EXHIBIT 10.57
LIMITED LIABILITY COMPANY INTEREST
SECURITY AND PLEDGE AGREEMENT
THIS LIMITED LIABILITY COMPANY INTEREST SECURITY AND PLEDGE AGREEMENT (as
amended from time to time, the "Agreement") is made as of February 1, 2002 by
ORIGEN FINANCIAL, L.L.C., a Delaware limited liability company ("Pledgor"), in
favor of SUN COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited
partnership (the "Secured Party").
R E C I T A L S:
A. Pledgor currently owns 100% of the membership interests in Origen
Special Purpose, L.L.C., a Delaware limited liability company, Origen
Manufactured Home Financial, L.L.C., a Delaware limited liability company, and
Origen Insurance Agency, L.L.C., a Virginia limited liability company, Origen
Financial of South Dakota, L.L.C., a Delaware limited liability company
(collectively, the "Subsidiaries").
B. The Secured Party has agreed to make available to Pledgor and Origen
Financial, Inc. ("Origen Inc." and together with Pledgor, the "Origen
Companies") a line of credit up to the amount of $17,500,000 (the "Loan"),
pursuant to the terms and conditions of that certain Amended and Restated
Subordinated Loan Agreement dated February 1, 2002, among Pledgor, Origen Inc.
and the Secured Party (as amended from time to time, the "Loan Agreement"), and
the Related Documents (as defined in the Loan Agreement).
C. To secure the prompt satisfaction by Pledgor of all of its obligations
to the Secured Party under the Loan Agreement and the Related Documents, Pledgor
has agreed to execute and deliver this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF SECURITY INTEREST. As collateral security for the prompt and
complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of all liabilities, obligations and indebtedness owed
by Pledgor to the Secured Party under the Loan Agreement and the Related
Documents (collectively, the "Obligations"), Pledgor grants to the Secured Party
a first security interest in and to Pledgor's right, title and interest as a
member (the "Membership Interests") in each of the Subsidiaries, including,
without limitation, any and all moneys or other property payable or to become
payable to Pledgor or to which Pledgor now or in the future may be entitled, in
its capacity as a member in the Subsidiaries, including, without limitation, by
way of distribution, return of capital or otherwise in respect of the Membership
Interests, and, to the extent not otherwise included, all "proceeds" of the
Membership Interests as such term is defined in the Uniform Commercial Code (the
"Code") from time to time in effect in the State of Michigan (collectively, the
"Collateral").
2. DISTRIBUTIONS. So long as no default has occurred and is continuing
under the Loan Agreement or the Related Documents (an "Event of Default"),
Pledgor shall be entitled to receive for its own use all distributions with
respect to the Membership Interests. If an Event of
Default has occurred and is continuing, Pledgor shall not be entitled to receive
or retain other distributions paid in respect of the Membership Interests,
whether in redemption of, or in exchange for the Membership Interests, or
whether in connection with a reduction of capital, capital surplus or paid-in
surplus or the Membership Interests or otherwise, other than for the payment of
personal taxes of the members of the Subsidiaries associated with their
investment in Subsidiaries, and any and all such dividends or distributions
shall be forthwith delivered to the Secured Party to hold as Collateral and
shall, if received by Pledgor, be received in trust for delivery to the Secured
Party, be segregated from the other property or accounts of Pledgor, and be
forthwith delivered to the Secured Party as Collateral in the same form as so
received (with any necessary endorsements), with such Proceeds to be applied by
the Secured Party to reduce the Obligations.
3. REGISTRATION OF PLEDGE. Concurrently with the execution of this
Agreement, Pledgor has sent to each of the Subsidiaries written instructions in
the form of Exhibit A, and has obtained from each of the Subsidiaries an
executed acknowledgment and consent in the form of Exhibit A.
4. VOTING RIGHTS. So long as no Event of Default has occurred and is
continuing, Pledgor may exercise all voting and membership rights with respect
to the Membership Interests; provided, however, that no vote will be cast or
membership right exercised or other action taken which would be inconsistent
with or result in a breach of any provision of the Loan Agreement, the Related
Documents, or this Agreement.
5. EVENT OF DEFAULT. If an Event of Default has occurred and is
continuing, the Secured Party may direct the Subsidiaries to register the
Membership Interests in the name of the Secured Party or its nominee, and the
Secured Party or its nominee may thereafter receive all distributions with
respect to, and exercise all voting, membership and other rights pertaining to,
the Membership Interests as if it were the absolute owner of the Membership
Interests.
6. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. Pledgor represents and
warrants to the Secured Party that (a) Pledgor is the record and beneficial
owner of, and has good and legal title to, the Membership Interests, free of any
and all liens or options in favor of, or claims of, any other person, except the
lien created by this Agreement, and (b) Pledgor has the legal right to execute
and deliver, to perform its obligations under, and to grant the security
interest in the Collateral pursuant to, this Agreement.
