EXHIBIT 10.54
AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
This AMENDED AND RESTATED STOCK PLEDGE AGREEMENT (this "Agreement") is
entered into as of February 1, 2002, by and between ORIGEN FINANCIAL, INC., a
Virginia corporation ("Pledgor") and SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP, a Michigan limited partnership ("Secured Party").
RECITALS:
A. Pledgor is a shareholder of the following corporations: Origen Special
Holdings Corporation, a Delaware corporation ("OSH"), Origen Manufactured Home
Financial, Inc., a Virginia corporation ("OMHF"), and Origen Insurance Agency,
Inc., a Virginia corporation ("OIA", collectively with OSH and OMHF, the "Origen
Subsidiaries").
B. The Secured Party had previously made available to Pledgor a line of
credit up to the amount of $12,500,000 (the "Original Loan"), pursuant to the
terms and conditions of that certain Subordinated Loan Agreement dated December
18, 2001, as amended, between Pledgor and the Secured Party (the "Original Loan
Agreement") and related documents.
C. To secure the prompt satisfaction by Pledgor of all of its obligations
to the Secured Party under the Original Loan Agreement and related documents,
Pledgor executed and delivered to Secured Party a Limited Liability Company
Interest Security and Pledge Agreement dated December 18, 2001 (the "Original
Pledge Agreement").
D. The Secured Party, Pledgor, and Origen Financial, L.L.C., a Delaware
limited liability company ("Origen LLC") have entered into an Amended and
Restated Subordinated Loan Agreement dated February 1, 2002 (as amended from
time to time, the "Amended Loan Agreement") under which Secured Party has agreed
to increase the line of credit under the Original Loan up to the amount of
$17,500,000 (the "Amended Loan") as evidenced by an Amended and Restated
Promissory Note dated February 1, 2002 (as amended from time to time, "Amended
Note"), and pursuant to the terms of the Related Documents (as defined in the
Amended Loan Agreement).
E. To secure the prompt satisfaction by Pledgor of all of its obligations
to the Secured Party under the Amended Loan 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, Pledgor, together with Secured Party, desires to
amend and restate the Original Pledge Agreement in accordance with the terms and
conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
covenants contained herein, the parties agree as follows:
1. GRANT OF SECURITY INTEREST. As security for the prompt and complete
payment and performance when due of all liabilities, obligations or indebtedness
owing by Pledgor to Secured Party under the Amended Loan Agreement, the Related
Documents and all of Borrower's other obligations to Secured Party of any nature
now or in the future owing from Borrower to Secured Party (collectively, the
"Obligations"), Pledgor pledges and grants to Secured Party a continuing
security interest in, and lien on, all of Pledgor's right, title and interest in
and to the common stock and the preferred stock of the Origen Subsidiaries
(collectively, the "Shares"), together with all certificates, options, warrants
or other distributions or rights issued as an addition to, in substitution or in
exchange for, or on account of, the Shares, and all proceeds of the foregoing,
including, without limitation, any and all dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of, or in exchange for, any of the above (collectively, the "Pledged
Stock").
2. DELIVERY OF CERTIFICATES. Concurrent with the execution and delivery of
this Agreement, Secured Party has retained possession of the stock certificates
evidencing the Shares (the "Certificates"). The Certificates have been retained
by Secured Party in order to perfect the pledge established hereunder and this
Agreement shall be interpreted so as to cause the pledge of the Shares to be
perfected. Secured Party acknowledges that, for all other purposes, Pledgor is
the lawful and beneficial owner of the Shares. Secured Party shall hold the
Certificates in accordance with the terms and conditions of this Agreement.
