Exhibit 10.59
INVESTMENT AGREEMENT
THIS INVESTMENT AGREEMENT (the "Agreement") is made and entered into as of
July 20, 2001, by and among the investors signing this Agreement (collectively,
the "Investors") who have agreed to participate in BFSC's Recapitalization Plan
by making the Capital Contributions into OFLLC in exchange for the issuance of
the number of Membership Units in OFLLC which are set forth next to each
Investor's name on Exhibit A attached hereto. Capitalized terms that are used
in this Agreement are defined in Section 1 below.
WITNESSETH:
A. OFLLC: (i) was organized on June 15, 2001 by filing a Certificate of
Formation with the Delaware Secretary of State, (ii) has not engaged
in any business to date, and (iii) is the sole owner of the OFLLC
Subsidiaries.
B. BFSC is and has been the sole member of OFLLC since the date that
OFLLC was organized but has heretofore not contributed any assets or
services to OFLLC.
C. The parties to this Agreement have agreed that concurrently with the
satisfaction of the Conditions Precedent, (i) the Investors (other
than BFSC) shall be admitted as new members of OFLLC and make the
Capital Contributions into OFLLC which are set forth next to each of
their respective names on Exhibit A attached hereto in exchange for
the issuance of the number of Series B Units and Series C Units in
OFLLC which are set forth next to the name of each such Investor on
Exhibit A, and (ii) BFSC shall consummate the Mergers in accordance
with the terms set forth in the Merger Agreement in exchange for the
issuance to BFSC of the number of Series A Units in OFLLC that are set
forth on Exhibit A.
NOW, THEREFORE, in consideration of the premises and for other of good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
respective meanings set forth below:
"BFSC" means Xxxxxxx Financial Services Corporation, a Michigan
corporation.
"BFSC CONDITIONS PRECEDENT" means collectively all of the following:
(a) On the Closing Date, SCOLP having provided and/or having
committed to provide the SCOLP Line of Credit to OFLLC
during the 12 month period following the Closing Date; and
(b) If a meeting of the shareholders of BFSC is held for the
purpose of considering the execution and delivery of the
Transaction Documents, the consummation of the Mergers
and the other transactions contemplated by this
Agreement, Xxxx Xxxxxxxx and all entities and trusts that
are directly
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and/or indirectly owned or controlled by Xxxx
Xxxxxxxx or members of his immediate family (i.e., parents, spouse, or children
or trusts for their benefit) who directly or indirectly own stock in BFSC or
who own or control voting rights in entities that own stock in BFSC
(collectively, the Xxxxxxxx Entities") shall have voted in favor of the
execution and delivery of the Transaction Documents, the consummation of the
Mergers, and the consummation of the transactions contemplated by this
Agreement; provided that if no such meeting of the BFSC shareholders is held,
this condition precedent shall be deemed to have been satisfied, and
(c) At the time of or prior to the Closing, the
Investors (other than BFSC) shall not have undertaken any action that would
prevent or hinder the BFSC Entities from meeting the conditions precedent set
forth in Sections 7.1(c),(e),(m) and 7.2(e) of the Merger Agreement.
"BFSC ENTITIES" shall mean collectively BFSC, OFI, and the
OFI Subsidiaries.
"CAPITAL CONTRIBUTIONS" means (a) with respect to the
Investors (other that BFSC), the capital contributions into OFLLC which are set
forth next to the name of each such Investor on Exhibit A attached hereto, and
(b) with respect to BFSC, the consummation of the Mergers that are more
particularly described in the Merger Agreement.
"CERTIFICATE OF FORMATION" means the Certificate of
Formation of OFLLC fled with the Delaware Secretary of State in accordance with
the Delaware Act, as the same may be amended or restated from time to time.
"CLOSING" has the meaning ascribed in Section 5 of this
Agreement.
"CLOSING DATE" has the meaning ascribed in Section 5 of
this Agreement.
"CONDITIONS PRECEDENT" means collectively the Primary
Conditions Precedent, the Diligence Conditions Precedent, and the Secondary
Conditions Precedent.
"DELAWARE ACT" means the Delaware Limited Liability
Company Act, Del. Code Xxx. tit.6, Sections 18-101 to -1109, as it may be
amended from time to time.
"DILIGENCE CONDITIONS PRECEDENT" means collectively all
the following:
(a) On or before August 31, 2001, BFSC shall have
obtained a Fairness Opinion;
(b) On or before December 31, 2001, each of the
conditions precedent set forth in Sections 7.1(c) and (m) of the Merger
Agreement shall have been satisfied, provided however, in the case of Section
7.1(c) of the Merger Agreement, approval of BFSC's shareholders shall not be
one of the Diligence Conditions Precedent but shall be
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one of the Primary Conditions Precedent under Section (a) of the
definition of Primary Conditions Precedent.
