EXHIBIT 10.58
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY (the "Amended Guaranty") is made
February 1, 2002 by Xxxxxxx Financial Services Corporation, a Michigan
corporation ("Xxxxxxx"), in favor of Sun Communities Operating Limited
Partnership, a Michigan limited partnership ("SCOLP").
RECITALS:
A. Guarantor has executed and delivered to Lender a Guaranty dated
December 18, 2001, as affirmed by the Affirmation of Guaranty dated January 1,
2002 (collectively, the "Original Guaranty"), pursuant to which Guarantor
guaranteed the payment and performance when due of certain obligations owing
from Origen Financial, Inc. ("Origen Inc.") to SCOLP, including without
limitation under the line of credit loan (the "Line of Credit") evidenced by the
Subordinated Loan Agreement dated December 18, 2001 between Origen Inc. and
Lender, as amended by the First Amendment to Subordinated Loan Agreement dated
January 1, 2002 (collectively, the "Original Loan Agreement") and the Promissory
Note in the original principal amount of $12,500,000 dated December 18, 2001
executed by Origen Inc. in favor of Lender, as amended by the First Amended
Promissory Note dated January 1, 2002 in the original principal amount of
$17,500,000 (collectively, the "Prior Note").
B. The Line of Credit is secured by the collateral described in the
Amended and Restated Security Agreement dated February 1, 2002 between Origen
Inc. and SCOLP, the Amended and Restated Limited Liability Company Interest
Security and Pledge Agreement dated February 1, 2002 between Origen Inc. and
SCOLP, the Amended and Restated Stock Pledge Agreement dated February 1, 2002
between Origen Inc. and SCOLP, and various Uniform Commercial Code financing
statements filed to perfect the security interests granted under the foregoing
agreements (the "Origen Inc. Security Documents").
C. Origen Inc., Origen Financial, L.L.C. ("Origen LLC" and together with
Origen Inc., the "Borrowers") and Lender have entered into an Amended and
Restated Subordinated Loan Agreement dated February 1, 2002 (the "Amended and
Restated Loan Agreement") and the Borrowers have executed a Second Amended and
Restated Promissory Note dated February 1, 2002 (the "Second Amended Note"),
pursuant to which Lender has agreed to make advances under the Line of Credit,
as amended, to each of the Borrowers.
D. As further security for the Line of Credit, as amended, Origen LLC has
granted SCOLP a security interest in the collateral described in the Security
Agreement dated February 1, 2002 between Origen LLC and SCOLP and the Limited
Liability Company Interest Security and Pledge Agreement dated February 1, 2002
between Origen LLC and SCOLP (collectively, the "Origen LLC Security Documents"
and together with the Origen Inc. Security Documents, the "Origen Security
Documents").
E. The Borrowers may from time to time request loans, advances or other
financial accommodations from SCOLP and SCOLP may, in its discretion, honor such
requests in whole or part and thereby either of the Borrowers may from time to
time be indebted to SCOLP, including without limitation, under (i) the Amended
and Restated Loan Agreement; (ii) the
Second Amended Note; and (iii) the Origen Security Documents (collectively, the
"Origen Loan Documents").
F. SCOLP is unwilling to make loans, advances or extend other financial
accommodations to or otherwise do business with the Borrowers unless Xxxxxxx
continues to unconditionally guarantee payment of all present and future
indebtedness and obligations of each of the Borrowers to SCOLP and as a
condition of amending the Line of Credit, Lender has required that Guarantor
execute and deliver this Amended Guaranty.
X. Xxxxxxx is the sole shareholder of Origen Inc. and a member of Origen
LLC and will directly benefit from SCOLP's making of loans, advances or
extending other financial accommodations to or otherwise doing business with the
Borrowers.
X. Xxxxxxx desires to amend and restate the original Guaranty in its
entirety in accordance with the terms and conditions set forth in this Amended
Guaranty.
NOW, THEREFORE, in order to induce SCOLP to make loans, advances or extend
other financial accommodations to and otherwise do business with the Borrowers
and for other good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, Xxxxxxx hereby covenants and agrees with SCOLP
as follows:
1. GUARANTY. Xxxxxxx hereby irrevocably and unconditionally guarantees to
SCOLP 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 either Borrower in
favor of SCOLP, 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 either
Borrower and including without limitation, those under any loan agreement and/or
promissory note executed and delivered by either Borrower to SCOLP, 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
either Borrower in favor of SCOLP, 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 either
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 either Borrower to SCOLP,
as described above, regardless of whether either Borrower is held to be liable
for such amounts. Xxxxxxx acknowledges and agrees that any indebtedness of
either Borrower to SCOLP as evidenced by any promissory note may be extended or
renewed upon maturity at the sole discretion of SCOLP 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.
