EXHIBIT 10.15
SERVICES AND INTEREST REBATE AGREEMENT
This SERVICES AND INTEREST REBATE AGREEMENT ("Agreement") dated October
8, 2003 is made by and between Sun Communities, Inc., a Maryland corporation
(with its affiliates, "Sun"), Origen Financial L.L.C., a Delaware limited
liability company, on behalf of itself and its wholly-owned subsidiaries
("Origen").
RECITALS
A. Sun acquires, owns and operates manufactured housing
communities in several states (the "Sun Properties"). In connection with its
operation of the Sun Properties, Sun leases real property in the Sun Properties
to manufactured home owners and lessors and from time to time sells and leases
manufactured homes located in the Sun Properties, both for its own account and
for the account of third parties other than Origen.
B. Origen finances manufactured homes, including manufactured
homes located in the Sun Properties, and from time to time Origen repossesses
manufactured homes located in the Sun Properties (the "Origen Homes") and, as
the owner of the Origen Homes, is obligated to make a rental payment to Sun on a
month-to-month basis in respect of the real property on which the Origen Homes
are located (each, a "Lot Lease").
C. Sun and Origen desire to enter into certain arrangements as
set forth in this Agreement for the purpose of providing a more favorable
lending environment to potential borrowers of manufactured homes located in Sun
Properties, providing Origen with a definitive plan for dealing with the Origen
Homes, and increasing Sun's occupancy rates and available inventory of resalable
homes.
NOW, THEREFORE, it is agreed as follows:
COVENANTS
1. Origen Home Services. Sun agrees that for each Origen Home it
will make available to Origen the services and concessions set forth at
paragraphs (a)-(c) below (collectively, the "Services"), subject to the terms
and conditions set forth in this Agreement. Origen hereby appoints Sun to
perform the Services as an independent contractor on a non-exclusive basis, and
Sun hereby accepts such appointment to perform the Services.
a) Marketing Services. Sun will provide marketing assistance during the
Abatement Period (defined below), as necessary, for the sale or
lease of the Origen Homes to potential tenants. Sun's marketing
services (the "Marketing Services") will include, among other
services, advertising to indicate that there are homes, including
Origen Homes, available for sale or lease, showing Origen Homes to
potential tenants, answering questions of potential tenants and
responding to inquiries about the Origen Homes, conducting credit
checks and background checks on potential tenants, submitting credit
applications and taking other customary steps reasonably required to
market the Origen Homes. Origen agrees to cooperate with and provide
reasonable assistance to Sun in marketing an Origen Home by, among
other things, making available to Sun information Origen may have as
to the condition of the Origen
Homes. Sun will not be entitled to any commission or brokerage fees
in connection with the sale of any Origen Home.
b) Refurbishing Services. Sun will provide assistance to Origen in the
refurbishment of the Origen Homes by making available during the
Abatement Period (defined below), on an as needed basis to address
safety concerns, or otherwise as may be agreed to by Sun and Origen,
the services set forth on the attached APPENDIX A (the "Refurbishing
Services").
c) Rent Abatement. Sun will allow the abatement of the rental amount
otherwise paid by Origen on the Lot Lease for each Origen Home
during the Abatement Period (as defined below). For these purposes,
the term "Abatement Period" shall mean the period commencing on the
date the Origen Home is repossessed and ending on the earlier of (i)
the execution of a purchase or lease agreement for the Origen Home,
or (ii) the date which is one year from the date Origen repossesses
the Origen Home. On the termination of the Abatement Period with
respect to a particular Origen Home, Origen will have thirty (30)
days from the date of termination to, at its option, either remove
the home at its expense from the Sun Property, or resume paying the
rental amount on the Lot Lease for such Origen Home. Origen will not
be responsible for any rental amount on any Lot Lease with respect
to an Origen Home at any time before Origen repossesses such Origen
Home.
d) Non-Exclusivity. Origen acknowledges that Sun, both for its own
account and for the account of third parties other than Origen, from
time to time markets for sale or lease manufactured homes located in
the Sun Properties. Origen agrees that (a) Sun shall provide the
Services to Origen on a non-exclusive basis, and (b) notwithstanding
this Agreement, Sun may continue to market for sale or lease
manufactured homes located in the Sun Properties other than the
Origen Homes.
2. Borrowing Incentives.
a) Interest Rate Rebate. On the sale of a manufactured home, whether or
not previously occupied, which will be located in a Sun Property
(each, a "Sale Home"), or an Origen Home located in a Sun Property,
in each case to be financed by Origen, Sun agrees to provide an
interest rate rebate equal to (i) the difference between Origen's
published rate of interest for fifteen (15) year manufactured home
loans and the offered rate of 4.99%, and (ii) the difference between
Origen's published rate of interest for twenty (20) year
manufactured home loans and the offered rate of 5.99%, or such rates
as Sun may establish from time to time, in its sole discretion
(each, an "Incentive Rate"). Origen's published rate described in
clauses (i) and (ii) of this Paragraph 2(a) is based on Origen's
existing pricing policies, as may be amended from time to time.
b) Payment Terms. The amount of the interest rate rebate for each loan
made at the Incentive Rate will be payable by Sun to Origen
quarterly in arrears within fifteen (15) days after the end of each
calendar quarter. Notwithstanding the foregoing, however, Sun's
obligation to pay the interest rate rebate in respect of any
Incentive Rate loan shall terminate on the occurrence of a default
under the terms of such loan.