3. FUTURE RECEIPTS. If Pledgor receives or becomes entitled to receive
any:
(a) stock certificate(s) issued in respect of the Pledged Stock,
including, without limitation, any certificate representing a stock
dividend or payable in respect of the Pledged Stock or issued in
connection with any increase or reduction of capital, reclassification,
merger, consolidation, sale of assets, combination of shares, stock split,
spin-off or split-off;
(b) option, warrant or right, whether issued as an addition to, in
substitution or in exchange for, or on account of, any of the Pledged
Stock; or
(c) dividends or distributions on the Pledged Stock payable other
than in cash, including securities issued by other than Secured Party or
the Company;
Pledgor shall accept the same as Secured Party's agent, in trust for Secured
Party, and shall deliver same to Secured Party, in the exact form received with,
as applicable, Pledgor's endorsement when necessary or appropriate stock powers
duly executed in blank. Any property received by Secured Party hereunder shall
be held by Secured Party pursuant to the terms of this Agreement as additional
security for the Obligations.
4. CASH DIVIDENDS AND DISTRIBUTIONS. So long as no Event of Default has
occurred and is continuing under the Amended Loan Agreement or the Related
Documents (an "Event of Default"), Pledgor may receive for its own use all cash
dividends and distributions on the Pledged Stock.
5. VOTING AND OTHER RIGHTS. So long as no Event of Default has occurred
and is continuing, Pledgor may exercise any and all voting and other consensual
rights with respect to the Pledged Stock for any purpose not inconsistent with
the terms of this Agreement.
6. SECURED PARTY'S DUTIES. Subject to applicable law, Secured Party shall
have no duty with respect to the Pledged Stock beyond the exercise of reasonable
care to assume the safe custody of the Pledged Stock while held hereunder.
Without limiting the generality of the foregoing, Secured Party shall have no
obligation to take any steps to preserve rights in the Pledged Stock against any
other parties or to exercise any rights represented thereby; provided, however,
that Secured Party may, at its option, do so and Pledgor shall reimburse the
Secured Party for all expenses incurred in connection therewith.
7. COVENANTS AND WARRANTS OF PLEDGOR. Pledgor covenants that, until the
Obligations have been satisfied in full, Pledgor will not sell, convey or
otherwise dispose of any of the Pledged Stock or any interest therein, or
create, incur, or permit to exist any pledge, mortgage, lien, charge,
encumbrance or any security interest whatsoever in or with respect to any of the
Pledged Stock except for that created hereby. Pledgor warrants, and will at the
Pledgor's expense defend, the Secured Party's right, title and security interest
in and to the Pledged Stock against the claims of any person.
8. EVENT OF DEFAULT AND REMEDIES. Upon the occurrence of an Event of
Default, the Secured Party, in its discretion, shall have the right to exercise
each and all of the following
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remedies (which remedies are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law, including, without
limitation, the rights and remedies of a secured party under the Michigan
Uniform Commercial Code):
(a) Cash Dividends. All cash dividends and distributions on the
Pledged Stock shall be paid to the Secured Party. In the event
Pledgor shall receive any such cash dividends or distributions,
Pledgor shall hold same as Secured Party's agent, in trust for
Secured Party, and shall deliver same to Secured Party in the exact
form received with the Pledgor's endorsement when necessary.
(b) Voting Rights. Secured Party, at its option, may vote the
Pledged Stock in its discretion. Pledgor hereby grants to Secured
Party or its nominee an irrevocable proxy to exercise all voting and
other rights and privileges relating to the Pledged Stock, which
proxy shall be effective immediately upon the occurrence of an Event
of Default and written notice to Pledgor of Secured Party's election
to exercise such proxy, and shall be coupled with an interest. After
the occurrence of an Event of Default and upon request of Secured
Party, Pledgor agrees to deliver to Secured Party such further
evidence of such irrevocable proxy to vote the Pledged Stock as
Secured Party may request. Any or all of the Pledge Stock held by
Secured Party hereunder may at any time be registered in the name of
Secured Party or its nominee, and upon Secured Party's request,
Pledgor will cause the issuer of the Pledged Stock to effect such
registration. Pledgor hereby appoints Secured Party as its
attorney-in-fact to arrange for the transfer of the Pledged Stock to
the name of Secured Party or its nominee and all acts of Secured
Party as attorney-in-fact are hereby ratified and confirmed and such
power is coupled with an interest and is irrevocable until the
Obligations are paid in full. Secured Party may exercise all rights
and privileges herein granted with respect to the Pledged Stock
without liability and Secured Party shall have no duty to exercise
any of the aforesaid rights or privileges and shall not be
responsible for any failure to do so or delay in so doing.