"FAIRNESS OPINION" means a fairness opinion received by BFSC from an
independent investment banking firm which indicates that the Recapitalization
Plan and the consummation of the transactions contemplated by the Transaction
Documents and this Agreement are fair to BFSC and its shareholders.
"INVESTORS" means collectively the persons and/or entities described on
Exhibit A.
"LIBOR" means a variable rate of interest equal to the 30 day London
Inter-Bank Offered Rate.
"LIMITED LIABILITY COMPANY AGREEMENT" means the Limited Liability Company
Agreement of the OFLLC, as it may be amended or restated from time to time, a
draft of which is attached hereto as Exhibit C.
"MANAGING BOARD" means the managing board of OFLLC which (a) shall have a
total of five votes and may have up to five persons who shall be designated as
follows (i) the Investors (other than BFSC) shall have the right to control
three votes (and appoint up to three persons to serve on OFLLC's Managing
Board), and (ii) BFSC shall have the right to control two votes (and appoint up
to two persons to serve on OFLLC's Managing Board), and (b) shall act by the
consent or vote of the majority of the five votes allocated between BFSC and the
Investors (other than BFSC).
"MATERIAL ADVERSE CHANGE" means any circumstance, change in, or effect on
the condition (financial or otherwise), business, assets or results of
operations of the BFSC Entities and/or the Recapitalized BFSC Entities (as
applicable), which, either individually or in the aggregate: (a) is or is
reasonably likely to be materially adverse to the pre-Closing business,
operations, assets, liabilities, employee relationships, distribution, customers
or supplier relationships, results of operations or the condition (financial or
otherwise) of the BFSC Entities, or (b) could materially adversely affect the
ability of the Recapitalized BFSC Entities to operate or conduct their on-going
post-Closing business operations.
"MEMBERSHIP UNITS" means collectively the Series A Units and Series B
Units to be issued to the Investors by OFLLC in the manner described on Exhibit
A attached hereto.
"MERGER AGREEMENT" means the Merger Agreement dated December 17, 2001 by
and among the BFSC Entities and the Recapitalized BFSC Entities, a draft of
which is attached hereto as Exhibit D, pursuant to which BFSC will cause the
mergers of (a) OFI with and into OFLLC, (b) Origen Special Holdings Corporation
with and into Origen Special Purpose L.L.C.; (c) Origen Manufactured Home
Financial, Inc. with and into Origen Manufactured Home Financial, L.L.C., and
(d) Origen Insurance Agency, Inc. with and into Origen Insurance Agency, L.L.C.,
each as more fully described in such Merger Agreement.
"MERGERS" mean the statutory merger transactions described in the Merger
Agreement.
"OFI" shall mean Origen Financial, Inc., a Virginia corporation.
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"OFI SUBSIDIARIES" shall mean collectively each of the following
corporations which are wholly owned by OFI: Origen Special Holdings Corporation
which is organized in Delaware, and Origen Manufactured Home Financial, Inc. and
Origen Insurance Agency, Inc., each of which is organized in Virginia.
"OFLLC" means Origen Financial L.L.C., a limited liability company
organized under the laws of the State of Delaware pursuant to the
Certificate of Formation and OFLLC's Limited Liability Company Agreement.
"OFLLC SUBSIDIARIES" shall mean collectively each of the following limited
liability companies which are wholly owned by OFLLC: Origen Special Purposes,
L.L.C., Origen Manufactured Home Financial, L.L.C., and Origen Special Purpose
II, L.L.C., each organized in Delaware, and Origen Insurance Agency, L.L.C.,
organized in Virginia.
"PRIMARY CONDITIONS PRECEDENT" means collectively all of the following:
(a) On or before October 31, 2001, BFSC shall have obtained
resolutions adopted by its board of directors and shareholders
authorizing the execution and delivery of the Transaction
Documents, the consummation of the Mergers and the consummation of
the transactions contemplated by this Agreement, provided,
however, that in the case of obtaining authorization by BFSC's
shareholders for the foregoing matters (the "BFSC Shareholder
Approval"), in the event that BFSC has diligently taken steps to
obtain the BFSC Shareholder Approval by promptly submitting a
proxy to the SEC (the "BFSC Proxy"), the deadline for obtaining
the BFSC Shareholder Approval (i.e., October 31, 2001) shall be
extended (if necessary) by the number of days in excess of 30 days
during which BFSC is diligently seeking SEC approval of the BFSC
Proxy;
(b) From the date of this Agreement to the Closing Date, no Material
Adverse Change arising from of any action or inaction of any of
the BFSC Entities shall have occurred to any of the BFSC Entities
and/or the Recapitalized BFSC Entities
(c) On the Closing Date each of the conditions precedent set forth in
Sections 7.1(a), (b), (f), (h) and (i), of the Merger Agreement
shall have been satisfied.
