Exhibit 10.8
Execution Version
AMENDED AND RESTATED SENIOR SECURED LOAN AGREEMENT
THIS AMENDED AND RESTATED SENIOR
SECURED LOAN AGREEMENT (“ Loan Agreement ”)
dated as of April 8, 2008, sets forth the terms of a financing
transaction by and between Origen Financial L.L.C., a Delaware
limited liability company (“ Borrower ”), and
the William M. Davidson Trust u/a/d December 13, 2004 (“
Lender ”), and certain agreements between the parties
related thereto, all as set forth herein.
This Loan Agreement amends, restates
and supersedes in its entirety that certain Senior Secured Loan
Agreement dated as of September 11, 2007, by and between
Lender and the Borrower (the “ Original Agreement
”). It is expressly understood that the security interests
granted in favor of Lender from Borrower pursuant to the Original
Agreement shall remain in full force and effect and that the
indebtedness and obligations of Borrower under the Original
Agreement are not to be deemed paid or otherwise satisfied
thereby.
In consideration of the mutual
covenants and agreements set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. Bridge Loan . Subject
to the terms and conditions set forth in this Loan Agreement and
the other Loan Documents (as hereinafter defined), Lender hereby
agrees to lend to Borrower, and Borrower agrees to borrow from
Lender, (i) a senior secured bridge loan in the principal
amount of Ten Million and 00/100 Dollars ($10,000,000) (the “
Term A Bridge Loan ”) and (ii) a senior secured
bridge loan in the principal amount of Five Million and 00/100
Dollars ($5,000,000) (the “ Term B Bridge Loan
”, and together with the Term A Bridge Loan, the “
Bridge Loan ”). The proceeds of the Bridge Loan have
previously been advanced to the Borrower pursuant to the Original
Agreement in a single aggregate advance of Fifteen Million and
00/100 Dollars ($15,000,000). The Bridge Loan shall also be
referred to as the 2007 Facility.
2. Promissory Notes .
The Term A Bridge Loan shall be evidenced by an amended and
restated promissory note (the “ Term A Bridge Loan
Note ”) in the principal amount of $10,000,000, duly
executed by Borrower and payable to the order of Lender. The Term B
Bridge Loan shall be evidenced by an amended and restated
promissory note (the “ Term B Bridge Loan Note
”) in the principal amount of $5,000,000, duly executed by
Borrower and Issuer (as defined below) and payable to the order of
Lender. The Term A Bridge Loan Note and the Term B Bridge Loan Note
together are referred to herein as the “ Notes
”, and are referred to individually as a “ Note
”. Interest on the outstanding principal balance of the Notes
shall accrue at the rate set forth therein. Payment of principal of
and interest on each Note shall be due and payable at the times,
and in accordance with the terms and conditions, set forth in such
Note and in this Loan Agreement. The Notes shall mature and be
finally due and payable in full on the Maturity Date (as defined in
each Note).
3. Collateral . As
collateral security for the repayment in full of (a) the
outstanding principal of, and all interest on, the Notes, and any
renewal, extension or refinancing thereof;
(b) all debts, liabilities, obligations, covenants and
agreements of the Credit Parties (as defined below) contained in
this Loan Agreement and the other Loan Documents (as defined
below); (c) any and all other debts, liabilities and
obligations of the Credit Parties to Lender and; (d) all
obligations of Borrower to Lender under the 2008 Facility (defined
below) (collectively, the “ Obligations
”):
(a) Borrower shall execute and
deliver (and shall cause Origen Servicing, Inc.
