EXHIBIT 10.45
SECOND AMENDED AND RESTATED GUARANTY
THIS SECOND AMENDED AND RESTATED GUARANTY (the "Second Amended
Guaranty") is made December 30, 2002 by Xxxxxxx Financial Services Corporation,
a Michigan corporation ("Xxxxxxx"), in favor of Sun Home Services, Inc., a
Michigan corporation ("SHS").
RECITALS:
X. Xxxxxxx has executed and delivered to Sun Communities Operating
Limited Partnership ("SCOLP") an Amended and Restated Guaranty dated February 1,
2002, (the "First Amended Guaranty"), pursuant to which Xxxxxxx guaranteed the
payment and performance when due of certain obligations owing from Origen
Financial L.L.C. ("Borrower") to SCOLP, including without limitation under the
line of credit loan (the "Line of Credit") evidenced by the Second Amended and
Restated Subordinated Loan Agreement dated December 4, 2002 between Borrower and
SCOLP (collectively, the "Original Line of Credit Loan Agreement") and the Sixth
Amended and Restated Promissory Note dated December 4, 2002 in the original
principal amount of $27,500,000 executed by Borrower in favor of SCOLP (the
"Original Line of Credit Note").
B. SCOLP made a term loan (the "Term Loan") in the amount of
$10,000,000 to Borrower pursuant to a Subordinated Term Loan Agreement dated
December 4, 2002 between SCOLP and Borrower (the "Original Term Loan Agreement")
and a Term Promissory Note dated December 4, 2002 in the original principal
amount of $10,000,000 delivered by Borrower to SCOLP (the "Original Term Loan
Note").
C. SCOLP assigned its interest in the First Amended Guaranty, the Line
of Credit, the Term Loan, the Original Line of Credit Loan Agreement, the
Original Line of Credit Note, the Original Term Loan Agreement, the Original
Term Loan Note and related documents to SHS pursuant to an Assignment of Loans
of even date herewith.
D. Borrower and SHS have entered into the First Amendment to Second
Amended and Restated Subordinated Loan Agreement of even date herewith (together
with the Original Line of Credit Loan Agreement as it may further be amended
from time to time, the "Line of Credit Loan Agreement") and Borrower has
delivered to SHS the Seventh Amended and Restated Promissory Note of even date
herewith (as it may further be amended from time to time, the "Seventh Amended
Line of Credit Note"), pursuant to which the credit limit of the Line of Credit
has been increased to $48,000,000.
E. Borrower and SHS have entered into a First Amendment to Subordinated
Term Loan Agreement of even date herewith (together with the Original Term Loan
Agreement as it may further be amended from time to time, the "Term Loan
Agreement") and Borrower has delivered to SHS the First Amended and Restated
Term Promissory Note of even date herewith (as it may further be amended from
time to time, the "First Amended Term Loan Note"), pursuant to which SHS is
reflected as the lender.
F. The Line of Credit is secured by the collateral described in the
First Amended and Restated Security Agreement of even date herewith between
Borrower and SHS, as amended
from time to time, (ii) the Second Amended and Restated Stock Pledge Agreement
of even date herewith between Borrower and SHS, as amended from time to time,
and (iii) the First Amended and Restated Limited Liability Company Interest
Security and Pledge Agreement of even date herewith between Borrower and SHS, as
amended from time to time, and various Uniform Commercial Code financing
statements filed to perfect the security interests granted under the foregoing
agreements (as they may be amended from time to time, the "Origen Security
Documents").
G. The Borrower may from time to time request loans, advances or other
financial accommodations from SHS and SHS may, in its discretion, honor such
requests in whole or part and thereby the Borrower may from time to time be
indebted to SHS, including without limitation, under (i) the Line of Credit Loan
Agreement; (ii) the Seventh Amended Line of Credit Note; (iii) the Term Loan
Agreement; (iv) the First Amended Term Loan Note; and (v) the Origen Security
Documents (collectively, the "Origen Loan Documents").