(d) On or before October 31, 2001, each of the conditions precedent
set forth in Sections 7.1 (k) and (l) of the Merger Agreement
shall have been satisfied.
"RECAPITALIZED BFSC ENTITIES" shall mean collectively BFSC, OFLLC, and the
OFLLC Subsidiaries.
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"RECAPITALIZATION PLAN" means the Recapitalization Plan of Xxxxxxx Financial
Services Corporation which is more particularly described on the Term Sheet and
in the schematic representations that are attached hereto as Exhibit E.
"SCOLP" means Sun Communities Operating Limited Partnership, a limited
partnership organized under the laws of Michigan.
"SCOLP LINE OF CREDIT" means the $12,500,000.00 stand-by line of credit to
be issued by SCOLP to OFLLC prior to and/or concurrently with the execution of
the Transaction Documents. The SCOLP Line of Credit shall: (a) provide for a
commitment fee to be determined based on current market rates for similar
facilities which shall be paid by OFLLC to SCOLP in the event that OFLLC draws
on the SCOLP Line of Credit, (b) be available to OFLLC during the twelve month
period following the Closing Date, (c) bear interest at the rate of 700 bps over
30 day LIBOR per annum with a floor of 11% and a cap of 15%, (d) be subordinated
in all respects to BFSC Entities' current credit facility (the "Senior
Facility") with Credit Suisse First Boston Mortgage Capital, LLC (the "Senior
Lender"), and (e) be secured by all assets of OFLLC and the OFLLC Subsidiaries
to the extent permitted under the credit facility documents related to the
Senior Facility.
"SEC" means the Securities and Exchange Commission.
"SECONDARY CONDITIONS PRECEDENT" means collectively all of the following:
(a) From the date of this Agreement to the Closing Date, no Material
Adverse Change arising from any occurrence other than the action
or inaction of any of the BFSC Entities shall have occurred to
any of BFSC Entities and/or Recapitalized BFSC Entities;
(b) On the Closing Date the condition precedent set forth in Section
7.1(e) of the Merger Agreement shall have been satisfied.
(c) On or before October 31, 2001, the condition precedent set forth
in Section 7.1 (n) of the Merger Agreement shall have been
satisfied.
"SERIES A UNITS" means the Membership Units in OFLLC designated as Series
Units on Exhibit A attached hereto, which Series A Units (i) are to be issued to
BFSC upon the consummation of the Mergers and the Recapitalization Plan, and
(ii) shall have such rights, terms, and obligations as provided for in OFLLC's
Limited Liability Company Agreement.
"SERIES B UNITS" means the Membership Units in OFLLC designated as Series B
Units on Exhibit A attached hereto, which Series B Units (i) are to be issued to
the Investors (other than BFSC) who have made the Capital Contributions that are
set forth on Exhibit A attached hereto upon the consummation of the
Recapitalization Plan, and (ii) shall have such rights, terms, and obligations
as provided for in OFLLC's Limited Liability Company Agreement.
"TERM SHEET" means the term sheet attached hereto as Exhibit F.
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"TRANSACTION DOCUMENTS" means collectively this Agreement, the Limited
Liability Company Agreement, the Merger Agreement, the Series A Units, the
Series B Units, and all additional documents, instruments, and/or agreements
that are delivered in connection with the consummation of the Recapitalization
Plan and related transactions described in this Agreement.
2. ORGANIZATION OF OFLLC AND OFLLC SUBSIDIARIES. The parties to this
Agreement acknowledge and agree that; (a) BFSC has heretofore retained counsel
to: (i) prepare and file Articles of Organization for OFLLC and the OFLLC
Subsidiaries, and (ii) prepare the Limited Liability Company Agreement, the
Merger Agreement, and the Transaction Documents which are necessary to
consummate the Recapitalization Plan and in accordance with the terms set forth
in the Term Sheet and this Agreement, and (b) concurrently with the consummation
of the Recapitalization Plan, OFLLC shall be governed by a Managing Board whose
initial members shall be (a) Xxxxxx Xxxxx who shall exercise the two votes
allocated to BFSC, and (b) representatives of the Investors (other than BFSC)
who shall exercise the three votes allocated to the Investors (other than BFSC).
