EXHIBIT 10.4
CREDIT AGREEMENT
This Credit Agreement (as it may be amended or modified and in effect
from time to time, the "Agreement"), dated as of July 25, 2002, is between
Origen Financial L.L.C., a Delaware limited liability company (together with its
successors and assigns, the "Borrower"), and Bank One, NA with its main office
in Chicago, Illinois (together with its successors and assigns, the "Lender").
The parties hereto agree as follows:
ARTICLE I -- DEFINITIONS
As used in this Agreement:
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the prime rate of interest announced from time to
time by the Lender or by its parent (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate changes minus
0.75% per annum and (ii) the federal funds effective rate (as published by the
Federal Reserve Bank of New York) for such day.
"Alternate Base Rate Loan" means a Loan that bears interest at the
Alternate Base Rate.
"Approved Pool" means a Pool listed on Schedule 1.1 or otherwise
approved by the Lender in its sole discretion, provided that a Pool shall no
longer constitute an Approved Pool if the credit rating assigned by ▇▇▇▇▇'▇
Investors Service, Inc. to the most senior of the certificates or other
securities issued to finance such Pool shall at any time fall below Aaa.
"Borrowing Date" means a date on which a Loan is made hereunder.
"Borrowing Notice" is defined in Section 2.5.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks generally are open in Detroit and Chicago for the conduct of substantially
all of their commercial lending activities.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Documents" means, collectively, the Security Agreement,
Guaranty, the Subordination Agreement, and any and all other security
agreements, mortgages, and pledge agreements delivered hereafter.
"Commitment" means the obligation of the Lender to make Loans not
exceeding the amount set forth opposite its signature below or as set forth in
any notice of assignment relating to
any assignment that has become effective pursuant to Section 11. 3, as such
amount may be modified from time to time pursuant to the terms hereof.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Default" means an event described in Article VII.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Guaranty" means the guaranty in the form attached hereto as Exhibit A
executed by the Guarantor in favor of the Lender, as it may be amended, modified
or confirmed and in effect from time to time.
"Guarantor" means ▇▇▇▇▇▇▇ Financial Services Corporation, a Michigan
corporation.
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations that are evidenced by notes, acceptances, or other
instruments, (v) obligations of such Person to purchase securities or other
Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) capitalized lease
obligations, (vii) net liabilities under interest rate swap, exchange or cap
agreements, (viii) contingent obligations and (ix) any other obligation for
borrowed money or other financial accommodation which in accordance with
generally accepted accounting principles would be shown as a liability on the
consolidated balance sheet of such Person.
"Lending Installation" means any office, branch, subsidiary or
affiliate of the Lender.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, capitalized lease or other title retention
agreement).
"Loan" means a borrowing hereunder.
"Loan Documents" means this Agreement, the Collateral Documents and the
other documents and agreements contemplated hereby and executed by the Borrower
in favor of the Lender.
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"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or prospects of the Borrower and its Subsidiaries taken as a whole, (ii) the
ability of the Borrower to perform its obligations under the Loan Documents, or
(iii) the validity or enforceability of any of the Loan Documents or the rights
or remedies of the Lender thereunder.
"Negotiated Rate" means, with respect to any Negotiated Rate Loan, the
floating rate per annum agreed upon between the Borrower and the Lender in its
sole discretion at the time such Negotiated Rate Loan is made.
"Negotiated Rate Loan" means a Loan that bears interest at the
Negotiated Rate.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower to the Lender
or any indemnified party arising under the Loan Documents.
"Person" means any natural person, corporation, firm, joint venture,
partnership, association, limited liability company, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pool" means a pool of manufactured housing installment sales contracts
and installment loan agreements originated by the Borrower and held by a trust
created for the purpose of financing such contracts and for which the Borrower
acts as master servicer, servicer, standby servicer or backup servicer.
"Pool Documents" means the operative documents pursuant to which a Pool
is established and maintained, including without limitation, any pooling and
servicing agreement, indenture, servicing agreement, certificate, opinion,
rating letter, custody agreement, bond or other document or agreement.
"Property" of a Person means any and all property or other assets,
whether real, personal, tangible, intangible, or mixed, of such Person.
"Reserve Requirement" means, with respect to a Negotiated Rate Loan,
the maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D of the Board of
Governors of the Federal Reserve System on Eurocurrency liabilities.
