EXHIBIT 10.42
FIRST AMENDED AND RESTATED SECURITY AGREEMENT
THIS FIRST AMENDED AND RESTATED SECURITY AGREEMENT (as amended from
time to time, the "Agreement") is entered into as of December 30, 2002 by and
between ORIGEN FINANCIAL L.L.C., a Delaware limited liability company whose
address is 000 X. Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000
("Borrower") and SUN HOME SERVICES, INC., a Michigan corporation whose address
is 00000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, XX 00000 ("Secured
Party").
RECITALS:
A. Sun Communities Operating Limited Partnership ("SCOLP") made a line
of credit (the "Line of Credit") available to Borrower for up to $27,500,000
pursuant to a Second Amended and Restated Subordinated Loan Agreement dated
December 4, 2002 between Borrower and SCOLP (the "Original Line of Credit Loan
Agreement") and a Sixth Amended and Restated Promissory Note dated December 4,
2002 in the original principal amount of $27,500,000 delivered by Borrower to
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 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 Secured Party pursuant to an Assignment of Loans of even date
herewith.
D. Borrower and Secured Party 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 Secured Party 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 Secured Party 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 Secured Party 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 Secured Party is reflected as the lender.
F. To secure the payment of all amounts due to SCOLP by Borrower in
connection with the Line of Credit and to secure all of Borrower's other
obligations to SCOLP of any nature,
Borrower and SCOLP entered into a Security Agreement dated February 1, 2002 (the
"Original Security Agreement").
G. To secure the payment of all amounts due to Secured Party by
Borrower in connection with the Line of Credit and the Term Loan and pursuant to
terms of the Line of Credit Loan Agreement, the Seventh Amended Line of Credit
Note, the Term Loan Agreement and the First Amended Term Loan Note and to secure
all of Borrower's other obligations to Secured Party of any nature now or in the
future owing from Borrower to Secured Party (the "Obligations"), Borrower and
Secured Party desire to amend and restate the Original Security Agreement in
accordance with the terms and conditions of this Agreement.
THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, the following terms
shall have the following meanings:
(a) "Accounts" means all "accounts", as such term is defined in the
Code, in which Borrower now or hereafter has any right, title or
interest.
(b) "Books" means all books, records and correspondence relating to the
Collateral (as defined herein).
(c) "Chattel Paper" means any and all "chattel paper", as such term is
defined in the Code, in which Borrower now or hereafter has any right,
title or interest.
(d) "Code" means the Uniform Commercial Code as the same may from time
to time be in effect in the State of Michigan.
(e) "Contracts" means any and all contracts, instruments, undertakings,
documents, leases or other agreements in or under which Borrower may
now or hereafter has any right, title or interest and which pertain to
the purchase, lease, sale or other disposition by Borrower of any
Inventory, Equipment, Fixtures, real property or any interest in real
property, as any of the same may from time to time be amended,
supplemented or otherwise modified.
(f) "Current Accounts" means an Account that arises from a bona fide
outright sale of goods by Borrower, or from services performed by
Borrower that is not subject to any claim of reduction, counterclaim,
set-off, allowances, adjustments, or the like, and is not outstanding
more than 60 days from the date of its invoice.
(g) "Documents" means any and all "documents" and "instruments", as
such terms are defined in the Code, in which Borrower now or hereafter
has any right, title or interest.
(h) "Equipment" means all "equipment", as such term is defined in the
Code, in which Borrower now or hereafter has any right, title or
interest.
(i) "Fixtures" means, to the extent not otherwise included as
Equipment, all machinery, apparatus, equipment, fittings, fixtures,
furniture and furnishings in which Borrower now or
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hereafter has any right, title or interest located upon or affixed to
or which becomes affixed to any real property owned or leased by
Borrower, or any part thereof, and used or usable in connection with
any future occupancy or use of such premises, including replacements
and additions thereto.
(j) "General Intangibles" means all "general intangibles", as such term
is defined in the Code, in which Borrower now or hereafter has any
right, title or interest. General Intangibles shall also include all
equity interests of Borrower in other entities, including but not
limited to membership interest in Origen Insurance Agency, L.L.C.,
Origen Manufactured Home Financial, L.L.C., Origen Special Purpose,
L.L.C., Origen Special Purpose II, L.L.C., and Origen Financial of
South Dakota, L.L.C. and Origen Credit L.L.C.