3. CONSUMMATION OF RECAPITALIZATION PLAN; FUNDING CAPITAL CONTRIBUTIONS;
AND EXECUTION OF TRANSACTION DOCUMENTS. On the Closing Date: (a) the Investors
shall execute and deliver all Transaction Documents (other than this Agreement),
(b) the BFSC Entities and the Recapitalized BFSC Entities shall consummate the
Mergers, and (c) the Investors (other than BFSC) shall make the Capital
Contributions to OFLLC that are described in this Agreement and on Exhibit A
attached hereto.
4. ISSUANCE OF SERIES A UNITS AND SERIES B UNITS. Upon funding of all of
the Capital Contributions and the consummation of the Mergers, OFLLC shall issue
to each of the Investors the number of Series A Units or Series B Units which
are set forth next to the name of each Investor on Exhibit A attached hereto.
5. CLOSING AND CLOSING DATE. Subject to the satisfaction of each of the
Conditions Precedent, the closing of the transactions contemplated by this
Agreement (the "Closing ") shall occur on or before December 31, 2001, or at
such other date as shall be mutually agreed upon by the parties hereto (the
"Closing Date").
6. CONDITIONS PRECEDENT. The obligation of the Investors (other than
BFSC) to enter into the Transaction Documents or make Capital Contributions is
subject to the satisfaction of all the Conditions Precedent (compliance with
which, or the occurrence of which, may be waived in whole or in part by the
Investors (other than BFSC), provided, however, that the funding of the Capital
Contributions by the Investors (other than BFSC) and/or Closing shall be deemed
a satisfaction or waiver of such Conditions Precedent). The obligation of BFSC
to consummate the Merger or enter into the Transaction Documents is subject to
the fulfillment of the BFSC Conditions Precedent and the other Investors making
their Capital Contributions.
7. ADDITIONAL DOCUMENTS. Each of the parties to this Agreement agrees to
execute and deliver and/or (where applicable) cause their affiliated entities to
execute and deliver to BFSC, the Senior Lender and/or the other parties to this
Agreement (where applicable) any and all documents, instruments, and/or
agreements, in addition to those otherwise provided for herein, that may be
necessary and/or appropriate to effectuate the provisions of this Agreement
whether before, on or after the date of execution of this Agreement. In this
regard, prior to the Closing Date, the Investors (other
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than BFSC) shall have each obtained and delivered to BFSC resolutions adopted
by their respective Board of Directors, Board of Managers, Shareholders and/or
Members (as applicable) authorizing (where applicable) the execution and
delivery of the Transaction Documents, the funding of their respective Capital
Contributions, and the consummation of the transactions contemplated by the
Transaction Documents and this Agreement. All Transaction Documents executed
and delivered and all actions taken in connection with the Recapitalization
Plan and the consummation of the transactions contemplated by this Agreement
shall be reasonably satisfactory to the Investors and their counsel.
8. TRANSACTION FEES AND EXPENSES: RECIPROCAL BREAK-UP FEE. The parties to
this Agreement hereby acknowledge and agree to the following terms and
conditions relating to the payment of transaction fees and expenses and
potential break-up fees relating to and/or arising out of the Recapitalization
Plan and/or the transactions contemplated by the Transaction Documents and this
Agreement:
(a) TRANSACTION FEES AND EXPENSES. In the event that the transactions
relating to the Recapitalization Plan described in this Agreement are
consummated, all transaction fees and expenses relating to the Recapitalization
Plan, including, but not limited to, all costs and expenses associated with
and/or relating to the negotiation, preparation, execution, and delivery of the
Transaction Documents, any applicable licensing activities for the Recapitalized
BFSC Entities, and all fees charged by legal, accounting and investment banking
counsel to the Investors, shall be paid by OFLLC. In the event that the
transactions relating to the Recapitalization Plan described in this Agreement
are not consummated, the parties to this Agreement shall each bear their own
respective costs and expenses in connection with the transactions contemplated
by this Agreement.