"Security Agreement" means a Security Agreement substantially in the
form attached hereto as Exhibit B from the Borrower to the Lender, as such
security agreement may be amended, modified, or restated from time to time.
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"Subordination Agreement" means the subordination provisions of the
Amended and Restated Subordinated Loan Agreement dated February 1, 2002 between
the Borrower and Sun Communities Operating Limited Partnership in the form
attached hereto as Exhibit C.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"Subordinated Debt" means debt subordinated to the Lender pursuant to
the Subordination Agreement or otherwise in manner and by agreement satisfactory
to the Lender.
"Tangible Capital Funds" shall mean, as of any date, the sum of
Tangible Net Worth plus Subordinated Debt.
"Tangible Net Worth" means total assets less intangible assets, total
liabilities, and all sums owing from stockholders, members, or partners, as the
case may be, and from officers, managers, and directors. Intangible assets
include goodwill, patents, copyrights, mailing lists, catalogs, trademarks, bond
discount and underwriting expenses, organization expenses, and all other
intangibles.
"Termination Date" means May 31, 2003.
"Transferee" is defined in Section 11.4.
"Trustee" means the trustee of a Pool, including the Lender in its
capacity as trustee.
"Type" means, with respect to any Loan, its nature as an Alternate Base
Rate Loan or a Negotiated Rate Loan.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II -- THE CREDITS
2.1. Commitment; Reduction of Commitment. From and including the date
of this Agreement and prior to the Termination Date, the Lender agrees, on the
terms and conditions set forth in this Agreement, to make Loans to the Borrower
from time to time in amounts not to exceed in the aggregate at any one time
outstanding the amount of the Commitment. The
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Borrower may permanently reduce the Commitment, in integral multiples of
$1,000,000, upon at least five Business Days' written notice to the Lender;
provided, however, that the amount of the Commitment may not be reduced below
the aggregate principal amount of the outstanding Loans.
2.2. Types of Loans; Minimum Amount; Lending Installations. Subject to
the terms of this Agreement, the Borrower may borrow, repay and reborrow at any
time prior to the Termination Date. The Loans may be Alternate Base Rate Loans
or Negotiated Rate Loans, or a combination thereof, selected by the Borrower in
accordance with Section 2.5. All Alternate Base Rate Loans shall be in a minimum
amount of $100,000 and all Negotiated Rate Loans shall be in a minimum amount of
$500,000. The Lender shall only disburse the Loans directly to a Trustee of an
Approved Pool or a custodial account for such Approved Pool to pay a monthly P&I
advance, monthly advance or other advance required to be made by the Borrower
under the Pool Documents for an Approved Pool. The Lender may book the Loans at
any Lending Installation, as selected by the Lender. All terms of the Loan
Documents shall apply to and may be enforced by or on behalf of any such Lending
Installation.
2.3. Principal Payments. The Borrower may from time to time pay,
without penalty or premium, any portion of the outstanding Loans. Any
outstanding Loans and all other unpaid Obligations shall be paid in full by the
Borrower, and the Commitment to lend hereunder shall expire, on the Termination
Date. The Borrower shall cause Loans to be repaid such that no Loans are
outstanding on no less than five Business Days during each month.
2.4. Fees. The Borrower agrees to pay to the Lender a commitment fee
of 0.25% per annum on the daily unborrowed portion of the Commitment from the
date hereof to and including the Termination Date, payable on the last day of
each month hereafter and on the Termination Date. All accrued fees shall be
payable on the effective date of any termination of the obligations of the
Lender to make Loans hereunder.
2.5. Method of Selecting Types for New Loans. The Borrower shall
select the Type of Loan. The Borrower shall give the Lender irrevocable notice
(a "Borrowing Notice") not later than 11:00 a.m. (Detroit time) at least one
Business Day before the Borrowing Date of each Alternate Base Rate Loan or
Negotiated Rate Loan, specifying for each Loan: (i) the Borrowing Date, which
shall be a Business Day, (ii) the aggregate amount, and (iii) the Type
applicable thereto. The Lender will make the funds available to the Borrower at
the Lender's address specified pursuant to Article XII.
2.6. [Intentionally Omitted]
2.7. Changes in Interest Rate. Each Alternate Base Rate Loan shall
bear interest, at the Alternate Base Rate, on the outstanding principal amount
thereof, for each day from and including the date such Loan is made to but
excluding the date it is paid. Changes in the Alternate Base Rate will take
effect simultaneously with each change in the Alternate Base Rate. Each
Negotiated Rate Loan shall bear interest on the outstanding principal amount
thereof for each day from and including the date such Loan is made to but
excluding the date it is paid at the Negotiated Rate applicable thereto. Changes
in the Negotiated Rate applicable to such Loan will take effect as agreed to by
the Lender and the Borrower at the time the Negotiated Rate Loan was made.
