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EXHIBIT 10.10
SECURITY AGREEMENT
(Contract Rights and Accounts Receivable)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, DYNEX FINANCIAL, INC., a Virginia corporation (the
"Debtor"), hereby grants to MICHIGAN NATIONAL BANK, a national banking
association (the "Lender"), a continuing security interest in (i) all of
Debtor's rights, title and interests in, to and under the three (3) Servicing
Agreements (as hereafter defined), including, without limitation, all sums now
or hereafter owing to Debtor on account of services rendered under the Servicing
Agreements and/or on account of advances made by Debtor under the Servicing
Agreements, (ii) Debtor's property in possession of Lender, and (iii) the
proceeds of all of the foregoing, to secure payment of any and all indebtedness
and liabilities whatsoever of Debtor to Lender under that certain Credit
Agreement, dated as of March 31, 2000 by and among Debtor, Lender and Bingham
Financial Services Corporation (the "Credit Agreement"), whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising and howsoever evidenced (herein collectively called the
"Indebtedness").
1) DEFINITIONS As used herein:
1.1 The phrase "account(s) receivable" or "Debtor's account(s)
receivable" means and includes all accounts, contract rights and general
intangibles now owned or hereafter acquired by Debtor, as well as all chattel
paper and instruments now owned or hereafter acquired by Debtor relating to any
obligation to Debtor for services rendered under the Servicing Agreements.
1.2 The phrase "Debtor's property in possession of Lender" means and
includes goods, instruments, documents, policies and certificates of insurance,
deposits, money or other property now owned or hereafter acquired by Debtor or
in which Debtor now has or hereafter acquires an interest and which are now or
hereafter in possession of Lender, or as to which Lender now or hereafter
controls possession by documents or otherwise.
1.3 "Collateral" means and includes any and all property of Debtor in
which Lender now has or by this Agreement now or hereafter acquires a security
interest.
1.4 "Servicing Agreements" means the following three (3) agreements
by and between Dynex Financial, Inc., as servicer, MERIT Securities Corporation
and Dynex Capital,
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Inc., pursuant to which Dynex Financial, Inc. services approximately 23,078
manufactured home loans (each an "Account" and collectively the "Accounts"):
(a) Amended and Restated Servicing Agreement (Merit 11), dated
December 17, 1999;
(b) Amended and Restated Servicing Agreement (Merit 12-1), dated
December 17, 1999; and
(c) Amended and Restated Servicing Agreement (Merit 13), dated
December 17, 1999.
1.5 The phrase "Uniform Commercial Code" means Act No. 174 of the
Michigan Public Acts of 1962, as heretofore amended.
l.6 And except as otherwise herein provided, all other terms shall
have the meanings assigned to them in Article 9 (or, absent definition in
Article 9, in any other Article) of the Uniform Commercial Code.
1.7 Unless otherwise defined herein, all capitalized terms used
herein shall have the respective meanings ascribed to them in the Credit
Agreement.
2) WARRANTIES, COVENANTS AND AGREEMENTS To induce Lender to extend credit
on the security of the Collateral for which provision is herein made, Debtor
warrants, covenants and agrees as follows:
2.1 Debtor shall (i) furnish evidence to Lender in such form and at
such intervals as Lender may reasonably request of the nature and extent of
those accounts receivable in which Debtor has rights and where applicable the
names and addresses of all Account debtors; (ii) keep adequate records of the
Collateral and such other records as Lender shall reasonably determine to be
necessary; and (iii) allow Lender to examine, inspect and make abstracts from,
or copy any of Debtor's books and records (relating to the Collateral or
otherwise), and to arrange for verification of accounts receivable directly with
Account debtors or by other methods.
