Exhibit 10.52
THIRD AMENDED AND RESTATED PROMISSORY NOTE
DUE DATE: DECEMBER 18, 2002 DETROIT, MICHIGAN
DATED: AS OF MARCH 22, 2002
FOR VALUE RECEIVED, EACH OF ORIGEN FINANCIAL, INC., a Virginia corporation
("Origen Inc."), and ORIGEN FINANCIAL, L.L.C., a Delaware limited liability
company ("Origen LLC" and together with Origen Inc., the "Borrowers"), jointly
and severally promise to pay to the order of SUN COMMUNITIES OPERATING LIMITED
PARTNERSHIP, a Michigan limited partnership ("Lender"), at 31700 Middlebelt
Road, Suite 145, Farmington Hills, Michigan 48334, or at such other place as
Lender may designate in writing, the principal sum of TWENTY ONE MILLION TWO
HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($21,250,000) (the "Credit Limit"), or
such lesser sum as shall have been advanced by Lender to Borrowers under the
loan account hereinafter described, plus interest as hereinafter provided, all
in lawful money of the United States of America, in accordance with the terms
hereof. This Note is subject to the terms of that certain Amended and Restated
Subordinated Loan Agreement between Borrowers and Lender dated February 1, 2002,
as amended by the First Amendment to Amended and Restated Subordinated Loan
Agreement dated March 22, 2002 (the "Amended Loan Agreement"), the terms of
which are incorporated herein by reference.
ADVANCES. This Note is given as evidence of any and all indebtedness of
the Borrowers to Lender arising as a result of advances or other credit which
may be made under this Note from time to time. Lender shall, from time to time
prior to the Due Date, make advances to Borrowers hereunder upon request
therefor by Borrowers, provided that upon giving effect to such advance no Event
of Default (as hereinafter defined) and no event which with notice and/or the
passage of time would become an Event of Default shall exist, and that all
representations and warranties of Borrowers theretofore made are true and
correct and that Lender shall not have previously or concurrently declared all
amounts owing hereunder to be immediately due and payable and that the amount
requested shall not cause the total amount outstanding hereunder to exceed
Credit Limit. Advances hereunder may be requested by telephone, in writing or in
any other manner acceptable to Lender. The principal amount of indebtedness
owing pursuant to this Note shall change from time to time decreasing in amounts
equal to any and all payments of principal made by the Borrowers and increasing
by amounts equal to any and all advances made by Lender to the Borrowers
pursuant to the terms hereof. The books and records of Lender shall be
conclusive evidence of the amount of principal and interest owing hereunder at
any time, unless Lender receives a written statement of exceptions from
Borrowers within ten (10) days after such statement has been furnished. From
time to time but not less than quarterly, Lender shall furnish Borrowers a
statement of Borrowers' loan account.
INTEREST. The unpaid principal balance of this Note shall bear interest,
computed on the basis of a year of 360 days for the actual number of days
elapsed in a month, at a rate of interest of 700 basis points over LIBOR (the
"Rate"), which Rate shall not be less than 11% per annum or exceed 15% per annum
(the Rate shall be adjusted for purposes of this Note on the last day of every
fiscal quarter beginning on March 31, 2002), until the entire principal balance
of this Note, and all accrued and unpaid interest has been paid in full.
PAYMENT. Accrued and unpaid interest on the unpaid principal balance of
this Note from time to time shall be due and payable monthly, in arrears, on the
last day of each consecutive month until the Due Date. The remaining principal
balance shall be due and payable on the Due Date, along with any accrued and
unpaid interest as of the Due Date.
All payments made hereunder shall be applied first against costs and
expenses required to be paid hereunder, then against accrued interest to the
extent thereof and the balance shall be applied against the outstanding
principal amount hereof. Borrowers expressly assume all risks of loss or delay
in the delivery of any payments made by mail, and no course of conduct or
dealing shall affect Borrowers' assumption of these risks.
DEFAULT. Upon the occurrence of an Event of Default, as defined in the
Amended Loan Agreement, the entire unpaid principal balance and all accrued and
unpaid interest owing under this Note shall, at Lender's option, be immediately
due and payable, together with costs and attorneys fees reasonably incurred by
Lender in collecting or enforcing payment.
Acceptance by Lender of any payment in an amount less than the amount then
due shall be deemed an acceptance on account only, and Borrowers' failure to pay
the entire amount then due shall be and continue to be a default. Upon the
occurrence of any Event of Default, neither the failure of Lender promptly to
exercise its right to declare the outstanding principal and accrued unpaid
interest hereunder to be immediately due and payable, nor the failure of Lender
to demand strict performance of any other obligation of Borrowers or any other
person who may be liable hereunder, shall constitute a waiver of any such
rights, nor a waiver of such rights in connection with any future default on the
part of Borrowers or any other person who may be liable hereunder.
INTEREST RATE LIMITED TO MAXIMUM RATE. Notwithstanding anything herein to
the contrary, in no event shall Borrowers be required to pay a rate of interest
in excess of the Maximum Rate. The term "Maximum Rate" shall mean the maximum
non-usurious rate of interest that Lender is allowed to contract for, charge,
take, reserve or receive under the applicable laws of any applicable state or of
the United States of America (whichever from time to time permits the highest
rate for the use, forbearance or detention of money) after taking into account,
to the extent required by applicable law, any and all relevant payments or
charges hereunder, or under any other document or instrument executed and
delivered in connection herewith and the indebtedness evidenced hereby.
In the event Lender ever receives, as interest, any amount in excess of
the Maximum Rate, such amount as would be excessive interest shall be deemed a
partial prepayment of principal, and, if the principal hereof is paid in full,
any remaining excess shall be returned to Borrowers. In determining whether or
not the interest paid or payable, under any specified contingency, exceeds the
Maximum Rate, Borrowers and Lender shall, to the maximum extent permitted by
law, (a) characterize any non-principal payment as an expense, fee, or premium
rather than as interest; (b) exclude voluntary prepayments and the effects
thereof; and (c) amortize, prorate, allocate and spread the total amount of
interest through and including the Due Date (including the period of any
-2-
extension or renewal thereof) so that the interest on account of such
indebtedness shall not exceed the Maximum Rate.
SUCCESSORS/ASSIGNS. This Note shall be binding upon Borrowers and their
respective successors and assigns, and the benefits hereof shall inure to Lender
and its successors and assigns.
GENERAL. Borrowers and all endorsees, sureties and guarantors hereof
hereby jointly and severally waive presentment for payment, demand, notice of
non-payment, notice of protest or protest of this Note, and Lender diligence in
collection or bringing suit, and do hereby consent to any and all extensions of
time, renewals, waivers or modifications as may be granted by Lender with
respect to payment or any other provisions of this Note. The liability of
Borrowers under this Note shall be absolute and unconditional, without regard to
the liability of any other party.
This Note has been executed in the State of Michigan, and all rights and
obligations hereunder shall be governed by the laws of the State of Michigan.
To secure the payment of all amounts due to Lender by Borrower in
connection with the loan evidenced by this Note and pursuant to terms of the
Amended Loan Agreement and this Note, Borrowers have granted Lender a security
interest in the 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.
This Note is an amendment to and restatement of that certain Second
Amended and Restated Promissory Note dated February 1, 2002 executed by Origen
Financial, Inc. in favor of Lender (the "Prior Note"), and this Note amends,
supersedes and replaces the Prior Note.
[signature page attached]
-3-
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
--------------------------------------
-4-