EXHIBIT 10.1
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CONTRIBUTION AGREEMENT
AMONG
THE ENTITIES LISTED ON APPENDIX I
AND
ORIGEN FINANCIAL, INC.
OCTOBER 8, 2003
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TABLE OF CONTENTS
Page
1. CERTAIN DEFINITIONS......................................................................................1
2. CONTRIBUTION AND ACQUISITION.............................................................................2
2.1 Contribution and Acquisition....................................................................2
2.2 Transfer of Contributors' Interest..............................................................2
3. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTORS CONCERNING THE TRANSACTION................................2
3.1 Organization and Power..........................................................................2
3.2 Authorization, No Violations and Notices........................................................2
3.3 Contributed Interests...........................................................................3
3.4 No Brokerage Commissions........................................................................3
3.5 Xxxxxxx Approval................................................................................3
4. ADDITIONAL AGREEMENTS; SURVIVAL..........................................................................3
4.1 Survival........................................................................................3
4.2 Further Assurances..............................................................................4
4.4 Access to Books and Records.....................................................................4
5. CONDITIONS TO CLOSING....................................................................................4
5.1 Conditions Precedent to the Contributors' Obligation............................................4
(b) Performance of Agreement...............................................................4
(c) Approvals..............................................................................4
(d) Offering...............................................................................4
(e) Litigation.............................................................................5
(g) Delivery of Closing Documents..........................................................5
5.2 Conditions Precedent to Acquiror's Obligation...................................................5
(a) The Contributors' Representations and Warranties.......................................5
(b) Performance of Agreement...............................................................5
(d) Delivery of Closing Documents..........................................................5
(e) Litigation.............................................................................5
(g) Licenses and Permits...................................................................6
(h) Approvals..............................................................................6
6. CLOSING..................................................................................................6
6.1 Closing.........................................................................................6
6.2 Documents to Be Delivered at Closing by the Contributors........................................6
6.3 Documents to be Delivered at Closing by the Acquiror............................................6
7. MISCELLANEOUS............................................................................................7
7.1 Notices.........................................................................................7
7.2 Headings........................................................................................7
7.3 Governing Law...................................................................................7
7.4 No Assignment; Benefit..........................................................................7
7.5 Entire Agreement................................................................................7
7.6 Counterparts....................................................................................7
7.7 Waiver..........................................................................................7
7.8 Amendment.......................................................................................7
7.9 Brokerage or Finder's Fee.......................................................................8
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7.10 Publicity.......................................................................................8
7.11 No Third Party Beneficiaries....................................................................8
7.12 Certain Tax Matters.............................................................................8
7.13 Covenant of Xxxxxxx.............................................................................8
7.14 No Indemnification..............................................................................8
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CONTRIBUTION AGREEMENT
This Contribution Agreement (the "Agreement") is made and entered into
as of the 8th day of October, 2003 by and among the entities set forth on
Appendix I (collectively, the "Contributors") and Origen Financial, Inc., a
Delaware corporation ("Acquiror").
RECITALS
A. Contributors own all of the equity interests in Origen
Financial L.L.C., a Delaware limited liability company ("OFLLC").
B. Contributors desire to contribute to the Acquiror, and
Acquiror desires to acquire from Contributors, all of the equity interests in
OFLLC in exchange for consideration, the receipt and sufficiency of which is
hereby acknowledged by the Contributors, on the terms and subject to the
conditions hereinafter set forth.
COVENANTS
Now, therefore, for and in consideration of the foregoing Recitals, the
mutual covenants and undertakings set forth below and other good and valuable
consideration, the receipt and adequacy of which are acknowledged, the Parties
agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the following
capitalized terms shall have the following meanings (other capitalized
terms may be defined elsewhere in this Agreement):
1.1. "Xxxxxxx" means Xxxxxxx Financial Services Corporation.
1.2. "Closing" has the meaning set forth in Section 6.1 below.
1.3. "Closing Date" has the meaning set forth in Section 6.1 below.
1.4. "Contributed Interests" means the aggregate of the
Contributors' Interests.
1.5. "Contributor's Interest" means with respect to each
Contributor, all right, title and interest of such Contributor
in and to the membership interests and the warrants to acquire
membership interests of OFLLC set forth opposite such
Contributor's name on Appendix I hereto.
1.6. "Initial Purchase Agreement" means the Purchase Agreement by
and between Acquiror and Xxxxxx Brothers Inc. or its
affiliates.
1.7. "Material Adverse Effect" means a material adverse effect on
the business, condition (financial or otherwise), or results
of operations of the Origen Entities taken as a whole.