(k) "Inventory" means all "inventory", as such term is defined in the
Code, in which Borrower now or hereafter has any right, title or
interest.
(l) "Loans" means any loan originated by or acquired by Borrower,
whether an original loan, an additional loan or a substitution for an
existing loan including all indebtedness of any Borrower with respect
to such loans or any collateral pledge with respect to such loans
including but not limited to any manufactured homes, together with all
other collateral provided as security for such loans; servicing
agreements, backup servicing agreements, servicing records, insurance,
guarantees, indemnitees, and warranties and proceeds thereof, financing
statements and other agreements or arrangements of whatever character
from time to time relating to the loans, income if any from the loans,
all xxxxxx, all insured closing letters, all escrow instructions
covering all or any of the loans, all collections from such loans, all
blocked accounts and all amounts and deposits therein, all collection
accounts and escrow accounts relating to any loan, all dealer financing
agreements, all loan agreements, all loan documents, all consignment
agreements, sale contracts, security agreements, the right to payment
of interest or finance charges and collateral securing such
obligations, and any other rights and other assets relating to such
loans or any interest in the loans, whether constituting real or
personal property, accounts, chattel paper, equipment, goods,
instruments, general intangibles, inventory or proceeds, or securities
backed by or representing an interest in such loans and any and all
replacements, substitutions, distributions on or proceeds of any and
all of the foregoing.
(m) "Proceeds" means all "proceeds", as such term is defined in the
Code.
2. SECURITY INTEREST. Borrower hereby grants to Secured Party a
continuing security interest in all of its right, title and interest in, to and
under all Accounts, Current Accounts, Books, Chattel Paper, Contracts,
Documents, Equipment, Fixtures, General Intangibles, Inventory, Loans and
Proceeds (collectively, the "Collateral"). This grant is made for the purpose of
securing the Obligations owing by Borrower to Secured Party. Borrower promises
punctually to pay the Obligations when it is so required in accordance with the
obligations and any note or agreement evidencing the Obligations, including the
Seventh Amended Line of Credit Note and the First Amended Term Loan Note.
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3. SUBORDINATION. The security interests in the Collateral granted to
Secured Party may be subordinate to and subject to liens or security interests
which the holders of Senior Debt (as defined in the Line of Credit Loan
Agreement and the Term Loan Agreement) may now or hereafter have in the
Collateral as a result of any indebtedness of Borrower comprising the Senior
Debt. If subordinated, such subordination shall be evidenced within the
provisions of the Line of Credit Loan Agreement and the Term Loan Agreement,
and, if required by the holders of the Senior Debt, in a separate written
subordination agreement between the Secured Party and the holders of the Senior
Debt.
4. WARRANTIES AND COVENANTS. Borrower represents, warrants and
covenants to Secured Party as follows:
(a) Except for the security interests granted hereby and any
other security interests authorized by this Agreement or any other
agreement between Borrower and Secured Party, Borrower is, or, as to
Collateral to be acquired by Borrower after the date hereof, will be,
the owner of the Collateral free from any adverse lien, security
interest or encumbrance other than those identified on the attached
EXHIBIT A; and Borrower agrees to defend the Collateral and proceeds
thereof against any claims and demands of all persons at any time
claiming the same or any interest therein.
(b) The security interests hereby created are valid and
Borrower has the authority and right to subject the Collateral to the
security interests hereby created.
(c) All financial statements, certificates and other
information concerning the financial condition of Borrower, and
proceeds hereafter furnished by Borrower to Secured Party shall be in
all respects true and correct at the time the same are provided and
shall be deemed, for all purposes, to have been furnished by Borrower
to Secured Party for the purpose of obtaining credit or an extension of
credit.
(d) This Agreement has been duly executed and delivered by a
duly authorized officer of Borrower and constitutes the legal, valid
and binding obligation of Borrower, enforceable in accordance with its
terms.
(e) Borrower does not conduct Borrower's business under any
other name than that given above, and agrees not to change or
reorganize the business entity under which it does business except upon
the Secured Party's prior written approval.
(f) There are no actions or proceedings either threatened or
pending against Borrower which might result in any material adverse
change in Borrower's financial condition or materially affect any of
Borrower's assets.