(“OSI”), Origen Securitization Company, LLC
(“OSC”), and Origen Financial, Inc. (“
Issuer ”), to execute and deliver) to Lender, an
amended and restated security agreement (amending and restating
that certain original Security Agreement dated September 11,
2007) acceptable to Lender (the “ Security Agreement
”) pursuant to which Borrower, OSI, OSC and Issuer shall
pledge and grant a security interest in the Collateral (as defined
therein) to Lender as security for the Obligations;
(b) Each of Issuer, OSI and OSC shall
execute and deliver to Lender an amended and restated guaranty (the
“ Guaranty ”) pursuant to which Issuer, OSI and
OSC shall guarantee the payment of the Obligations;
(c) OSC shall execute and deliver to
Lender concurrently with the funding of the 2008 Facility, a pledge
agreement acceptable to Lender (the “ OSC Pledge
Agreement ”) pursuant to which OSC shall pledge and grant
a security interest in all of the equity interests of Origen CMO
Residual Holding Company, LLC to Lender as security for the
Obligations, together with the original certificates representing
such equity interests and a duly executed assignment separate from
certificate in a form reasonably acceptable to Lender;
(d) Borrower shall execute and
deliver to Lender concurrently with the funding of the 2008
Facility, a pledge agreement acceptable to Lender (the “
Borrower Pledge Agreement ”) pursuant to which
Borrower shall pledge and grant a security interest in all of its
ownership interests in OSI and OSC to Lender as security for the
Obligations, together with the original certificates representing
such equity interests and a duly executed assignment separate from
certificate in a form reasonably acceptable to Lender;
(e) Issuer shall execute and deliver
to Lender concurrently with the funding of the 2008 Facility, a
pledge agreement acceptable to Lender (the “ Issuer Pledge
Agreement ,” and together with the OSC Pledge Agreement
and the Borrower Pledge Agreement, the “ Pledge
Agreements ”) pursuant to which Issuer shall pledge and
grant a security interest in all of the membership interests in
Borrower to Lender as security for the Obligations, together with
the original certificates representing such equity interests and a
duly executed assignment separate from certificate in a form
reasonably acceptable to Lender; and
(f) If and when the residual
interests in the securitized pools of loans currently owned by OSC
are transferred to any other direct or indirect wholly-owned or
partially-owned subsidiary of Issuer (the “ Residual
Transferee ”), Borrower shall cause
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the Origen
entity that owns the equity interests of the Residual Transferee to
guaranty the obligations of Borrower under the Loan Documents and
to pledge and grant a security interest in all of the equity
interests of the Residual Transferee that such entity owns,
pursuant to a pledge agreement substantially on the terms of the
Borrower Pledge Agreement. Lender acknowledges that if the residual
interests are transferred to a Residual Transferee, the Origen
entities may not own all of the issued and outstanding equity
securities of the Residual Transferee.
This Loan
Agreement, the Notes, the Security Agreement, the Guaranty, the
Pledge Agreements and all other instruments and documents
evidencing, securing, governing, guaranteeing and/or pertaining to
the Bridge Loan are referred to collectively herein as the “
Loan Documents .”
4. Closing . The closing
of the transactions contemplated by this Loan Agreement (the
“ Closing ”), shall take place at
10:00 a.m., Eastern time, on April 8, 2008 (the “
Closing Date ”), at such place as the parties may
agree. At the Closing the parties shall, respectively, make or
cause to be made the following simultaneous deliveries:
(a) Borrower shall deliver or cause
to be delivered to Lender:
(i) this Loan Agreement, duly
executed on behalf of Borrower;
(ii) the Term A Bridge Loan Note,
duly executed on behalf of Borrower;
(iii) the Term B Bridge Loan Note,
duly executed on behalf of Borrower and Issuer;
(iv) the Security Agreement, duly
executed on behalf of Borrower and the other pledgors;
(v) the OSC Pledge Agreement, duly
executed on behalf of OSC;
(vi) the Borrower Pledge Agreement,
duly executed on behalf of Borrower;
(vii) the Issuer Pledge Agreement,
duly executed on behalf of Issuer;
(viii) the Guaranty, duly executed on
behalf of Issuer, OSC and OSI;
(ix) evidence satisfactory to Lender
(such as payoff letters and lien releases) that all indebtedness
owed by Borrower under Borrower’s securitization facility
used for warehouse financing with Citigroup Global Markets Realty
Corporation entered into in March 2003, as amended (the
“ Warehouse Facility ”), and Vanderbilt Mortgage
and Finance, Inc. has been paid in full and that all liens and
security interests in collateral granted pursuant to the Warehouse
Facility and
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all agreements
between Borrower and Vanderbilt Mortgage and Finance, Inc. have
been terminated;
(x) with respect to each Credit Party
(as defined below), copies of (A) its organizational
documents, certified by its secretary (or equivalent) as being true
and correct as of the Closing, (B) certificates of appropriate
governmental officials as to its good standing, (C) an
incumbency certificate for all its officers who will be authorized
to execute any of the Loan Documents on behalf of such Credit
Party, and (D) copies of resolutions (or equivalent) adopted
by such Credit Party approving the Loan Documents and the
transactions contemplated by this Loan Agreement, certified by its
secretary (or equivalent) as being true and correct as of the
Closing;
(xi) certificates as to the existence
and good standing and qualification to do business of Issuer,
Borrower, OSC and OSI, dated as of a recent date;
(xii) certificates evidencing the
insurance coverage required under this Agreement;
(xiii) such Uniform Commercial Code
financing statements in favor of Lender as shall be necessary to
perfect Lender’s rights in the Collateral;
(xiv) an opinion of counsel to
Borrower, Issuer, OSC and OSI, in form and substance reasonably
acceptable to Lender; and
(xv) any additional instruments or
documents that Lender may reasonably request.