1.8. "Origen Entities" means OFLLC and the Origen Subsidiaries,
collectively, and "Origen Entity" means any one of the Origen
Entities.
1.9. "Origen Subsidiaries" means Origen Securitization Company,
L.L.C., a Delaware limited liability company, Origen
Manufactured Home Financial, L.L.C., a Delaware limited
liability company, Origen Insurance Agency, L.L.C., a Virginia
limited liability company, Origen Special Purpose, L.L.C., a
Delaware limited liability company, Origen Special Purpose II,
L.L.C., a Delaware limited liability company, Origen Special
Purpose Manager, Inc., a Delaware corporation, Origen
Financial of South Dakota, L.L.C., a Delaware limited
liability company, Origen Special Holdings Corporation, a
Delaware corporation, Origen Credit, L.L.C., a Delaware
corporation, Origen Servicing, Inc., a Delaware corporation,
Origen M.H. Contract Company, LLC, a Delaware limited
liability company, and OF Insurance Agency, Inc., a Louisiana
corporation.
1.10. "Parties" means the Contributors and the Acquiror
collectively, and Party means any one of the Parties.
2. CONTRIBUTION AND ACQUISITION.
2.1. CONTRIBUTION AND ACQUISITION. Each of the Contributors agrees,
at the Closing, to contribute, assign and transfer its
Contributor's Interest to the Acquiror and the Acquiror agrees
to accept and acquire each Contributor's Interest in exchange
for consideration, the receipt and sufficiency of which is
hereby acknowledged by the Contributors in accordance with the
terms and conditions set forth herein. The parties agree that
the Acquiror has the right to designate an alternate entity or
person to take title to any of the Contributors' Interests at
the time of Closing.
2.2. TRANSFER OF CONTRIBUTORS' INTEREST. At the Closing, each
Contributor shall execute and deliver to Acquiror such
documents as Acquiror reasonably requests to evidence the
transfer of the Contributor's Interest.
3. REPRESENTATIONS AND WARRANTIES OF CONTRIBUTORS CONCERNING THE
TRANSACTION. To induce the Acquiror to enter into this Agreement and to
acquire the Contributed Interests, each Contributor, severally (and not
jointly), makes the following representations and warranties with
respect to itself (except that only Xxxxxxx, and none of the other
Contributors, makes the representations and warranties contained in
Section 3.5 below):
3.1. ORGANIZATION AND POWER. The Contributor is a corporation or
limited liability company, as applicable, duly formed, validly
existing and in good standing under the law of its
jurisdiction of formation, all as set forth on Schedule 3.1.
The Contributor has the requisite power and authority to
execute and deliver this Agreement and any other document or
instrument required to be executed and delivered hereunder, to
perform its obligations and to consummate the transactions
contemplated hereby and thereby.
3.2. AUTHORIZATION, NO VIOLATIONS AND NOTICES.
(a) The execution, delivery and performance of this
Agreement by the Contributor, and the consummation of
the transactions contemplated hereby have been duly
authorized, adopted and approved by the manager(s)
and member(s) of the Contributor which is a limited
liability company and board of directors and
shareholders of the Contributor which is a
corporation, in each case to the extent required by
each entity's organizational documents and applicable
law. No other proceedings are necessary to authorize
this Agreement and the transactions contemplated
hereby. This Agreement has been duly executed by the
Contributor and is a valid and binding obligation
enforceable against it in accordance with its
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terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to
the enforcement of creditors' rights and remedies or
by other equitable principles of general application.
(b) Except as set forth on Schedule 3.2, neither the
execution, delivery, or performance by the
Contributor of this Agreement, nor the consummation
of the transactions contemplated hereby and under any
document executed pursuant hereto will:
(i) violate, conflict with, result in a breach of
any provision of, constitute a default (or an
event that, which, with notice or lapse of
time or both, would constitute a default)
under, result in the termination of,
accelerate the performance required by, or
result in a right of termination or
acceleration, or the creation or imposition
of any lien, security interest, charge, or
encumbrance upon the Contributor's Interests
under any of the terms, conditions, or
provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease,
agreement, or other instrument, or obligation
to which any Origen Entity or such
Contributor is a party, or by which any
Origen Entity or such Contributor may be
bound or affected, or to which any Origen
Entity or such Contributor or its properties
or assets may be subject; or
(ii) violate any judgment, ruling, order, writ,
injunction, decree, statute, rule, or
regulation applicable to any Origen Entity or
its property or assets or such Contributor or
its property or assets.