(b) RECIPROCAL BREAK-UP FEE AND REIMBURSEMENT OF EXPENSES. The parties to
this Agreement further acknowledge and agree that in the event: (a) all of the
Conditions Precedent have been satisfied and BFSC is prepared to consummate the
transactions contemplated by this Agreement on the terms and conditions set
forth herein and in the Transaction Documents, and the Investors (excluding
BFSC) have not executed the Transaction Documents and funded their respective
Capital Contributions and/or the BFSC Conditions Precedent have not been
satisfied, the Investors (other than BFSC) shall immediately pay BFSC a break-up
fee in the amount of $2,000,000; and (b) (i) all of the Primary Conditions
Precedent have not been satisfied, or (ii) any of the Diligence Conditions
Precedent have not been satisfied and BFSC has not been diligently pursuing the
satisfaction of any of such Diligence Conditions Precedent or if BFSC does not
obtain a Fairness Opinion because a transaction involving a loan, joint venture,
sale, merger or other similar business transaction (collectively, an
"Alternative Transaction") between one or more of the BFSC Entities and a party
or parties other than the Investors (other than BFSC) is pending or consummated,
or (iii) all of the BFSC Conditions Precedent have been satisfied and the
Investors (other than BFSC) are prepared to consummate the transactions
contemplated by this Agreement under the terms and conditions that are set forth
herein and in the Transaction Documents but BFSC has not executed the
Transaction Documents and caused the Mergers to be consummated, or (iv) prior to
or contemporaneously therewith any of the events described in the foregoing
clauses (i) through (iii) occurring, BFSC shall stop pursuing the consummation
of the transactions described in this Agreement because of the pendency or
consummation of an Alternative Transaction, BFSC shall immediately pay to the
Investors an aggregate break-up fee in the amount of $2,000,000 (which shall be
allocated among and paid to the Investors (other than BFSC) in proportion to the
amount that each such Investor's allocated Capital Contribution bears to the
total amount of all Capital Contributions to be made by all Investors (other
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than BFSC) to OFLLC). The parties acknowledge and agree that the damage either
BFSC or the other Investors would incur if the transactions contemplated herein
are not consummated would most likely be incapable of accurate calculation and
that $2,000,000 is a reasonable estimate of the actual damages a party would
incur in such event.
Further, in the event that (a) BFSC has diligently pursued the
satisfaction of each of the Diligence Conditions Precedent and any of the
Diligence Conditions Precedent have not been satisfied; or (b) any of the
Secondary Conditions Precedent have not been satisfied, BFSC shall (a)
immediately reimburse the Investors (other than BFSC) for all their
out-of-pocket expenses incurred by them or any of their affiliates in
connection with: (i) the preparation, drafting and negotiation of this
Agreement and the Transaction Documents and any other document related to the
transactions contemplated in this Agreement; and (ii) their due diligence
review of the BFSC Entities, provided, however, that the aggregate amount of
such reimbursements shall be capped at $300,000.00 (the "Investor Expense
Reimbursements"), and (b) be relieved from any obligation to pay the Investors
the $2,000,000.00 break-up fee referenced above.
Anything contained herein to the contrary notwithstanding, if (a) any
Conditions Precedent are not satisfied due to of the unwillingness by any
Investor (other than BFSC) to cooperate with and/or submit financial or other
information to any governmental and/or licensing authorities which are required
in connection with the submission by the Recapitalized BFSC Entities or
applications to obtain the various licenses and permits that are necessary to
permit the Recapitalized BFSC Entities to continue to operate their respective
business operations after the Closing Date, and (b) such failure to cooperate
with and/or submit financial or other information to any applicable
governmental and/or licensing authority causes any of the Diligence Conditions
Precedent (which are not waived) not to be satisfied, then; (i) no party to
this Agreement shall be obligated to pay any of the break-up fees that are
described in this Section 8(b), and (ii) BFSC shall not be obligated to pay the
Investor Expense Reimbursements.
9. COMPLIANCE WITH SECURITIES LAWS. Each Investor acknowledges that,
covenants with, and represents and warrants to, each of the Recapitalized BFSC
Entities and each of the other Investors as follows:
(a) Such Investor is acquiring his, her, or its Membership Units for
his, her, or its own account and for investment purposes only, and not with a
view to the assignment of all or any portion of such Membership Units.
(b) Such Investor shall not assign all or any portion of his, her, or
its Membership Units in a manner which violates any federal or state securities
law.
(c) the Membership Units are not registered under the Securities Act of
1933 (the "Securities Act") or any applicable state securities laws and such
Membership Units are "restricted securities" as defined under the Securities
Act.
(d) Such Investor has been furnished with such information about the
BFSC Entities and the Recapitalized BFSC Entities as he, she, or it has
requested and has had the opportunity to
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communicate with the Directors and/or Managers of the BFSC Entities and the
Recapitalized BFSC Entities in order to verify the accuracy of, or amplify
upon, the foregoing information.
(e) Such Investor has such knowledge and experience in financial
business matters that he, she, or it is capable of evaluating the risks and
merits of acquiring the Membership Units and has had the opportunity to consult
with independent advisors with regard to his, her, or its investment in the
Membership Units.
