EXHIBIT 10.48
AMENDED AND RESTATED MEMBERSHIP PLEDGE AGREEMENT
THIS AMENDED AND RESTATED MEMBERSHIP 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 Membership Pledge Agreement dated December 13,
1999, (the "Original Pledge Agreement"), pursuant to which Pledgor pledged its
membership interests in Bloomfield Acceptance Company, L.L.C., and Bloomfield
Servicing Company, L.L.C. (the "Subsidiaries") 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, the parties agree as follows:
1. GRANT OF SECURITY INTEREST. As collateral security for the prompt
and complete payment and performance when due (whether at the stated maturity,
by acceleration or otherwise) of all of the Obligations, Pledgor grants to the
Secured Party a first security interest in and to Pledgor's right, title and
interest as a member (the "Membership Interests") in each of the Subsidiaries,
including, without limitation, any and all moneys or other property payable or
to become payable to Pledgor or to which Pledgor now or in the future may be
entitled, in its capacity as a member in the Subsidiaries, including, without
limitation, by way of distribution, return of capital or otherwise in respect of
the Membership Interests, and, to the extent not otherwise included, all
"proceeds" of the Membership Interests as such term is defined in the Uniform
Commercial Code (the "Code") from time to time in effect in the State of
Michigan (collectively, the "Collateral").
2. DISTRIBUTIONS. So long as no default has occurred and is continuing
under the Second Amended Guaranty or this Agreement (an "Event of Default"),
Pledgor shall be entitled to receive for its own use all distributions with
respect to the Membership Interests. If an Event of Default has occurred and is
continuing, Pledgor shall not be entitled to receive or retain other
distributions paid in respect of the Membership Interests, whether in redemption
of, or in exchange for the Membership Interests, or whether in connection with a
reduction of capital, capital surplus or paid-in surplus or the Membership
Interests or otherwise, other than for the payment of personal taxes of the
members of the Subsidiaries associated with their investment in Subsidiaries,
and any and all such dividends or distributions shall be forthwith delivered to
the Secured Party to hold as Collateral and shall, if received by Pledgor, be
received in trust for delivery to the Secured Party, be segregated from the
other property or accounts of Pledgor, and be forthwith delivered to the Secured
Party as Collateral in the same form as so received (with any necessary
endorsements), with such Proceeds to be applied by the Secured Party to reduce
the Obligations.
3. REGISTRATION OF PLEDGE. Concurrently with the execution of this
Agreement, Pledgor has sent to each of the Subsidiaries written instructions in
the form of Exhibit A, and has obtained from each of the Subsidiaries an
executed acknowledgment and consent in the form of Exhibit A.
4. VOTING RIGHTS. So long as no Event of Default has occurred and is
continuing, Pledgor may exercise all voting and membership rights with respect
to the Membership Interests; provided, however, that no vote will be cast or
membership right exercised or other action taken which would be inconsistent
with or result in a breach of any provision of the Second Amended Guaranty or
this Agreement.
5. EVENT OF DEFAULT. If an Event of Default has occurred and is
continuing, the Secured Party may direct the Subsidiaries to register the
Membership Interests in the name of the Secured Party or its nominee, and the
Secured Party or its nominee may thereafter receive all distributions with
respect to, and exercise all voting, membership and other rights pertaining to,
the Membership Interests as if it were the absolute owner of the Membership
Interests.
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6. REPRESENTATIONS AND WARRANTIES OF PLEDGOR. Pledgor represents and
warrants to the Secured Party that (a) Pledgor is the record and beneficial
owner of, and has good and legal title to, the Membership Interests, free of any
and all liens or options in favor of, or claims of, any other person, except the
lien created by this Agreement, and (b) Pledgor has the legal right to execute
and deliver, to perform its obligations under, and to grant the security
interest in the Collateral pursuant to, this Agreement.
