Exhibit 10.51
AMENDED AND RESTATED SUBORDINATED LOAN AGREEMENT
THIS AMENDED AND RESTATED SUBORDINATED LOAN AGREEMENT (as amended from
time to time, the "Agreement") is made and entered into as of this 1st day of
February, 2002 by and among ORIGEN FINANCIAL, INC., a Virginia corporation
("Origen Inc."), whose address is 260 East Brown Street, Suite 200, Birmingham,
Michigan 48009, ORIGEN FINANCIAL, L.L.C., a Delaware limited liability company
("Origen LLC" and together with Origen Inc., the "Borrowers"), whose address is
260 East Brown Street, Suite 200, Birmingham, Michigan 48009, and SUN
COMMUNITIES OPERATING LIMITED PARTNERSHIP, a Michigan limited partnership
("Lender"), whose address is 31700 Middlebelt Road, Suite 145, Farmington Hills,
Michigan 48334.
RECITAL:
A. Lender previously extended a $4,000,000 term loan (the "$4 Million
Loan"), a $50,000,000 subordinated demand line of credit (the "$50 Million Line
of Credit"), and a $10,000,000 subordinated demand line of credit (the "$10
Million Line of Credit," and together with the $4 Million Loan and the $50
Million Line of Credit, the "Existing Sun Loans") to Bingham Financial Services
Corporation ("Bingham").
B. Under an Assignment and Assumption Agreement dated December 18, 2001,
Origen Inc. assumed Bingham's debts to Lender under the Existing Sun Loans.
C. Effective December 18, 2001, Origen Inc. fully repaid the $4 Million
Loan and the note evidencing such loan was cancelled, the note evidencing the
$10 Million Line of Credit was cancelled, and Origen Inc. partially repaid the
$50 Million Line of Credit.
D. Pursuant to a Subordinated Loan Agreement dated December 18, 2001, as
amended by the First Amendment to Subordinated Loan Agreement dated January 1,
2002 (collectively, the "Original Loan Agreement"), Origen Inc. and Lender
amended and restated the $50 Million Line of Credit (as amended and restated,
the "Loan") to reflect the substitution of Origen Inc. as borrower, to reflect
the partial payment of the Loan and to amend the terms of the Loan, in
accordance with the terms and conditions set forth in the Original Loan
Agreement.
E. Lender and Borrowers desire to amend and restate the Original Loan
Agreement in its entirety in accordance with the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. LOAN. The $50 Million Line of Credit is hereby amended and restated to
provide the following terms:
Type of Loan: Line of Credit
Interest Rate: 700 basis points over LIBOR, but not less than eleven
percent (11%) per annum, or in excess of fifteen percent
(15%) per annum
Note Amount: $17,500,000
Maturity: December 18, 2002
Fees: $150,000
The Loan and any amendments, extensions, renewals, or refinancing thereof are
subject to this Agreement. Notwithstanding the foregoing, the Note Amount of the
Loan as set forth above shall
be reduced to $12,500,000 upon the earlier of (i) June 30, 2002, and (ii) the
closing date of Borrowers' next securitization of manufactured home loans.
2. LINE OF CREDIT LOAN. Provided the Existing Sun Loans are paid in full
prior to or contemporaneous with the execution of this Agreement, and that no
Event of Default exists and no Event of Default will be caused by any draw under
the Loan, Lender agrees to loan to Borrowers, from time to time up to the Note
Amount (as described above), in increments determined at Lender's discretion and
in accordance with the terms of the Second Amended and Restated Promissory Note
dated February 1, 2002 made by Borrowers in connection with the Loan and
attached to this Agreement as EXHIBIT A. The Second Amended Note shall replace
the First Amended Promissory Note dated January 1, 2002 executed by Origen Inc.
in connection with the Original Loan Agreement. Notwithstanding anything to the
contrary herein, Lender's obligation to make any advance to Borrower under the
Loan shall automatically: (a) cease and terminate upon the maturity date stated
in the Second Amended Note; and (b) suspend upon any earlier occurrence of an
Event of Default unless and until waived by Lender in writing.
