EXHIBIT 10.66
AGREEMENT FOR PURCHASE AND SALE OF
MANUFACTURED HOME LOANS
This Agreement for Purchase and Sale of Manufactured Home Loans
("Agreement") is made and entered into as of June 27, 2003 by and between Origen
Financial, L.L.C., a Delaware limited liability company ("Buyer") and Sun Home
Services, Inc., a Michigan corporation ("Seller").
WITNESSETH:
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller, on the terms and subject to the conditions set forth herein,
certain residential Manufactured Home loans and Mortgage Loans on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration for the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. When used herein, the following words and
phrases shall have the meanings ascribed to them herein below:
A. "Accrued Interest" with respect to each Contract
means interest at the Contract rate accrued and unpaid from the date
last paid.
B. "Closing Date" means the date of this Agreement.
C. "Contract" or "Contracts" shall mean certain loans
originated or purchased by Seller or its affiliates which are evidenced
by Manufactured Home retail installment sales contracts, installment
loan agreements, or other security instruments covering the sale of
such Manufactured Home(s) or which constitute Mortgage Loans which
evidence an Obligor's obligation to pay the indebtedness provided for
therein and evidence the respective security interest in a Manufactured
Home which are further identified as Exhibit C to this Agreement.
D. "Cut-Off Date" means the close of business on the
business day immediately preceding the Closing Date, as of which
activity in all Contracts shall be deemed to have been cut off and all
balances shall be deemed to have been frozen, solely for the purposes
of determining the Purchase Price and Settlement.
E. "Escrow" shall mean any funds held in trust by
Seller for payment of insurance premiums, or taxes due on any Contract.
F. "Manufactured Home" shall mean a unit of
manufactured housing, including all accessions thereto, securing the
indebtedness of an Obligor under a Contract.
G. "Mortgage" means a security interest in a parcel of
real estate on which is located a residential structure.
H. "Mortgage Loan" means a promissory note secured by
a Mortgage.
I. "Mortgaged Property" shall mean the parcel of real
property including a residential structure which secures a Mortgage.
J. "Obligor" shall mean any person or persons who have
obligated themselves on the Contracts as evidenced by their signature
on the Contract, including co-makers, co-signors, and guarantors.
K. "Principal Balance" shall mean the amount of
principal on any of the Contracts that has not been paid, as reflected
on Seller's books and records.
L. "Purchase Price" means $35,898,085.45.
M. "Schedule of Contracts" means the schedule listing
the Contracts purchased hereunder, in the form attached to this
Agreement as Exhibit C, and delivered in accordance with this
Agreement.
N. "Settlement" shall mean the transfer of the funds
from Buyer to Seller in an amount equal to the Purchase Price, less any
funds held in Escrow by Seller on any Contract and less any funds held
in suspense by Seller on any Contract.
2. Purchase and Sale of Contracts.
A. Subject to the terms and conditions set forth in
this Agreement, on the Closing Date, Seller agrees to convey, sell,
assign, transfer and deliver to Buyer, without recourse, all of
Seller's right, title and interest in the Contracts described in the
Schedule of Contracts, in exchange for payment by Buyer to Seller of
the Purchase Price. Buyer agrees to accept from Seller as of the
Closing Date, all of Seller's right title, and interest in the
Contracts without recourse to Seller. Seller and Buyer intend that the
sale of the Contracts will constitute a sale of each Contract.
B. On the Closing Date, Buyer agrees to pay Seller the
Purchase Price, $28,618,549.57 of which shall be paid by wire transfer
of immediately available funds and the remainder of which shall be paid
by delivery of a Convertible Promissory Note in the original principal
amount of $7,279,535.88, which shall be convertible at any time at
Seller's option into a preferred equity interest of Buyer's subsidiary,
Origen Securitization Company LLC, on terms mutually agreeable to the
parties. The consideration payable by Buyer to Seller for the Contracts
constitutes reasonably equivalent value and fair consideration for the
Contracts and such consideration is based on terms consistent with an
arms-length transaction.
