EXHIBIT 10.47
AMENDED AND RESTATED STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED STOCK PLEDGE AGREEMENT (this "Agreement") is
made as of December 30, 2002 by BINGHAM FINANCIAL SERVICES CORPORATION, a
Michigan corporation whose address is 260 E. Brown Street, Suite 200,
Birmingham, Michigan 48009 ("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. Pledgor has executed and delivered to Sun Communities Operating
Limited Partnership ("SCOLP") a Stock Pledge Agreement dated December 13, 1999,
(the "Original Pledge Agreement"), pursuant to which Pledgor pledged its stock
in Hartger & Willard Mortgage Associates, Inc. ("H&W") and another former
subsidiary of Pledgor to SCOLP to secure the performance by Pledgor of, among
other obligations, Pledgor's obligations under a guaranty (the "Original
Guaranty") of the obligations of Origen Financial L.L.C. ("Origen") under a line
of credit (the "Line of Credit") from SCOLP to Origen and a term loan (the "Term
Loan") from SCOLP to Origen.
B. SCOLP has assigned its interest in the Original Pledge Agreement,
the Original Guaranty, the Line of Credit and the Term Loan and related
documents to Secured Party pursuant to an Assignment of Loans of even date
herewith.
C. The Line of Credit has been amended and is evidenced by a Second
Amended and Restated Subordinated Loan Agreement dated December 4, 2002 between
Pledgor and SCOLP, as amended by a First Amendment to Second Amended and
Restated Subordinated Loan Agreement of even date herewith between Origen and
Secured Party and a Seventh Amended and Restated Promissory Note of even date
herewith in the principal amount of $48,000,000 delivered by Origen to Secured
Party.
D. The Term Loan has been amended and is evidenced by a Subordinated
Term Loan Agreement dated December 4, 2002 between Pledgor and SCOLP, as amended
by a First Amendment to Subordinated Term Loan Agreement of even date herewith
between Origen and Secured Party and a First Amended and Restated Term
Promissory Note of even date herewith in the principal amount of $10,000,000
delivered by Origen to Secured Party.
E. The Original Guaranty has been amended by the Second Amended and
Restated Guaranty (the "Second Amended Guaranty") of even date herewith
delivered by Pledgor to Secured Party.
F. To secure the payment of all amounts due to Secured Party by Pledgor
under the Second Amended Guaranty 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 (the "Obligations"), Pledgor and Secured Party desire
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 Second Amended Guaranty 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 H&W
(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
H&W;
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. Upon the occurrence of any
violation or breach by Pledgor of the terms and conditions of the Guaranty or
this Agreement (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
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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 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
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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 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.
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(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 Amended and Restated
Stock Pledge Agreement as of the day and year above written.
PLEDGOR:
BINGHAM FINANCIAL SERVICES
CORPORATION, a Michigan corporation
By: /s/ Ronald A. Klein
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Its: Chief Executive Officer
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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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