3. BORROWER'S REPRESENTATIONS AND WARRANTIES. Each Borrower, jointly and
severally, represents and warrants to Lender, all of which representations and
warranties shall be continuing until the Loan is fully paid and Borrowers'
obligations under this Agreement and the Related Documents are fully performed,
as follows:
A. Borrowers' Existence and Authority. Origen Inc. is a Virginia
corporation, Origen LLC is a Delaware limited liability company, and the
person executing this Agreement on behalf of each Borrower has full power
and complete authority to execute this Agreement and all Related Documents
on behalf of such Borrower, and this Agreement and the Related Documents
are valid, binding and enforceable against each Borrower.
B. Financial Information. All financial information provided to
Lender has been prepared and will continue to be prepared in accordance
with generally accepted accounting principles ("GAAP"), consistently
applied, and fully and fairly presents the financial condition of
Borrowers as of the date or for the operating period thereof. There has
been no material adverse change in either Borrower's business, property,
or financial condition since the date of Borrowers' latest Financial
Statements provided to Lender.
C. No Litigation/No Misrepresentations. There are no civil or
criminal proceedings pending before any court, government agency,
arbitration panel, or administrative tribunal or, to Borrowers' knowledge,
threatened against Borrowers, which may result in any material adverse
change in the business, property, or financial condition of either
Borrower. All representations and warranties in this Agreement and the
Related Documents are true and correct and no material fact has been
omitted.
4. AFFIRMATIVE COVENANTS. As of the date of this Agreement and continuing
until all of Borrowers' obligations under this Agreement and the Related
Documents are fully performed and the Loan is fully repaid to Lender, Borrowers
shall at all times comply with the following covenants:
A. Notice of Adverse Events. Borrowers shall promptly notify Lender
in writing of any litigation, indictment, governmental proceeding,
default, or any other occurrence which may have a material adverse effect
on either Borrower's business, property or financial condition.
B. Maintain Business Existence and Operations. Each Borrower shall
do all things necessary to keep in full force and effect its corporate
existence and continue its business as presently conducted.
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C. General Compliance with Law. Each Borrower shall at all times
operate its business in strict compliance with all applicable Federal,
State, and local laws, ordinances and regulations, and refrain from
engaging in any civil or criminal activity proscribed by Federal, State or
local law.
D. Delivery of Financial Statements. Within forty-five (45) days
after the end of each fiscal quarter, each Borrower shall deliver to
Lender copies of its unaudited financial statements prepared in accordance
with GAAP, consistently applied. Within ninety (90) days after the end of
each fiscal year, each Borrower shall deliver to Lender copies of its
audited financial statements prepared in accordance with GAAP,
consistently applied.
5. EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an Event of Default under this Agreement:
A. Failure to Pay Amounts Due. Any amount of principal or interest
under the Second Amended Note is not paid when due.
B. Misrepresentations; False Financial Information. Any statement,
warranty or representation of Borrowers in connection with or contained in
this Agreement, the Related Documents, or any Financial Statements now or
hereafter furnished to Lender by or on behalf of Borrowers, is false or
misleading.
C. Noncompliance with Loan Agreements. Either Borrower breaches any
covenant, term, condition or agreement stated in this Agreement, the
Related Documents or any agreement relating to Senior Debt (as defined
below).
D. Cessation/Termination of Existence. Either Borrower shall cease
doing business or Borrower's existence is terminated by sale, dissolution,
merger or otherwise.
E. Bankruptcy or Receivership. Any conveyance is made of
substantially all of either Borrower's assets, any assignment is made for
the benefit of creditors, any receiver is appointed, or any insolvency,
liquidation or reorganization proceeding under the Bankruptcy Code or
otherwise shall be filed by or against either Borrower.
F. Attachments; Tax Liens. Any attachment, execution, levy,
forfeiture, tax lien or similar writ or process is issued against any
property of either Borrower.
G. Material Adverse Change. Any material adverse change occurs or is
imminent the effect of which would be to substantially diminish either
Borrower's financial condition, business, or the ability to perform its
agreements with Lender.
