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EXHIBIT 10.11
SECURITY AGREEMENT
(Contract Rights and Accounts Receivable)
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which are
hereby acknowledged, ▇▇▇▇▇▇▇ FINANCIAL SERVICES CORPORATION, a Michigan
corporation (the "Debtor"), hereby grants to MICHIGAN NATIONAL BANK, a national
banking association (the "Lender"),a continuing security interest in (i) all of
Debtor's rights, title and interests in, to and under the three (3) Servicing
Agreements (as hereafter defined), including, without limitation, all sums now
or hereafter owing to Debtor on account of services rendered under the Servicing
Agreements and/or on account of advances made by Debtor under the Servicing
Agreements, (ii) Debtor's property in possession of Lender, and (iii) the
proceeds of all of the foregoing, to secure payment of any and all indebtedness
and liabilities whatsoever of Debtor to Lender under that certain Credit
Agreement, dated as of March 31, 2000 by and among Debtor, Lender and Dynex
Financial, Inc. (the "Credit Agreement"), whether direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising and
howsoever evidenced (herein collectively called the "Indebtedness").
1) DEFINITIONS As used herein:
1.1 The phrase "account(s) Receivable" or "Debtor's account(s)
receivable" means and includes all accounts, contract rights and general
intangibles now owned or hereafter acquired by Debtor, as well as all chattel
paper and instruments now owned or hereafter acquired by Debtor evidencing any
obligation to Debtor for services rendered under the Servicing Agreements.
1.2 The phrase "Debtor's property in possession of Lender" means and
includes goods, instruments, documents, policies and certificates of insurance,
deposits, money or other property now owned or hereafter acquired by Debtor or
in which Debtor now has or hereafter acquires an interest and which are now or
hereafter in possession of Lender, or as to which Lender now or hereafter
controls possession by documents or otherwise.
1.3 "Collateral" means and includes any and all property of Debtor in
which Lender now has or by this Agreement now or hereafter acquires a security
interest.
1.4 "Servicing Agreements" means the following three (3) agreements by
and between Dynex Financial, Inc., as servicer, MERIT Securities Corporation and
Dynex Capital,
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Inc., pursuant to which Dynex Financial, Inc. services approximately 23,078
manufactured home loans (each an "Account" and collectively the "Accounts"):
(a) Amended and Restated Servicing Agreement (Merit 11),
dated December 17, 1999;
(b) Amended and Restated Servicing Agreement (Merit 12),
dated December 17, 1999; and
(c) Amended and Restated Servicing Agreement (Merit 13),
dated December 17, 1999; and
1.5 The phrase "Uniform Commercial Code" means Act No. 174 of the
Michigan Public Acts of 1962, as heretofore amended.
l.6 And except as otherwise herein provided, all other terms shall
have the meanings assigned to them in Article 9 (or, absent definition in
Article 9, in any other Article) of the Uniform Commercial Code.
1.7 Unless otherwise defined herein, all capitalized terms used
herein shall have the respective meanings ascribed to them in the Credit
Agreement.
2) WARRANTIES, COVENANTS AND AGREEMENTS To induce Lender to extend credit
on the security of the Collateral for which provision is herein made, Debtor
warrants, covenants and agrees as follows:
2.1 Debtor shall (i) furnish evidence to Lender in such form and at
such intervals as Lender may reasonably request of the nature and extent of
those accounts receivable in which Debtor has rights and where applicable the
names and addresses of all account debtors; (ii) keep adequate records of the
Collateral and such other records as Lender shall determine to be necessary; and
(iii) allow Lender to examine, inspect and make abstracts from, or copy any of
Debtor's books and records (relating to the Collateral or otherwise), and to
arrange for verification of accounts receivable directly with account debtors or
by other methods.
