EXHIBIT 10.43
SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
This SECOND AMENDED AND RESTATED STOCK PLEDGE AGREEMENT (this
"Agreement") is made as of December 30, 2002 by ORIGEN FINANCIAL L.L.C., a
Delaware limited liability company ("Pledgor"), in favor of SUN HOME SERVICES,
INC., a Michigan corporation whose address is 31700 Middlebelt Road, Suite 145,
Farmington Hills, MI 48334 ("Secured Party").
RECITALS:
A. Sun Communities Operating Limited Partnership ("SCOLP") made a line
of credit (the "Line of Credit") available to Pledgor and Origen Financial, Inc.
("Oregon Inc.") pursuant to an Amended and Restated Subordinated Loan Agreement
dated February 1, 2002 among Pledgor, Origen, Inc. and SCOLP, as amended, and a
Third Amended and Restated Promissory Note dated February 1, 2002, as amended.
B. On April 25, 2002, Origen Inc. was merged with and into Pledgor, and
Pledgor succeeded to all of the rights, liabilities and obligations of Origen,
Inc.
C. To secure the payment of all amounts due to SCOLP by Origen Inc. in
connection with the Line of Credit and to secure all of Origen Inc.'s other
obligations to SCOLP of any nature. Pledgor and SCOLP entered into an Amended
and Restated Stock Pledge Agreement dated February 1, 2002 (the "Original Pledge
Agreement").
D. SCOLP and Pledgor amended the Line of Credit pursuant to a Second
Amended and Restated Subordinated Loan Agreement dated December 4, 2002 between
SCOLP and Pledgor (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 Pledgor to SCOLP (the "Original
Line of Credit Note").
E. SCOLP made a term loan (the "Term Loan") in the amount of
$10,000,000 to Pledgor pursuant to a Subordinated Term Loan Agreement dated
December 4, 2002 between SCOLP and Pledgor (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 Pledgor to SCOLP (the "Original Term Loan
Note").
F. 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.
G. Pledgor 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 Pledgor 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.
H. Pledgor 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 Pledgor 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.
I. Pledgor is the sole shareholder of Origen Special Holdings
Corporation, a Delaware corporation ("OSHC").
J. To secure the prompt satisfaction by Pledgor of all of its
obligations to the Secured Party under the Line of Credit and the Term Loan and
to secure all of Pledgor's other obligations to Secured Party of any nature now
or in the future owing from Pledgor 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 Line of Credit Loan Agreement, the
Term Loan Agreement, the Related Documents (as defined in the Line of Credit
Loan Agreement and the Term Loan Agreement) and all of Pledgor's other
obligations to Secured Party of any nature now or in the future owing from
Pledgor 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 OSHC (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 a party other than
OSHC;
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.
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4. CASH DIVIDENDS AND DISTRIBUTIONS. So long as no Event of Default has
occurred and is continuing under the Line of Credit Loan Agreement, the Term
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 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
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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
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 and its 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
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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.
IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Stock Pledge Agreement as of the day and year above written.
PLEDGOR:
ORIGEN FINANCIAL L.L.C., a Delaware
limited liability corporation
By: /s/ Ronald A. Klein
-----------------------------------
Its: Chief Executive Officer
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SECURED PARTY:
SUN HOME SERVICES, INC., a Michigan
corporation
By:
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Its:
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(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.
IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Stock Pledge Agreement as of the day and year above written.
PLEDGOR:
ORIGEN FINANCIAL L.L.C., a Delaware
limited liability corporation
By:
-----------------------------------
Its:
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SECURED PARTY:
SUN HOME SERVICES, INC., a Michigan
corporation
By: /s/ Jeffrey P. Jorissen
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Its: Chief Financial Officer
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