H. Other Lender Default. Any other indebtedness to Lender or any
other creditor (including, without limitation, Financial Institutions (as
defined below)) becomes due and remains unpaid after acceleration of the
maturity or after the stated maturity.
I. Other Indebtedness. Either Borrower incurs any indebtedness
(other than Senior Debt) after the date of this Agreement.
J. Change of Control Event. Absent Lender's prior written consent,
any Change of Control Event with respect to either Borrower occurring
after the Borrowers first draws on the Loan.
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6. REMEDIES ON DEFAULT.
A. Acceleration Set-Off. Upon the occurrence of any Event of
Default, Lender may, at Lender's option, declare the Loan to be
immediately due and payable. The foregoing shall not in any way impair
Lender's right to demand repayment under the terms of the Second Amended
Note.
B. Remedies; No Waiver. The remedies provided in this Agreement are
cumulative and not exclusive, and Lender may exercise any remedies
available to it at law, in equity, and as are provided in this Agreement,
the Related Documents and any other written agreement between Borrower and
Lender. No delay or failure of Lender in exercising any right, remedy,
power, or privilege under this Agreement or the Related Documents shall
affect that right, remedy, power or privilege, nor shall any single or
partial exercise preclude the exercise of any other right, remedy, power
or privilege. No delay or failure of Lender to demand strict adherence to
the terms of this Agreement or the Related Documents shall be deemed to
constitute a course of conduct inconsistent with Lender's right at any
time, before or after any Event of Default, to prospectively demand strict
adherence to the terms of this Agreement and the Related Documents.
7. SUBORDINATION.
A. The indebtedness evidenced by the Second Amended Note and any
renewals or extensions thereof (such indebtedness being herein called the
"Subordinated Indebtedness") shall at all times be wholly subordinate and
junior in right to payment in full of all Senior Debt (as defined below).
The provisions of this section on subordination shall constitute a
continuing offer to all persons who, in reliance upon such provisions,
become holders of, or continue to hold, Senior Debt, and such provisions
are made for the benefit of the holders of Senior Debt, and such holders
are hereby made obligees hereunder the same as if their names were written
herein as such, and they and/or each of them may proceed to enforce such
provisions. Unless and until an event of default under any of the Senior
Debt (other than an event of default which exists solely by reason of a
default under this Agreement) shall have occurred and be continuing
("Superior Default"), Borrowers shall pay the principal and interest on
all Subordinated Indebtedness according to the terms hereof.
For purposes of this Agreement, "Senior Debt" means the principal
of, and interest on and other amounts due on or in connection with any
Indebtedness of Borrowers (other than the Second Amended Note) to any
Financial Institution (as defined below), whether outstanding on the date
of this Agreement, or thereafter created, incurred or assumed by Borrowers
(including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, Indebtedness of the kind
described in this clause). Notwithstanding anything herein to the
contrary, Senior Debt shall not include: (a) Indebtedness of or amounts
owed by Borrowers for compensation to employees, or for goods or materials
purchased in the ordinary course of business or for services, or (b)
Indebtedness either Borrower to its subsidiary or affiliate. In no event
shall any Financial Institution be deemed to be an affiliate of Borrowers.
Indebtedness of either Borrower to its subsidiary or affiliate shall be
pari passu in all respects with the Subordinated Indebtedness.
For purposes of this Agreement, "Financial Institution" means any
bank as defined in section 3(a)(2) of the Securities Act of 1933, as
amended (the "Securities Act"), savings and loan association or other
institution as defined in section 3(a)(5)(A) of the Securities Act,
insurance company as defined in section 2(13) of the Securities Act, or
investment banking firm.
