EXHIBIT 2.1
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 January 25, 2000 (the "Effective Date"), is entered into
by Centex Credit Corporation, a Nevada corporation d/b/a Centex Home Equity
Corporation ("CHEC"). 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, effective as of the Formation Date pursuant to
that certain Limited Liability Company Agreement of the Company, dated as of
the Formation Date (the "Limited Liability Company Agreement").
2. CHEC now desires to amend and restate the Limited Liability Company Agreement
in its entirety.
NOW, THEREFORE, CHEC, by execution of this Agreement, hereby continues
the Company as a limited liability company in accordance with the Act and this
Agreement and amends and relates the Limited Liability Company Agreement 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 limited
Liability Company Agreement in its entirety. The Limited Liability Company
Agreement shall have no further force or effect.
(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.
1
Section 2. PRINCIPAL BUSINESS OFFICE.
The principal business office of the Company shall be located at 0000
X. Xxxxxxx, Xxxxxx, Xxxxx 00000 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, 0000 Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
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, 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
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.
2
Section 6. CERTIFICATES.
Xxxxxxxx X. XxXxxxx is hereby designated as an "authorized person"
within the meaning of the Act, and has executed, delivered and filed the
Certificate of Formation of the Company with the Secretary of State of the State
of Delaware. Upon the filing of the Certificate of Formation with the Secretary
of State of the State of Delaware, his powers as an "authorized person" ceased
and the Member thereupon became the designated "authorized person" and shall
continue as the designated "authorized person" within the meaning of the Act.
The Member 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:
(1) 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;
3
(2) mortgage-backed securities insured and/or guaranteed
as to timely payment, of interest and/or principal by the
Government national Mortgage Association, Federal National
Mortgage Association or Federal Home Loan Mortgage
Corporation, and privately issued mortgage-backed securities;
and
(3) 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 "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 Company's Member. 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.
4
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 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;
5
(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 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.
6
(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;
(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;
7
(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.
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
8
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 continue to be the Officers of the Company as elected
pursuant to that certain Written Consent in Lieu of Organizational Meeting of
the Sole Member, dated October 25, 1999, executed by CHEC. 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.
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.
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
9
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.
10
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 or claim against 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, demand, action,
suit or proceeding upon receipt by the Company of an undertaking by or
11
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 a decree or
order restraining and enjoining such Transfer and the offending Member
shall 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.
12
(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.
14
Section 29. BINDING AGREEMENT.
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 25th day of January, 2000.
CENTEX CREDIT CORPORATION d/b/a
CENTEX HOME EQUITY CORPORATION,
as SOLE MEMBER
By /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
Agreed to and consented to by:
SPECIAL MEMBER AND
INDEPENDENT MANAGER:
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
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.
"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.
17
"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 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.
18
"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, to the
fullest extent permitted by law, take action in furtherance of any such action,
or 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; (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,
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, including any obligations 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.
"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.
19
"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 0000 X. Xxxxxxx $1,000,000 100%
Corporation, d/b/a Xxxxxx, Xxxxx 00000
Centex Home Equity
Corporation
21
SCHEDULE C
OFFICERS
Name Office
---- ------
Xxxxxxx X. Xxxxxx President
Xxxx Xxxxxxxx Vice President
Xxxxxxx X. Xxxxxx Secretary
Xxxxx X. Xxxxxxx Treasurer
Xxxxxxx X. Xxxxxx Assistant Vice President
Xxxxx X. Xxxxxxxx Assistant Vice President
Xxxx Xxxxxxxx Vice President & General Counsel
Xxxxx X. Xxxxxx Assistant Secretary
Xxxxx XxXxxxx Assistant Secretary
22
