EXHIBIT 10.6
CONTINUING SECURITY AGREEMENT
ORIGEN FINANCIAL L.L.C., A DELAWARE LIMITED LIABILITY COMPANY (THE "DEBTOR")
TAXPAYER I.D. NO.: 000000000
STATE ORGANIZATION NO. (IF A REGISTERED ORGANIZATION): DELAWARE
DEBTOR'S ADDRESS: 000 X. XXXXX XXXXXX, XXXXX 000, XXXXXXXXXX, XXXXXXXX 00000
GRANT OF SECURITY INTEREST. The Debtor grants to BANK ONE, NA, a national
banking association with its principal office in Chicago, Illinois (the "Bank"),
whose address is 00 Xxxxx Xxxx, Xxxxx 000, Xx. Xxxxxxx, Xxxxxxxx 00000, a
continuing security interest in the Collateral, as defined below, to secure the
payment and performance of the Liabilities (as defined below) of the Debtor.
"Liabilities," as used in this agreement, means all obligations, indebtedness
and liabilities of the Debtor or the Borrower, if any, to any one or more of the
Bank, BANK ONE CORPORATION, and any of their subsidiaries, affiliates or
successors, now existing or later arising, including, without limitation, all
loans, advances, interest, costs, overdraft indebtedness, credit card
indebtedness, lease obligations, or obligations relating to any Rate Management
Transaction, all monetary obligations incurred or accrued during the pendency of
any bankruptcy, insolvency, receivership or other similar proceedings,
regardless of whether allowed or allowable in such proceeding, and all renewals,
extensions, modifications, consolidations or substitutions of any of the
foregoing, whether the Debtor or the Borrower may be liable jointly with others
or individually liable as a debtor, maker, co-maker, drawer, endorser,
guarantor, surety or otherwise, and whether voluntarily or involuntarily
incurred, due or not due, absolute or contingent, direct or indirect, liquidated
or unliquidated. Liabilities also include all interest, costs, expenses, and
reasonable attorneys' fees accruing to, or incurred in either collecting any of
the Liabilities of the Debtor or the Borrower or protecting, maintaining, or
liquidating any collateral for any of the Liabilities, including the Collateral.
The term "Rate Management Transaction" in this agreement means any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into among the Debtor or the Borrower, the Bank or BANK ONE CORPORATION, or any
of its subsidiaries or affiliates or their successors, which is a rate swap,
basis swap, forward rate transaction, commodity swap, commodity option, equity
or equity index swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor transaction, collar
transaction, forward transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions) or any combination
thereof, whether linked to one or more interest rates, foreign currencies,
commodity prices, equity prices or other financial measures.
Collateral: Accounts Receivable, Inventory, Equipment, Deposit Accounts,
Instruments, Inventory, Investment Property and Specific (see Item 8)
Description of Collateral. "Collateral," as used in this agreement, means (i)
all of the Debtor's property indicated above and as defined below, present and
future, including but not limited to any items listed on any schedule or list
attached; (ii) all present and future "proceeds," "products," and "supporting
obligations" (as such terms are defined in the Uniform Commercial Code of the
State of Michigan, as in effect from time to time (the "UCC")) of the
Collateral, including but not limited to stock rights, subscription rights,
dividends, stock dividends, stock splits, or liquidating dividends, and all cash
and Accounts Receivable arising from the sale, rent, lease, casualty loss or
other disposition of the Collateral; (iii) any present or future Collateral
returned to, repossessed by, or stopped in transit by the Debtor; (iv) all
present and future insurance claims relating to any of the Collateral; and (v)
all present and future books, records, and data of the Debtor relating to the
Collateral. Where the Collateral is in the possession of the Bank, the Debtor
agrees to deliver to the Bank any property which represents an increase in the
Collateral or profits or proceeds of the Collateral.
DEFINITIONS.
1. "Accounts Receivable" shall consist of "accounts," "chattel paper," "general
intangibles," (including "payment intangibles") and "letter of credit rights" as
those terms are defined in Article 9 of the UCC, as well as Documents (as
defined below). Also included are (a) any right to a refund of taxes paid at any
time to any governmental entity, and (b) letters of credit, and drafts under
them, given in support of any Accounts Receivable.
2. "Deposit Accounts" means all demand, time, savings, passbook and similar
accounts maintained by the Debtor, including, without limitation, those
maintained at the Bank.
3. "Documents" means "documents of title" or a "warehouse receipts," as such
terms are defined in the UCC.