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2.8. Rates Applicable After Default. During the continuance of a
Default, the Lender may, at its option, by notice to the Borrower, declare that
each Loan shall bear interest at the Negotiated Rate or the Alternate Base Rate,
as applicable, in effect from time to time plus 2% per annum, provided that,
during the continuance of a Default under Section 7.2, 7.6 or 7.7, the interest
rates set forth above shall be applicable to all Loans without any election or
action on the part of the Lender.
2.9. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Lender at the Lender's address, by noon (local time) on
the date when due. The Lender is hereby authorized to charge the general
operating accounts of the Borrower maintained with the Lender for each payment
of principal, interest and fees as it becomes due hereunder. After the
occurrence of an Default and upon the request of the Lender, the Borrower shall
direct the Trustee of each Approved Pool that has received proceeds of Loans
hereunder to make all payments of servicing fees and other amounts payable to
the Borrower under the Pool Documents directly to the Lender for application to
the Loans and other Obligations hereunder.
2.10. Noteless Agreement; Evidence of Indebtedness. The Lender shall
maintain in accordance with its usual practice an account or accounts in which
it will record (a) the amount of each Loan made hereunder and the Type thereof,
(b) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to the Lender hereunder and (c) the amount of any sum
received by the Lender hereunder from the Borrower. The entries maintained in
such accounts shall be prima facie evidence of the existence and amounts of the
Obligations therein recorded; provided, however, that the failure of the Lender
to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Obligations in accordance with their
terms.
2.11. Telephonic Notices. The Borrower hereby authorizes the Lender to
extend, convert or continue Loans, effect selections of Types of Loans and to
transfer funds based on telephonic notices made by any person or persons the
Lender in good faith believes to be acting on behalf of the Borrower. If the
Borrower's records differ in any material respect from the action taken by the
Lender, the records of the Lender shall govern absent manifest error.
2.12. Interest Payment Dates; Interest and Fee Basis. Interest accrued
on each Loan shall be payable on the last day of each month, commencing with the
first such date to occur after the date hereof, on any date on which the Loan is
prepaid due to acceleration or otherwise, and at maturity. Interest and
commitment fees shall be calculated for actual days elapsed on the basis of a
360-day year. Interest shall be payable for the day a Loan is made but not for
the day of any payment if payment is received prior to noon (local time) at the
place of payment. If any payment of principal of or interest on a Loan shall
become due on a day which is not a Business Day, such payment shall be made on
the next succeeding Business Day and, in the case of a principal payment, such
extension of time shall be included in computing interest in connection with
such payment.
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2.13. Security and Collateral. To secure the payment when due of the
Loans and the other Obligations to the Lender, the Borrower and the Guarantor
shall execute and deliver, or cause to be executed and delivered, to the Lender
the Guaranty and Collateral Documents granting the following:
(a) Security interests in all present and future accounts,
general intangibles, investment property, inventory, equipment, and all other
personal property of the Borrower.
(b) All other security and collateral described in the
Collateral Documents.
ARTICLE III -- CHANGE IN CIRCUMSTANCES
The Borrower agrees to pay to the Lender such amounts as will
compensate the Lender for any increase in the cost to the Lender of making or
maintaining any Loan hereunder or of maintaining the Commitment to make Loans
hereunder, by reason of a change in any reserve (except Reserve Requirements),
tax, capital guidelines, special deposit, or similar requirement with respect to
assets of, deposits with or for the account of, or credit extended by, or
commitments extended by, the Lender which are imposed on, or deemed applicable
by, the Lender, under any law, treaty, rule, regulation (including, without
limitation, Regulation D of the Board of Governors of the Federal Reserve
System), any interpretation thereof by any governmental, fiscal, monetary or
other authority charged with the administration thereof or having jurisdiction
over such Loan or the Lender, or any requirement imposed by any such authority,
whether or not having the force of law. Such additional amounts shall be payable
on demand. The Lender may suspend the availability of any Negotiated Rate Loan
if maintenance of such Loan at a suitable Lending Installation becomes illegal
or if funds matching such Loan are unavailable to the Lender or if the
Negotiated Rate fails to reflect the cost to the Lender of making or maintaining
such Loan.