7. ASSIGNMENT; PLEDGE; AMENDMENT. Without the prior written consent of
the Secured Party, Pledgor will not (i) sell, assign, transfer, exchange or
otherwise dispose of, or grant any option with respect to, the Collateral; (ii)
create or permit to exist any lien or option in favor of, or any claim of, any
person with respect to any of the Collateral, except, in either case, for the
lien created by this Agreement; or (iii) amend or modify the operating agreement
of any of the Subsidiaries (as amended from time to time, collectively, the
"Operating Agreements"), or enter into any agreement or arrangement with any
Subsidiary or its respective members which amends or modifies the rights and
obligations of such Subsidiary and its respective members as set forth in such
Subsidiary's Operating Agreement. Pledgor will defend the right, title and
interest of the Secured Party in and to the Collateral against the claims and
demands of all other persons.
8. FURTHER ASSURANCES. At any time and from time to time, upon the
written request of the Secured Party, Pledgor will promptly execute and deliver
such further instruments and documents and take such further actions as the
Secured Party may reasonably request for the purposes of obtaining or preserving
the security interest created by this Agreement, including, without limitation,
the filing of any financing or continuation statements under the Code. Pledgor
authorizes the Secured Party to file any such financing or continuation
statement without the signature of Pledgor to the extent permitted by applicable
law.
9. REMEDIES. If an Event of Default has occurred and is continuing, the
Secured Party may exercise, in addition to all rights and remedies granted in
the Guaranty and this Agreement, all rights and remedies of a secured party
under the Code. The rights and remedies of the Secured Party are cumulative, may
be exercised singly or concurrently, and are not exclusive of any rights or
remedies provided by law.
10. ATTORNEY-IN-FACT. Pledgor irrevocably constitutes and appoints the
Secured Party, or its representative, with full power of substitution, as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of Pledgor, and in the name of Pledgor or in the Secured
Party's name, after an Event of Default has occurred and for so long as it is
continuing, for the purpose of carrying out the terms of this Agreement.
Anything to the contrary contained herein notwithstanding, the Secured Party may
not exercise the rights granted to them in this Section 10 unless the Pledgor
has been provided with prior written notice of such exercise. The powers
conferred on the Secured Party are solely to protect its interests in the
Collateral and will not impose any duty upon the Secured Party to exercise any
such powers. The Secured Party will be accountable only for amounts that it
actually receives as a result of the exercise of such powers, and neither the
Secured Party, nor any of its officers, directors, employees or agents will be
responsible to Pledgor or to the Subsidiaries for any act or failure to act.
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11. LIMITATION ON DUTIES REGARDING COLLATERAL. The Secured Party's sole
duty with respect to the custody, safekeeping and physical preservation of the
Collateral in its possession, under the Code or otherwise, will be to deal with
it in the same manner as the Secured Party deals with similar securities and
property for its own account. Neither the Secured Party, nor any of its
directors, officers, employees or agents will be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so or,
except as provided by applicable law, will be under any obligation to sell or
otherwise dispose of any Collateral upon the request of Pledgor or otherwise.
12. NO WAIVER. The Secured Party will not by any act, delay, omission
or otherwise be deemed to have waived any right or remedy under this Agreement
or to have acquiesced in any Event of Default or in any breach of any of the
terms and conditions of this Agreement except by a written instrument executed
by the Secured Party. No single or partial exercise of any right, power or
privilege under this Agreement will preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by the
Secured Party of any right or remedy under this Agreement on any one occasion
will not be construed as a bar to any right or remedy which the Secured Party
would otherwise have on any future occasion.
13. AMENDMENTS. The terms and provisions of this Agreement may not be
waived or modified except by a written instrument executed by Pledgor and the
Secured Party.
14. BENEFIT AND BINDING EFFECT. This Agreement will be binding upon the
successors and permitted assigns of Pledgor and will inure to the benefit of the
Secured Party and its successors and assigns.
15. COUNTERPARTS; REPRODUCTIONS. 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.
16. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Michigan.
[signatures on following page]
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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:
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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