4. "Equipment" means (a) all of the Debtor's "equipment," as defined in
Article 9 of the UCC, and (b) any Documents issued with respect to any of
Debtor's "equipment" (as defined in the UCC)
5. "Instruments" means all of the Debtor's "instruments," as defined in Article
9 of the UCC.
6. "Inventory" means (a) all of the Debtor's "inventory," as defined in Article
9 of the UCC, and (b) any Documents issued with respect to any of Debtor's
"inventory" (as defined in the UCC).
7. "Investment Property" means all of the Debtor's "investment property," as
defined in Article 9 of the UCC.
8. "Specific" shall consist of the rights of the Debtor under the servicing
agreements set forth on Exhibit A attached hereto (the "Servicing Agreements")
or approved by the Bank in accordance with the terms of the Credit Agreement
between the Debtor and the Bank dated the date hereof (the "Credit Agreement")
and all proceeds thereof.
REPRESENTATIONS, WARRANTIES, AND COVENANTS. The Debtor warrants to and
covenants with the Bank that:
1. Its principal residence or chief executive office is at the address shown
above;
2. (a) The Debtor's name as it appears in this agreement is identical to the
name of the Debtor appearing in the Debtor's organizational documents, as
amended, including any trust documents; and (b) both the Taxpayer I.D. No. and
the State Organization No., if any, shown above are correct;
3. It will pay its Liabilities to the Bank;
4. It is or will become the owner of the Collateral free from any liens,
encumbrances or security interests, except for this security interest, and
existing liens disclosed to and accepted by the Bank in writing, and will defend
the Collateral against all claims and demands of all persons at any time
claiming any interest in it;
5. It will keep the Collateral free of liens, encumbrances and other security
interests, maintain it in good repair, not use it illegally, and exhibit it to
the Bank on demand;
6. At its own expense, the Debtor will maintain comprehensive casualty insurance
on the Collateral against such risks, in such amounts, with such deductibles and
with such companies as may be satisfactory to the Bank, and provide the Bank
with proof of insurance acceptable to the Bank. Each insurance policy shall
contain a lender's loss payable endorsement satisfactory to the Bank and a
prohibition against cancellation or amendment of the policy or removal of the
Bank as loss payee without at least 30 days prior written notice to the Bank. In
all events, the amounts of such insurance coverages shall conform to prudent
business practices and shall be in such minimum amounts that the Debtor will not
be deemed a co-insurer;
7. It will not sell or offer to sell, lease, license or otherwise transfer the
Collateral, nor change the location of the Collateral, without the written
consent of the Bank, except in the ordinary course of business;
8. It will pay promptly when due all taxes and assessments upon the Collateral,
or for its use or operation;
9. No financing statement covering all or any part of the Collateral or any
proceeds is on file in any public office, unless the Bank has approved that
filing. In addition, the Debtor shall execute and deliver, or cause to be
executed and delivered, such other documents as the Bank may from time to time
request to perfect or to further evidence the security interest created in the
Collateral by this agreement, including, without limitation: (a) any certificate
or certificates of title to the Collateral with the security interest of the
Bank noted thereon or executed applications for such certificates of title in
form satisfactory to the Bank; (b) any assignments of claims under government
contracts which are included as part of the Collateral, together with any
notices and related documents as the Bank may from time to time request; (c) any
assignment of any specific account receivable as the Bank may from time to time
request; (d) a notice of security interest and a control agreement with respect
to any Collateral, all in form and substance satisfactory to the Bank; (e) a
notice to and acknowledgment from any bailee or other person in possession of
any Collateral, all in form and substance satisfactory to the Bank; and (f) any
consent to the assignment of proceeds of any letter of credit, all in form and
substance satisfactory to the Bank;
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10. It will immediately notify the Bank in writing of any change in (a) the
Debtor's name, (b) the Debtor's business organization, (c) the jurisdiction
under which the Debtor's business organization is formed or organized, or (d)
the address of the Debtor's chief executive office or principal residence or of
any additional places of the Debtor's business;
11. It will provide any information that Bank may reasonably request, and will
permit Bank upon prior notice to inspect and copy its books and records during
normal business hours;
12. The Bank shall have the right now and at any time in the future, in its sole
and absolute discretion and without notice to the Debtor, to prepare, file, and
sign the Debtor's name on any proof of claim in bankruptcy or similar document
against any owner of the Collateral. The Debtor authorizes the Bank to file
financing statements containing the collateral description "All of the Debtor's
assets whether now owned or hereafter acquired" or such lesser amount of assets
as the Bank may determine, or the Bank may, at its option, file financing
statements containing any collateral description which reasonably describes the
Collateral in which a security interest is granted under this agreement.