ARTICLE IV -- CONDITIONS PRECEDENT
4.1. Initial Loan. The Lender shall not be required to make the
initial Loan hereunder unless the Borrower has furnished to the Lender such
opinions of counsel, certificates of incumbency, resolutions, by-laws and
articles of incorporation and such other closing documents as the Lender has
requested.
4.2. Each Loan. The Lender shall not be required to make any Loan
(other than a Loan that, after giving effect thereto and to the application of
the proceeds thereof, does not increase the aggregate amount of outstanding
Loans), unless on the applicable Borrowing Date: (i) there exists no Default or
Unmatured Default; (ii) the representations and warranties contained in Article
V are true and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall be true and correct on and as
of such earlier date; and (iii) all legal matters incident to the making of such
Loan shall be satisfactory to the Lender and its counsel. Each Borrowing Notice
with respect to each such Loan shall constitute a representation and warranty by
the Borrower that the conditions contained in Sections 4.2(i) and (ii) have been
satisfied. The Lender may require a duly completed compliance certificate as a
condition to making a Loan.
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ARTICLE V -- REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender that:
5.1. Corporate Existence and Standing. Each of the Borrower and its
Subsidiaries is a corporation, partnership (in the case of Subsidiaries only) or
limited liability company duly and properly incorporated or organized, as the
case may be, validly existing and (to the extent such concept applies to such
entity) in good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
5.2. Authorization and Validity. The Borrower has the power and
authority and legal right to execute and deliver the Loan Documents and to
perform its obligations thereunder. The execution and delivery by the Borrower
of the Loan Documents and the performance of its obligations thereunder have
been duly authorized by proper company proceedings, and the Loan Documents
constitute legal, valid and binding obligations of the Borrower enforceable
against the Borrower in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower of the Loan Documents, nor the consummation of the
transactions therein contemplated, nor compliance with the provisions thereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on the Borrower or any of its Subsidiaries or (ii) the
Borrower's or any Subsidiary's articles or certificate of incorporation,
partnership agreement, certificate of partnership, articles or certificate of
organization, by-laws, or operating or other management agreement, as the case
may be, or (iii) the provisions of any indenture, instrument or agreement to
which the Borrower or any of its Subsidiaries is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the Property of the Borrower or a Subsidiary pursuant to the terms of
any such indenture, instrument or agreement. No order, consent, adjudication,
approval, license, authorization, or validation of, or filing, recording or
registration with, or exemption by, or other action in respect of any
governmental or public body or authority, or any subdivision thereof, which has
not been obtained by the Borrower or any of its Subsidiaries, is required to be
obtained by the Borrower or any of its Subsidiaries in connection with the
execution and delivery of the Loan Documents, the borrowings under this
Agreement, the payment and performance by the Borrower of the Obligations or the
legality, validity, binding effect or enforceability of any of the Loan
Documents.
5.4. Financial Statements. The December 31, 2001 consolidated
financial statements of the Borrower and its Subsidiaries heretofore delivered
to the Lender were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition and operations of the Borrower and
its Subsidiaries at such date and the consolidated results of their operations
for the period then ended.
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5.5. Material Adverse Change. Since December 31, 2001, there has been
no change in the business, Property, prospects, condition (financial or
otherwise) or results of operations of the Borrower and its Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
5.6. Litigation and Contingent Obligations. Except as set forth on
Schedule 5.6 hereto, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any of its
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect. Other than any liability incident to any litigation, arbitration or
proceeding which (i) could not reasonably be expected to have a Material Adverse
Effect or (ii) is set forth on Schedule 5.6, the Borrower has no material
contingent obligations not provided for or disclosed in the financial statements
referred to in Section 5.4.
5.7. Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property. Neither the Borrower
nor any Subsidiary has received any notice to the effect that its operations are
not in material compliance with any of the requirements of applicable federal,
state and local environmental, health and safety statutes and regulations or the
subject of any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any toxic or hazardous waste or
substance into the environment, which non-compliance or remedial action could
reasonably be expected to have a Material Adverse Effect.