C. All sales, transfer, documentary stamp, recording
and other similar taxes and/or fees which may be due or payable in
conjunction with this sale shall be borne by, Seller. Buyer will be
responsible for any expense related to change of lien holder.
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3. Transfer Documentation and Notice.
A. Seller shall deliver to Buyer on the Closing Date a
power of attorney substantially in the form of Exhibit A hereto,
authorizing Buyer to, among other things, take such action as may be
necessary to more fully vest Buyer's right, title and interest in the
conveyed property.
B. With respect to each Contract, Seller, at Seller's
expense, shall take such actions and execute such documents as
necessary to reflect that Buyer is the new owner of each Contract.
C. At Seller's expense, upon Buyer's request, Seller
shall deliver notification to the Obligors as to the transfer of
lienholder and instructions as to where future payments and
correspondence are to be sent.
D. At Seller's expense, upon Buyer's request, Seller
shall deliver notification to the Obligors to change the loss payee on
the respective hazard insurance policy for each Contract, which
notification may accompany or be included in Seller's letters
contemplated in Section 3, Paragraph C hereof.
4. Seller Representations and Warranties. Seller hereby
represents and warrants to Buyer, as of the Closing Date as follows:
A. Organization and Good Standing. Seller is a
limited liability company duly organized, validly existing and in good
standing under the laws of the State of Michigan and has the corporate
power to own its assets and to transact the business in which it is
currently engaged.
B. Authorization; Binding Obligations. Seller has the
power and authority to make, execute, deliver and perform this
Agreement and all of the transactions contemplated under this Agreement
and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement. When executed,
and delivered, this Agreement will constitute the legal, valid and
binding obligation of the Seller, enforceable in accordance with the
terms, except as enforcement of such terms may be limited by
Bankruptcy, insolvency, or similar laws affecting the enforcement of
creditor's rights generally and by the availability of equitable
remedies.
C. Litigation. No litigation or administrative
proceeding of or before any court or governmental body is currently
pending, or to the knowledge of Seller threatened, against Seller or
any of its properties or with respect to this Agreement which, if
adversely determined, would have a material adverse effect on the
transactions contemplated by this Agreement or the Contracts.
D. Deliveries. All Contract information, Contract
files, customer files, documents, correspondence, in all formats
(paper, computer or otherwise) and other items to be delivered by
Seller pursuant to this Agreement, shall be either hand delivered or
shipped Federal Express to Buyer by the Closing Date or on such date
the parties
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mutually agree, and in all instances in a timely manner in accordance
with the terms of this Agreement.
E. No Violations. The execution, delivery and
performance of this Agreement by the Seller will not violate any
provision of any existing law or regulation, or any other decree of any
court applicable to the Seller or the charter or bylaws of the Seller,
or constitute a material breach of any mortgage, indenture, contract or
other agreement to which the Seller is a party, or by which the Seller
may be bound.
5. Representations and Warranties with Respect to Contracts.
For each Contract purchased by Buyer, Seller hereby represents and warrants to
Buyer that, as of the Closing Date:
A. Schedule of Contracts. The information set forth in
the Schedule of Contracts is true and correct.
B. No Omissions. There have been no omissions or
misrepresentations in any document provided or statement made to Buyer
concerning the Contracts by or on behalf of Seller in connection with
the transactions contemplated by this Agreement.
C. No Litigation. No litigation or administrative
proceeding of or before any court, tribunal or governmental body is
currently pending or, to Seller's knowledge, threatened against Seller
with respect to any of the Contracts.
D. Acceptability of Investment. Seller is unaware of
any fact or omission that would make any Contract unacceptable as an
investment by a prudent secondary market investor.
6. Buyers Representations and Warranties. Buyer hereby
represents and warrants to Seller, as of the Closing Date as follows:
A. Organization and Good Standing. Buyer is a limited
liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware and has the power to own its
assets and to transact the business with which it is currently engaged.