ACCOUNTS RECEIVABLE. The Debtor acknowledges that if the Collateral includes
Accounts Receivable, then until the Bank gives notice to Debtor to the contrary,
Debtor will, in the usual course of its business and at its own cost and
expense, on the Bank's behalf but not as the Bank's agent, demand and receive
and use its best efforts to collect all moneys due or to become due on the
Accounts Receivable. Upon notice from the Bank or upon default, the Debtor
agrees that all sums of money it receives on account of or in payment or
settlement of the Accounts Receivable shall be held by it as trustee for the
Bank without commingling with any of its funds, and shall immediately be
delivered to the Bank with endorsement to the Bank's order of any check or
similar instrument. It is agreed that, at any time the Bank elects, it shall be
entitled, in its own name or in the name of the Debtor or otherwise, but at the
expense and cost of the Debtor, to collect, demand, receive, xxx for or
compromise any and all Accounts Receivable, and to give good and sufficient
releases, to endorse any checks, drafts or other orders for the payment of money
payable to the Debtor in payment and, in its discretion, to file any claims or
take any action or proceeding which the Bank may deem necessary or advisable. It
is expressly understood and agreed, however, that the Bank shall not be required
or obligated in any manner to make any demand or to make any inquiry as to the
nature or sufficiency of any payment received by it or to present or file any
claim or take any other action to collect or enforce the payment of any amounts
which may have been assigned to it or to which it may be entitled at any time or
times. All notices required in this paragraph will be immediately effective when
sent. Such notices need not be given prior to the Bank taking action. The Debtor
appoints the Bank or the Bank's designee as the Debtor's attorney-in-fact to do
all things with reference to the Collateral as provided for in this section
including without limitation (1) to notify the post office authorities to change
the Debtor's mailing address to one designated by the Bank, (2) to receive, open
and dispose of mail addressed to the Debtor, (3) to sign the Debtor's name on
any invoice or xxxx of lading relating to any Collateral, on assignments and
verifications of account and on notices to the Debtor's customers, and (4) to do
all things necessary to carry out this agreement. The Debtor ratifies and
approves all acts of the Bank as attorney-in-fact. The Bank shall not be liable
for any act or omission, nor any error of judgment or mistake of fact or law,
but only for its gross negligence or willful misconduct. This power being
coupled with an interest is irrevocable until the Liabilities have been fully
satisfied.
Immediately upon the Debtor's receipt of any Collateral evidenced by an
agreement, Instruments, chattel paper or Documents ("Special Collateral"), the
Debtor shall xxxx the Special Collateral to show that it is subject to the
Bank's security interest and shall deliver the original to the Bank together
with appropriate endorsements and other specific evidence of assignment in form
and substance satisfactory to the Bank.
After the occurrence of a Default under the Credit Agreement and upon the
request of the Bank, the Debtor agrees to give immediate notice to each trustee
responsible for making payments under a Servicing Agreement that it has assigned
it rights to receive payments under such Servicing Agreement to the Bank and
request that such trustee make all such payments directly to the Bank.
The Debtor shall not make or permit any amendment or modification of any
Servicing Agreement without the prior consent of the Bank.
REPRESENTATIONS BY DEBTOR. Each Debtor represents: (a) that the execution and
delivery of this agreement and the performance of the obligations it imposes do
not violate any law, conflict with any agreement by which it is bound, or
require the consent or approval of any governmental authority or any third
party; (b) that this agreement is a valid and binding agreement, enforceable
according to its terms; and (c) that all balance sheets, profit and loss
statement, and other financial statements furnished to the Bank are accurate and
fairly reflect the financial condition of the organizations and persons to which
they apply on their effective dates, including contingent liabilities of every
type, which financial condition has not changed materially and adversely since
those dates. Each Debtor, other than a natural person, further represents:
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(a) that it is duly organized, existing and in good standing pursuant to the
laws under which it is organized; and (b) that the execution and delivery of
this agreement and the performance of the obligations it imposes (i) are within
its powers and have been duly authorized by all necessary action of its
governing body; (ii) do not contravene the terms of its articles of
incorporation or organizations, its by-laws, or any partnership, operating or
other agreement governing its affairs.