5.8. Regulations. Margin stock (as defined in Regulation U of the
Board of Governors of the Federal Reserve System) constitutes less than 25% of
the value of those assets of the Borrower and its Subsidiaries that are subject
to any limitation on sale, pledge, or other restriction hereunder. Neither the
Borrower nor any Subsidiary is (i) an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended or (ii) a "holding company" or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
ARTICLE VI -- COVENANTS
During the term of this Agreement, unless the Lender shall otherwise
consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lender:
(a) Within 90 days after the close of each of its fiscal years, an
unqualified audit report certified by independent certified public accountants,
acceptable to the Lender, prepared in accordance with generally accepted
accounting principles on a consolidated and consolidating
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basis (consolidating statements need not be certified by such accountants) for
itself and the Subsidiaries, including balance sheets as of the end of such
period, related profit and loss and reconciliation of surplus statements, and a
statement of cash flows, accompanied by (i) any management letter prepared by
said accountants, and (ii) a certificate of said accountants that, in the
course of their examination necessary for their certification of the foregoing,
they have obtained no knowledge of any Default or Unmatured Default, or if, in
the opinion of such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof.
(b) Within 45 days after the close of the first three quarterly periods
of each of its fiscal years, for itself and the Subsidiaries, consolidated and
consolidating unaudited balance sheets as at the close of each such period and
consolidated and consolidating profit and loss and reconciliation of surplus
statements and a statement of cash flows for the period from the beginning of
such fiscal year to the end of such quarter, all certified by its chief
financial officer.
(c) Together with the financial statements required hereunder, a
compliance certificate (in a form approved by the Lender) signed by its chief
financial officer showing the calculations necessary to determine compliance
with this Agreement and stating that no Default or Unmatured Default exists, or
if any Default or Unmatured Default exists, stating the nature and status
thereof.
(d) Promptly upon (i) the furnishing thereof to the shareholders of the
Borrower, copies of all financial statements, reports and proxy statements so
furnished and (ii) the filing thereof, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any of
its Subsidiaries files with the Securities and Exchange Commission.
(e) Such other information (including non-financial information) as the
Lender may from time to time reasonably request.
6.2. Affirmative Covenants. The Borrower will, and will cause each
Subsidiary to:
(a) use the proceeds of the Loans to make advances to a Trustee as
required pursuant to the Pool Documents. The Borrower will not, nor will it
permit any Subsidiary to, use any of the proceeds of the Loans to purchase or
carry any "margin stock" (as defined in Regulation U of the Board of Governors
of the Federal Reserve System) or to make any other acquisition.
(b) give prompt notice in writing to the Lender of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
(c) carry on and conduct its business in substantially the same manner
and in substantially the same fields of enterprise as it is presently conducted
and do all things necessary to remain duly incorporated or organized, validly
existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
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(d) timely file complete and correct United States federal and
applicable foreign, state and local tax returns required by law and pay when due
all taxes, assessments and governmental charges and levies upon it or its
income, profits or Property, except those which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been set aside.
(e) comply with all laws, rules, regulations, orders, writs, judgments,
injunctions, decrees or awards to which it may be subject.
(f) permit the Lender, by its respective representatives and agents, to
inspect any of the Property, books and financial records of the Borrower and
each Subsidiary, to examine and make copies of the books of accounts and other
financial records of the Borrower and each Subsidiary, and to discuss the
affairs, finances and accounts of the Borrower and each Subsidiary with, and to
be advised as to the same by, their respective officers at such reasonable times
and intervals as the Lender may designate.
6.3. Negative Covenants. The Borrower will not, nor will it permit
any Subsidiary to, without the prior written consent of the Lender:
(a) merge or consolidate with or into any other Person, except that a
Subsidiary may merge with the Borrower or a wholly-owned Subsidiary.
(b) create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except: (i) Liens for
taxes, assessments or governmental charges or levies on its Property if the same
shall not at the time be delinquent or thereafter can be paid without penalty,
or are being contested in good faith and by appropriate proceedings and for
which adequate reserves in accordance with generally accepted principles of
accounting shall have been set aside on its books; (ii) Liens imposed by law,
such as carriers', warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business that secure payment of obligations
not more than 60 days past due; (iii) Liens arising out of pledges or deposits
under worker's compensation laws, unemployment insurance, old age pensions, or
other social security or retirement benefits, or similar legislation; (iv)
Utility easements, building restrictions and such other encumbrances or charges
against real property as are of a nature generally existing with respect to
properties of a similar character and which do not in any material way affect
the marketability of the same or interfere with the use thereof in the business
of the Borrower or the Subsidiaries; and (v) Liens existing on the date hereof
and described in Schedule 6.3 hereto.