(g) Borrower's place of business or, if more than one, its
chief executive office, is as set forth on the first page of this
Agreement.
All of Borrower's warranties contained in this Section 4 shall be continuing
warranties until Borrower has no remaining Obligations to Secured Party.
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5. LOSS OR DEPRECIATION OF COLLATERAL. Borrower shall immediately
notify Secured Party of any event causing a material loss or depreciation in
value of Collateral and the amount of such loss or depreciation.
6. RECORDS, INSPECTION, AUDIT AND COVENANT FOR FURTHER ASSURANCES.
(a) At the request of Secured Party, Borrower will advise
Secured Party of the places where its books of Accounts and records,
including all records of the Collateral and the dispositions made
thereof by Borrower and of its Accounts and all collections thereon,
are kept and maintained.
(b) Borrower will keep and maintain such books and records
with respect to the Collateral as Secured Party may from time to time
reasonably prescribe for the purpose of enabling Secured Party to audit
the same.
(c) Borrower shall at all reasonable times and from time to
time allow Secured Party, by or through any of its agents, attorneys or
accountants, to examine or inspect the Collateral wherever located and
to examine, inspect and make extracts from Borrower's books and
records. Borrower shall do, make, execute and deliver all such
additional and further acts, things, deeds, assurances and instruments
as Secured Party may reasonably require, to assure to Secured Party its
rights hereunder.
7. PRESERVATION AND DISPOSITION OF THE COLLATERAL AND PROCEEDS.
(a) Borrower will keep the Collateral in good condition and
will not waste or destroy any of the same. Borrower will not use the
Collateral in violation of any statute or ordinance.
(b) Borrower will pay promptly when due all taxes, assessments
and governmental charges upon or against the Collateral before the same
become delinquent and before penalties accrue thereon.
(c) At its option, Secured Party may discharge taxes, liens,
other encumbrances or security interests not otherwise authorized by
this Agreement or any other agreement between Borrower and Secured
Party at any time levied or placed on the Collateral and may pay for
the maintenance and preservation of the Collateral. Borrower agrees to
reimburse Secured Party, on demand, for any payment made or any expense
incurred by Secured Party pursuant to the foregoing authorization.
(d) Borrower, at its own expense, shall keep all of the
Collateral fully insured against loss or damage by fire, theft,
explosion, business interruption, and all other risks, in such amounts,
with such companies, under such policies, and in such form as shall be
satisfactory to Secured Party.
(e) Borrower, unless in default, may use, consume and sell
Inventory in carrying on its business in the ordinary course; but a
sale in the ordinary course of business shall not include any transfer
or sale in satisfaction, partial or complete, of a debt owed by
Borrower.
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Borrower shall not, without the prior written consent of Secured Party,
otherwise sell or dispose of the Collateral or any portion thereof.
8. COLLECTIONS. In the absence of contrary instructions from Secured
Party, Borrower at its own expense shall take all necessary action promptly to
collect its Accounts and Loans. Upon an Event of Default, as such term is
defined in the Loan Agreement, and when and to the extent required by Secured
Party, Borrower shall (a) pay or deliver all cash proceeds of Accounts and Loans
to Secured Party immediately upon receipt in the exact form received without
commingling with other property, or (b) immediately upon receipt, deposit all
such proceeds in a collateral collection account established and controlled by
Secured Party at a financial institution of its choosing, and/or (c) notify
account borrowers that their accounts, Loans and/or contract rights (to the
extent included in Accounts) have been assigned to Secured Party and shall be
paid directly to Secured Party. At its option, at any time after an Event of
Default and at Borrower's expense, Secured Party may, in addition to its other
rights hereunder, xxx, compromise on terms it considers proper, endorse, sell or
otherwise deal with the Accounts and Loans and proceeds of any Collateral either
in its own name or that of Borrower. After deduction of any expenses, including,
without limitation, attorneys fees and expenses, to the extent permitted under
applicable law, all proceeds received by Secured Party may be applied by Secured
Party to payment of any Obligations, if due, whether at maturity, by
acceleration or otherwise, in such order as Secured Party may choose. At any
time and from time to time, Secured Party may make like application of the
balance of the collateral collection account or it may release all or a part of
the balance to Borrower.
