Exhibit 10.9
AMENDED AND RESTATED SENIOR SECURED PROMISSORY NOTE
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| $10,000,000 |
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April 8, 2008 |
THIS NOTE IS ISSUED IN RESTATEMENT, AND NOT IN NOVATION, OF THAT
CERTAIN SENIOR SECURED PROMISSORY NOTE DATED SEPTEMBER 11, 2007,
MADE BY BORROWER (AS DEFINED BELOW) IN FAVOR OF LENDER (AS DEFINED
BELOW), IN THE ORIGINAL PRINCIPAL AMOUNT OF $10,000,000 (THE
“ ORIGINAL NOTE ”), IT BEING ACKNOWLEDGED AND
AGREED THAT THE INDEBTEDNESS EVIDENCED BY THE ORIGINAL NOTE
CONSTITUTES THE SAME INDEBTEDNESS EVIDENCED BY THIS NOTE. THIS NOTE
SHALL BE ENTITLED TO ALL SECURITY AND COLLATERAL TO WHICH THE
ORIGINAL NOTE WAS ENTITLED WITHOUT CHANGE OR DIMINUTION IN THE
PRIORITY OF ANY LIEN OR SECURITY INTEREST GRANTED TO SECURE THE
ORIGINAL NOTE.
FOR VALUE RECEIVED, on or before
September 11, 2008, subject to an Extension (as defined below)
(the “ Maturity Date ”), Origen Financial
L.L.C., a Delaware limited liability company (“
Borrower ”), promises to pay to the order of the
William M. Davidson Trust u/a/d 12/13/04 (“ Lender
”) at 2300 Harmon Road, Auburn Hills, Michigan 48326, the
principal amount of TEN MILLION AND NO/100 DOLLARS ($10,000,000)
(“ Total Principal Amount ”), or such amount
less than the Total Principal Amount which is outstanding from time
to time if the total amount outstanding under this Amended and
Restated Senior Secured Promissory Note (“ Note
”) is less than the Total Principal Amount, together with
accrued but unpaid interest thereon as provided below. The Maturity
Date may be extended by Borrower for up to two, sixty-day periods
(each, an “ Extension ”) upon prior written
notice to Lender and payment by Borrower to Lender of a fee in the
amount of $116,666 for each such Extension. Interest on the unpaid
principal balance hereof from time to time outstanding shall accrue
for the period from and including the date hereof, to but excluding
the date this Note is paid in full, at the fixed rate per annum
equal to eight percent (8%), calculated on the basis of actual days
elapsed in a year of 365 days. Borrower shall pay such
interest, unless earlier payment is required hereunder, in cash in
arrears on the last day of each calendar month during which this
Note remains outstanding (each an “ Interest Payment
Date ”) with the first Interest Payment Date occurring on
April 30, 2008. If an Event of Default (as defined below)
occurs or if this Note is not paid when due by maturity,
acceleration or otherwise, then notwithstanding the above, interest
shall be payable thereafter at the rate which is six percent (6%)
per annum in excess of the rate described above (the “
Default Rate ”). In no event shall the aggregate
interest rate payable under this Note exceed the Maximum Rate. The
term “ Maximum Rate ,” as used herein, shall
mean at the particular time in question the maximum rate of
interest, which, under applicable law, may then be charged on this
Note.
The principal of, all accrued but
unpaid interest and all unpaid costs and expenses incurred pursuant
to this Note shall be due and payable in full on the Maturity
Date.
Borrower may prepay all or any
portion of the principal of this Note at any time without payment
of any premium or penalty upon at least thirty (30) days prior
written notice to Lender. Unless otherwise agreed to in writing, or
otherwise required by applicable law, payments will be applied
first to all costs, expenses, indemnities and other amounts payable
hereunder and under the other Loan Documents (as defined below),
then to payment of any default interest, then to the unpaid accrued
interest and any remaining amount to principal. All payments of
principal of or interest on this Note shall be made in lawful money
of the United States of America in immediately available funds, at
the address of Lender indicated above, or such other place as the
holder of this Note shall designate in writing to Borrower. If any
payment of principal of or interest on this Note shall become due
on a day which is not a Business Day (as hereinafter defined), such
payment shall be made on the next succeeding Business Day and any
such extension of time shall be included in computing interest in
connection with such payment. As used herein, the term “
Business Day ” shall mean any day other than a
Saturday, Sunday or any other day on which national banking
associations are authorized to be closed. The books and records of
Lender shall be prima facie evidence of all
outstanding principal of and accrued and unpaid interest on this
Note.