2.2 At the time any Collateral becomes subject to a security
interest in favor of Lender, Debtor shall be deemed to have warranted that (i)
Debtor is the lawful owner of such Collateral and has the right and authority to
subject the same to a security interest in Lender; (ii) none of the Collateral
is subject to any security interest other than that in favor of Lender, (iii)
Debtor acquired its rights in the Collateral in the ordinary course of its
business; and (iv) no financing statement or other notice of lien or security
agreement (other than one designating Lender as the secured party) is on file in
any public office which relates to any of the Collateral or which through
general language could relate thereto.
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2.3 On each occasion on which Debtor evidences to Lender the nature
and extent of those accounts receivable in which Debtor has rights, Debtor shall
be deemed to have warranted that, except as otherwise indicated, (i) every
account receivable so evidenced is valid and enforceable without performance by
Debtor of any other act; (ii) no payment or partial payment has been made on any
account receivable so evidenced except as disclosed to Lender in writing by
Debtor; and (iii) there are no setoffs or counterclaims against any such account
receivable.
2.4 Debtor at its own cost and expense shall defend this Agreement
and the Collateral against all adverse claims and demands. Debtor will keep the
Collateral free at all times from any and all liens, security interests or
encumbrances other than those in favor of Lender. Debtor will promptly notify
Lender of any threatened or filed claims or procedings which might in any way
affect or impair the priority or validity of bank's security interest and/or any
of the terms of this Agreement.
2.5 Debtor will not, without the prior written consent of Lender,
sell or lease, or permit or suffer to be sold, or leased, all or any part of the
Collateral. Lender or its agents or attorneys may at any and all reasonable
times inspect the Collateral and may enter upon any and all premises where the
same is kept or might be located.
2.6 Debtor will do all acts and things, and will execute all
instruments requested by Lender to establish, maintain and continue perfected
and first the security interest of Lender in the Collateral, and will promptly
on demand pay all costs and expenses of filing and recording, including the
costs of any searches deemed necessary by Lender to establish and determine the
validity and priority of Lender's security interest; and Debtor will also pay
all other claims and charges which in the opinion of the Lender might prejudice,
imperil or otherwise affect the Collateral or its security interest therein.
2.7 Debtor will pay promptly and within the time that they can be
paid without interest or penalty, all taxes, assessments and similar imports and
charges which are now, or hereafter during the effective period of this
Agreement may become, a lien, charge or encumbrance upon any of the Collateral
except to the extent contested in good faith. If Debtor fails to pay any such
taxes, assessments or other charges as they become due, Lender shall have the
option to do so and Debtor agrees to repay, with interest at the rate of
interest equal to the rate applicable to the Indebtedness on the date of such
payment, all amounts so expended by Lender.
2.8 With respect to any contract right constituting any account
receivable evidenced to Lender pursuant to Paragraph 2.1 of this Agreement,
Debtor shall make or permit no modification or substitution for such contract
after assignment hereunder without the prior consent of Lender.
2.9 Debtor will reimburse Lender in accordance with the provisions
of the Uniform Commercial Code for all expense, including reasonable attorney
fees and legal expenses,
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incurred by Lender in seeking to collect the Indebtedness or any part thereof,
or in pursuing any of its rights or remedies hereunder, against the Collateral
or otherwise.
3) COLLECTION OF PROCEEDS
3.1 Upon the occurrence of an Event of Default (as defined in the
Credit Agreement), Debtor will (i) collect and enforce payment of all accounts
receivable; (ii) hold in trust for Lender all payments received on accounts
receivable as well as all rights by way of suretyship or guaranty which Debtor
now has or may hereafter acquire to enforce payment of accounts receivable, and
all rights in the nature of a security interest whereby Debtor may satisfy any
account receivable out of property; and (iii) endorse to Lender and forthwith
deliver to it all such payments in the form received by Debtor without
commingling with any funds belonging to Debtor and all property in Debtor's
possession or hereafter coming into its possession through enforcement of any
such rights, Debtor authorizes Lender or any employee or agent thereof to
endorse the name of Debtor upon any checks or other items which are received in
payment of any account receivable or for any inventory, and to do any and all
things necessary in order to reduce the same to money.