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For purposes of this Agreement, "Indebtedness" means, with respect
to any person, (a) any liability, contingent or otherwise, of such person
(i) for borrowed money (whether or not the recourse of the lender is to
the whole of the assets of such person or only to a portion thereof), (ii)
evidenced by a note, debenture or similar instrument or representing the
balance deferred and unpaid of the purchase price of any property
purchased, or (iii) for the payment of money relating to a lease that is
required to be capitalized under generally accepted accounting principles;
(b) any obligation secured by a lien to which the property or assets of
such person are subject, whether or not the obligations secured thereby
shall have been assumed by or shall otherwise be such person's legal
liability; and (c) any and all deferrals, renewals, extensions and
refundings of, or amendments, modifications or supplements to, any
liability of the kind described in any of the preceding clauses (a) or
(b).
B. The terms hereof, the subordination effected hereby and the
rights of the holders of the Senior Debt shall not be affected by (a) any
amendment of or addition or supplement to any Senior Debt or any
instrument or agreement relating thereto, (b) any exercise or non-exercise
of any right, power or remedy under or in respect of any Senior Debt or
any instrument or agreement relating thereto, or (c) any waiver, consent,
release, indulgence, extension, renewal, modification, delay or other
action, inaction or omission, in respect of any Senior Debt or any
instrument or agreement relating thereto or any security therefor or
guaranty thereof, whether or not any holder of any Subordinated
Indebtedness shall have had notice or knowledge of any of the foregoing.
C. Upon the happening of (a) a Superior Default which is a default
in respect of payment of principal, premium, if any, or interest on Senior
Debt or (b) a Superior Default (other than a Superior Default in respect
of payment of principal, premium, if any, or interest on Senior Debt) and
receipt by Lender of written notice thereof from any holder of Senior
Debt, then until all Senior Debt shall have been paid in full, Borrowers
shall not, directly or indirectly, make or agree to make, and neither
Lender nor any assignee or successor holder of any Subordinated
Indebtedness shall demand, accept or receive (a) any payment (in cash,
property or securities, by set-off or otherwise), direct or indirect, of
or on account of any principal or interest in respect of any Subordinated
Indebtedness, and no such payment shall be accepted by any holder of any
Subordinated Indebtedness, or (b) any payment for the purpose of any
redemption, purchase or other acquisition, direct or indirect, of any
Subordinated Indebtedness, and no such payment shall be due.
In the case of any Superior Default (other than a Superior Default
with respect to payment of principal, premium, if any, or interest on
Senior Debt), the foregoing restrictions shall cease to apply to any
payment received with respect to the Subordinated Indebtedness after the
expiration of 180 days after the holder of the Second Amended Note shall
have received notice of the Superior Default, unless prior to the
expiration of such 180-day period one or more holders of the Senior Debt
shall have commenced and be diligently prosecuting an action, suit or
other legal or equitable proceeding against Borrower or its property based
upon the Superior Default or unless a Superior Default which is a payment
default shall have occurred and be continuing; provided, further, that
during such 180-day period following the Superior Default (other than a
Superior Default with respect to payment of principal, premium, if any, or
interest on Senior Debt) the holders of the Subordinated Indebtedness
shall refrain from prosecuting any such action, suit or other legal or
equitable proceeding against either Borrower or its property based upon an
Event of Default hereunder.
In the event that a Superior Default (other than a Superior Default
with respect to payment of principal, premium or interest on Senior Debt)
is cured or is waived by the appropriate holders of the Senior Debt
(whether by amendment to the applicable loan
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agreement, forbearance agreement or otherwise) prior to the expiration of
the aforesaid 180-day period applicable to such Superior Default, then any
Event of Default occurring under this Agreement solely by reason of the
occurrence of such Superior Default shall be deemed not to have occurred.
Any judicial proceedings initiated by a holder of Subordinated
Indebtedness at a time when such holder has no knowledge that such
proceedings are prohibited by this paragraph shall not be deemed a
violation of any provisions of this Agreement and, upon receipt of notice
from the holder of the Senior Debt that such proceedings are so
prohibited, such holder of the Subordinated Indebtedness shall terminate
such proceedings, without prejudice.