B. Authorization; Binding Obligation. Buyer has the
power and authority to make, execute, deliver and perform this
Agreement and perform all of the transactions contemplated to be
performed by it under this Agreement, and has taken all necessary
corporate action to authorize the execution, delivery and performance
of this Agreement. When executed, and delivered, this Agreement will
constitute the legal, valid and binding obligation of the Buyer,
enforceable in accordance with the terms, except as enforcement of such
terms may be limited by Bankruptcy, insolvency, or similar laws
affecting the enforcement of creditor's rights generally and by the
availability of equitable remedies.
C. No Violations. The execution, delivery and
performance of this Agreement by Buyer will not violate any provision
of any existing law or regulation, or any other decree of any court
applicable to the Buyer or the certificate or partnership
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agreement of Buyer, or constitute a material breach of any mortgage,
indenture, contract or other agreement to which Buyer is a party, or by
which Buyer may be bound.
7. Assignments.
A. On the Closing Date, Seller will execute Exhibit
A and B and any and all other documentation necessary to transfer
Seller's right, title, and interest in the Contracts to Buyer,
including Certificates of Title, UCC-1's, UCC-3's, assignments of
mortgage, insurance policies, and other documentation that may be
required to protect Buyer's right, title, and interest in the Contracts
and proceeds therefrom.
B. On the Closing Date, Seller will execute a Power of
Attorney, substantially in the form of Exhibit A attached, and an
Assignment of Notes and Liens, substantially in the form of Exhibit B
attached, to facilitate the assignment or perfection of the security
interest in favor of Buyer.
8. Documentation.
A. On the Closing Date, Seller will provide to Buyer an
original Certificate of Title, or recorded application for title in non
title holding states and/or filed UCC, where applicable and an original
contract, note, or other debt instrument on each Contract. As to
Mortgage Loans, Seller shall execute and deliver an assignment of
mortgage for each Mortgage. Buyer, at its option, may accept blanket
assignments on a county-by-county basis.
B. Within ten days after the Closing Date, Seller will
remit to Buyer or Buyer's designee all remaining documentation which
Seller has in its possession no matter the form, (i.e. computer
documentation, computer tape, microfilm, paper) on all of the
Contracts, including, but not limited to, records of account history,
insurance policies, credit applications, credit reports, landlord
waivers, bills of sale, powers of attorney, and any correspondence or
other documentation pertaining to the Contracts.
9. Additional Covenants.
A. On the Closing Date, Seller will execute a Power of
Attorney in form and content acceptable to Seller, to enable Buyer to
negotiate checks, drafts, money orders or other payment instruments
that are made payable to Seller and received after the Closing Date.
B. Seller will assist Buyer in reconciling payment or
other disputes with Obligors involving due dates, Principal Balances,
or the application of funds to the Contracts by Seller.
C. Seller will record the transaction on its books and
records consistent with generally accepted accounting principles.
10. Hold Harmless. Seller will hold Buyer harmless from and
against any claims made against Buyer after the Closing Date for actions or
omissions of Seller prior to the Closing
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Date. Seller may, at its option, investigate, negotiate, defend and/or settle,
at its own expense, and Buyer covenants and agrees to assist and cooperate with
Seller, its employees, agents, attorneys and officers in all reasonable requests
of Seller, pursuant to this paragraph.
11. Notices. Any notice, demand or communication which either
party desires or is required to give to the other party in connection with the
Agreement must be in writing and must be either served personally or sent by fax
and overnight mail, addressed to the other party, as follows, or to such other
fax number and/or address as either party hereafter specifies in accordance with
this Section:
IF TO BUYER: Origen Financial L.L.C.
27777 Franklin Road, Suite 1700
Southfield, MI 48034
Fax: (248) 746-7091
Attn.: Ronald A. Klein
IF TO SELLER: Sun Home Services, Inc.
27777 Franklin Road, Suite 200
Southfield, MI 48034
Fax: (248) 208-2645
Attn.: Gary A. Shiffman
12. Captions. Paragraph or other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
13. Assignment. Buyer may freely assign any of its rights or
obligations hereunder.
14. Severability. If any part or provision of this Agreement is
invalid or unenforceable under any law, such part or provision is and will be
totally ineffective to that extent, but the remaining provisions or parts will
be unaffected.
