Exhibit 10.3
Execution Version
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY
(“ Guaranty ”) is made on April 8, 2008, by
Origen Servicing, Inc., a Delaware corporation, Origen
Securitization Company, LLC, a Delaware limited liability company,
and Origen Financial, Inc., a Delaware corporation (“
Guarantors ”), in favor of William M. Davidson Trust
u/a/d 12/13/04 (“ Lender ”), to induce Lender to
make loans to Origen Financial L.L.C., a Delaware limited liability
company (“ Borrower ”), pursuant to
(i) that certain Senior Secured Loan Agreement, of even date
herewith between Borrower and Lender, pursuant to which Lender has
loaned $46,000,000 to Borrower, and (ii) that certain Amended
and Restated Senior Secured Loan Agreement of even date herewith
between Borrower and Lender, pursuant to which Lender has loaned an
aggregate of $15,000,000 to Borrower (collectively, the “
Loan Agreements ”), and because Guarantors have
determined that executing and delivering this Guaranty is in
Guarantors’ interest and to Guarantors’ financial
benefit. This Guaranty amends and restates in its entirety the
Guaranty dated September 11, 2007 (the “ Original
Guaranty ”) executed by Origen Servicing, Inc., and
Origen Financial, Inc., in favor of Lender. Accordingly, the
Original Guaranty shall be of no further force or effect.
GUARANTORS AGREE AS FOLLOWS:
1. Guarantee . Until
such time as the Indebtedness (as defined below) is irrevocably
paid-in-full, Guarantors jointly and severally guarantee to Lender
the full and prompt payment when due, whether by maturity or
otherwise, of the Obligations (as defined in the Loan Agreements)
and any other indebtedness or obligations that may now exist or
hereafter arise, including any and all costs and expenses
(including reasonable attorneys’ fees) incurred or paid by or
on behalf of Lender in enforcing its rights under this Guaranty
(collectively, the “ Indebtedness ”). Lender may
have immediate recourse against Guarantors for full and immediate
payment of the Indebtedness at any time when the Indebtedness, or
any portion, has not been paid when due (whether by acceleration or
otherwise), subject to applicable grace and cure periods. All
payments by Guarantors shall be made in lawful money of the United
States of America and in immediately available funds.
2. Nature of Guarantee .
This is a guarantee of payment and not of collection. At any time
when the Indebtedness, or any portion thereof, has not been paid
when due (whether by acceleration or otherwise), but subject to
applicable grace and cure periods, Lender can require that
Guarantors pay Lender the amounts owing under this Guaranty
immediately, and Lender is not required to collect first from the
Borrower, any collateral or any other person liable for the
Indebtedness. No delay or stay in any acceleration of the
Indebtedness, as against the Borrower, due to the application of
any bankruptcy, insolvency or other law or proceeding shall be
effective under this Guaranty and Guarantors agrees to pay
immediately any amount of the Indebtedness that would be due and
payable but for such delay or stay. Guarantors’ liability for
payment of the Indebtedness shall be a primary obligation and shall
be absolute and unconditional. Guarantors agree that none of the
following acts, omissions or occurrences shall diminish or impair
the liability of Guarantors in any respect (all of which acts,
omissions or occurrences may be done or occur without notice to
Guarantors):
1
(a) Any extension, modification,
indulgence, compromise, settlement or variation of any of the terms
of the Indebtedness.
(b) Any assignment or transfer
of any interest in any of the Indebtedness.
(c) The discharge or release of
any obligations of the Borrower or any other person now or
hereafter liable on the Indebtedness, by reason of bankruptcy or
insolvency laws or otherwise.
(d) The acceptance or release by
Lender of any collateral, security or other guaranty from a
Guarantor, the Borrower or any other person, or any settlement,
compromise or extension with respect to any such collateral,
security or other guaranty.
(e) The application or
allocation by Lender of payments, collections or credits on the
Indebtedness.
(f) The creation of any new
Indebtedness by the Borrower.
(g) The making of a demand, or
absence of demand, for payment of the Indebtedness, or giving, or
failing to give, any notice of dishonor, protest, presentment or
non-payment or any other notice.
(h) Any failure, omission or
delay on the part of the Borrower, Guarantor
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