2.2 At the time any Collateral becomes subject to a security interest
in favor of Lender, Debtor shall be deemed to have warranted that (i) Debtor is
the lawful owner of such Collateral and has the right and authority to subject
the same to a security interest in Lender; (ii) none of the Collateral is
subject to any security interest other than that in favor of Lender, (iii)
Debtor acquired its rights in the Collateral in the ordinary course of its
business; and (iv) no financing statement or other notice of lien or security
agreement (other than one designating Lender as the secured party) is on file in
any public office which relates to any of the Collateral or which through
general language could relate thereto.
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2.3 On each occasion on which Debtor evidences to Lender the nature
and extent of those accounts receivable in which Debtor has rights, Debtor shall
be deemed to have warranted that, except as otherwise indicated, (i) every
account receivable so evidenced is valid and enforceable without performance by
Debtor of any other act; (ii) no payment or partial payment has been made on any
account receivable so evidenced except as disclosed to Lender in writing by
Debtor; and (iii) there are no setoffs or counterclaims against any such account
receivable.
2.4 Debtor at its own cost and expense shall defend this Agreement
and the Collateral against all adverse claims and demands. Debtor will keep the
Collateral free at all times from any and all liens, security interests or
encumbrances other than those in favor of Lender. Debtor will promptly notify
Lender of any threatened or filed claims or proceedings which might in any way
affect or impair the priority or validity of bank's security interest and/or any
of the terms of this Agreement.
2.5 Debtor will not, without the prior written consent of Lender,
sell or lease, or permit or suffer to be sold, or leased, all or any part of the
Collateral. Lender or its agents or attorneys may at any and all reasonable
times inspect the Collateral and may enter upon any and all premises where the
same is kept or might be located.
2.6 Debtor will do all acts and things, and will execute all
instruments reasonably requested by Lender to establish, maintain and continue
perfected and first the security interest of Lender in the Collateral, and will
promptly on demand pay all costs and expenses of filing and recording, including
the costs of any searches reasonably deemed necessary by Lender to establish and
determine the validity and priority of Lender's security interest; and Debtor
will also pay all other claims and charges which in the opinion of the Lender
might prejudice, imperil or otherwise affect the Collateral or its security
interest therein.
2.7 Debtor will pay promptly and within the time that they can be
paid without interest or penalty, all taxes, assessments and similar imposts and
charges which are now, or hereafter during the effective period of this
Agreement may become, a lien, charge or encumbrance upon any of the Collateral
except to the extent contested in good faith. If Debtor fails to pay any such
taxes, assessments or other charges as they become due, Lender shall have the
option to do so and Debtor agrees to repay, with interest at the rate of
interest equal to the rate applicable to the Indebtedness on the date of such
payment, all amounts so expended by Lender.
2.8 With respect to any contract right constituting any account
receivable evidenced to Lender pursuant to Paragraph 2.1 of this Agreement,
Debtor shall make or permit no modification or substitution for such contract
after assignment hereunder without the prior consent of Lender.
2.9 Debtor will reimburse Lender in accordance with the provisions
of the Uniform Commercial Code for all expense, including reasonable attorney
fees and legal expenses,
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incurred by Lender in seeking to collect the Indebtedness or any part thereof,
or in pursuing any of its rights or remedies hereunder, against the Collateral
or otherwise.
3) COLLECTION OF PROCEEDS
3.1 Upon the occurrence of an Event of Default (as defined in the
Credit Agreement), Debtor will (i) collect and enforce payment of all accounts
receivable; (ii) hold in trust for Lender all payments received on accounts
receivable as well as all rights by way of suretyship or guaranty which Debtor
now has or may hereafter acquire to enforce payment of accounts receivable, and
all rights in the nature of a security interest whereby Debtor may satisfy any
account receivable out of property; and (iii) endorse to Lender and forthwith
deliver to it all such payments in the form received by Debtor without
commingling with any funds belonging to Debtor and all property in Debtor's
possession or hereafter coming into its possession through enforcement of any
such rights. Debtor authorizes Lender or any employee or agent thereof to
endorse the name of Debtor upon any checks or other items which are received in
payment of any account receivable, and to do any and all things necessary in
order to reduce the same to money.