7. ASSIGNMENT; PLEDGE; AMENDMENT. Without the prior written consent of the
Secured Party, Pledgor will not (i) sell, assign, transfer, exchange or
otherwise dispose of, or grant any option with respect to, the Collateral; (ii)
create or permit to exist any lien or option in favor of, or any claim of, any
person with respect to any of the Collateral, except, in either case, for the
lien created by this Agreement; or (iii) amend or modify the Origen Special
Purpose, L.L.C. Operating Agreement dated June 15, 2001, the Origen Manufactured
Home Financial, L.L.C. Operating Agreement dated June 15, 2001, the Origen
Insurance Agency, L.L.C. Operating Agreement dated June 15, 2001 or the Origen
Financial of South Dakota L.L.C. Operating Agreement dated December 11, 2001 (as
amended from time to time, collectively, the "Operating Agreements"), or enter
into any agreement or arrangement with any Subsidiary or its respective members
which amends or modifies the rights and obligations of such Subsidiary and its
respective members as set
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forth in such Subsidiary's Operating Agreement. Pledgor will defend the right,
title and interest of the Secured Party in and to the Collateral against the
claims and demands of all other persons.
8. FURTHER ASSURANCES. At any time and from time to time, upon the written
request of the Secured Party, Pledgor will promptly execute and deliver such
further instruments and documents and take such further actions as the Secured
Party may reasonably request for the purposes of obtaining or preserving the
security interest created by this Agreement, including, without limitation, the
filing of any financing or continuation statements under the Code. Pledgor
authorizes the Secured Party to file any such financing or continuation
statement without the signature of Pledgor to the extent permitted by applicable
law.
9. REMEDIES. If an Event of Default has occurred and is continuing, the
Secured Party may exercise, in addition to all rights and remedies granted in
the Loan Agreement, the Related Documents, and this Agreement, all rights and
remedies of a secured party under the Code. The rights and remedies of the
Secured Party are cumulative, may be exercised singly or concurrently, and are
not exclusive of any rights or remedies provided by law.
10. ATTORNEY-IN-FACT. Pledgor irrevocably constitutes and appoints the
Secured Party, or its representative, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of Pledgor, and in the name of Pledgor or in the Secured
Party's name, after an Event of Default has occurred and for so long as it is
continuing, for the purpose of carrying out the terms of this Agreement.
Anything to the contrary contained herein notwithstanding, the Secured Party may
not exercise the rights granted to them in this Section 10 unless the Pledgor
has been provided with prior written notice of such exercise. The powers
conferred on the Secured Party are solely to protect its interests in the
Collateral and will not impose any duty upon the Secured Party to exercise any
such powers. The Secured Party will be accountable only for amounts that it
actually receives as a result of the exercise of such powers, and neither the
Secured Party, nor its General Partner, or any of their officers, directors,
employees or agents will be responsible to Pledgor or to the Subsidiaries for
any act or failure to act.
11. LIMITATION ON DUTIES REGARDING COLLATERAL. The Secured Party's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under the Code or otherwise, will be to deal with
it in the same manner as the Secured Party deals with similar securities and
property for its own account. Neither the Secured Party, its General Partner,
nor any of their directors, officers, employees or agents will be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or, except as provided by applicable law, will be under any
obligation to sell or otherwise dispose of any Collateral upon the request of
Pledgor or otherwise.
12. NO WAIVER. The Secured Party will not by any act, delay, omission or
otherwise be deemed to have waived any right or remedy under this Agreement or
to have acquiesced in any Event of Default or in any breach of any of the terms
and conditions of this Agreement except by a written instrument executed by the
Secured Party. No single or partial exercise of any right, power or privilege
under this Agreement will preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. A waiver by the Secured Party
of any right or remedy under this Agreement on any one occasion will not be
construed as a bar to any right or remedy which the
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Secured Party would otherwise have on any future occasion.
13. AMENDMENTS. The terms and provisions of this Agreement may not be
waived or modified except by a written instrument executed by Pledgor and the
Secured Party.
14. BENEFIT AND BINDING EFFECT. This Agreement will be binding upon the
successors and permitted assigns of Pledgor and will inure to the benefit of the
Secured Party and its successors and assigns.
15. COUNTERPARTS; REPRODUCTIONS. 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..
16. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Michigan.
[signatures on following page]
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IN WITNESS WHEREOF, Pledgor and the Secured Party have executed this
Agreement as of the date first above written.
PLEDGOR:
ORIGEN FINANCIAL, L.L.C., a Delaware limited
liability company
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Its: CEO
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SECURED PARTY:
SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP, a Michigan limited partnership
By: Sun Communities, Inc., a Maryland
corporation
Its: General Partner
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Its: CEO
---------------------------------
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