3.2 Upon default by Debtor beyond any grace period applicable
thereto, Debtor shall at the request of Lender notify the account debtors or
obligors of the security interest of Lender in any accounts receivable and
direct payment thereof to Lender; Lender may, itself, at any time before or
after any default by Debtor so notify and direct any such account debtor or
obligor and may take control of any proceeds to which it may be entitled
hereunder.
3.3 Debtor shall at the request of Lender ▇▇▇▇ its records
concerning the Collateral clearly to indicate the security interest of Lender
hereunder.
3.4 Upon the occurrence of an Event of Default, Debtor will
immediately deliver to Lender, appropriately endorsed to the order of Lender,
any chattel paper or instruments which shall be received by Debtor and which may
at any time evidence any obligation to Debtor for payment for goods sold or
leased or services rendered. Upon demand, Debtor shall deliver to Lender (i) all
accounting and other records pertaining to the Collateral, or any portion
thereof; and (ii) all instruments evidencing any security for the payment of any
accounts receivable. Debtor shall execute such further assignments, instruments
and/or agreements as the Lender may require or request to enforce any such
payments, or to enforce any such instruments in its own name, and do all acts
and things necessary, desirable or appropriate to substitute Lender in any legal
proceedings then pending in the name of the Debtor to enforce any such payments,
or to realize upon any security held for such payments.
3.5 Debtor hereby constitutes and appoints Lender its true and
lawful attorney, for it and in its name, place and stead, with full power to
substitute one or more persons with like authority, to demand, receive, ▇▇▇ for,
compromise and give acquintances for any moneys due or
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to become due on any of its accounts receivable and to perform any act required
of Debtor by terms of this Agreement.
3.6 With respect to any Collateral, Debtor assents to all extensions
or postponements of the time of payment thereof or any other indulgence in
connection therewith, to each substitution, exchange or release of Collateral,
to the addition or release of any party primarily or secondarily liable, to the
acceptance of partial payments thereon and the settlement, compromise or
adjustment thereof, all in such manner and at such time or times as Lender shall
deem advisable.
4) ENFORCEMENT AND APPLICATION OF PROCEEDS
4.1 Upon the occurrence of any Event of Default, Lender may at its
discretion and without demand or notice to Debtor declare any or all of the
Indebtedness to be immediately due and payable. In furtherance of and in
addition to and not in limitation of the rights and remedies otherwise provided
herein, Lender may without notice of demand enter upon any premises where any
Collateral may be and reposses and remove the same, and Debtor hereby expressly
consents to any such entry, repossession and removal and hereby expressly waives
any and all damages which may be caused thereby. Debtor agrees, upon request of
Lender, to assemble the Collateral and make it available to Lender at any place
designated by Lender which is reasonably convenient to Lender and Debtor.
4.2 With or without the entry, repossession and removal authorized
by Paragraph 4.1 hereof, Lender may sell the Collateral as a unit or in parcels,
to one or more purchasers, at public or private sale, for cash or on credit, or
partially for cash and partially on credit, without demand for performance and
without notice to Debtor (except as may be required by applicable law), with or
without having such Collateral at the place of sale and in such manner as Lender
may determine. Lender may buy at any public sale, and, if the Collateral is of a
type customarily sold in a recognized market or is of a type which is the
subject of widely distributed standard price quotations, Lender may buy at
private sale.
4.3 The proceeds of any sale or other disposition authorized by this
Agreement shall be applied by Lender first upon all expenses authorized by the
Uniform Commercial Code and all reasonable attorney's fees and legal expenses
incurred by Lender; the balance of the proceeds of such sale or other
disposition shall be applied in the payment of the Indebtedness, first to
interest, then to principal; and the surplus, if any, shall be paid over to
Debtor or to such other person or persons as may be entitled thereto under
applicable law. Debtor shall remain liable for any deficiency which it shall pay
to Lender immediately upon demand.