3.2 Upon default by Debtor under the Credit Agreement beyond any
grace period applicable thereto, Debtor shall at the request of Lender notify
the Account debtors or obligors of the security interest of Lender in any
accounts receivable and direct payment thereof to Lender; Lender may, itself, at
any time, after and during the continuance of any Event of Default under the
Credit Agreement, so notify and direct any such account debtor or obligor and
may take control of any proceeds to which it may be entitled hereunder.
3.3 Debtor shall at the request of Lender mark its records concerning
the Collateral clearly to indicate the security interest of Lender hereunder.
3.4 Upon the occurrence of an Event of Default, Debtor will
immediately deliver to Lender, appropriately endorsed to the order of Lender,
any chattel paper or instruments which shall be received by Debtor and which may
at any time evidence any account receivable. Upon demand, Debtor shall deliver
to Lender (i) all accounting and other records pertaining to the Collateral, or
any portion thereof; and (ii) all instruments evidencing any security for the
payment of any accounts receivable. Debtor shall execute such further
assignments, instruments and/or agreements as the Lender may require or request
to enforce any such payments, or to enforce any such instruments in its own
name, and do all acts and things necessary, desirable or appropriate to
substitute Lender in any legal proceedings then pending in the name of the
Debtor to enforce any such payments, or to realize upon any security held for
such payments.
3.5 Debtor hereby constitutes and appoints Lender its true and lawful
attorney, for it and in its name, place and stead, with full power to substitute
one or more persons with like authority, after and during the continuance of any
Event of Default under the Credit Agreement, to demand, receive, sue for,
compromise and give acquittances for any moneys due or to become
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due on any of its accounts receivable and to perform any act required of Debtor
by terms of this Agreement.
3.6 With respect to any Collateral, Debtor assents, after and during
the continuance of any Event of Default under the Credit Agreement, to all
extensions or postponements of the time of payment thereof or any other
indulgence in connection therewith, to each substitution, exchange or release of
Collateral, to the addition or release of any party primarily or secondarily
liable, to the acceptance of partial payments thereon and the settlement,
compromise or adjustment thereof, all in such manner and at such time or times
as Lender shall deem advisable.
4) ENFORCEMENT AND APPLICATION OF PROCEEDS
4.1 Upon the occurrence of any Event of Default, Lender may at its
discretion and without demand or notice to Debtor declare any or all of the
Indebtedness to be immediately due and payable.
4.2 Lender may sell the Collateral as a unit or in parcels, to one or
more purchasers, at public or private sale, for cash or on credit, or partially
for cash and partially on credit, without demand for performance and without
notice to Debtor (except as may be required by applicable law), with or without
having such Collateral at the place of sale and in such manner as Lender may
determine. Lender may buy at any public sale, and, if the Collateral is of a
type customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, Lender may buy at
private sale.
4.3 The proceeds of any sale or other disposition authorized by this
Agreement shall be applied by Lender first upon all expenses authorized by the
Uniform Commercial Code and all reasonable attorney's fees and legal expenses
incurred by Lender; the balance of the proceeds of such sale or other
disposition shall be applied in the payment of the Indebtedness, first to
interest, then to principal; and the surplus, if any, shall be paid over to
Debtor or to such other person or persons as may be entitled thereto under
applicable law. Debtor shall remain liable for any deficiency which it shall pay
to Lender immediately upon demand.
4.4. The remedies provided for herein are cumulative to the remedies
for collection of the Indebtedness as provided by law. Nothing herein contained
is intended, nor should it be construed, to preclude Lender from pursuing any
other remedy for the collection of the Indebtedness or any portion thereof, or
for the recovery of any other sum to which Lender may be or become entitled for
the breach of this Agreement by Debtor.