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2. GUARANTY UNCONDITIONAL. This is an irrevocable, unconditional and
absolute guaranty of payment, and not of collection, and the undersigned agrees
that its liability on this Amended Guaranty shall be immediate and SCOLP 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 Origen has
defaulted or otherwise failed to perform when due any of its obligations,
covenants, representations or warranties to SCOLP.
3. LIABILITY NOT CONTINGENT. The liability of Xxxxxxx on this Amended
Guaranty shall not be contingent upon the exercise or enforcement by SCOLP of
whatever remedies it may have against either Borrower or others, or the
enforcement of any lien or realization upon any security or collateral SCOLP 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 either Borrower or in separate actions, as often as SCOLP, 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 SCOLP's right to proceed in any other form of action or proceeding or
against other parties unless SCOLP has expressly waived such right in writing.
Specifically, but without limiting the generality of the foregoing, no action or
proceeding by SCOLP against either Borrower under any document or instrument
evidencing or securing the Indebtedness shall serve to diminish the liability of
Xxxxxxx, except to the extent SCOLP realizes payment by such action or
proceeding, notwithstanding the effect of any such action or proceeding upon
Xxxxxxx'x right of subrogation against either Borrower. Receipt by SCOLP 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 SCOLP hereunder and under any other
agreement now or at any time hereafter in force between SCOLP and Xxxxxxx shall
be cumulative and not alternative and shall be in addition to all rights, powers
and remedies given to SCOLP by law.
4. LIABILITY ABSOLUTE. Xxxxxxx agrees that its liability hereunder is
absolute and unconditional and that SCOLP 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
SCOLP'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
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 SCOLP to act in connection with the Indebtedness; (f) any advances
for the purpose of performing any covenant or agreement of either Borrower, or
curing any breach; (g) the filing by or against either Borrower of bankruptcy,
insolvency, reorganization or other debtor's relief afforded either
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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 Amended Guaranty and of creations
of Indebtedness of either Borrower to SCOLP; (b) any subrogation to the rights
of SCOLP against either Borrower until the Indebtedness has been paid in full;
(c) presentment and demand for payment of any Indebtedness of either 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 Amended Guaranty; (g) any defense arising by reason of any disability
or other defense of either Borrower by reason of the cessation from any cause
whatsoever of the liability of either 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 either 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 SCOLP 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 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 SCOLP that, as of the date of this Amended Guaranty: Xxxxxxx is
meeting its current liabilities as they mature; any financial statements of
Xxxxxxx furnished SCOLP 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 threatened against Xxxxxxx, nor is Xxxxxxx in
default or claimed default under any agreement for borrowed money.
8. NOTICES. Xxxxxxx agrees to immediately give SCOLP 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 SCOLP, annual financial statements for the
preceding fiscal year; and at such reasonable times as SCOLP requests to furnish
its current financial statements to SCOLP and permit SCOLP 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.
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9. MISCELLANEOUS. This Amended Guaranty shall inure to the benefit of
SCOLP 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 SCOLP shall become a holder or owner of any of the Indebtedness, each
reference to SCOLP hereunder shall be construed as if it referred to each such
holder or owner. This 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
Amended Guaranty. This 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 AMENDED GUARANTY OR THE INDEBTEDNESS.
11. COLLATERAL. This Amended Guaranty is secured by the collateral
described in (i) the Amended and Restated Security Agreement dated December 13,
1999, as amended, between SCOLP and Xxxxxxx; (ii) the Membership Pledge
Agreement dated December 13, 1999 between SCOLP and Xxxxxxx (with respect to
membership interests in Bloomfield Acceptance Company, L.L.C. and Bloomfield
Servicing Company, L.L.C.); (iii) the Stock Pledge Agreement dated December 13,
1999 between SCOLP and Xxxxxxx; (iv) the Stock Pledge Agreement dated October
20, 2000 between SCOLP and Xxxxxxx; and (v) various Uniform Commercial Code
financing statements filed to perfect the security interests granted under the
foregoing agreements.
12. GUARANTY FREELY GIVEN. THIS AMENDED GUARANTY IS FREELY AND VOLUNTARILY
GIVEN TO SCOLP 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
AMENDED GUARANTY.
IN WITNESS WHEREOF, this Amended Guaranty was executed and delivered by
the undersigned on the date stated in the first paragraph above.
XXXXXXX FINANCIAL SERVICES CORPORATION
/s/ Xxxxxx X. Xxxxx
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By: Xxxxxx X. Xxxxx, President and Chief
Executive Officer
0839546.03
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