15. Counterparts. This Agreement may be executed in one or more
counterparts or duplicate originals, each of which must be deemed an original,
but all of which together will constitute but one and the same instrument.
16. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreements or
understandings between the parties.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
SELLER:
SUN HOME SERVICES, INC.,
a Michigan corporation
BY: /s/ Gary A. Shiffman
--------------------------------------------------
Gary A. Shiffman, President
BUYER:
ORIGEN FINANCIAL L.L.C.,
a Delaware limited liability company
BY: /s/ Ronald A. Klein
--------------------------------------------------
Ronald A. Klein, Manager
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EXHIBIT A
LIMITED POWER OF ATTORNEY
The undersigned, Sun Home Services, Inc., a Michigan corporation
("Seller"), hereby constitutes and appoints any officer of Origen Financial
L.L.C., a Delaware limited liability company ("Buyer"), its true and lawful
attorney-in-fact and agent with power and authority to do any and all acts and
things reasonably necessary to transact all business connected with retail
installment sales contracts, installment loan agreements, notes, mortgages,
deeds of trust and security deeds or other security instruments secured by
manufactured housing and related real property (the "Contracts") and/or
financing statements assigned by Seller to Buyer, on which Seller or its
predecessors are listed as lien holder, beneficiary or the like, a schedule of
said Contracts being attached hereto as Exhibit A1, including but not limited
to, the following:
a) Endorse, without recourse pursuant to a stamp approved by Seller,
notes, checks or other instruments of payment made on the
Contracts;
b) Execute assignments, without recourse from Seller to Buyer of
security and lien-creating instruments related to the Contracts;
c) Execute releases of liens, security interests and the like with
respect to the Contracts;
d) Execute and deliver, on behalf of itself, the lienholder of
record and/or Seller, as applicable or appropriate, any and
all instruments of satisfaction or cancellation, or partial or
full release or discharge and all other comparable instruments
with respect to the Contracts or to the manufactured housing
securing the Contracts and other related collateral securing
such Contracts including, without limitation, any discharges,
releases, satisfactions, bills of sale, financing statements,
continuation statements, certificates of title, assignments of
title, transfers of title or registration or similar forms
with respect to any of the manufactured housing and related
collateral;
e) Sign and file, without Seller's signature, such finance and
continuation statements, amendments and supplements thereto and
other documents which Buyer may from time to time deem necessary
to perfect, preserve and protect its security interest in the
chattel paper and related collateral;
f) Execute and deliver any and all instruments and take any and all
further action in the name of and on behalf of Seller as may be
required or deemed desirable to accomplish any and all of the
actions described herein and carry out the purpose of this Limited
Power of Attorney; and
g) Demand, enforce, reduce to possession, collect, receive, receipt
for, endorse, compromise, settle or assign without recourse
any and all indebtedness, notes, commercial paper, promises to
pay, retail installment sales contracts, chattel paper,
instruments, chooses in action and other obligations described
in Exhibit A1, together with all monies due to or become due
under said Contracts after the Cut-Off Date, including,
without limitation payahead, proceeds from any recourse to
dealers and proceeds from claims on any insurance policies
relating to such Contracts and any and all claims, chooses in
action and rights and causes of action relating thereto,
including, without limitation, any and all real estate and
personal property, security instruments and insurance policies
held as security for said Contracts, and all other property of
every kind identified in said whole or in part and in
connection therewith to
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execute, acknowledge or handle any instruments in writing
which may become necessary in order to carry the foregoing
powers into effect.
Buyer is hereby empowered to do any and all lawful action required for
effecting the transfer of the Contracts and the security interests granted
thereby, and Seller hereby ratifies and confirms any and all lawful acts that
Buyer shall do pursuant to and conformity with this Limited Power of Attorney.
Seller further grants unto Buyer and its agents full authority and power to do
and perform any and all acts necessary or incident to the execution of the
powers herein expressly granted, as the Seller or its agents might or could do
if personally present.