D. Upon any distribution (whether of cash, securities or other
property) to creditors of either Borrower in a liquidation or dissolution
of such Borrower, or in a bankruptcy, reorganization, insolvency,
receivership, assignment for the benefit of creditors, marshalling of
assets or similar proceeding relating to such Borrower or its property:
(1) holders of Senior Debt shall be entitled to receive
payment in full in cash of such Senior Debt (including interest accruing
after the commencement of any such proceeding or interest that would have
accrued but for the commencement of such proceeding to the date of payment
on, and other amounts included in, Senior Debt) before the holder of the
Second Amended Note shall be entitled to receive any payment of principal
of, premium (if any) or interest on the Second Amended Note or any other
distributions with respect to the Second Amended Note;
(2) until the Senior Debt is paid in full in cash as provided
in clause (1) of this paragraph, any distribution to which the holder of
the Second Amended Note would be entitled but for this section on
subordination shall be made to the holders of Senior Debt as their
interests may appear.
In the event that any payment or distribution of assets of either
Borrower prohibited by the provisions of this section on subordination of
any kind or character, whether in cash, property or securities, shall be
received by the holder of the Second Amended Note before all Senior Debt
is paid in full, or provision made for such payment in accordance with the
terms of the Senior Debt, such payment or distribution shall be held in
trust for the benefit of, and shall be paid over or delivered to, the
holders of such Senior Debt or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any of such Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of
all Senior Debt remaining unpaid to the extent necessary to pay such
Senior Debt in full in accordance with its terms, after giving effect to
any concurrent payment or distribution to the holders of such Senior Debt.
E. In the event that the Second Amended Note is declared due and
payable before its stated maturity because of the occurrence of an Event
of Default hereunder, the holders of the Senior Debt shall be entitled to
receive payment in full of all amounts due with respect to all Senior Debt
before the holder of the Second Amended Note is entitled to receive any
payment on account of the principal of, premium (if any) or interest on,
or any repurchase, redemption or other retirement (including, without
limitation, any defeasance) of, the Second Amended Note.
F. Subject to the payment in full of all Senior Debt, the holders of
Subordinated Indebtedness shall be subrogated to the rights of the holders
of Senior Debt to receive payments or distributions of assets of Borrowers
applicable to the Senior Debt until all amounts owing on the Subordinated
Indebtedness shall be paid in full, and for the purpose of such
subrogation no such payments or distributions to the holders of
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Senior Debt by or on behalf of Borrowers by virtue of this Agreement which
otherwise would have been made to the holder of the Second Amended Note,
shall, as between Borrowers and the holder of the Second Amended Note, be
deemed to be payment by Borrowers to or on account of the Senior Debt, it
being understood that the provisions of this paragraph are intended solely
for the purpose of defining the relative rights of the holders of
Subordinated Indebtedness on the one hand and the holders of Senior Debt,
on the other hand.
Nothing contained herein is intended to or shall impair, as between
Borrowers and Lender, the obligation of Borrowers, which is absolute and
unconditional, to pay to Lender, the principal of and interest on the
Subordinated Indebtedness as and when the same shall become due and
payable in accordance with its terms, or is intended to or shall affect
(except to the extent specifically provided in the above paragraph) the
relative rights of the holders hereof and creditors of Borrowers other
than the holders of the Senior Debt, nor shall anything herein or therein
prevent any holder of the Second Amended Note from exercising all remedies
otherwise permitted by applicable law upon default hereunder subject to
the rights, if any, hereunder of the holders of Senior Debt in respect of
cash, property or securities of Borrower received upon the exercise of any
such remedy.
8. COLLATERAL SECURITY.
To secure the payment of all amounts due to Lender by Borrowers in
connection with the Loan and pursuant to terms of this Agreement and the Second
Amended Note, Borrowers have granted Lender a security interest in those assets
described under the following documents: (i) the Security Agreement dated
February 1, 2002 between Origen LLC and Lender, as amended from time to time,
(ii) Amended and Restated Security Agreement dated February 1, 2002 between
Origen Inc. and Lender, as amended from time to time, (iii) the Amended and
Restated Stock Pledge Agreement dated February 1, 2002 between Origen Inc. and
Lender, as amended from time to time, (iv) the Limited Liability Company
Interest Security and Pledge Agreement dated February 1, 2002 between Origen LLC
and Lender, as amended from time to time, and (v) the Amended and Restated
Limited Liability Company Interest Security and Pledge Agreement dated February
1, 2002 between Origen Inc. and Lender, as amended from time to time.