3.3. CONTRIBUTED INTERESTS. The Contributor's Interests will be
free and clear of all liens and encumbrances on the Closing
Date and the Contributor has good, merchantable title thereto
and the right to convey its interests in accordance with the
terms of this Agreement. Upon delivery of an assignment of
membership interests to the Acquiror at Closing in accordance
with Section 6.2(b) hereof, good, valid and merchantable title
to the Contributor's Interests, free and clear of all liens
and encumbrances, will pass to the Acquiror.
3.4. NO BROKERAGE COMMISSIONS. The Contributor has not engaged the
services of, nor has it or will it or Acquiror become liable
to, any agent, broker, finder or any other person or entity
for any brokerage or finder's fee, commission or other amount
with respect to the transactions described herein on account
of any action by the Contributor.
3.5. XXXXXXX APPROVAL. The Board of Directors of Xxxxxxx has
approved this Agreement and has acknowledged that Xxxxxxx will
not receive any consideration pursuant to this Agreement.
4. ADDITIONAL AGREEMENTS; SURVIVAL.
4.1. SURVIVAL. The representations and warranties set forth in
Article 3 of this Agreement shall survive until the earlier of
(i) three months after the date the Securities and Exchange
Commission declares effective a registration statement
registering for resale the shares of common stock of the
Acquiror purchased pursuant to the Initial Purchase Agreement
and (ii) twelve (12) months after the
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Closing Date; provided that in no event shall the
representations and warranties set forth in Article 3 hereof
survive for less than nine (9) months from the Closing Date.
No investigation, audit, inspection, review or the like
conducted by or on behalf of the Acquiror or the Contributors
shall be deemed to terminate the effect of any such
representations, warranties and covenants, it being understood
that the Acquiror and the Contributors have the right to rely
thereon and that each such representation, warranty and
covenant constitutes a material inducement to the Acquiror or
the Contributors, as applicable, to execute this Agreement and
to close the transaction contemplated hereby.
4.2. FURTHER ASSURANCES. From time to time after the Closing Date,
at the Acquiror's reasonable request and without further
consideration, the Contributors shall execute and deliver, or
cause to be executed and delivered, such further instruments
of conveyance, assignment and transfer and shall take such
other action as the Acquiror may reasonably request in order
to effectuate the contribution of the Contributed Interests
and to more effectively convey and transfer the Contributed
Interests to the Acquiror. At the Acquiror's reasonable
request, the Contributors shall cooperate and use their best
efforts to have their officers, directors, employees and
agents cooperate with the Acquiror on or after the Closing
Date by furnishing information, evidence, testimony and other
assistance in connection with any actions, proceedings,
arrangements or disputes involving any Origen Entity and which
are based on contracts, leases, arrangements or acts of an
Origen Entity which were in effect or occurred on or prior to
the Closing Date.
4.3. ACCESS TO BOOKS AND RECORDS. After execution of this
Agreement, the Contributors shall, on the reasonable request
of the Acquiror, cause each Origen Entity to make the
corporate records of each Origen Entity relating to its
organization and existence and other corporate materials and
information available to the Acquiror for inspection and
copying at all times during normal business hours.
5. CONDITIONS TO CLOSING.
5.1. CONDITIONS PRECEDENT TO THE CONTRIBUTORS' OBLIGATION. The
obligation of the Contributors to consummate the transactions
contemplated in this Agreement at the Closing is subject to
the satisfaction of all of the following conditions, any of
which may be waived (but only in writing) by all of the
Contributors:
(a) Performance of Agreement. The Acquiror shall have
performed and complied in all material respects with
all of its obligations under this Agreement which are
to have been performed or complied with on or prior
to the Closing Date.
(b) Approvals. The Acquiror shall have obtained,
performed or given all of the consents, approvals,
authorizations, designations, declarations, filings
and notices deemed advisable by the Contributors.
(c) Offering. The Acquiror and Xxxxxx Brothers Inc. or
its designees shall have executed and delivered the
Initial Purchase Agreement, and the Initial Purchase
Agreement shall be in full force and effect.
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(d) Litigation. There shall not be any litigation,
action, suit, claim, proceeding, order, investigation
or inquiry pending or threatened before any court or
quasi-judicial or administrative agency to, or
pursuant to which a judgment, order, decree,
stipulation, injunction or charge could be entered,
which could: (i) enjoin or prevent the consummation
of the transactions contemplated in this Agreement or
the Initial Purchase Agreement or (ii) cause any of
the transactions contemplated in this Agreement or
the Initial Purchase Agreement to be rescinded
following consummation thereof.