9. ASSIGNMENTS, INVOICES AND INFORMATION. At Secured Party's request,
Borrower shall:
(a) give Secured Party assignments in the form specified by
Secured Party of specific Accounts and Loans as the Accounts and Loans
arise;
(b) furnish Secured Party with the original or a copy of
invoices, and contracts applicable to each Account and Loan noting
thereon, if Secured Party so requires, Secured Party's assignment and
any additional statement required; and/or
(c) notify Secured Party immediately if any Account or Loan
arises out of a contract with the United States or any of its agencies
and take any action required by Secured Party with reference to the
Federal Assignment of Claims Act.
10. NOTATION OF ASSIGNMENT, INFORMATION AND PAYMENT OF ACCOUNTS. When
and to the extent required by Secured Party, Borrower shall:
(a) xxxx records of Accounts, Loans and contract rights (to
the extent included in Accounts) in a manner satisfactory to Secured
Party to show Secured Party's interest therein;
(b) furnish to Secured Party satisfactory evidence of
performance of contracts and Loans; and
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(c) give Secured Party lists of account borrowers (showing
names, addresses and amounts owing) and such other data concerning its
Accounts and Loans as Secured Party may from time to time specify.
11. FINANCING STATEMENTS; PERFECTION.
(a) Borrower irrevocably authorizes Secured Party to prepare
and file any financing statement, amendments, continuations, and all
other documents, as Secured Party deems necessary to perfect and
maintain the security interest and lien granted herein. This
authorization shall remain in full force and effect and may be relied
on by Secured Party as long as any Obligations remain outstanding.
(b) Borrower agrees to promptly execute and deliver to Secured
Party, concurrently with this Agreement and at any time thereafter, at
Secured Party's request, all financing statements, assignments,
promissory notes, certificates of title, affidavits, reports, notices,
schedules of Accounts, designations of Inventory, letters of authority,
stock certificates and any and all other documents and agreements, in
form satisfactory to Secured Party, to perfect and maintain its
security interest in the Collateral.
(c) Except as otherwise provided in this Agreement or any
other agreement between Borrower and Secured Party, without the prior
written consent of Secured Party, Borrower will not allow or suffer any
adverse financing statement covering the Collateral, or any portion
thereof, to be on file in any public office.
12. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any Event of
Default, and at any time thereafter, Secured Party shall have the rights and
remedies of a secured party under the Code in addition to the rights and
remedies provided herein or in any other instrument or agreement executed by
Borrower.
Without limiting the generality of the foregoing, Borrower expressly
agrees that in any such event Secured Party, without demand of performance or
other demand, advertisement or notice of any kind (except the notice specified
below of time and place of public or private sale) to or upon Borrower or any
other person (all and each of which demands, advertisements and/or notices are
hereby expressly waived), may forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give an option or options to purchase or sell or otherwise
dispose of and deliver the Collateral (or contract to do so), or any part
thereof, in one or more parcels at public or private sale or sales, at any
exchange broker's board or at any of Secured Party's offices or elsewhere at
such prices as Secured Party may deem best, for cash or on credit or for future
delivery without assumption of any credit risk. Secured Party shall have the
right upon any such public sale or sales and, to the extent permitted by law,
upon any such private sale or sales, to purchase the whole or any part of the
Collateral so sold, free of any right of equity of redemption, which equity of
redemption Borrower hereby releases. Secured Party may require Borrower to
assemble the Collateral and proceeds and make them available to Secured Party at
a place to be designated by Secured Party which is reasonably convenient to all
parties.
