPATION AND INDEMNIFICATION.
(a) Neither CHEC, the Member, the Special Member, the Independent Manager,
any Officer, nor any employee or agent of the Company and no employee,
representative, agent or Affiliate of CHEC, the Member or Special Member
(collectively, the "Covered Persons") shall be liable to the Company or
any other Person who has an interest in the Company 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 the Company assets 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,
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demand, action, suit or proceeding upon receipt by the Company of an
undertaking by or on behalf of such 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 the Company or this Agreement.
Section 21. PROHIBITION OF THE SALE; TRANSFER OR MORTGAGE OF MEMBER
INTERESTS.
(a) Except as provided in Section 9(b)(vii)(F), no Member or beneficial owner
of any Member Interest shall sell, assign, transfer, mortgage, charge or
otherwise encumber, or suffer any third party to sell, assign, transfer,
mortgage, charge or otherwise encumber, or contract to do or permit any
of the foregoing, whether voluntarily or by operation of law
(collectively called a "Transfer"), its Member Interest or any beneficial
interest therein and any attempt to do so will be void.
(b) In the event that a Member shall at any time transfer or attempt to
transfer any of its Member Interest and any rights hereby granted, the
Special Member or the Independent Manager shall, in addition to all
rights and remedies at law and inequity, be entitled, to the fullest
extent permitted by law, to a decree or order restraining and enjoining
such Transfer and the offending Member shall, to the fullest extent
permitted by law, not plead in defense thereto that there would be an
adequate remedy at law; it being hereby expressly acknowledged and agreed
that damages at law will be an inadequate remedy for a breach or
threatened breach of the violation of the provisions concerning transfer
set forth in this Agreement.
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(c) The Special Member shall not have any right to assign or transfer its
limited liability company interest, if any, or rights as Special Member.
Such limited liability company interest, if any, and rights of the
Special Member shall belong solely to and be exercised solely by the
Person who is the Independent Manager from time to time.
Section 22. RESIGNATION.
So long as any Obligation is outstanding, the Member may not resign,
except as permitted under the Basic Documents. 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.
Section 24. DISSOLUTION.
(a) Subject to Section 9(b), the Company shall be dissolved, and its affairs
shall be wound up upon the first to occur of the following: (i) the entry
of a decree of judicial dissolution under Section 18-802 of the Act, (ii)
the written consent of the Member, or (iii) at any time there are no
members of the Company unless the Company is continued without
dissolution in accordance with 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 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 in the Company.
(b) Notwithstanding any other provision of this Agreement, the Bankruptcy of
the Member shall not cause the Member 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.
13
(c) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of
the assets of the Company in an orderly manner), and the assets of the
Company shall be applied in the manner, and in the order of priority, set
forth in Section 18-804 of the Act.
(d) 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, the Member hereby irrevocably waives any
right or power that the Member 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.
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.
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.
14
Notwithstanding any other provision of this Agreement, the Member
agrees that this Agreement, including, without limitation, Sections 7, 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 Manager and the Special Member in accordance with its terms. In
addition, the Independent Manager shall be an intended beneficiary 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(b), this Agreement may not be modified, altered,
supplemented or amended except 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 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 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.
This Agreement shall be effective as of the date first set forth above.
15
IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, has duly executed this Amended and Restated Limited Liability Company
Agreement as of the 10th day of March, 2000.
CENTEX CREDIT CORPORATION d/b/a
CENTEX HOME EQUITY CORPORATION,
as SOLE MEMBER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Agreed to and consented to by:
SPECIAL MEMBER AND
INDEPENDENT MANAGER:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
16
SCHEDULE A
Definitions
A. DEFINITIONS
When used in this Agreement, the following terms not otherwise defined
herein have the following meanings:
"ACQUIRED ASSETS" shall have the meaning set forth in Section 7(b).
"ACT" means the Delaware Limited Liability Company Act (6 DEL. C.
Section 18-101 ET SEQ.), as amended from time to time.
"AFFILIATE" means, with respect any Person, any other Person directly
or indirectly Controlling or Controlled by or under direct or indirect common
Control with such Person.
"AGREEMENT" shall have the meaning set forth in the preamble.
"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
proceeding, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution 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, dissolution 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
Section 18-101(1) and 18-304 of the Act.
"BASIC DOCUMENTS" means the Pooling and Servicing Agreement, dated as
of March 1, 2000 (the "Pooling and Servicing Agreement"), among CHEC Funding,
LLC, as depositor (the "Depositor"), Centex Credit Corporation d/b/a Centex
Home Equity Corporation ("CHEC"), as a seller and servicer (in its capacity
as a seller, the "Seller" and in its capacity as servicer, the "Servicer"),
CHEC Conduit Funding, LLC ("CHEC Conduit LLC") as a seller (together with
CHEC, the "Sellers") and Bank One, National Association, as trustee (the
"Trustee"); the Underwriting Agreement (the "Underwriting Agreement") dated
March 1, 2000, by and between the Depositor and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc,
▇▇▇▇▇▇ Brothers Inc. and Prudential Securities
17
Incorporated (the "Underwriters"); the Insurance and Indemnity Agreement
dated as of March 15, 2000 (the "Insurance Agreement"), among the Financial
Security Assurance Inc. (the "Certificate Insurer"), the Depositor and CHEC;
and the Indemnification Agreement dated as of March 15, 2000 (the
"Indemnification Agreement"), among the Certificate Insurer, CHEC and the
Underwriters and all documents and certificates thereby or delivered in
connection therewith.