H. SHS is unwilling to make loans, advances or extend other financial
accommodations to or otherwise do business with the Borrower unless Xxxxxxx
continues to unconditionally guarantee payment of all present and future
indebtedness and obligations of Borrower to SHS and as a condition of amending
the Line of Credit and the Term Loan, SHS has required that Xxxxxxx execute and
deliver this Second Amended Guaranty.
X. Xxxxxxx is a member of Borrower and will directly benefit from SHS's
making of loans, advances or extending other financial accommodations to or
otherwise doing business with the Borrower.
X. Xxxxxxx desires to amend and restate the First Amended Guaranty in
its entirety in accordance with the terms and conditions set forth in this
Second Amended Guaranty.
NOW, THEREFORE, in order to induce SHS to make loans, advances or
extend other financial accommodations to and otherwise do business with the
Borrower and for other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, Xxxxxxx hereby covenants and agrees
with SHS as follows:
1. GUARANTY. Xxxxxxx hereby irrevocably and unconditionally guarantees
to SHS and its successors and assigns: (a) the full and prompt payment and
performance when due of the Indebtedness, as hereinafter defined; and (b) the
payment, compliance with and performance of all other obligations, covenants,
representations and warranties of every kind, nature and description in
accordance with all instruments and documents executed by Borrower in favor of
SHS, whether now owing or existing or heretofore or hereafter created or
arising, regardless of whether such obligations, covenants, representations or
warranties are held to be unenforceable, void or of no effect against Borrower
and including without limitation, those under any loan agreement and/or
promissory note executed and delivered by Borrower to SHS, and any extensions,
modifications or renewals thereof. The term "Indebtedness" shall mean all
principal, interest, attorneys' fees, commitment fees, liabilities for costs and
expenses and all other indebtedness, obligations and liabilities under and in
accordance with the terms of all instruments and documents executed by Borrower
in favor of SHS, including, without limitation, the Origen
-2-
Loan Documents, whether direct or indirect, absolute or contingent and whether
now owing or existing or heretofore or hereafter created or arising, and
regardless of whether such indebtedness, obligations or liabilities are held to
be unenforceable, void or of no effect against Borrower, and all costs, expenses
and fees, including reasonable attorneys' fees, arising in connection with the
collection or enforcement of any or all amounts, indebtedness, obligations and
liabilities of Borrower to SHS, as described above, regardless of whether
Borrower is held to be liable for such amounts. Xxxxxxx acknowledges and agrees
that any indebtedness of Borrower to SHS as evidenced by any promissory note may
be extended or renewed upon maturity at the sole discretion of SHS and that the
Indebtedness as defined herein, the payment of which is hereby guaranteed, shall
include, without limitation, all indebtedness and other obligations as extended
or renewed and as may be evidenced by any renewal promissory note.
2. GUARANTY UNCONDITIONAL. This is an irrevocable, unconditional and
absolute guaranty of payment, and not of collection, and Xxxxxxx agrees that its
liability on this Second Amended Guaranty shall be immediate and SHS may have
immediate recourse against Xxxxxxx for full and immediate payment of the
Indebtedness at any time after the Indebtedness or any part thereof, has not
been paid when due (whether by acceleration or otherwise) or Borrower has
defaulted or otherwise failed to perform when due any of its obligations,
covenants, representations or warranties to SHS.