(b) Lender shall deliver to
Borrower:
(i) the original Term A Bridge Loan
Note and original Term B Bridge Loan Note, each dated
September 11, 2007, each marked “CANCELLED”;
(ii) this Loan Agreement, duly
executed by Lender;
(iii) the Security Agreement, duly
executed on behalf of Lender, as the secured party;
(iv) the original Stock Purchase
Warrant dated September 11, 2007, issued to Lender by Origen
Financial, Inc., marked “CANCELLED”; and
(v) written confirmation that the
Stock Purchase Warrant dated September 11, 2007 and the
Registration Rights Agreement dated September 11, 2007 have
been terminated.
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5. Representations and
Warranties of Borrower . Borrower hereby represents and
warrants to Lender, with respect to Borrower and each of Issuer,
OSI and OSC (together with Borrower, each a “ Credit
Party ,” and collectively, the “ Credit
Parties ”), as follows:
(a) Organization and
Qualification . Each Credit Party is duly organized, validly
existing and in good standing under the laws of its state of
organization. Each Credit Party has the requisite power and
authority to carry on its business as currently conducted. Each
Credit Party is duly qualified to transact business in each
jurisdiction, if any, in which the failure to be so qualified would
reasonably be expected to have a material adverse effect on such
Credit Party’s business, properties or financial condition (a
“ Material Adverse Effect ”).
(b) Authorization . The
making, execution, delivery and performance by Borrower of this
Loan Agreement and by each Credit Party of the Loan Documents to
which such Credit Party is a party, and compliance with their
respective terms, have been duly authorized by all necessary
corporate or limited liability company action of Borrower or such
other Credit Party, as applicable and will constitute valid and
legally binding obligations of Borrower or such other Credit Party,
as applicable, enforceable in accordance with their respective
terms, subject to: (i) judicial principles limiting the
availability of specific performance, injunctive relief, and other
equitable remedies and (ii) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect generally relating to or affecting creditors’
rights.
(c) Financial Condition .
Borrower has delivered to Lender Issuer’s Form 10-K for the
fiscal year ended December 31, 2007. The financial statements
of Issuer included therein (the “ Financial Statements
”) are complete and accurate in all material respects and
have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
indicated, except for matters that are not material either
individually or in the aggregate. The Financial Statements fairly
present the financial condition and operating results of Issuer, as
of the dates and for the periods indicated therein. Except as
disclosed in the Financial Statements or as set forth in the
Guaranty, no Credit Party is a guarantor or indemnitor of any other
person, firm or corporation. The Credit Parties maintain and will
continue to maintain a system of accounting and internal controls
sufficient to meet the requirements of financial reporting in
accordance with generally accepted accounting principles.
(d) Governmental Consents . No
consent, approval, order or authorization of, or registration,
qualification, designation, declaration or filing with, any
federal, state or local governmental authority on the part of any
Credit Party is required in connection with the execution of this
Loan Agreement or the other Loan Documents, except for those that
shall have been obtained or made in accordance with the
requirements of the applicable authority.
(e) Litigation . There are no
actions, suits, proceedings or investigations pending or, to the
best of Borrower’s knowledge, threatened before any court,
administrative agency or other governmental body against any Credit
Party which, if
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determined
adversely to such Credit Party, would reasonably be expected to
have a Material Adverse Effect. No Credit Party is party or subject
to, and none of its assets is bound by, the provisions of any
order, writ, injunction, judgment or decree of any court or
government agency or instrumentality which would reasonably be
expected to have a Material Adverse Effect.
(f) Intellectual Property .
Each Credit Party has title to and ownership of, or other rights to
use pursuant to a valid lease or license, all copyrights,
proprietary rights, trademarks, service marks and trade names
necessary for its business as now conducted, except where the
failure to have the same would not reasonably be expected to have a
Material Adverse Effect. No Credit Party has received any written
or oral communications alleging that such Credit Party has violated
or, by conducting its business as proposed, would violate any of
the trademarks, service marks, trade names, copyrights or trade
secrets or other proprietary rights of any other person or entity,
except where the failure to have the same would not reasonably be
expected to have a Material Adverse Effect.
(g) Compliance . Each Credit
Party is in material compliance with all applicable United States,
state and foreign statutes, laws, regulations and executive orders,
and other United States, state and foreign governmental bodies and
agencies having jurisdiction over its business or properties,
including without limitation, laws and regulations relating to
lending and servicing of loans, environmental and occupational
health and safety laws, and no Credit Party has received notice of
any violation of such statutes, laws, regulations or orders which
has not been remedied prior to the date hereof, and is not aware of
any acts that could cause such notice or claim, and, to the best of
Borrower’s knowledge, no material expenditures are or will be
required in order to comply with any such existing statute, law or
regulation. No Credit Party is in violation of or in default under
any provision of its organizational documents, as in effect
immediately prior to the Closing. No Credit Party is in default of
any obligation for borrowed money, any purchase money obligation or
any other lease, commitment, contract, instrument or obligation
having or relating to an aggregate principal amount (or, in the
case of any lease or contract, an aggregate payment amount) in
excess of $10,000 (either individually or in the aggregate). The
execution, delivery and performance of and compliance with this
Loan Agreement and the other Loan Documents by the Credit Parties
will not result in any such violation, be in conflict with or
constitute, with or without the passage of time or giving of
notice, a default under any such provision, require any consent or
waiver under any such provision (other than any consents or waivers
that have been obtained), or result in the creation of any lien,
encumbrance or charge upon any of the properties or assets of any
Credit Party pursuant to any such provision (other than the
security interest and lien created by the Security Agreement or
otherwise under any of the Loan Documents).