DEFAULT/REMEDIES. If any of the Liabilities is not paid at maturity, whether by
acceleration or otherwise, or if there is a default under, or a violation of any
of the terms of, any agreement, certificate, or other document relating to any
of the Liabilities, then the Bank shall have the rights and remedies provided by
law or this agreement, including but not limited to the right to require the
Debtor to assemble the Collateral and make it available to the Bank at a place
to be designated by the Bank which is reasonably convenient to both parties, the
right to take possession of the Collateral with or without demand and with or
without process of law, and the right to sell and dispose of it and distribute
the proceeds according to law. The Bank's compliance with any applicable state
or federal law requirements in connection with the disposition of any of the
Collateral will not adversely affect the commercial reasonableness of any sale
of the Collateral. In connection with the right of the Bank to take possession
of the Collateral, the Bank may take possession of any other items of property
in or on the Collateral at the time of taking possession, and hold them for the
Debtor without liability on the part of the Bank. If there is any statutory
requirement for notice, that requirement shall be met if the Bank sends notice
to the Debtor at least ten (10) days prior to the date of sale, disposition, or
other event giving rise to the required notice. The Debtor shall be liable for
any deficiency remaining after disposition of the Collateral.
MISCELLANEOUS.
1. At its option the Bank may, but shall be under no duty or obligation to,
discharge taxes, liens, security interests or other encumbrances at any time
levied or placed on the Collateral, pay for insurance on the Collateral, and pay
for the maintenance and preservation of the Collateral, and the Debtor agrees to
reimburse the Bank on demand for any payment made or expense incurred by the
Bank, with interest at the maximum legal rate.
2. No delay on the part of Bank in the exercise of any right or remedy shall
operate as a waiver, no single or partial exercise by the Bank of any right or
remedy shall preclude any other exercise of it or the exercise of any other
right or remedy, and no waiver or indulgence by the Bank of any default shall be
effective unless in writing and signed by the Bank, nor shall a waiver on one
occasion be construed as a waiver of that right on any future occasion.
3. If any provision of this agreement is invalid, it shall be ineffective only
to the extent of its invalidity, and the remaining provisions shall be valid and
effective.
4. Notice from one party to another relating to this agreement shall be deemed
effective if made in accordance with the provisions of Article XII of the Credit
Agreement.
5. All rights of the Bank shall inure to the benefit of the Bank's successors
and assigns; and all obligations of the Debtor shall bind the Debtor's heirs,
executors, administrators, successors and assigns. If there is more than one
Debtor, their obligations are joint and several.
6. A carbon, photographic or other reproduction of this agreement is sufficient,
and can be filed as a financing statement. The Bank is irrevocably appointed the
Debtor's attorney-in-fact to execute any financing statement on Debtor's behalf
covering the Collateral.
7. The terms and provisions of this security agreement shall be governed by
Michigan law.
INFORMATION SHARING. The Bank may provide, without any limitation whatsoever,
any information or knowledge the Bank may have about the undersigned or any
matter relating to this agreement and any related documents to BANK ONE
CORPORATION, or any of its subsidiaries or affiliates or their successors, or to
any one or more purchasers or potential purchasers of this agreement or any
related documents, and the undersigned waives any right to privacy the
undersigned may have with respect to such matters. The Debtor agrees that the
Bank may at any time sell, assign or transfer one or more interests or
participations in all or any part of its rights or obligations in this agreement
to one or more purchasers whether or not related to the Bank.
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WAIVER OF JURY TRIAL. THE BANK AND THE DEBTOR KNOWINGLY AND VOLUNTARILY WAIVE
ANY RIGHT EITHER OF THEM HAVE TO A TRIAL BY JURY IN ANY PROCEEDING (WHETHER
SOUNDING IN CONTRACT OR TORT) WHICH IS IN ANY WAY CONNECTED WITH THIS OR ANY
RELATED AGREEMENT, OR THE RELATIONSHIP ESTABLISHED UNDER THEM. THIS PROVISION
MAY ONLY BE MODIFIED IN A WRITTEN INSTRUMENT EXECUTED BY THE BANK AND THE
DEBTOR.
DATED: JULY 25, 2002
DEBTOR:
ORIGEN FINANCIAL, LLC
By: /s/ X. Xxxxxxxx Xxxxxx, Jr.
Print Name: X. Xxxxxxxx Xxxxxx, Jr.
Its: Chief Financial Officer
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