3. LIABILITY NOT CONTINGENT. The liability of Xxxxxxx on this Second
Amended Guaranty shall not be contingent upon the exercise or enforcement by SHS
of whatever remedies it may have against Borrower or others, or the enforcement
of any lien or realization upon any security or collateral SHS may at any time
possess. Any one or more successive and/or concurrent actions may be brought
hereon against Xxxxxxx either in the same action, if any, brought against
Borrower or in separate actions, as often as SHS, in its sole discretion, may
deem advisable. No election to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of SHS's
right to proceed in any other form of action or proceeding or against other
parties unless SHS has expressly waived such right in writing. Specifically, but
without limiting the generality of the foregoing, no action or proceeding by SHS
against Borrower under any document or instrument evidencing or securing the
Indebtedness shall serve to diminish the liability of Xxxxxxx, except to the
extent SHS realizes payment by such action or proceeding, notwithstanding the
effect of any such action or proceeding upon Xxxxxxx'x right of subrogation
against Borrower. Receipt by SHS of payment or payments with knowledge of the
breach of any provision with respect to any of the Indebtedness shall not, as to
Xxxxxxx, be deemed a waiver of such breach. All rights, powers and remedies of
SHS hereunder and under any other agreement now or at any time hereafter in
force between SHS and Xxxxxxx shall be cumulative and not alternative and shall
be in addition to all rights, powers and remedies given to SHS by law.
4. LIABILITY ABSOLUTE. Xxxxxxx agrees that its liability hereunder is
absolute and unconditional and that SHS shall not be obligated (although it may
do so at its sole option) before being entitled to direct recourse against
Xxxxxxx to take any steps, whatsoever to preserve, protect, accept, perfect
SHS's interest in, foreclose upon or realize on collateral security, if any, for
the payment of the Indebtedness or any other guaranty of the Indebtedness or
-3-
in any other respect exercise any diligence whatever in collecting or attempting
to collect the Indebtedness by any means.
5. NO IMPAIRMENT OF LIABILITY. The liability of Xxxxxxx shall in no way
be affected or impaired by: (a) any amendment, alteration, extension, renewal,
waiver, indulgence or other modification of the Indebtedness; (b) any settlement
or compromise in connection with the Indebtedness; (c) any subordination of
payments under the Indebtedness to any other debt or claim; (d) any
substitution, exchange, release or other disposition of all or any part of any
collateral for the Indebtedness; (e) any failure, delay, neglect, act or
omission by SHS to act in connection with the Indebtedness; (f) any advances for
the purpose of performing any covenant or agreement of Borrower, or curing any
breach; (g) the filing by or against Borrower of bankruptcy, insolvency,
reorganization or other debtor's relief afforded Borrower pursuant to the
present or future provisions of the Bankruptcy Code or any other state or
federal statute or by the decision of any court; or (h) any other matter whether
similar or dissimilar to the foregoing. The obligations of Xxxxxxx are
unconditional, notwithstanding any defect in the genuineness, validity,
regularity or enforceability of the Indebtedness or any other circumstances
whether or not referred to herein, which might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.
6. WAIVERS. Xxxxxxx hereby waives each and every defense which, under
principles of guaranty or suretyship law or otherwise, would otherwise operate
to impair or diminish the liability of Xxxxxxx hereunder, including, without
limitation: (a) notice of acceptance of this Second Amended Guaranty and of
creations of Indebtedness of Borrower to SHS; (b) any subrogation to the rights
of SHS against Borrower until the Indebtedness has been paid in full; (c)
presentment and demand for payment of any Indebtedness of Borrower; (d) protest,
notice of protest, and notice of dishonor or default to Xxxxxxx or to any other
party with respect to any of the Indebtedness; (e) all other notices to which
Xxxxxxx might otherwise be entitled; (f) any demand for payment under this
Second Amended Guaranty; (g) any defense arising by reason of any disability or
other defense of Borrower by reason of the cessation from any cause whatsoever
of the liability of Borrower; (h) any rights to extension, composition or
otherwise under the Bankruptcy Code or any amendments thereof, or under any
state or other federal statute; (i) any right or claim or claim of right to
cause a marshalling of Borrower's assets; and (j) any participation in any of
the Indebtedness by a third party. No notice to or demand on Xxxxxxx shall be
deemed to be a waiver of the obligation of Xxxxxxx or of the right of SHS to
take further action without notice or demand as provided herein; nor in any
event shall any modification or waiver of the provisions of this Second Amended
Guaranty be effective unless in writing nor shall any such waiver be applicable
except in the specific instance for which given.