(e) Delivery of Closing Documents. Acquiror shall have
executed and delivered, or caused to be executed and
delivered, all of the documents described in Section
6.3 below. All documents relating to the transactions
contemplated in this Agreement shall be reasonably
satisfactory in form and content to the Contributors
and their legal counsel.
5.2. CONDITIONS PRECEDENT TO ACQUIROR'S OBLIGATION. The obligation
of the Acquiror to consummate the transactions contemplated in
this Agreement at the Closing is subject to the satisfaction
of all of the following conditions, any of which may be waived
(but only in writing) by the Acquiror:
(a) The Contributors' Representations and Warranties. All
representations, warranties and covenants made by the
Contributors in this Agreement shall have been true
and correct in all material respects on the date of
this Agreement and shall be true and correct in all
material respects as of the Closing Date with the
same force and effect as if they had been made on and
as of such date.
(b) Performance of Agreement. Each of the Contributors
shall have performed and complied in all material
respects with all of its obligations under this
Agreement which are to have been performed or
complied with on or prior to the Closing Date.
(c) Delivery of Closing Documents. Each of the
Contributors shall have executed and delivered, or
caused to be executed and delivered, all of the
documents described in Section 6.2 below. All
documents relating to the transactions contemplated
in this Agreement shall be reasonably satisfactory in
form and content to Acquiror and its legal counsel.
(d) Litigation. There shall not be any litigation,
action, suit, claim, proceeding, order, investigation
or inquiry pending or threatened before any court or
quasi-judicial or administrative agency to, or
pursuant to which a judgment, order, decree,
stipulation, injunction or charge could be entered
which could: (i) enjoin or prevent the consummation
of the transactions contemplated in this Agreement or
the Initial Purchase Agreement, (ii) cause any of the
transactions contemplated in this Agreement or the
Initial Purchase Agreement to be rescinded following
consummation thereof, (iii) adversely affect the
right of the Acquiror to own the Contributed
Interests, or (iv) otherwise have a Material Adverse
Effect.
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(e) Licenses and Permits. OFLLC will have obtained all
material licenses and permits necessary to permit
OFLLC to carry on its business from and after the
Closing Date.
(f) Approvals. OFLLC and the Contributors shall have
obtained, performed or given all of the consents,
approvals, authorizations, designations,
declarations, filings and notices deemed advisable by
the Acquiror.
6. CLOSING
6.1. CLOSING. The closing (the "Closing") of the transactions
contemplated in this Agreement shall be held at the offices of
Jaffe, Raitt, Heuer & Xxxxx, Professional Corporation, Xxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, immediately
prior to the closing of the offering contemplated by the
Initial Purchase Agreement or at such other location and time
as the Parties may mutually agree. As used in this Agreement,
the term "Closing Date" means the date on which the Closing
actually occurs.
6.2. DOCUMENTS TO BE DELIVERED AT CLOSING BY THE CONTRIBUTORS. At
the Closing, each of the Contributors shall properly execute
(if necessary) and deliver to the Acquiror, or cause to be
executed and delivered to the Acquiror, the following:
(a) A Closing Certificate, executed by an authorized
person of the Contributor, to the effect that (i) all
of the representations and warranties made by the
Contributor in this Agreement which are qualified as
to materiality are true and correct in all respects
and all representations and warranties made by the
Contributors which are not qualified as to
materiality are true and correct in all material
respects on the Closing Date with the same force and
effect as though made on and as of the Closing Date,
except for those representations and warranties that
address matters only as of a particular date (which
shall be correct in all material respects as of such
date), and (ii) such Contributor has performed and
complied in all material respects with all of its
obligations under this Agreement which are to have
been performed or complied with on or prior to the
Closing Date.
(b) An assignment of membership interests satisfactory to
Acquiror evidencing the assignment of the Contributed
Interests duly executed by an authorized
representative of the Contributor.
(c) Such other documents and instruments as are
contemplated in this Agreement or as the Acquiror or
its counsel may reasonably request in order to
evidence or consummate the transactions contemplated
in this Agreement or to effectuate the purpose or
intent of this Agreement.
6.3. DOCUMENTS TO BE DELIVERED AT CLOSING BY THE ACQUIROR. At the
Closing, the Acquiror shall properly execute and deliver to
the Contributors, or cause to be executed and delivered to the
Contributors, as the case may be, such documents and
instruments as are contemplated in this Agreement or as the
Contributors or their counsel may reasonably request in order
to evidence or consummate the transactions contemplated in
this Agreement or to effectuate the purpose or intent of this
Agreement.
