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EXHIBIT 10.14
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (the "Agreement") is entered
into as of December 13, 1999 by and between BINGHAM FINANCIAL SERVICES
CORPORATION, a Michigan corporation whose address is 260 E. Brown Street, Suite
200, Birmingham, Michigan 48009 ("Borrower") and SUN COMMUNITIES OPERATING
LIMITED PARTNERSHIP, a Michigan Limited Partnership whose address is 31700
Middlebelt Road, Suite 145, Farmington Hills, MI 48334 ("Secured Party").
RECITALS:
A. Borrower executed and delivered to Sun Communities, Inc. a Term
Promissory Note in the original principal amount of $4,000,000 dated
September 30, 1997, which note was assigned and delivered to Secured Party
by Sun Communities, Inc. on December 31, 1997; Borrower executed and
delivered to Secured Party a Demand Promissory in the original principal
amount of $10,000,000 dated March 30, 1999; and Borrower executed and
delivered to Secured Party a Second Amended Demand Promissory Note in the
original principal amount of $50,000,000 dated December 13, 1999
(collectively the "Notes").
B. Borrower has entered into or may in the future enter into various
agreements with Secured Party, pursuant to which Borrower may have various
contractual, indemnification, warranty and/or other obligations to Secured
Party (the "Contractual Obligations").
C. To secure the payment of all amounts due to Secured Party by Borrower
pursuant to the Notes (as they may be amended, renewed, extended, modified
or refinanced from time to time), to secure all Contractual Obligations of
Borrower to Secured Party and to secure all other obligations of any nature
now or in the future owing from Borrower to Secured Party (hereinafter
collectively referred to as the "Obligations"), Borrower has agreed to
execute 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 Section
9-106 of 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 Section 9-105 of the Code, in which Borrower now or hereafter
has any right, title or interest.
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(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 Section 9-105 of 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 Section
9-109 of 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 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 Section 9-106 of 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 interests in Bloomfield Acceptance Company, L.L.C.
and Bloomfield Servicing Company, L.L.C.; stock interests in Dynex
Financial, Inc. and Hartger & Willard Associates, Inc; and all partnership
interests.
(k) "Inventory" means all "inventory", as such term is defined in Section
9-109 of 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 hedges, all insured closing letters, all escrow
instructions covering all or any of the loans, all collections from such
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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 Notes.
3. SUBORDINATION. The security interests in the Collateral granted to
Secured Party may be subordinate to and subject to liens or security interests
that Lehman Commercial Paper, Inc. (the "Senior Creditor") may now or hereafter
have in the Collateral as a result of any indebtedness (the "Senior
Indebtedness") owed to the Senior Creditor. If subordinated, such subordination
shall be evidenced by a separate written Subordination Agreement between Secured
Party and Senior Creditor.
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.
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(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.
All of Borrower's warranties contained in this Section 4 shall be continuing
warranties until Borrower has no remaining Obligations to Secured Party.
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 his 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.
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(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, 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. 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 defined below) 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, sue, 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.
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10. NOTATION OF ASSIGNMENT, INFORMATION AND PAYMENT OF ACCOUNTS. When and
to the extent required by Secured Party, Borrower shall:
(a) mark 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
(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.
(a) At the request of Secured Party, Borrower will join with Secured
Party in executing one or more financing statements pursuant to the Code in
form satisfactory to Secured Party and will pay the cost of filing the same
in all public offices wherever filing is deemed by Secured Party to be
necessary or desirable.
(b) 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. EVENTS OF DEFAULT. Borrower shall be in default under this Agreement
and all Obligations of Borrower to Secured Party shall, without demand or notice
of any kind and notwithstanding the maturity date or dates expressed in any
evidence of any Obligations, become immediately due and payable upon the
happening of any of the following events of default ("Events of Default"):
(a) Default in the punctual payment or performance of any of the
Obligations referred to herein, or any part thereof, following any grace
period provided in the written documents evidencing the Obligations;
(b) Default in the punctual performance of any covenant or agreement
contained in or referred to herein following any applicable grace period;
(c) Any warranty, representation or statement made or furnished to
Secured Party by or on behalf of Borrower proves to have been false in any
material respect when made or furnished;
(d) Loss, theft, encumbrance (except as permitted hereunder) to or of a
material portion or all of the Collateral;
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(e) Any sale, merger, consolidation or other disposition of Borrower of
any substantial portion of its assets or property, except in the ordinary
course of business;
(f) The closure of the business of Borrower, or the dissolution or
liquidation of Borrower, or Borrower not being qualified to conduct
business in any jurisdiction in which its failure to conduct business would
have a material adverse effect on Borrower or its business;
(g) Any of the following events continuing for sixty (60) days or more:
(i) The execution by Borrower of any assignment for the benefit of
creditors;
(ii) The levy against the Collateral of any execution, attachment,
sequestration or other writ;
(iii) The appointment of a receiver of Borrower, of the Collateral,
or of any substantial part thereof;
(iv) The filing by or against Borrower of any petition under the
United States Bankruptcy Code, or any similar federal or state statute;
or
(v) The insolvency of Borrower;
(h) Any default of Borrower under the terms of any security agreement or
promissory note with any third party, which default is not cured within the
time, if any, provided for cure in such security agreement or promissory
note and/or the commencement or undertaking by any third party of efforts
to enforce any security interest in the Collateral; or
(i) The filing or attachment of any tax lien, or any other form of lien
or levy to any or all of the Collateral, which lien or levy is not
effectively stayed, discharged, or indemnified against, to the Secured
Party's satisfaction, within sixty (60) days after such filing or
attachment.
13. 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
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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 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, including, without
limitation, Section 9-504(1)(c) of the Code, 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 his rights to take possession
of Collateral and proceeds thereof.
14. 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
his 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
which may be necessary or desirable to accomplish the purposes of this
Agreement.
15. 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 his rights under this Agreement.
16. GENERAL. Secured Party shall not be deemed to have waived any of his
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.
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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 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 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 Security Agreement as of
the day and year above written.
"BORROWER"
BINGHAM FINANCIAL SERVICES
CORPORATION, a Michigan corporation
By: /s/ Ronald A. Klein
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Its: President and Chief Executive Officer
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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/ Gary A. Shiffman
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Its: President and Chief Executive Officer
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EXHIBIT A
Liens, if any, in favor of Lehman Commercial Paper, Inc.
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