April 20, 2009
April 20, 2009
PNC ARCS LLC 00000 Xxxxxx Xxxx Xxxxx 000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx 00000 Attention: Loan Administration Department
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Xxxxxx Xxx 0000 Xxxxxxxxx Xxxxxx, X.X. Washington, DC 20016 Attention: Vice President for Multi-Family Asset Management
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Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Master Credit Facility Agreement, dated April 28, 2004, as amended (the “Credit Facility Agreement”) between Sun Secured Financing LLC, Aspen-Fort Xxxxxxx Limited Partnership, Sun Secured Financing Houston Limited Partnership, Sun Communities Finance, LLC, Sun Xxxxx Forest LLC and Sun Saddle Oak LLC as Borrower, and PNC ARCS, LLC, successor in interest to ARCS Commercial Mortgage Co, L.P., as Lender, and assigned by the Lender to Xxxxxx Xxx. Unless otherwise defined, all capitalized terms in this correspondence have the meaning set forth in the Credit Facility Agreement.
Pursuant to a letter dated October 30, 2008, the Borrower exercised its right under the Credit Facility Agreement to extend the Original Variable Facility Termination Date and Variable Facility Termination Date for a period ending on the date ten (10) years after the Initial Closing Date, meaning April 28, 2014. Through email correspondence dated April 17, 2009, Xxxxxx and Xxxxxx Xxx have informed Xxxxxxxx that for the extension period commencing April 29, 2009 and ending April 28, 2014, the Variable Facility Fee is 200 basis points per annum, and claim they are entitled to reset the Variable Facility Fee pursuant to the terms of the Loan Documents. Conversely, the Borrower has asserted that Lender and Xxxxxx Xxx do not have the right to change the Variable Facility Fee in connection with the extension.
Notwithstanding the difference of opinion concerning the right of Xxxxxx and Xxxxxx Xxx to change the Variable Facility Fee, the Borrower, Lender and Xxxxxx Xxx intend to proceed with the closing of the extension transaction, and set the Variable Facility Fee at 200 basis points per annum. However, Xxxxxx and Xxxxxx Xxx have agreed that by (i) closing and completing the extension transaction, (ii) executing and delivering all documents in connection therewith, (iii) accepting any Rate Setting Form or other documentation that calls for the payment of a Variable Facility Fee equal to 200 basis points per annum, and (iv) paying a Variable Facility Fee of 200 basis points per annum (each, an “Extension Action”), none of the Borrower, Lender or Xxxxxx Xxx will have waived or prejudiced any of its rights, claims and/or defenses relating to the amount of the Variable Facility Fee (except any right of Lender or Xxxxxx Xxx to claim any such Extension Action constituted a waiver of Borrower’s rights, claims or defenses), including, without limitation, Borrower’s right to assert in any court proceeding or otherwise, that the Variable Facility Fee charged or set by Lender in connection with the extension transaction is incorrect and not consistent with or permitted by the Credit Facility Agreement.
April 20, 2009
Page 2
Please execute this letter agreement in the place provided below to confirm the agreement of Xxxxxx and Xxxxxx Xxx to the terms hereof. This letter agreement may be executed in any number of counterparts, each of which constitutes an original, and all of which, taken together, constitute one and the same agreement. Facsimile and electronic copies of signatures to this agreement shall be deemed to be originals and may be relied upon to the same extent as the originals.
SUN SECURED FINANCING LLC, a Michigan limited liability company
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By: |
Sun Communities Operating Limited Partnership, a Michigan limited partnership, its sole member
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By: |
Sun Communities, Inc., a Maryland Corporation, its general partner | |
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By: |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Executive Vice President – Acquisitions |
ASPEN – FT. XXXXXXX LIMITED PARTNERSHIP, a Michigan limited partnership
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By: |
Sun GP L.L.C., a Michigan limited liability company, its general partner
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By: |
Sun Communities, Inc., a Maryland Corporation, its manager | |
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By: |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Executive Vice President – Acquisitions |
[Signatures Continue on the Following Page]
April 20, 2009
Page 3
Additional Signature Page to Letter Agreement
SUN SECURED FINANCING HOUSTON LIMITED PARTNERSHIP, a Michigan limited partnership
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By: |
Sun Secured Financing GP, Inc., a Michigan corporation, its general partner | |
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By: |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Executive Vice President – Acquisitions |
SUN COMMUNITIES FINANCE, LLC, a Michigan limited liability company
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By: |
Sun Communities Operating Limited Partnership, a Michigan limited partnership, its managing member
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By: |
Sun Communities, Inc., a Maryland Corporation, its general partner | |
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By: |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Executive Vice President – Acquisitions |
SUN XXXXX FOREST LLC, a Michigan limited liability company
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By: |
Sun Communities Operating Limited Partnership, a Michigan limited partnership, its managing member
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By: |
Sun Communities, Inc., a Maryland Corporation, its general partner | |
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By: |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Executive Vice President – Acquisitions |
[Signatures Continue on the Following Page]
April 20, 2009
Page 4
Additional Signature Page to Letter Agreement
SUN SADDLE OAK LLC, a Michigan limited liability company
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By: |
Sun Communities Operating Limited Partnership, a Michigan limited partnership, its managing member
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By: |
Sun Communities, Inc., a Maryland Corporation, its general partner | |
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By: |
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Name: |
Xxxxxxxx X. Xxxxxx |
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Title: |
Executive Vice President – Acquisitions |
ACCEPTED AND AGREED TO:
PNC ARCS LLC
By: |
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Xxxxx Xxxx, Executive Vice President |
XXXXXX XXX
By: |
/s/ Xxxxxxx X. Xxxxxx |
Its: |
Xxxxxxx X. Xxxxxx
Vice President |