(h) Permits . Each Credit
Party has all franchises, permits, licenses, and any similar
authority necessary for the conduct of its business as now being
conducted by it, the lack of which would reasonably be expected to
have a Material Adverse Effect. No
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Credit Party is
in default in any material respect under any of such franchises,
permits, licenses, or other similar authority.
(i) Title to Property and
Assets . Each Credit Party has good and defensible title to the
Collateral (as defined in the Security Agreement) owned by it, free
and clear of all liens, charges and encumbrances, except for
(A) liens for current taxes and assessments not yet due,
(B) possible minor liens and encumbrances that do not, in any
case, materially detract from the value of the property subject
thereto or materially impair the operations of Borrower,
(C) liens granted pursuant to the Warehouse Facility, which
liens will be released at the Closing of the 2008 Facility; and
(D) liens granted to Lender pursuant to the Original Loan
Agreement and Original Security Agreement, each dated
September 11, 2007, and pursuant to the 2008 Facility
(collectively, “ Permitted Liens ”). Each Credit
Party is in material compliance with all leases to which it is a
party and, to the best of Borrower’s knowledge, holds a valid
leasehold interest free of all liens, charges or encumbrances,
except for such liens, charges or encumbrances that would not
materially impair the operations of such Credit Party.
(j) Debt . Except for the 2008
Facility, the Bridge Loan and that certain agreement with Citigroup
Global Markets Realty Corporation entered into in March 2003,
providing for a short-term securitization facility used for
warehouse financing (the “ Warehouse Facility ”)
(which will be paid in full at the closing of the 2008 Facility),
no Credit Party has incurred any Indebtedness (as defined in
Section 7(b)) nor has it guaranteed the Indebtedness of any
third party.
(k) Tax Matters . Each Credit
Party has prepared and filed all United States federal, state and
local income or franchise tax returns, if any, required to be filed
by it or has timely filed for extensions thereof, and has paid, or
made provision for the payment of, all taxes owed by it except to
the extent contested in good faith by such Credit Party and for
which adequate reserves are established and maintained, and no tax
deficiencies have been assessed or, to Borrower’s knowledge,
proposed against any Credit Party. Commencing with its taxable year
ended December 31, 2003, Issuer has continuously
qualified to be taxed as a real estate investment trust pursuant to
Sections 856 through 860 of the Internal Revenue Code of 1986,
as amended (the “ Code ”) and the Issuer’s
present and contemplated organization, ownership, method of
operation, assets, and income will enable it to so qualify for the
taxable year ending December 31, 2008 and thereafter.
(l) Brokers or Finders . No
Credit Party has agreed to incur, directly or indirectly, any
liability for brokerage or finders’ fees, investment banker
fees, agents’ commissions or other similar charges in
connection with this Loan Agreement or any of the transactions
contemplated hereby.
(m) No Subordination . Except
as may be contemplated by 2008 Facility or the Warehouse Facility
(which will be terminated at the closing of the 2008 Facility),
there is no agreement, indenture, contract or instrument to which
any Credit Party is a party or by which such Credit Party may be
bound that requires the subordination in right of payment
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of
Borrower’s obligations under the Notes to any other
obligation of Borrower or any other Credit Party.
(n) No Material Adverse
Changes . Since December 31, 2007, other than as
contemplated by this Loan Agreement or as disclosed in a report on
Form 8-K filed by the Securities and Exchange Commission by Issuer,
there has not been any change in the assets, liabilities, financial
condition or operating results of any Credit Party from that
reflected in the Financial Statements, except changes in the
ordinary course of business that would not, either individually or
in the aggregate, be reasonably likely to result in a Material
Adverse Effect on the assets, properties, condition (financial or
other), affairs or prospects of any Credit Party. Borrower has no
knowledge of any material liabilities of any nature not disclosed
in writing to Lender.
(o) Labor Agreements and
Actions . Each Credit Party has complied in all material
respects with all applicable state and federal equal employment
opportunity and other laws related to employment (including without
limitation, provisions thereof relating to wages, hours, equal
opportunity, collective bargaining and the payment of social
security and other taxes), and no Credit Party is aware that it has
any labor relations problems (including without limitation, any
union organization activi
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