(c) Disposition of Pledged Stock. Secured Party may, 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 Pledgor or any other person realize upon the
Pledged Stock or any part thereof, and may sell or otherwise dispose
of and deliver the Pledged Stock or any part thereof or interest
therein, in one or more parcels at public or private sale or sales,
at any exchange, broker's board or at the Secured Party's offices or
elsewhere, at such prices and on such terms (including, without
limitation, a requirement that any purchaser purchase the Pledged
Stock for investment and without any intention to make a
distribution thereof) as they may deem best, for cash or on credit,
or for future delivery without assumption of any credit risk, with
the right to Secured Party or any purchaser to purchase upon any
such sale the whole or any part of the Pledged Stock free of any
right or equity of redemption in Pledgor, which right or equity is
hereby expressly waived and released. Secured Party need not give
more than five (5) days notice of the time and place of any public
sale or of the time after which a private sale may take place, which
notice Pledgor hereby deems reasonable.
(d) Application of Proceeds. Any cash dividend or distribution
received by Secured Party and the proceeds of any disposition of the
Pledged Stock by Secured Party shall be applied as follows:
(i) First, to the costs and expenses incurred in
connection with enforcing this Agreement or incidental thereto
or to the care or safekeeping
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of any of the Pledged Stock or in any way relating to the
rights of Secured Party, including reasonable attorneys' fees
and legal expenses;
(ii) Second, to the satisfaction of the Obligations;
(iii) Third, to the payment of any other amounts
required by applicable law (including, without limitation, the
Michigan Uniform Commercial Code); and
(iv) Fourth, to Pledgor to the extent of any surplus
proceeds.
9. FURTHER ASSURANCES. Pledgor shall, at any time and from time to time,
upon the written request of Secured Party, execute and deliver such further
documents and do such further acts and things as Secured Party may reasonably
request to effect the purposes of this Agreement.
10. TERMINATION. Upon the satisfaction in full of the Obligations and the
payment of all additional costs and expenses of Secured Party hereunder, this
Agreement shall terminate and Secured Party shall deliver, or cause to be
delivered, to Pledgor the Certificates necessary to transfer title to the Shares
to Pledgor.
11. WITHHOLDING TAXES. Pledgor shall pay all withholding taxes on the
Shares, and Pledgor hereby indemnifies Secured Party, its General Partner, and
their officers, directors, agents and representatives from and against any and
all liability associated with the withholding taxes on the Shares.
12. MISCELLANEOUS PROVISIONS.
(a) This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of Michigan.
(b) All of the terms contained herein shall survive the consummation
of the transactions contemplated herein, and shall be binding upon and inure to
the benefit of and be enforceable by and against, the parties and their
respective successors, assigns, heirs at law, legal representatives and estates.
(c) This Agreement and any other documents executed in connection
herewith together constitute the full and entire understanding and agreement
among the parties with respect to the transactions herein contemplated, and
shall supersede all prior understandings or agreements relating thereto, whether
written or oral, all of which are declared to be null and void and of no further
force or effect.
(d) This Agreement may only be amended or modified, and any of the
terms, conditions, covenants, representations or warranties contained herein may
only be waived, by a written instrument duly executed by the parties.
(e) The paragraph headings in this Agreement are for convenience of
reference only and are not to be considered in construing this Agreement. This
Agreement may be executed in counterparts and all counterparts, when taken
together, shall constitute but one and the same agreement. 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.
[signature page attached]
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Stock Pledge Agreement as of the day and year above written.
PLEDGOR:
ORIGEN FINANCIAL, INC., a Virginia
corporation
By: /s/ Ronald Klein
---------------------------------------
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/ Gary A. Shiffman
---------------------------------
Its: CEO
---------------------------------
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