9. MISCELLANEOUS.
A. Compliance with Lender Agreements. Each Borrower acknowledges
that it has read and understands this Agreement, the Related Documents,
and all other written agreements between Borrowers and Lender, and each
Borrower agrees to fully comply with all of the agreements.
B. Further Action. Each Borrower agrees, from time to time, upon
Lender's request to make, execute, acknowledge, and deliver to Lender,
such further and additional instruments, documents, and agreements, and to
take such further action as may be required to carry out the intent and
purpose of this Agreement and prompt repayment of the Loan.
C. Governing Law/Partial Illegality. This Agreement and the Related
Documents shall be interpreted and the rights of the parties determined
under the laws of the State of Michigan. Should any part, term, or
provision of this Agreement be adjudged illegal or in conflict with any
law of the United States of America or State of Michigan, the validity of
the remaining portion or provisions of the Agreement shall not be
affected.
D. Writings Constitute Entire Agreement; Modifications Only in
Writing. This Agreement together with all other written agreements between
Borrowers and
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Lender, including, without limitation, the Related Documents, constitute
the entire agreement of the parties and there are no other agreements,
express or implied. None of the parties shall be bound by anything not
expressed in writing, and neither this Agreement nor the Related Documents
can be modified except by a writing executed by Borrowers and by Lender.
This Agreement shall inure to the benefit of and shall be binding upon all
of the parties to this Agreement and their respective successors and
assigns; provided however, that neither Borrower may assign or transfer
its rights or obligations under this Agreement without Lender's prior
written consent.
E. Headings. All section and paragraph headings in this Agreement
are included for reference only and do not constitute a part of this
Agreement.
F. Term of Agreement. This Agreement shall continue in full force
and effect until all of Borrowers' obligations to Lender are fully
satisfied and the Loan is fully repaid.
G. Counterparts; Reproductions. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of
which together shall constitute one instrument. Facsimile copies of
signatures to this Agreement shall be deemed to be originals, and the
parties may rely upon such facsimile copies to the same extent as the
originals.
10. DEFINITIONS. The following words shall have the following
meanings in this Agreement:
A. "Change of Control Event" shall mean, with respect to each
Borrower, (a) an event or series of events by which any person, entity or
group (as such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of persons or other
entities acting in concert as a partnership or other group (a "Group of
Persons") (other than persons who are, or Groups of Persons entirely made
up of, (i) management personnel of such Borrower or (ii) any affiliates of
any such management personnel) shall, as a result of a tender or exchange
offer or offers, an open market purchase or purchases, a privately
negotiated purchase or purchases or otherwise, become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act, except that a
person or entity shall be deemed to have "beneficial ownership" of all
securities that such person or entity has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 20% or more of the combined voting power of the
then outstanding voting stock of such Borrower; or (b) such Borrower
consolidates with, or merges with or into, another person or entity, or
sells, assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any person or entity, or any person or
entity consolidates with, or merges with or into such Borrower, in any
such event pursuant to a transaction in which the outstanding voting stock
of Borrower is converted into or exchanged for cash, securities or other
property.
B. "Event of Default" shall mean any of the events described
in Section 5 of this Agreement or in the Related Documents.
C. "Financial Statements" shall mean all balance sheets, income
statements, and other financial information which have been, are now, or
in the future are furnished to Lender.
D. "Second Amended Note" shall mean that certain line of credit
promissory note from Borrowers to Lender, in the form attached hereto as
EXHIBIT A, as amended from time to time.
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E. "Related Documents" shall mean any and all documents, promissory
notes, and agreements executed in connection with this Agreement. This
term shall include documents existing before, at the time of execution of,
and documents executed concurrent with or after the date of, this
Agreement.
[signatures on following page]
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Subordinated Loan Agreement as of the date first written above.