7. WARRANTIES AND REPRESENTATIONS. Xxxxxxx represents, warrants and
covenants to SHS that, as of the date of this Second Amended Guaranty: Xxxxxxx
is meeting its current liabilities as they mature; any financial statements of
Xxxxxxx furnished SHS are true and correct and include in the footnotes thereto
all contingent liabilities of Xxxxxxx; since the date of said financial
statements there has been no material adverse change in the financial condition
of Xxxxxxx; there are not now pending any material court or administrative
proceedings or undischarged judgments against Xxxxxxx and no federal or state
tax liens have been filed or
-4-
threatened against Xxxxxxx, nor is Xxxxxxx in default or claimed default under
any agreement for borrowed money.
8. NOTICES. Xxxxxxx agrees to immediately give SHS written notice of
any material adverse change in its financial condition, including but not
limited to litigation commenced, tax liens filed, default claimed under its
indebtedness for borrowed money or bankruptcy proceedings commenced by or
against Xxxxxxx. Xxxxxxx agrees to deliver, timely to SHS, annual financial
statements for the preceding fiscal year; and at such reasonable times as SHS
requests to furnish its current financial statements to SHS and permit SHS or
its representatives to inspect at Xxxxxxx'x offices, its financial records and
properties and make extracts therefrom in order to evaluate the financial
condition of Xxxxxxx.
9. MISCELLANEOUS. This Second Amended Guaranty shall inure to the
benefit of SHS and its successors and assigns, including each and every holder
or owner of any of the indebtedness guaranteed hereby. In the event that any
person other than SHS shall become a holder or owner of any of the Indebtedness,
each reference to SHS hereunder shall be construed as if it referred to each
such holder or owner. This Second Amended Guaranty shall be binding upon Xxxxxxx
and its successors and assigns. Xxxxxxx agrees that recourse may be had against
its earnings and separate property for all of Xxxxxxx'x obligations under this
Second Amended Guaranty. This Second Amended Guaranty and all rights and
obligations hereunder, including matters of construction, validity and
performance, shall be governed by the laws of the State of Michigan.
10. JURY WAIVER. XXXXXXX ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY
IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. XXXXXXX, AFTER CONSULTING
(OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY
AND VOLUNTARILY, AND FOR ITS BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE
EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY
RELATED TO, THIS SECOND AMENDED GUARANTY OR THE INDEBTEDNESS.
11. COLLATERAL. This Second Amended Guaranty is secured by the
collateral described in: (i) the Second Amended and Restated Security Agreement
of even date herewith between SHS and Xxxxxxx; (ii) the Amended and Restated
Membership Pledge Agreement of even date herewith between SHS and Xxxxxxx; (iii)
the Amended and Restated Stock Pledge Agreement of even date herewith between
SHS and Xxxxxxx; and (iv) various Uniform Commercial Code financing statements
filed to perfect the security interests granted under the foregoing agreements.
12. GUARANTY FREELY GIVEN. THIS SECOND AMENDED GUARANTY IS FREELY AND
VOLUNTARILY GIVEN TO SHS BY XXXXXXX, WITHOUT ANY DURESS OR COERCION, AND AFTER
XXXXXXX HAS EITHER CONSULTED WITH COUNSEL OR BEEN GIVEN AN OPPORTUNITY TO DO SO,
AND XXXXXXX HAS CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND PROVISIONS OF
THIS SECOND AMENDED GUARANTY.
-5-
13. INTEGRATION. This Second Amended and Guaranty and any other
documents executed in connection herewith together constitute the full and
entire understanding and agreement among the parties with respect to the subject
matter herein contemplated, and shall supersede all prior understandings or
agreements relating thereto, whether written or oral, including without
limitation the First Amended Guaranty, all of which are declared to be null and
void and of no further force or effect.
IN WITNESS WHEREOF, this Second Amended and Restated Guaranty was
executed and delivered by the undersigned on the date stated in the first
paragraph above.
XXXXXXX FINANCIAL SERVICES CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Its: Chief Executive Officer
----------------------------------
-6-
