EXHIBIT 10.55
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY INTEREST
SECURITY AND PLEDGE AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY INTEREST SECURITY AND PLEDGE
AGREEMENT (this "Agreement") is made as of February 1, 2002 by ORIGEN FINANCIAL,
INC., a Virginia corporation ("Pledgor"), in favor of SUN COMMUNITIES OPERATING
LIMITED PARTNERSHIP, a Michigan limited partnership (the "Secured Party").
R E C I T A L S:
A. Pledgor currently owns 100% of the membership interests in Origen
Special Purpose II, L.L.C., a Delaware limited liability company (the
"Company").
B. The Secured Party had previously made available to Pledgor a line of
credit up to the amount of $12,500,000 (the "Original Loan"), pursuant to the
terms and conditions of that certain Subordinated Loan Agreement dated December
18, 2001, as amended, between Pledgor and the Secured Party (the "Original Loan
Agreement") and related documents.
C. To secure the prompt satisfaction by Pledgor of all of its obligations
to the Secured Party under the Original Loan Agreement and related documents,
Pledgor executed and delivered to Secured Party a Limited Liability Company
Interest Security and Pledge Agreement dated December 18, 2001 (the "Original
Pledge Agreement").
D. The Secured Party, Pledgor, and Origen Financial, L.L.C., a Delaware
limited liability company ("Origen LLC") have entered into an Amended and
Restated Subordinated Loan Agreement dated February 1, 2002 (as amended from
time to time, the "Amended Loan Agreement") under which Secured Party has agreed
to increase the line of credit under the Original Loan up to the amount of
$17,500,000 (the "Amended Loan") as evidenced by an Amended and Restated
Promissory Note dated February 1, 2002 (as amended from time to time, "Amended
Note"), and pursuant to the terms of the Related Documents (as defined in the
Amended Loan Agreement).
E. To secure the prompt satisfaction by Pledgor of all of its obligations
to the Secured Party under the Amended Loan and all other obligations of Pledgor
to the Secured Party, Pledgor, together with Secured Party, desires to amend and
restate the Original Pledge Agreement in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF SECURITY INTEREST. As collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of all liabilities, obligations and indebtedness owed
by Pledgor to the Secured Party under the Amended Loan Agreement and the Amended
Note and all other obligations of Pledgor to the Secured Party (collectively,
the "Obligations"), Pledgor grants to the Secured Party a first security
interest in and to Pledgor's right, title and interest as a member (the
"Membership Interest") in the Company, including, without limitation, any and
all moneys or other property payable or to become payable to Pledgor or to which
Pledgor now or in the future may be entitled, in its capacity as a member in the
Company, including, without limitation, by way of distribution, return of
capital or otherwise in respect of the Membership Interest, and, to the extent
not otherwise included, all "proceeds" of the Membership Interest as such term
is defined in the Uniform Commercial Code (the "Code") from time to time in
effect in the State of Michigan (collectively, the "Collateral").
2. DISTRIBUTIONS. So long as no default has occurred and is continuing
under the Amended Loan Agreement or the Related Documents (an "Event of
Default"), Pledgor shall be entitled to receive for its own use all
distributions with respect to the Membership Interest. If an Event of Default
has occurred and is continuing, Pledgor shall not be entitled to receive or
retain other distributions paid in respect of the Membership Interest, whether
in redemption of, or in exchange for the Membership Interest, or whether in
connection with a reduction of capital, capital surplus or paid-in surplus or
the Membership Interest or otherwise, other than for the payment of personal
taxes of the members of Company associated with their investment in Company, and
any and all such dividends or distributions shall be forthwith delivered to the
Secured Party to hold as Collateral and shall, if received by Pledgor, be
received in trust for delivery to the Secured Party, be segregated from the
other property or accounts of Pledgor, and be forthwith delivered to the Secured
Party as Collateral in the same form as so received (with any necessary
endorsements), with such Proceeds to be applied by the Secured Party to reduce
the Obligations.
3. REGISTRATION OF PLEDGE. Concurrently with the execution of this
Agreement, Pledgor has sent to the Company written instructions in the form of
Exhibit A, and has obtained from the Company an executed acknowledgment and
consent in the form of Exhibit A.
4. VOTING RIGHTS. So long as no Event of Default has occurred and is
continuing, Pledgor may exercise all voting and membership rights with respect
to the Membership Interest; provided, however, that no vote will be cast or
membership right exercised or other action taken which would be inconsistent
with or result in a breach of any provision of the Amended Loan Agreement, the
Related Documents, or this Agreement.
5. EVENT OF DEFAULT. If an Event of Default has occurred and is
continuing, the Secured Party may direct the Company to register the Membership
Interest in the name of the Secured Party or its nominee, and the Secured Party
or its nominee may thereafter receive all distributions with respect to, and
exercise all voting, membership and other rights pertaining to, the Membership
Interest as if it were the absolute owner of the Membership Interest.
6. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. Pledgor represents and
warrants to the Secured Party that (a) Pledgor is the record and beneficial
owner of, and has good and legal title to, the Membership Interest, free of any
and all liens or options in favor of, or claims of, any other person, except the
lien created by this Agreement, and (b) Pledgor has the legal right to execute
and deliver, to perform its obligations under, and to grant the security
interest in the Collateral pursuant to, this Agreement.
7. ASSIGNMENT; PLEDGE; AMENDMENT. Without the prior written consent of the
Secured Party, Pledgor will not (i) sell, assign, transfer, exchange or
otherwise dispose of, or grant
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any option with respect to, the Collateral; (ii) create or permit to exist any
lien or option in favor of, or any claim of, any person with respect to any of
the Collateral, except, in either case, for the lien created by this Agreement;
or (iii) amend or modify the Company's Operating Agreement dated December 18,
2001 (the "Operating Agreement"), or enter into any agreement or arrangement
with the Company or its members which amends or modifies the rights and
obligations of the Company and its members as set forth in the Operating
Agreement. Pledgor will defend the right, title and interest of the Secured
Party in and to the Collateral against the claims and demands of all other
persons.
8. FURTHER ASSURANCES. At any time and from time to time, upon the written
request of the Secured Party, Pledgor will promptly execute and deliver such
further instruments and documents and take such further actions as the Secured
Party may reasonably request for the purposes of obtaining or preserving the
security interest created by this Agreement, including, without limitation, the
filing of any financing or continuation statements under the Code. Pledgor
authorizes the Secured Party to file any such financing or continuation
statement without the signature of Pledgor to the extent permitted by applicable
law.
9. REMEDIES. If an Event of Default has occurred and is continuing, the
Secured Party may exercise, in addition to all rights and remedies granted in
the Amended Loan Agreement, the Related Documents, and this Agreement, all
rights and remedies of a secured party under the Code. The rights and remedies
of the Secured Party are cumulative, may be exercised singly or concurrently,
and are not exclusive of any rights or remedies provided by law.
10. ATTORNEY-IN-FACT. Pledgor irrevocably constitutes and appoints the
Secured Party, or its representative, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of Pledgor, and in the name of Pledgor or in the Secured
Party's name, after an Event of Default has occurred and for so long as it is
continuing, for the purpose of carrying out the terms of this Agreement.
Anything to the contrary contained herein notwithstanding, the Secured Party may
not exercise the rights granted to them in this Section 10 unless the Pledgor
has been provided with prior written notice of such exercise. The powers
conferred on the Secured Party are solely to protect its interests in the
Collateral and will not impose any duty upon the Secured Party to exercise any
such powers. The Secured Party will be accountable only for amounts that it
actually receives as a result of the exercise of such powers, and neither the
Secured Party, nor its General Partner, or any of their officers, directors,
employees or agents will be responsible to Pledgor or to the Company for any act
or failure to act.
11. LIMITATION ON DUTIES REGARDING COLLATERAL. The Secured Party's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under the Code or otherwise, will be to deal with
it in the same manner as the Secured Party deals with similar securities and
property for its own account. Neither the Secured Party, its General Partner,
nor any of their directors, officers, employees or agents will be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or, except as provided by applicable law, will be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
Pledgor or otherwise.
12. NO WAIVER. The Secured Party will not by any act, delay, omission or
otherwise be deemed to have waived any right or remedy under this Agreement or
to have acquiesced in any
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Event of Default or in any breach of any of the terms and conditions of this
Agreement except by a written instrument executed by the Secured Party. No
single or partial exercise of any right, power or privilege under this Agreement
will preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Secured Party of any right or remedy
under this Agreement on any one occasion will not be construed as a bar to any
right or remedy which the Secured Party would otherwise have on any future
occasion.
13. AMENDMENTS. The terms and provisions of this Agreement may not be
waived or modified except by a written instrument executed by Pledgor and the
Secured Party.
14. BENEFIT AND BINDING EFFECT. This Agreement will be binding upon the
successors and permitted assigns of Pledgor and will inure to the benefit of the
Secured Party and its successors and assigns.
15. COUNTERPARTS; REPRODUCTIONS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one instrument. Facsimile copies of signatures to this
Agreement shall be deemed to be originals, and the parties may rely upon such
facsimile copies to the same extent as the originals..
16. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Michigan.
IN WITNESS WHEREOF, Pledgor and the Secured Party have executed this
Amended and Restated Limited Liability Company Interest Security and Pledge
Agreement as of the date first above written.
PLEDGOR:
ORIGEN FINANCIAL, INC., a Virginia corporation
By: /s/ Xxxxxx Xxxxx
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Its: CEO
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SECURED PARTY:
SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP, a Michigan limited partnership
By: Sun Communities, Inc., a Maryland
corporation
Its: General Partner
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Its: CEO
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