(f) Such Investor shall not sell, assign or otherwise transfer
his, her, or its Membership Units or any portion thereof: (i) except in
accordance with the terms and restrictions that are set forth in the Limited
Liability Company Agreement, or (ii) to any person or entity who does not make
the acknowledgments and agreements set forth herein.
(g) Such Investor is an "Accredited Investor" within the
meaning of Regulation D under the Securities Act;
(h) Such Investor is able to bear the risk of loss of his,
her, or its entire investment in the Membership Units and has no immediate need
for the funds that he, she, or it intends to invest in the Recapitalized BFSC
Entities.
(i) Such Investor has no need for liquidity with respect to
his, her, or its investment in the Recapitalized BFSC Entities and is able to
bear the economic risk of his, her, or its investment in the Recapitalized BFSC
Entities for an indefinite period of time.
(j) Such Investor realizes that his, her, or its intended
investment in the Recapitalized BFSC Entities is illiquid, is not readily
transferable, and that transfer of the Membership Units he, she, or it has or
will acquire is in fact restricted.
10. GENERAL PROVISIONS.
(a) SPECIFIC PERFORMANCE. The parties hereto acknowledge and
agree that the subject matter of this Agreement is unique and that the failure
of any party hereto to comply with the terms and conditions contained herein
constitutes irreparable injury if not fully and completely performed;
accordingly, any party seeking to enforce the terms and covenants contained
herein shall be entitled to the equitable relief of specific performance and/or
such other equitable relief as decreed and/or ordered by a court of competent
jurisdiction.
(b) GOVERNING LAW; JURISDICTION. This Agreement and the
performance hereof shall be construed and interpreted in accordance with the
laws of the State of Michigan. Furthermore, the parties hereto acknowledge and
agree that any dispute arising out of this Agreement shall be determined by a
court of competent jurisdiction located in Oakland County, Michigan or a
federal court located in Xxxxx County, Michigan.
(c) ENTIRE AGREEMENT. This Agreement and the Transaction
Documents constitutes the entire Agreement between the parties hereto in
connection with the subject matter hereof. None of the parties to this
Agreement have made any statements, representations or warranties in connection
herewith, except as expressly set forth herein. This Agreement and the
Transaction Documents may not
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be modified orally, and no modification shall be effective unless in writing
and signed by all the parties hereto making specific reference to the changes
to be made to this Agreement.
(d) BINDING AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs,
personal representatives, successors and assigns.
(e) NOTICES. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in writing,
and shall be deemed to have been given when received, if delivered in person,
or three (3) business days following the mailing thereof, if mailed by
certified mail, return receipt requested and regular mail, postage prepaid to
the Investors at the following addresses:
IF TO BFSC: 000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
WITH A COPY TO: Williams, Williams, Ruby & Xxxxxxxx, P.C.
000 Xxxxx Xxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
IF TO SUI TRS, INC. OR 31700 Middlebelt Road
XXXXXXXX FAMILY, LLC: Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
WITH A COPY TO: Jaffe, Raitt, Heuer & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
IF TO WOODWARD HOLDING, LLC 0000 Xxxxxx Xxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
(f) WAIVER. Waiver by any party of any breach, or failure to
enforce any of the terms and conditions of this Agreement, at any time, shall
not in any way affect, limit or waive such party's right thereafter to enforce
and compel strict compliance with every term and condition hereof.
(g) SEVERABILITY. If and to the extent that any provision of
this Agreement or portion thereof shall be determined by any legislature or
court to be in whole or in part invalid or unenforceable, such provision or
term shall be unenforceable only to the extent of such invalidity without
invalidating the remaining provisions hereof and all other provisions of this
Agreement shall remain in full force and effect, and the rights and obligations
of the parties shall be construed and enforced accordingly. In
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addition, it is the intent of the parties hereto that any provision of the
Agreement which is determined to be invalid or unenforceable shall be
interpreted in a form which is not invalid or unenforceable with the intent that
the terms and conditions imposed by this Agreement shall be construed and
enforced in such a manner as to give them the broadest enforceable scope and
effect.
(h) MISCELLANEOUS. This Agreement may be executed in
counterparts, and each such counterpart shall constitute an original and all
such counterparts shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on or as
of the date and year first appearing above.