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c) Lending Criteria. The Incentive Rate will only be available to those
borrowers making a down payment of at least 10% of the purchase
price of the Sale Home or Origen Home, as applicable. The terms of
each loan offered at the Incentive Rate shall state that the removal
of the Sale Home or Origen Home, as applicable, from a Sun Property
shall be an event of default under such loan. Origen reserves the
right not to issue a loan to any potential purchaser of a Sale Home
or an Origen Home based on the credit history of the potential
purchaser or other reasons, in Origen's sole discretion.
d) Program Promotion. Subject to applicable federal and state laws,
rules and regulations, Sun will endeavor to promote the Incentive
Rate on its website by establishing a link from Sun's website to
Origen's website, or alternatively, by providing details of the
Incentive Rate and displaying Origen's logo on a separate page of
Sun's website.
3. Real Property Leases.
a) Sun reserves the right not to lease real property in the Sun
Properties to any potential purchaser or tenant of Sale Homes or
Origen Homes based on the credit history of the consumer or for
other appropriate reasons, in Sun's sole discretion.
b) The sale or lease by a prospective purchaser or lessee,
respectively, of an Origen Home that will continue to be located in
any of Sun's Properties is contingent upon Sun's leasing the
underlying real property to the purchaser or tenant. Notwithstanding
the foregoing, Origen Homes may be sold or leased by Origen without
Sun's leasing the underlying real property to the purchaser if the
Origen Home is removed from the relevant Sun Property.
4. Termination of Agreement. This Agreement will be in effect
from the date first written above until either party terminates this Agreement
by sending thirty (30) days advance written notice to the other party.
Notwithstanding the termination of this Agreement by either party, the following
obligations shall survive the termination of this Agreement:
a) Sun's obligations under Paragraph 2 of this Agreement
will continue for the term of any existing loans made
at an Incentive Rate, and the term of any loans in
process as of the date this Agreement terminates (the
"Termination Date"), which have been approved at an
Incentive Rate and which are closed within sixty (60)
days after the Termination Date; and
b) Sun's obligation to provide the Services in respect
of Origen Homes in existence as of the Termination
Date, and homes repossessed after the Termination
Date as a result of a default on a loan made at an
Incentive Rate, will continue for the Abatement
Period.
5. Limitation on Liability and Indemnity. Sun and its affiliates,
employees and agents shall not be liable for any loss, liability, damage or
expense (including attorneys' fees incurred in defending any claim)
("Liabilities") arising out of or in connection with the
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performance of the Services, unless such Liabilities shall be proven to result
directly from gross negligence or willful misconduct on the part of Sun, its
affiliates, employees or agents acting within the scope of their employment or
authority. Origen shall indemnify, defend and hold harmless Sun, its affiliates,
employees and agents from and against any and all Liabilities that Origen may
suffer in connection with Sun's provision of the Services, except for
Liabilities that are proven to result directly from gross negligence or willful
misconduct on the part of Sun, its affiliates, employees or agents acting within
the scope of their employment or authority. Sun shall indemnify, defend and hold
harmless Origen, its affiliates, employees and agents from and against any and
all Liabilities that Origen may suffer in connection with Sun's provision of the
Services, which Liabilities are proven to result directly from gross negligence
or willful misconduct on the part of Sun, its affiliates, employees or agents
acting within the scope of their employment or authority. The obligations
described in this paragraph shall be deemed continuous and shall survive any
expiration or termination of this Agreement.
6. Non-Discrimination. It is agreed by Sun and Origen, that as
required by law, discrimination because of religion, race, color, national
origin, age, sex, handicap, familial status, or marital status with respect to
the sale or lease of any home in a Sun Property is prohibited.
7. Independent Contractor. Nothing contained in this Agreement
shall be construed to create a relationship of employer and employee between Sun
and Origen, it being the intent of the parties hereto that the relationship
created hereby is that of independent contractor.
8. Notices. All notices under this Agreement shall be effective
if made in writing and delivered to the recipient at the address set forth below
by either hand deliver, registered or certified mail postage paid with return
receipt requested, or Federal Express or other nationally recognized overnight
courier service. The notice shall be directed to the following addresses:
If to Sun: Sun Communities, Inc.
Attn: Xxxx X. Xxxxxxxx
00000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Origen: Origen Financial L.L.C.
Attn: Xxxxxx X. Xxxxx
00000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
With a copy to:
Origen Financial L.L.C.
Attn: General Counsel
00000 Xxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Any notice or demand made according to this section shall be delivered upon
receipt if delivered by hand, three days after mailing if by Certified Mail, or
on the second day following delivery through a courier.
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9. Entire Agreement. This Agreement constitutes the entire
agreement between Origen and Sun with respect to the subject matter contained
herein and supersedes all prior discussions, negotiations and agreements,
whether oral or written, including the Repossessed Inventory Loss Mitigation
Agreement dated March 31, 2003, by and between Origen Financial, L.L.C. and Sun
Communities Operating Limited Partnership. No amendment, alteration or
withdrawal of this Agreement shall be valid or binding unless made in writing
and signed by both Origen and Sun. Any purported amendment, modification or
withdrawal which is oral shall be void and of no effect whatsoever. This
Agreement shall be binding on the successors and permitted assigns of the
parties.
10. Assignment. Neither party may assign its rights or obligations
under this Agreement without the prior written consent of the other.
11. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one instrument. Copies (facsimile, photostatic or otherwise) of
signatures to this Agreement shall be deemed to be originals and may be relied
on to the same extent as the originals.
[signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Services and
Interest Rebate Agreement as of the date first written above.
SUN COMMUNITIES, INC.
a Maryland corporation
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Xxxx Xxxxxxxx
Its: President
ORIGEN FINANCIAL L.L.C.,
a Delaware limited liability company, on behalf
of itself and its wholly-owned subsidiaries
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------------
Xxxxxx X. Xxxxx
Its: CEO
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