(c) acquire or retire any of its membership interests, or declare or
pay dividends or make any other distributions upon any of its membership
interests, except distributions payable to members in amounts sufficient to pay
the members' income tax obligations related to the Borrower's taxable income.
(d) incur, or permit to remain outstanding, debt for borrowed money,
installment obligations or similar obligations in excess of $500,000 in the
aggregate, except Subordinated Debt and debt reflected in the latest financial
statement of the Borrower furnished to the Lender prior to execution of this
agreement and not to be paid with proceeds of the Loans.
11
(e) guaranty or otherwise become or remain secondarily liable on the
undertaking of another, except for endorsement of drafts for deposit and
collection in the ordinary course of business.
6.4. Financial Covenants. The Borrower will maintain, on a
consolidated basis for itself and its Subsidiaries (calculated in accordance
with generally accepted accounting principles consistently applied), at all
times Tangible Capital Funds of at least $19,000,000.
ARTICLE VII -- DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on
behalf of the Borrower or any of its Subsidiaries to the Lender under or in
connection with this Agreement, any Loan, or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall be
materially false on the date as of which made.
7.2. Nonpayment of principal of any Loan when due, or nonpayment of
interest upon any Loan or of any commitment fee or other obligations under any
of the Loan Documents within five days after the same becomes due.
7.3. The breach by the Borrower of any of the terms or provisions of
Section 6.2(b), 6.3 or 6.4.
7.4. The breach by the Borrower (other than a breach which constitutes
a Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within fifteen days after
written notice from the Lender.
7.5. Failure of the Borrower or any of its Subsidiaries or any
Guarantor to pay any Indebtedness when due; or a default shall occur under any
agreement governing any Indebtedness of the Borrower or any Subsidiary or any
Guarantor or any other event shall occur or condition shall exist, the effect of
which default, event or condition is to cause, or to permit the holder or
holders of such Indebtedness to cause, such Indebtedness to become due prior to
its stated maturity; or any Indebtedness of the Borrower or any of its
Subsidiaries or any Guarantor shall be declared to be due and payable or
required to be prepaid or repurchased (other than by a regularly scheduled
payment) prior to the stated maturity thereof; or the Borrower or any of its
Subsidiaries or any Guarantor shall not pay, or admit in writing its inability
to pay, its debts generally as they become due.
7.6. The Borrower or any of its Subsidiaries or any Guarantor shall
(i) have an order for relief entered with respect to it under the
12
Federal bankruptcy laws as now or hereafter in effect, (ii) make an assignment
for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce
in, the appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any substantial portion of its Property, (iv)
institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set
forth in this Section 7.6 or (vi) fail to contest in good faith any appointment
or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of the Borrower or
any of its Subsidiaries, or Guarantor, a receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Borrower or any of its
Subsidiaries or any substantial portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the Borrower or any of
its Subsidiaries and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 30 consecutive days.
7.8. Any default or event of default shall occur under any of the
Collateral Documents.
7.9. The Borrower or any of its Subsidiaries shall fail within 30 days
to pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money in excess of $100,000 in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10. Without the prior written approval of the Lender, the acquisition
by any Person, or two or more Persons acting in concert, of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of 20% or more of the outstanding
membership interests of the Borrower, or SUI TRS, Inc., ▇▇▇▇▇▇▇▇▇ Family LLC,
and ▇▇▇▇▇▇▇▇ Holding LLC shall cease to own and control in the aggregate, at
least 70% of the outstanding membership interests of the Borrower on a fully
diluted basis.
7.11. The Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty, or the Guarantor shall fail to comply with any
of the terms or provisions of the Guaranty, or the Guarantor denies that it has
any further liability under the Guaranty or gives notice to such effect.
ARTICLE VIII -- ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6 or 7.7
occurs with respect to the Borrower, the obligation of the Lender to make Loans
hereunder shall automatically terminate and the Obligations shall immediately
become due and payable without any election or action on the part of the Lender.
If any other Default occurs, the Lender may terminate or suspend the obligations
to make Loans hereunder, or declare the Obligations to be due and payable, or
both, whereupon the Obligations shall become immediately due and payable,
without presentment, demand, protest or notice of any kind, all of which the
Borrower hereby expressly waives.
13
8.2. Amendments. Subject to the provisions of this Article VIII,
the Lender and the Borrower may enter into agreements supplemental hereto for
the purpose of amending the Loan Documents in any manner or waiving any Default
hereunder.