To induce any third party to act hereunder, Seller hereby agrees that
any third party receiving a duly executed copy or facsimile of this instrument
may act hereunder and that revocation or termination hereof shall be ineffective
as to such third party unless and until actual notice of knowledge of such
revocation or termination shall have been received by such third party, and
Seller for itself and for its legal representatives, successors and assigns
hereby agree to indemnify and hold harmless any such third party by reason of
such third party having relied on the provisions of this instrument.
Seller has given this Limited Power of Attorney in connection with the
sale of the Contracts pursuant to the Agreement for Purchase and Sale of
Manufactured Home Loans dated June 27, 2003 (the "Purchase Agreement") between
Buyer and Seller and to induce Buyer to purchase the Contracts. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Purchase Agreement.
This Limited Power of Attorney coupled with an interest in the
transaction, is irrevocable and shall terminate 12 months after the latest
maturity of any Contract.
Seller executes this Limited Power of Attorney with the intent to be
legally bound hereby and with the intent that the execution shall have the full
dignity afforded by the accompanying witnessing and notarization and all lesser
dignity resulting from the absence of such witnessing and notarization or any
combination thereof.
Dated: June 27, 2003
ATTEST: SUN HOME SERVICES, INC.,
a Michigan corporation
BY:
-----------------------------
By: Gary A. Shiffman, President
-------------------------
Its:
-------------------------
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State of
-------------------------------------
County of
------------------------------------
I HEREBY CERTIFY that on this 27th day of June, 2003, before me, the
undersigned, a Notary Public of the State and County aforesaid, personally
appeared Gary A. Shiffman, who acknowledged himself to be President of Sun Home
Services, Inc., who further acknowledged that he as President, being authorized
to do so, executed the foregoing instrument for the purposes therein contained
by signing the name of Gary A. Shiffman by himself as President.
IN WITNESS my name and notary seal.
(seal)
------------------------------------
Notary Public, State of
------------
My commission expires:
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EXHIBIT A1
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EXHIBIT B
ASSIGNMENT OF NOTES AND LIENS
KNOW ALL MEN BY THESE PRESENTS THAT:
Sun Home Services, Inc., a Michigan corporation ("Seller"), the present legal
and equitable owner and holder of those certain Contracts in connection with the
sale of certain Manufactured Homes and more fully described on Exhibit B1
attached hereto, secured by those certain security interests covering certain
Manufactured Homes (the Contracts and related notes, security agreements and
such other instruments evidencing, securing or pertaining to the indebtedness
collectively referred to as the "Loan Documents"), desires to assign all its
right, title, and interest in and to the Loan Documents to Origen Financial
L.L.C., a Delaware limited liability company ("Buyer").
NOW, THEREFORE, for and in consideration of value received, Seller
hereby, sells, assigns, and transfers to Buyer all of Seller's right, title and
interest in and to the Loan Documents. Buyer hereby accepts such assignment and
assumes any and all obligations of Seller under the Loan Documents with respect
to any Escrows and any and all other obligations of Seller under the Loan
Documents accruing from and after the date hereof.
Capitalized terms used but not defined herein shall have the meanings
given to them in the Agreement for Purchase and Sale of Manufactured Home Loans
between Seller and Buyer dated June 27, 2003.
Dated: June 27, 2003
SELLER:
SUN HOME SERVICES, INC.,
a Michigan corporation
BY:
-------------------------------------------
Gary A. Shiffman, President
BUYER:
Origen Financial L.L.C.
By:
-------------------------------------------
Ronald A. Klein, Manager
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EXHIBIT B (CONT.)
State of Michigan
County of Oakland
I HEREBY CERTIFY that on this 27th day of June, 2003, before me, the
undersigned, a Notary Public of the State and County aforesaid, personally
appeared Gary A. Shiffman, who acknowledged himself to be President of Sun Home
Services, Inc., who further acknowledged that he as President, being authorized
to do so, executed the foregoing instrument for the purposes therein contained
by signing the name of Gary A. Shiffman by himself as President.
IN WITNESS my name and notary seal.
(seal)
------------------------------------
Notary Public, State of
------------
My commission expires:
----------------------
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EXHIBIT B1
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EXHIBIT C
SCHEDULE OF CONTRACTS
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