4.5. No default shall be waived by Lender except in writing signed by
an officer of Lender and no waiver of any default shall operate as a waiver of
any other default or of the same default on a future occasion.
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5) MISCELLANEOUS
5.1 Lender shall have no duty as to collection or protection of
Collateral or any income therefrom, nor as to the preservation of rights of
prior parties, nor as to the preservation of any rights pertaining thereto,
beyond the use of reasonable care in the custody and preservation of Collateral
in the possession of Lender.
5.2 No forbearance on the part of Lender in enforcing any of its
rights under this Agreement, nor any renewal, extension or rearrangement of any
payment or covenant to be made or performed by Debtor hereunder shall constitute
a waiver of any of the terms of this Agreement or of any such right.
5.3 Any demand upon or notice to Debtor which Lender may be required
by law to give shall be effective and conslusively deemed reasonable for all
purposes if mailed by any form of United States mail, postage fully prepaid, to
Debtor at the address set forth in Paragraph 6.1 hereof, or at such other
address as Debtor shall designate to Lender in writing on or subsequent to the
date hereof, at least five (5) days before Lender shall take any action
described in any such notice or demand.
5.4 This Agreement, and each and every term and provision hereof,
shall be construed, whether as to matters of construction, validity or
performance, in accordance with the laws of the State of Michigan. If any
provisions of this Agreement shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision hereof, but this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
5.5 This Agreement shall be terminated only by the filing of a
Termination Statement in accordance with the applicable provisions of the
Uniform Commercial Code and/or by the due performance of all of Debtor's
obligations under the Loan Documents at such time as Lender has no further
obligation to make loans under the Credit Agreement. Until terminated, the
security interest hereby created shall continue in full force and effect and
shall secure and be applicable to all advances now or hereafter made by Lender
to Debtor whether or not Debtor is indebted to Lender immediately prior to the
time of any such advance.
5.6 Until termination of this Agreement, Lender shall have and may
exercise any and all of the rights and remedies given by this Agreement or given
to a secured party under the Uniform Commercial Code. This Agreement and all
such rights and remedies shall inure to the benefit of Lender's successors and
assigns and to any other holder who derives from Lender title to or an interest
in the Indebtedness or any portion thereof, and shall bind Debtor and the heirs,
legal representatives, successors and assigns of Debtor.
5.7 If there is more than one Debtor, all undertakings, warranties
and covenants made by Debtor and all rights, powers and authorities given to or
conferred upon Lender shall be made or given jointly and severally.
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5.8 Debtor acknowledges that this Agreement, the Credit Agreement and
the other written loan documents delivered or to be delivered pursuant to said
Credit Agreement (collectively, the "Loan Documents") set forth the entire
agreement between the parties with regard to the security interests granted
hereby and supercede all prior understandings of the parties with respect
thereto. The Loan Documents may only be modified in a writing signed by the
party to be charged with the changes expressed in such modification which
specifically refers to the specific Loan Document(s) to be modified.
6) STATEMENT OF RESIDENCE AND LOCATION OF COLLATERAL AND RECORDS
6.1 Debtor's principal place of business is located at 10900 Nuckols
Road, Third Floor, Glen Allen, Virginia 23060.
6.2 Debtor will keep all its records concerning its accounts
receivable, the Servicing Agreements and the Accounts at the address of the
Debtor shown in Paragraph 6.1 above and/or the addresses set forth in Exhibit A
attached hereto.
6.3 Debtor will give Lender prompt written notice of (i) any change
in its principal place of business or in the location of said records; (ii) the
establishment or discontinuance of any of its places of business; and (iii) any
change in Debtor's name.
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EXECUTED as of the 31st day of March, 2000.
DYNEX FINANCIAL, INC.
By: /s/ J. Peter Scherer
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Title: President
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EXHIBIT A
Record Locations:
260 East Brown Street
Birmingham, MI 48009
3001 Meacham Boulevard
Suite 120
Fort Worth, Texas 76137
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