4.4. The remedies provided for herein are cumulative to the remedies
for collection of the Indebtedness as provided by law. Nothing herein contained
is intended, nor should it be construed, to preclude Lender from pursuing any
other remedy for the collection of the
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Indebtedness or any portion thereof, or for the recovery of any other sum to
which Lender may be or become entitled for the breach of this Agreement by
Debtor.
4.5. No default shall be waived by Lender except in writing signed
by an officer of Lender and no waiver of any default shall operate as a waiver
of any other default or of the same default on a future occasion.
5) MISCELLANEOUS
5.1 Lender shall have no duty as to collection or protection of
Collateral or any income therefrom, nor as to the preservation of rights of
prior parties, nor as to the preservation of any rights pertaining thereto,
beyond the use of reasonable care in the custody and preservation of Collateral
in the possession of Lender.
5.2 No forbearance on the part of Lender in enforcing any of its
rights under this Agreement, nor any renewal, extension or rearrangement of any
payment or covenant to be made or performed by Debtor hereunder shall constitute
a waiver of any of the terms of this Agreement or of any such right.
5.3 Any demand upon or notice to Debtor which Lender may be required
by law to give shall be effective and conclusively deemed reasonable for all
purposes if mailed by any form of United States mail, postage fully prepaid, to
Debtor at the address set forth in Paragraph 6.1 hereof, or at such other
address as Debtor shall designate to Lender in writing on or subsequent to the
date hereof, at least five (5) days before Lender shall take any action
described in any such notice or demand.
5.4 This Agreement, and each and every term and provision hereof,
shall be construed, whether as to matters of construction, validity or
performance, in accordance with the laws of the State of Michigan. If any
provisions of this Agreement shall for any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision hereof, but this Agreement shall be construed as if such invalid or
unenforceable provision had never been contained herein.
5.5 This Agreement shall be terminated only by the filing of a
Termination Statement in accordance with the applicable provisions of the
Uniform Commercial Code. Until terminated, the security interest hereby created
shall continue in full force and effect and shall secure and be applicable to
all advances now or hereafter made by Lender to Debtor whether or not Debtor is
indebted to Lender immediately prior to the time of any such advance.
5.6 Until termination of this Agreement, Lender shall have and may
exercise any and all of the rights and remedies given by this Agreement or given
to a secured party under the Uniform Commercial Code. This Agreement and all
such rights and remedies shall inure to the benefit of Lender's successors and
assigns and to any other holder who derives from Lender title
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to or an interest in the Indebtedness or any portion thereof, and shall bind
Debtor and the heirs, legal representatives, successors and assigns of Debtor.
5.7 If there is more than one Debtor, all undertakings, warranties
and covenants made by Debtor and all rights, powers and authorities given to or
conferred upon Lender shall be made or given jointly and severally.
5.8 Debtor acknowledges that this Agreement, the Credit Agreement
and the other written loan documents delivered or to be delivered pursuant to
said Credit Agreement (collectively, the "Loan Documents") set forth the entire
agreement between the parties with regard to the security interests granted
hereby and supercede all prior understandings of the parties with respect
thereto. The Loan Documents may only be modified in a writing signed by the
party to be charged with the changes expressed in such modification which
specifically refers to the specific Loan Document(s) to be modified.
6) STATEMENT OF RESIDENCE AND LOCATION OF COLLATERAL AND RECORDS
6.1 Debtor's principal place of business is located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
6.2 Debtor will keep all its records concerning its accounts
receivable, the Servicing Agreements and the Accounts at the address of the
Debtor shown in Paragraph 6.1 above and/or the addresses set forth in Exhibit A
attached hereto.
6.3 Debtor will give Lender prompt written notice of (i) any change
in its principal place of business or in the location of said records; (ii) the
establishment or discontinuance of any of its places of business; and (iii) any
change in Debtor's name.
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EXECUTED as of the 31st day of March, 2000.
▇▇▇▇▇▇▇ FINANCIAL SERVICES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: CEO
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EXHIBIT A
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