Secured Party shall apply the net proceeds of any such collection,
recovery, receipt, appropriation, realization or sale after deducting all
reasonable costs and expenses of every kind
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incurred therein or incidental to the care, safe-keeping or otherwise of any or
all of the Collateral or in any way relating to the rights of Secured Party
hereunder, including, without limitation, reasonable attorneys fees and
expenses, to the payment in whole or in part of the Obligations, in such order
as Secured Party may elect, Borrower remaining liable for any deficiency
remaining unpaid after such application, and only after so paying over such net
proceeds and after the payment by Secured Party of any other amount required by
any provision of law, need Secured Party account for the surplus, if any, to
Borrower. To the extent permitted by applicable law, Borrower waives all claims,
damages and demands against Secured Party arising out of the repossession,
retention or sale of the Collateral. Unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, Secured Party will give Borrower reasonable notice of the
time and place of any public sale thereof or of the time after which any private
sale or other intended disposition thereof is to be made. The requirement of
reasonable notice shall be met if such notice is mailed, postage prepaid, to the
address of Borrower, at least ten (10) days before the time of the sale or
disposition. Borrower shall pay to Secured Party on demand any and all expenses,
including, without limitation, reasonable attorneys fees and expenses, to the
extent permitted under applicable law, incurred or paid by Secured Party in
protecting or enforcing the Obligations and other rights of Secured Party
hereunder including its rights to take possession of Collateral and proceeds
thereof.
13. SECURED PARTY'S APPOINTMENT AS ATTORNEY-IN-FACT. Borrower hereby
irrevocably constitutes and appoints Secured Party, with full power of
substitution, as its true and lawful attorney-in-fact with full power and
authority in the place and stead of Borrower and in the name of Borrower or in
its own name, from time to time in the sole and absolute discretion of Secured
Party, for the purpose of carrying out the terms of this Agreement, to take any
and all appropriate action and to execute any and all documents and instruments,
including without limitation, any financing statements necessary or helpful to
perfect or continue Secured Party's security interest in the Collateral, which
may be necessary or desirable to accomplish the purposes of this Agreement. This
power of attorney being coupled by an interest shall be irrevocable so long as
any Obligations remain unpaid. All acts of any such attorney are ratified and
approved, and except for willful misconduct, he or she will not be liable for
any act or omission or for any error of judgment or mistake of law.
14. SECURITY NOT CONTINGENT. Secured Party's rights under this
Agreement shall not be contingent upon the exercise or enforcement by Secured
Party of any other rights or remedies he may have against Borrower or others. No
election by Secured Party to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of Secured
Party's right to enforce its rights under this Agreement.
15. GENERAL. Secured Party shall not be deemed to have waived any of
its rights hereunder or under any other agreement or instrument signed by
Borrower unless such waiver be in writing and signed by Secured Party. No delay
or omission on the part of Secured Party in exercising any right shall operate
as a waiver of such right or any other right. A waiver on any one occasion shall
not be construed as a bar to or waiver of any right or remedy on any future
occasion. All of Secured Party's rights and remedies, whether evidenced hereby
or by any other agreement or instrument, shall be cumulative and may be
exercised singularly or concurrently. Any demand upon or notice to Borrower that
Secured Party may elect to give shall be effective when deposited in the mails
addressed to Borrower at its principal place of business. Demands or notices
addressed
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to Borrower's address at which Secured Party customarily communicates with
Borrower shall also be effective. This Agreement shall be terminated only by the
filing of a termination statement in accordance with the applicable provisions
of the Code and/or when there are no outstanding Obligations and no commitments
on the part of Borrower to Secured Party under any agreement which might give
rise to any Obligations. Prior to such termination this shall be a continuing
agreement in every respect. This Agreement and all rights and obligations
hereunder including matters of construction, validity and performance, shall be
governed by the laws of the State of Michigan. This Agreement is intended to
take effect when signed by Borrower and delivered to Secured Party. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one instrument. Facsimile
copies of signatures to this Agreement shall be deemed to be originals, and the
parties may rely upon such facsimile copies to the same extent as the originals.
[Remainder of page intentionally left blank. Signatures on following page.]
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IN WITNESS WHEREOF, the parties have executed this First Amended and
Restated Security Agreement as of the day and year above written.
"BORROWER"
ORIGEN FINANCIAL L.L.C., a Delaware
limited liability company
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Its: Chief Executive Officer
------------------------------
"SECURED PARTY"
SUN HOME SERVICES, INC., a Michigan
corporation
By:
------------------------------
Its:
------------------------------
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IN WITNESS WHEREOF, the parties have executed this First Amended and
Restated Security Agreement as of the day and year above written.
"BORROWER"
ORIGEN FINANCIAL L.L.C., a Delaware
limited liability company
By:
------------------------------
Its:
------------------------------
"SECURED PARTY"
SUN HOME SERVICES, INC., a Michigan
corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Its: Chief Financial Officer
------------------------------
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