XXXXXXX FINANCIAL SERVICES CORPORATION,
A MICHIGAN CORPORATION
BY: /s/ XXXXXX X. XXXXX
----------------------------
XXXXXX X. XXXXX
ITS: PRESIDENT
SUI TRS, INC., A MICHIGAN CORPORATION
BY: /s/ XXXX X. XXXXXXXX
----------------------------
XXXX X. XXXXXXXX
ITS: PRESIDENT
XXXXXXXX FAMILY LLC,
A MICHIGAN LIMITED LIABILITY COMPANY TO BE FORMED
BY: /s/ XXXXXX X. XXXXX
----------------------------
XXXXXX X. XXXXX
ITS: MANAGER
WOODWARD HOLDING, LLC
A MICHIGAN LIMITED LIABILITY COMPANY
BY: /s/ XXXX X. XXXXXXX
----------------------------
XXXX X. XXXXXXX
ITS: MANAGER
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EXHIBIT "A"
SCHEDULE OF CAPITAL CONTRIBUTIONS
SERIES A SERIES B SERIES C INITIAL CAPITAL
MEMBER ADDRESS UNITS UNITS UNITS(1) CONTRIBUTION
------ ------- ----- ----- ----- ------------
XXXXXXX FINANCIAL 000 Xxxx Xxxxx Xxxxxx 200,000 -0- Consummation of
SERVICES CORPORATION Suite 200 Mergers pursuant
Xxxxxxxxxx, XX 00000 to Merger
Agreement
Xxxxxxxx Family LLC 31700 Middlebelt -0- 100,00 $5,000,000
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
SUI TRS, INC. 31700 Middlebelt -0- 300,000 $15,000,000
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
WOODWARD HOLDING, 0000 Xxxxxx Xxxx -0- -0- 000,000 $20,000,000
LLC Xxxxxx Xxxxx, XX 00000
------------------------------
(1) The Series C Units shall be non-voting.
Exhibit 10.59
AMENDMENT TO
INVESTMENT AGREEMENT
---------------------------------
This Amendment to
Investment Agreement (this "Amendment") is made and
entered into as of August 13, 2001 by and among Xxxxxxx Financial Services
Corporation, a
Michigan corporation, SUI TRS, Inc. a Michigan corporation,
Xxxxxxxx Family LLC, a Michigan limited liability company, and Woodward
Holding, LLC, a Michigan limited liability company. Capitalized terms that are
used in this Amendment are defined in the Agreement (as hereinafter defined).
RECITALS
A. The parties to this Amendment have entered into an
Investment
Agreement as of July 20, 2001 (the "Agreement").
B. The parties to this Amendment wish to amend the Agreement as
hereinafter provided.
NOW, THEREFORE, in consideration of the premises, the parties hereto
intending to legally bound, agree as follows:
1. The Agreement is hereby amended as follows:
A. The definition of "Managing Board" set forth in the Agreement is
hereby deleted and the following is hereby substituted in its place:
"MANAGING BOARD" means the managing board of OFLLC which (a) shall
have a total of five votes and may have up to five persons who shall
be designated as follows (i) the holders of the Series B Units shall
have the right to control two votes (and appoint up to two persons to
serve on OFLLC's Managing Board), (ii) BFSC shall have the right to
control two votes (and appoint up to two persons to serve on OFLLC's
Managing Board), and (iii) holders of the Series B Units and BFSC
will together appoint one person who shall control one vote and shall
have the right to appoint his or her successor (that person, and his
or her successor, being hereinafter referred to as the "Independent
Director"), and (b) shall, except as otherwise provided in the
Limited Liability Company Agreement, act by the consent or vote of
the majority of the five votes allocated between BFSC, the holders of
the Series B Units and the Independent Director.
B. The definition of "Membership Units" set forth in the Agreement is
hereby deleted and the following is hereby substituted in its place:
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"MEMBERSHIP UNITS" means collectively the Series A Units, Series B
Units and Series C Units to be issued to the Investors by OFLLC in the
manner described on Exhibit A attached hereto."
C. The definition of "Merger Agreement" set forth in the Agreement is hereby
amended by deleting therefrom the words, "dated July ____, 2001"
D. The definition of "OFLLC Subsidiaries" set forth in the Agreement is hereby
amended by deleting the word "Purposes" from the second line thereof and
substituting the word "Purpose" in its place.
E. The definition of "SCOLP Line of Credit" set forth in the Agreement is
hereby deleted and the following is hereby substituted in its place:
"SCOLP LINE OF CREDIT" means the $12,500,000 stand-by line of credit to
be issued by SCOLP to OFLLC prior to and/or concurrently with the Closing
and which shall be substantially in accordance with the terms and
conditions set forth in the minutes of the meetings of the Boards of
Directors of BFSC and Sun Communities, Inc. which were each held on June
25, 2001."
F. The definition of "Series B Units" set forth in the Agreement is hereby
amended by adding the words "and Xxxxxxxx Holding, LLC" to the third line
thereof after the word "BFSC", and by deleting the words "have made" from
the third line thereof and substituting the words "shall make" in their
place.
