Exhibit 10.3
RESIDENTIAL FUNDING
CORPORATION
INTERCREDITOR AGREEMENT
(MANUFACTURED HOUSING)
September 3, 2004
To:
Residential Funding Corporation
(“Lender”)
8400 Normandale Lake Boulevard, Suite 250
Minneapolis, Minnesota 55437
The undersigned
(“Creditor”), creditor of HomeOne Credit Corp.
(“Borrower”), desires that Lender extend or continue to
extend such financial accommodations to Borrower as Borrower may
require and as Lender may deem proper. For the purpose of
inducing Lender to grant, continue or renew such financial
accommodations, and in consideration thereof, Creditor agrees as
follows:
1)
That as of the closing date Borrower
is indebted to Creditor in the principal amount of approximately
$22,395,500.00 and Borrower may hereafter be indebted to Creditor
in a lesser or greater amount.
2)
That all claims of Creditor against
Borrower now or hereafter existing are and shall be at all times
subject to the terms of this Agreement for as long as any present
and future claims which Lender may have against Borrower (and all
extensions, renewals, modifications, replacements and substitutions
of or for the same), shall exist.
a)
That Creditor shall not (a) except
to the extent expressly permitted in Section 4 hereof, receive
payment of or collect, in whole or in part, or sue upon, any claim
or claims now or hereafter existing which Creditor may hold against
Borrower; (b) sell, assign, transfer, pledge, hypothecate or
encumber such claim or claims except subject expressly to this
Agreement; (c) enforce any lien Creditor may now or in the future
have on any debt owing by Borrower to Creditor; and/or (d) join in
any petition in bankruptcy, assignment for the benefit of creditors
or creditor’s agreement, except as directed by Lender, so
long as any claim of Lender against Borrower, or commitment of
Lender to extend credit to Borrower is in existence.
b)
So long as no event described in
clauses (a) through (d) of Section 6 below (a
“Liquidation Event”) shall have occurred and be
continuing and no default shall have occurred and be continuing in
payment or performance of any obligation of Borrower to Lender and
so long as no default under any agreement between Lender and
Borrower would be created by such payments, payments of interest
and principal on the claims of Creditor may be made. After
the occurrence and during the continuation of a Liquidation Event
or of default in payment or performance of any obligation of
Borrower to Lender, no interest and no principal payments on the
claims of Creditor shall be made without the prior written consent
of Lender.
c)
In the event that any Creditor
receives a payment from Borrower in violation of the terms of this
Agreement, such Creditor (a) shall hold such money in trust for the
benefit of Lender, (b) shall segregate such payment from (and shall
not commingle such payment with any of) the other funds of such
Creditor, and (c) shall forthwith remit such payment to Lender in
the exact form received (but with any necessary
endorsement).
d)
In case of (a) any assignment by
Borrower for the benefit of creditors, (b) any bankruptcy
proceedings instituted by or against Borrower, (c) the appointment
of any receiver for Borrower’s business or assets, or (d) any
dissolution or winding up of the affairs of Borrower, Borrower and
any assignee, trustee in bankruptcy, receiver, or other person or
persons in charge, are hereby directed to pay to
1
Lender the full amount of Lender’s claim
against Borrower before making any payment of principal or interest
to Creditor. If Creditor does not file a proper claim or
proof of debt in the form required in such proceeding prior to
thirty (30) days before the expiration of the time to file such
claim in such proceedings, then Lender has the right (but no
obligation) to do so and is hereby authorized to file an
appropriate claim or claims for and on behalf of
Creditor.
e)
Creditor represents and warrants
that does not have a lien or security interest in, and has not
accepted an assignment of, any Collateral, and it will not take a
lien or security interest in, or accept an assignment of, any
Collateral so long as this Agreement remains in effect.
“Collateral” has the meaning set out in that certain
Warehousing Credit and Security Agreement (Manufactured Housing)
(the “Credit Agreement”) between Borrower and Lender,
as amended from time to time, dated on or about the same date as
this Agreement.
f)
For violation of this Agreement,
Creditor shall be liable to Lender f