8.3. Preservation of Rights. No delay or omission of the Lender to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the inability of
the Borrower to satisfy the conditions precedent to such Loan shall not
constitute any waiver or acquiescence. Any single or partial exercise of any
such right shall not preclude other or further exercise thereof or the exercise
of any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lender, and then only to the extent in such writing
specifically set forth. All remedies contained in the Loan Documents or by law
afforded shall be cumulative and all shall be available to the Lender until the
Obligations have been paid in full.
ARTICLE IX -- GENERAL PROVISIONS
9.1. Entire Agreement; Severability of Provisions. The Loan Documents
embody the entire agreement and understanding between the Borrower and the
Lender and supersede all prior agreements and understandings between the
Borrower and the Lender relating to the subject matter thereof. Any provision in
any Loan Document that is held to be inoperative, unenforceable, or invalid in
any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable,
or invalid without affecting the remaining provisions in that jurisdiction or
the operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.2. Benefits of this Agreement. This Agreement shall not be construed
so as to confer any right or benefit upon any Person other than the parties to
this Agreement and their respective successors and assigns.
9.3. Expenses; Indemnification. The Borrower shall reimburse the
Lender for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC and any
other attorneys for the Lender), which attorneys may be employees of the Lender)
paid or incurred by the Lender in connection with the preparation, negotiation,
execution, delivery, syndication, review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees to reimburse the
Lender for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees and time charges of attorneys for the Lender, which
attorneys may be employees of the Lender) paid or incurred by the Lender in
connection with the collection and enforcement of the Loan Documents. The
Borrower further agrees to indemnify the Lender, its directors, officers and
employees against all losses, claims, damages, penalties, judgments, liabilities
and expenses (including, without limitation, all expenses of litigation or
preparation therefor whether or not the Lender is a party thereto) which any of
them may pay or incur arising out of or relating to this Agreement, the other
Loan Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Loan hereunder except
to the extent that they are determined in
14
a final non-appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section shall
survive the termination of this Agreement.
9.4. Survival of Representations; Taxes. All representations and
warranties of the Borrower contained in this Agreement shall survive delivery of
this Agreement and the making of the Loans herein contemplated. Any taxes
(excluding federal income taxes on the overall net income of the Lender) or
other similar assessments or charges made by any governmental or revenue
authority in respect of the Loan Documents shall be paid by the Borrower,
together with interest and penalties, if any.
9.5. Confidentiality. The Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its affiliates, (ii) to legal counsel,
accountants, and other professional advisors to the Lender or to a Transferee,
(iii) to regulatory officials, (iv) to any Person as requested pursuant to or as
required by law, regulation, or legal process, (v) to any Person in connection
with any legal proceeding to which the Lender is a party, (vi) to the Lender's
direct or indirect contractual counterparties in swap agreements or to legal
counsel, accountants and other professional advisors to such counterparties, and
(vii) as permitted by Section 11.4.
ARTICLE X -- SETOFF
In addition to, and without limitation of, any rights of the Lender
under applicable law, if the Borrower becomes insolvent, however evidenced, or
any Default occurs, any and all deposits (including all account balances,
whether provisional or final and whether or not collected or available) and any
other Indebtedness at any time held or owing by the Lender or any affiliate of
the Lender to or for the credit or account of the Borrower, other than the
custodial accounts listed on Schedule 10 hereto, may be offset and applied
toward the payment of the Obligations owing to the Lender, whether or not the
Obligations, or any part hereof, shall then be due.
ARTICLE XI -- ASSIGNMENTS; PARTICIPATIONS
11.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower and the
Lender and their respective successors and assigns, except that (i) the Borrower
shall not have the right to assign its rights or obligations under the Loan
Documents and (ii) any assignment by the Lender must be made in compliance with
Section 11.3. Notwithstanding clause (ii) of this Section, the Lender may at any
time, without the consent of the Borrower, assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank; provided, however, that
no such assignment to a Federal Reserve Bank shall release the transferor Lender
from its obligations hereunder. Any assignee or transferee of the rights to any
Loan agrees by acceptance thereof to be bound by all the terms and provisions of
the Loan Documents. Any request, authority or consent of any Person, who at the
time of making such request or giving such authority or consent is the owner of
the rights to any
15
Loan, shall be conclusive and binding on any subsequent holder, transferee or
assignee of the rights to such Loan.