G. The definition of "Term Sheet" set forth in the Agreement is hereby amended
by deleting therefrom the words "Exhibit F" and substituting in their place
the words "Exhibit E."
H. The definition of "Transaction Documents" set forth in the Agreement is
hereby amended by deleting the words "the Series A Units, the Series B
Units," from the second line thereof.
I. The following definition is hereby added to the Agreement:
"SERIES C UNITS" means the Membership Units in OFLLC designated as
Series C Units on Exhibit A attached hereto, which Series C Units (i)
are to be issued to Xxxxxxxx Holding, LLC which shall make the Capital
Contribution that is set forth on Exhibit A attached hereto upon the
consummation of the Recaptialization Plan, and (ii) shall have the
rights, terms, and obligations as provided for in OFLLC's Limited
Liability Company Agreement.
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J. Paragraph 2 of the Agreement is hereby deleted in its entirety and the
following is hereby substituted in its place:
"2. ORGANIZATION OF OFLLC AND OFLLC SUBSIDIARIES. The parties to
this Agreement acknowledge and agree that: (a) BFSC has heretofore
retained counsel to (i) prepare and file Articles of Organization
for OFLLC and the OFLLC Subsidiaries, and (ii) prepare the Limited
Liability Company Agreement, the Merger Agreement, and the other
Transaction Documents which are necessary to consummate the
Recapitalization Plan in accordance with the terms set forth in
the Term Sheet and this Agreement, and (b) concurrently with the
consummation of the Recapitalization Plan, OFLLC shall be governed
by a Managing Board whose initial members shall be (i) Xxxxxx X.
Xxxxx who shall exercise the two votes allocated to BFSC, (ii)
Xxxx X. Xxxxxxxx who shall exercise the two votes allocated to
the Investors holding Series B Units, and (iii) the Independent
Director chosen by BFSC and the holders of the Series B Units,
who shall exercise one vote."
K. Paragraph 4 of the Agreement is hereby deleted in its entirety and
the following is hereby substituted in its place.
"4. ISSUANCE OF UNITS. Upon funding of all of the Capital
Contributions and the consummation of the Mergers, OFLLC shall
issue to each of the Investors the number of Series A Units,
Series B Units and Series C Units which are set forth next to the
name of each Investor on Exhibit A attached hereto."
L. Section 8 (b) of the Agreement is hereby amended by adding to the
sixth line thereof after the words "BFSC Conditions Precedent" the
following parenthetical phrase: "(other than the BFSC Condition
Precedent set forth in clause (c) of the definition of BFSC Conditions
Precedent)".
M. Section 10 (e) of the Agreement is hereby amended by changing the
address of Woodward Holding, LLC to:
"c/o Jaffe, Raitt, Heuer & Xxxxx, P.C.
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx"
N. Exhibit A to the Agreement is hereby deleted in its entirety and
replaced with Exhibit A attached to this Amendment.
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2. As amended by this Amendment, the Agreement, and all of its terms and
provisions, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on or as
of the date and year first appearing above.
XXXXXXX FINANCIAL SERVICES CORPORATION,
A MICHIGAN CORPORATION
BY: /s/ XXXXXX X. XXXXX
----------------------------
XXXXXX X. XXXXX
ITS: PRESIDENT
SUI TRS, INC., A MICHIGAN CORPORATION
BY: /s/ XXXX X. XXXXXXXX
----------------------------
XXXX X. XXXXXXXX
ITS: PRESIDENT
XXXXXXXX FAMILY LLC,
A MICHIGAN LIMITED LIABILITY COMPANY
BY: /s/ XXXXXX X. XXXXX
----------------------------
XXXXXX X. XXXXX
ITS: MANAGER
WOODWARD HOLDING, LLC,
A MICHIGAN LIMITED LIABILITY COMPANY
BY: /s/ XXXX X. XXXXXXX
-----------------------------
XXXX X. XXXXXXX
ITS: MANAGER
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EXHIBIT "A"
SCHEDULE OF CAPITAL CONTRIBUTIONS
SERIES A SERIES B SERIES C INITIAL CAPITAL
MEMBER UNIT UNITS UNITS(1) CONTRIBUTION
------ ----- ----- ----- ------------
XXXXXXX FINANCIAL 200,000 -0- Consummation of
SERVICES CORPORATION Mergers pursuant
to Merger
Agreement
Xxxxxxxx Family LLC -0- 84,211 $4,210,526
SUI TRS, INC. -0- 315,789 $15,789,474
XXXXXXXX HOLDING, -0- -0- 400,000 $20,000,000
LLC
__________________________________________________
(1) The Series C Units shall be non-voting.
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