EXHIBIT 10.38
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED
SUBORDINATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED SUBORDINATED LOAN
AGREEMENT (the "Amendment") is made and entered into as of December 30, 2002 by
and between ORIGEN FINANCIAL L.L.C., a Delaware limited liability company (the
"Borrower"), whose address is 000 Xxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxx 00000, and SUN HOME SERVICES, INC., a Michigan corporation ("Lender"),
whose address is 00000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, Xxxxxxxx
00000.
RECITALS:
A. Borrower and Sun Communities Operating Limited Partnership ("SCOLP")
have entered into that certain Second Amended and Restated Subordinated Loan
Agreement dated December 4, 2002 (the "Loan Agreement"). All capitalized terms
not defined in this Amendment shall have the meanings given to them in the Loan
Agreement.
B. SCOLP assigned its interest in the Loan Agreement and the Related
Documents to Lender pursuant to an Assignment of Loans of even date herewith.
C. Borrower 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: $48,000,000
Maturity: December 31, 2003; provided that the due date shall
be automatically extended to December 31, 2004 if the Master
Repurchase Agreement between Borrower and Credit Suisse First
Boston Mortgage Capital LLC dated December 18, 2001, as
amended from time to time (the "CSFB Agreement"), is renewed
on terms acceptable to Lender as of the expiration of the CSFB
Agreement in May 2003.
The Loan and any amendments, extensions, renewals, or refinancing
thereof are subject to this Agreement."
2. Upon the execution of this Amendment, Borrower shall execute and
deliver to Lender a Seventh Amended and Restated Promissory Note in the form
attached to this Amendment as EXHIBIT A (the "Seventh Amended Note"). The
Seventh Amended Note shall replace the Sixth Amended and Restated Promissory
Note dated December 4, 2002 executed by Borrower in favor of SCOLP in connection
with the Loan Agreement. All references in the Loan Agreement to the "Sixth
Amended Note" are hereby amended to be the "Seventh Amended Note."
3. Upon the execution of this Amendment, Borrower shall pay Lender an
origination fee of $___________________.
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
Second Amended and Restated Subordinated Loan Agreement as of the date first
written above.
BORROWER:
ORIGEN FINANCIAL L.L.C., a Delaware
limited liability company
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Its: Chief Executive Officer
--------------------------------
LENDER:
SUN HOME SERVICES, INC., a Michigan
corporation
By:
---------------------------------
Its:
------------------------------
-2-
3. Upon the execution of this Amendment, Borrower shall pay Lender an
origination fee of $___________________.
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
Second Amended and Restated Subordinated Loan Agreement as of the date first
written above.
BORROWER:
ORIGEN FINANCIAL L.L.C., a Delaware
limited liability company
By:
---------------------------------
Its:
--------------------------------
LENDER:
SUN HOME SERVICES, INC., a Michigan
corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Its: Chief Financial Officer
------------------------------
-2-