11.2. Participations. The Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in any Loan
owing to it or the Commitment or any other interest of the Lender under the Loan
Documents. In the event of any such sale by the Lender of participating
interests to a Participant, the Lender's obligations under the Loan Documents
shall remain unchanged, the Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, the Lender shall remain
the owner of its Loans for all purposes under the Loan Documents, all amounts
payable by the Borrower under this Agreement shall be determined as if the
Lender had not sold such participating interests, and the Borrower and the
Lender shall continue to deal solely and directly with each other in connection
with the Lender's rights and obligations under the Loan Documents. The Borrower
agrees that each Participant shall be deemed to have the right of setoff
provided in Article X in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that the Lender shall retain the right of setoff provided in
Article X with respect to the amount of participating interests sold to each
Participant. The Lender agrees to share with each Participant, and each
Participant, by exercising the right of setoff provided in Article X, agrees to
share with the Lender, any amount received pursuant to the exercise of its right
of setoff, such amounts to be shared in accordance with Article X as if each
Participant were a Lender.
11.3. Assignments. The Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. The Borrower hereby agrees to execute any
amendment and/or any other document that may be necessary to effectuate such an
assignment. Such assignment shall be evidenced by the Lender's standard form (to
be supplied upon request). The consent of the Borrower shall be required prior
to an assignment becoming effective with respect to a Purchaser that is not an
affiliate of the Lender; provided, however, that if a Default has occurred and
is continuing, the consent of the Borrower shall not be required. Such consent
shall not be unreasonably withheld. Upon delivering to the Borrower a notice of
assignment, together with any required consent, such assignment shall become
effective on the effective date specified in such notice of assignment. On and
after the effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to the other Loan Documents and shall have all the
rights and obligations of a Lender under the Loan Documents, to the same extent
as if it were an original party hereto, and no further consent or action by the
Borrower shall be required to release the Lender with respect to the percentage
of the Commitment and Loans assigned to such Purchaser.
11.4. Dissemination of Information; Tax Treatment. The Borrower
authorizes the Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in the
Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries. If any interest in any Loan Document is transferred to any
Transferee which is organized under the laws of any jurisdiction other than the
United States or any State thereof, the
16
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to deliver to the Lender such completed forms
with respect to withholding taxes as the Borrower may reasonably require.
ARTICLE XII -- NOTICES
All notices, requests and other communications to any party hereunder
shall be in writing (including bank wire, facsimile transmission or similar
writing) and shall be given to such party: (x) in the case of the Borrower or
the Lender, at its address or facsimile number set forth on the signature pages
hereof, or (y) in the case of any party, such other address or facsimile number
as such party may hereafter specify for the purpose by notice to the other. Each
such notice, request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section; provided that notices
to the Lender under Article II shall not be effective until received.
ARTICLE XIII -- COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower and the
Lender.
17
ARTICLE XIV -- GOVERNING LAW; JURISDICTION; JURY TRIAL WAIVER
14.1. CHOICE OF LAW; CONSENT TO JURISDICTION. THE LOAN DOCUMENTS (OTHER
THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF
THE STATE OF MICHIGAN, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION
OF ANY UNITED STATES FEDERAL OR MICHIGAN STATE COURT SITTING IN DETROIT IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE
BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE LENDER TO BRING
PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE LENDER OR ANY AFFILIATE THEREOF
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
DETROIT, MICHIGAN.
14.2. WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the Borrower and the Lender have executed this
Agreement as of the date first above written.
ORIGEN FINANCIAL L.L.C.
By: /s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
Print Name: ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr.
Title: Chief Financial Officer
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: ( ) ____ - ______
Fax: ( ) ____ - ______
Attention:______________________
Commitment
$8,000,000 BANK ONE, NA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: First Vice President
▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: ( ) ____ - ______
Fax: ( ) ____ - ______
Attention:______________________
19
SCHEDULE 1.1
APPROVED POOLS
Origen Manufactured Housing Contract Senior/Subordinate Asset-backed
Certificates, Series 2001-A
Origen Manufactured Housing Contract Senior/Subordinate Asset-backed
Certificates, Series 2002-A
Merit Securities Corporation Merit Series 11
Merit Securities Corporation Merit Series 12-1
Merit Securities Corporation Merit Series 13
SCHEDULE 5.6
LITIGATION
NONE
SCHEDULE 6.3
LIENS