BORROWERS:
ORIGEN FINANCIAL, L.L.C., a Delaware
limited liability company
By: /s/ Ronald Klein
---------------------------------------
Its: CEO
--------------------------------------
ORIGEN FINANCIAL, INC., a Virginia
corporation
By: /s/ Ronald Klein
---------------------------------------
Its: CEO
--------------------------------------
LENDER:
SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP, a Michigan limited
partnership
By: Sun Communities, Inc., a Maryland
corporation
Its: General Partner
By: /s/ Gary A. Shiffman
---------------------------------
Its: President
--------------------------------
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Exhibit 10.51
FIRST AMENDMENT TO AMENDED AND RESTATED
SUBORDINATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED SUBORDINATED LOAN AGREEMENT
(the "Amendment") is made and entered into as of March 22, 2002 by and among
ORIGEN FINANCIAL, INC., a Virginia corporation ("Origen Inc."), whose address is
260 East Brown Street, Suite 200, Birmingham, Michigan 48009, ORIGEN FINANCIAL
L.L.C., a Delaware limited liability company ("Origen LLC" and together with
Origen Inc., the "Borrowers"), whose address is 260 East Brown Street, Suite
200, Birmingham, Michigan 48009, and SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP, a Michigan limited partnership ("Lender"), whose address is 31700
Middlebelt Road, Suite 145, Farmington Hills, Michigan 48334.
RECITALS:
A. Borrowers and Lender have entered into that certain Amended and
Restated Subordinated Loan Agreement dated February 1, 2002 (the "Loan
Agreement"). All capitalized terms not defined in this Amendment shall have the
meanings given to them in the Loan Agreement.
B. Borrowers and Lender desire to amend the Loan Agreement in
accordance with the terms and conditions of this Amendment.
NOW, THEREFORE, the parties agree as follows:
1. Section 1 of the Loan Agreement is hereby deleted in its entirety
and replaced with the following Section 1:
"LOAN. The Line of Credit provided hereunder shall have the
following terms:
Type of Loan: Line of Credit
Interest Rate: 700 basis points over LIBOR, but not less than
eleven percent (11%) per annum, or in excess of
fifteen percent (15%) per annum
Note Amount: $21,250,000
Maturity: December 18, 2002
Fees: $28,125.00
The Loan and any amendments, extensions, renewals, or refinancing thereof
are subject to this Agreement."
2. Upon the execution of this Amendment, Borrowers shall execute and
deliver to Lender a Third Amended and Restated Promissory Note dated March 22,
2002, in the form attached to this Amendment as EXHIBIT A (the "Third Amended
Note"). The Third Amended Note shall replace the Second Amended and Restated
Promissory Note dated February 1, 2002 executed by Borrowers in connection with
the Loan Agreement. All references in the Loan Agreement to the "Second Amended
Note" are hereby amended to be the "Third Amended Note."
3. Upon the execution of this Amendment, Borrowers shall pay Lender
an origination fee of $28,125.00.
4. Unless otherwise modified by this Amendment, all provisions of the Loan
Agreement shall remain in full force and effect.
5. This Amendment may be executed in any number of counterparts, each of
which shall be an original and all of which together shall constitute one and
the same agreement. Facsimile or photographic reproductions of this Amendment
may be made and relied upon to the same extent as though such fax or copy were
an original.
IN WITNESS WHEREOF, the parties have executed this First Amendment to
Amended and Restated Subordinated Loan Agreement as of the date first written
above.
BORROWERS:
ORIGEN FINANCIAL, INC., a Virginia
corporation
By: /s/ Ronald Klein
---------------------------------
Its: CEO
--------------------------------
ORIGEN FINANCIAL L.L.C., a Delaware
limited liability company
By: /s/ Ronald Klein
---------------------------------
Its: CEO
--------------------------------
LENDER:
SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP, a Michigan limited
partnership
By: Sun Communities, Inc., a Maryland
corporation
Its: General Partner
By: /s/ Gary A. Shiffman
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Its: President
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