EXHIBIT 10.1
SENIOR SECURED LOAN AGREEMENT
THIS SENIOR SECURED LOAN AGREEMENT
(“ Loan Agreement ”) dated as of
September 11, 2007, 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.
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 non-convertible 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 convertible 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 shall be advanced in a single aggregate advance
of Fifteen Million and 00/100 Dollars ($15,000,000) at the Closing,
as hereinafter defined.
2. Promissory Notes .
The Term A Bridge Loan shall be evidenced by a 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 a
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). Lender shall have the right to convert the outstanding
principal balance of the Term B Bridge Loan Note into shares of
common stock, $0.01 par value per share (“ Common
Stock ”), of Origen Financial, Inc., Borrower’s
sole member (“ Issuer ”), all as provided in the
Term B Bridge Loan Note.
3. Collateral . As
collateral security for the indebtedness evidenced by the Notes,
Borrower shall execute and deliver (and shall cause Origen
Servicing, Inc. (“ OSI ”) to execute and
deliver) to Lender concurrently with the funding of the Bridge
Loan, a security agreement acceptable to Lender (the “
Security Agreement ”) pursuant to which Borrower and
OSI shall pledge and grant a security interest in the Collateral
(as defined therein) to Lender as security for the Indebtedness (as
defined therein), including Borrower’s indebtedness to Lender
under the Notes. This Loan Agreement, the Notes, the Security
Agreement 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, including
the funding of the Bridge Loan (the “ Closing
”), shall take place at 10:00 a.m., Eastern time, on
September 12, 2007 (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) the Term A Bridge Loan Note, duly
executed on behalf of Borrower;
(ii) the Term B Bridge Loan Note,
duly executed on behalf of Borrower and Issuer;
(iii) the Security Agreement, duly
executed on behalf of Borrower and OSI;
(iv) an immediately exercisable
five-year warrant, pursuant to which Issuer will grant to Lender
the right to purchase 500,000 shares of Common Stock at an exercise
price of $6.16 per share, subject to proportional adjustment for
stock splits, stock dividends and recapitalizations (the “
Warrant ”);
(v) a registration rights agreement,
of even date herewith, duly executed on behalf of Issuer, granting
Lender certain registration rights in respect of the shares of
Common Stock issued upon exercise of the Warrant and conversion of
the Term B Bridge Loan Note (the “ Registration Rights
Agreement ”);
(vi) with respect to Borrower, 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 Borrower, and
(D) copies of resolutions (or equivalent) adopted by Borrower
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;
(vii) any additional instruments or
documents that Lender may reasonably request.
(b) Lender
shall deliver to Borrower:
(i) the Bridge Loan proceeds by wire
transfer of immediately available funds to an account designated by
Borrower;
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(ii) the Security Agreement, duly
executed on behalf of Lender, as the secured party;
(iii) the Registration Rights
Agreement, duly executed on behalf of Lender;
(iv) the Warrant, duly executed on
behalf of Lender; and
(v) the Term B Bridge Loan Note, duly
executed on behalf of Lender.
5. Representations and
Warranties of Borrower . Borrower hereby represents and
warrants to Lender as follows:
(a) Organization and
Qualification . Borrower is duly organized and validly existing
under the laws of the State of Delaware. Borrower has all requisite
power and authority to carry on its business as currently
conducted, other than such failures that would not reasonably be
expected to have a material adverse effect on Borrower’s
business, properties or financial condition (a “ Material
Adverse Effect ”). Borrower 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.
(b) Authorization . As of the
Closing, all action on the part of Borrower and its existing
members or managers, Issuer and its board of directors, and OSI and
its board of directors, as applicable, necessary for the
authorization, execution and delivery of this Loan Agreement, the
Notes and the Security Agreement and the performance of all
obligations of Borrower hereunder and under the Notes and the
Security Agreement shall have been taken, and this Loan Agreement,
the Notes and the Security Agreement, assuming due execution and
delivery by the parties hereto and thereto, will constitute valid
and legally binding obligations of Borrower, 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-Q for the
quarter ended June 30, 2007 (the “ Financial
Statements ”). 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 and except that such Financial Statements do not contain
footnotes required by generally accepted accounting principles and
are subject to audit adjustments. The Financial Statements fairly
present the financial condition and operating results of Issuer, as
of the dates and for the periods indicated therein, subject to
normal year-end audit adjustments. Except as disclosed in the
Financial Statements, Borrower is not a guarantor or indemnitor of
any other person, firm or corporation. Borrower and Issuer maintain
and will continue to maintain a system of accounting and
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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
Borrower or Issuer is required in connection with the execution of
this Loan Agreement or the Notes, 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 in writing before
any court, administrative agency or other governmental body against
Borrower which, if reasonably determined adversely to Borrower
and/or Issuer, would reasonably be expected to have a Material
Adverse Effect. Borrower is not a 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 .
Borrower has sufficient title to and ownership of, or other rights
to use, 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. Borrower has not
received any written or oral communications alleging that Borrower
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 for such violations as would not
reasonably be expected to have a Material Adverse Effect.
(g) Compliance . Borrower and
Issuer are 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, environmental and
occupational health and safety laws, and Borrower has not 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 its knowledge, no material expenditures are or will
be required in order to comply with any such existing statute, law
or regulation. Borrower is not in violation of or in default under
any provision of its articles or certificate of formation or
regulations, operating agreement, or other organizational
documents, as in effect immediately prior to the Closing. Borrower
is not in default on any obligation for borrowed money, any
purchase money obligation or any other material 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, the Notes
and the Security Agreement will not result in any such violation,
be in conflict with or constitute,
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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 Borrower 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 . Borrower 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. Borrower is not in default in any material respect
under any of such franchises, permits, licenses, or other similar
authority.
(i) Title to Property and
Assets . Borrower has good and defensible title to the
Collateral owned by Borrower and OSI has good and defensible title
to the Collateral owned by OSI (as Collateral is defined and
described in the Security Agreement), free and clear of all liens,
charges and encumbrances, except for liens for current taxes and
assessments not yet due and 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, except for the liens granted pursuant to that certain
credit agreement by and between Borrower and JPMorgan Chase Bank,
N.A., as successor to Bank One, NA, dated July 25, 2002, as
amended (the “ Credit Agreement ”), which liens
will be released at the Closing. With respect to any material
property and assets it leases, Borrower is in material compliance
with such leases and, to the best of its 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 Borrower.
(j) Debt . Except for the
Bridge Loan and as contemplated under the Credit Agreement and that
certain agreement with Citigroup Global Markets Realty Corporation
entered into in March 2003, providing for a short-term
securitization facilit
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