"CERTIFICATE OF FORMATION" means the Certificate of Formation of the
Company filed with the Secretary of State of the State of Delaware on
December 7th, 1999, as amended or amended and restated from time to time.
"CODE" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time, or any successor statute thereto.
"COMPANY" shall have the meaning set forth in the preamble.
"COMPANY PROPERTY" means all real, personal and mixed properties, cash,
assets, interests and rights of any type owned by the Company, including all
assets acquired with Company funds or in exchange for Company Property.
"CONTROL" (including the terms "CONTROLLING" and "CONTROLLED") means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities or general partnership or managing member
interests, by contract or otherwise.
"COVERED PERSONS" has the meaning set forth in Section 20(a).
"CHEC" shall have the meaning set forth in the preamble.
"EFFECTIVE DATE" shall have the meaning set forth in the preamble.
"FORMATION DATE" shall have the meaning set forth in the recitals.
"INDEPENDENT MANAGER" means a natural person who is an individual with
at least three (3) years' prior experience in transactions involving the
securitization of financial assets, and prior experience as an independent
manager or independent director for an entity (other than the Company) whose
charter documents require the consent of all independent managers or
directors, as applicable, before such entity could file a bankruptcy
proceeding or consent to the institution of bankruptcy proceedings against it
and (i) s not a stockholder (whether direct, indirect or beneficial) of CHEC
or any of its Affiliates (PROVIDED that indirect stock ownership of CHEC or
any of its Affiliates by any person through a mutual fund or similar
diversified investment pool shall not disqualify such person from being an
"Independent Manager" unless such person maintains direct or indirect control
of the investment decisions of such mutual fund or similar diversified
investment pool); (ii) is not a customer, creditor, supplier, service
provider or other person who derives more than 10% of its purchases or
revenues from its activities with CHEC or any of its Affiliates; (iii) is not
(and has not been during the five (5) years preceding
18
this Agreement) an officer or employee of CHEC or any of its Affiliates, (iv)
is not (and has not been during the five (5) years preceding this Agreement)
a director, partner, associate, attorney or counsel of CHEC or any of its
Affiliates, other than the Company and other than as independent manager or
independent director of another "special purpose entity" Affiliate of CHEC
(CHEC and its Affiliates, other than the Company, being hereafter referred to
as the "PARENT GROUP"); (v) is not a person or other entity controlling or
under common control with a person referred to in clauses (i), (ii), (iii)
and (iv); (vi) is not a member of the immediate family of any person referred
to in clause (i), (ii), (iii) and (iv); and (vii) is not a trustee,
conservator or receiver for any member of the Parent Group.
"LIMITED LIABILITY COMPANY AGREEMENT" shall have the meaning set forth in
the recitals.
"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 (other than in the ordinary course of business or as contemplated by
the Basic Documents), 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 for 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 CHEC, and includes any Person (other than the Special
Member) admitted as an additional member of the Company or a substitute
member of the Company pursuant to the provisions of this Agreement.
"MEMBER INTEREST" means with respect to any Member, (a) that Member's
status as a Member of the Company; (b) that Member's right to receive
distributions from the Company; (c) all other rights, benefits and privileges
enjoyed by that Member (under the Act, this Agreement, or otherwise) in its
capacity as a member of the Company, including that Member's rights to vote,
consent and approve and otherwise to participate in the management of the
Company; and (d) all obligations, duties and liabilities imposed on that
Member (under that Act, this Agreement or otherwise) in its capacity as a
member of the Company, including any obligations, if any, to make capital
contributions.
"MORTGAGE COLLATERAL" shall have the meaning set forth in Section 7(a).
"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.
19
"PARENT GROUP" shall have the meaning set forth in the definition of
"Independent Manager."
"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.
"SPECIAL MEMBER" shall mean the Independent Manager in its capacity as
both a "member" and a "manager" of the Company within the meaning of the Act.
"TRANSFER" shall have the meaning set forth in Section 21(a).
A. 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.
20
SCHEDULE B
MEMBER
Agreed Value of Membership
Name Mailing Address Capital Contribution Interest
---- --------------- -------------------- --------
Centex Credit ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ $1,000,000 100%
Corporation, d/b/a ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Centex Home Equity
Corporation
21
SCHEDULE C
OFFICERS
Name Office
---- ------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ President
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Vice President
▇▇▇▇ ▇▇▇▇▇▇▇▇ Vice President
▇▇▇▇▇▇▇ ▇▇▇▇ Vice President
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Secretary
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Treasurer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Assistant Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Assistant Vice President
▇▇▇▇ ▇▇▇▇▇▇▇▇ Vice President & General Counsel
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Assistant Secretary
▇▇▇▇▇ ▇▇▇▇▇▇▇ Assistant Secretary
22