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7. MISCELLANEOUS
7.1. NOTICES. Any notice, request, waiver, information or other
document to be given hereunder to any of the Parties by any
other Party shall be in writing and shall be deemed to have
been duly given if delivered personally, sent by certified
mail, postage prepaid, or sent by next day or overnight mail
or delivery, to that Party's notice address on the records of
the Acquiror.
Any Party may change the address to which notices hereunder
are to be sent to it by giving written notice of such change
of address in the manner herein provided for giving notice.
Any notice delivered personally shall be deemed to have been
given on the date it is so delivered, any notice delivered by
registered or certified mail shall be deemed to have been
given on the date it is received and any notice sent by next
day or overnight mail or delivery shall be deemed to have been
delivered on the next business day.
7.2. HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
7.3. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan
applicable to contracts made and to be performed therein. The
Parties hereto hereby irrevocably submit to the jurisdiction
of the courts of the State of Michigan and the federal courts
of the United States located in the State of Michigan in
respect of the interpretation and enforcement of the
provisions of this Agreement and of the documents referred to
in this Agreement.
7.4. NO ASSIGNMENT; BENEFIT. This Agreement shall be binding upon
and inure to the benefit of the Parties hereto and their
respective successors, assigns, heirs and legal
representatives. This Agreement may not be assigned without
the prior written consent of all of the other Parties hereto.
7.5. ENTIRE AGREEMENT. This Agreement and the exhibits and
schedules attached hereto contain the entire agreement of the
Parties hereto with respect to the matters set forth herein
and the other transactions contemplated herein, and supercede
all prior understandings and agreements of the Parties with
respect to the subject matter hereof. Any reference herein to
this Agreement shall be deemed to include the schedules and
appendices attached hereto.
7.6. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
Photostatic or facsimile reproductions of this Agreement may
be made and relied upon to the same extent as originals.
7.7. WAIVER. The waiver by any Party of any breach of any provision
of this Agreement shall not operate or be construed as a
waiver of any subsequent or similar breach.
7.8. AMENDMENT. This Agreement may only be amended by written
agreement executed by all of the Parties.
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7.9. BROKERAGE OR FINDER'S FEE. Any and all brokerage fees due and
payable to any broker, finder, agent or similar intermediary
in connection with this Agreement or the transactions
contemplated hereby shall be borne by the Party responsible
for retaining, or claimed to be responsible for retaining,
such broker, finder, agent or similar intermediary.
7.10. PUBLICITY. No press release or other public announcement
related to this Agreement or the transactions contemplated
hereby will be issued by any Party hereto without the prior
approval of all of the other Parties, except that any Party
may make such public disclosure which it believes in good
faith to be required by law or by the terms of any listing
agreement with a securities exchange (in which case such Party
will consult with the other Parties prior to making such
disclosure).
7.11. NO THIRD PARTY BENEFICIARIES. The rights and obligations of
the Parties under this Agreement are for the benefit of the
Contributors and the Acquiror only, and neither any creditor
of any of the Contributors or the Acquiror, nor any other
person or entity shall have the right to rely on or enforce
the provisions of this Agreement as a third-party beneficiary
or otherwise. Without limiting the generality of the
foregoing, the rights granted to any of the Contributors or
the Acquiror in this Agreement are personal to them, and no
receiver, trustee or liquidator of the any of them, or any
other person or entity, shall have the right or power to
exercise any such rights.
7.12. CERTAIN TAX MATTERS. As of the Closing Date, OFLLC will cease
to qualify as a partnership for tax purposes. The Acquiror
shall assume the obligation and expense of filing final
partnership tax returns for OFLLC; provided, however, that the
Contributors shall have the right to review and comment on
such returns prior to the their filing.
7.13. COVENANT OF XXXXXXX. At any time after the Closing Date,
Xxxxxxx shall afford the Acquiror and its accountants, counsel
and other representatives reasonable access during normal
business hours, upon reasonable notice, to the books, records
and personnel of Xxxxxxx to obtain all information concerning
the business, results of operations and personnel of Xxxxxxx
as the Acquiror may reasonably request to assist the Acquiror
in the preparation and filing of a registration statement
relating to the common stock, $0.01 par value per share of
Acquiror with the Securities and Exchange Commission.
7.14. NO INDEMNIFICATION. Notwithstanding anything to the contrary
contained in this Agreement or in any document, agreement or
instrument entered into in conjunction with the transactions
contemplated in or by this Agreement, no Party shall have any
claim against any other Party or Parties for indemnification
arising from or as a result of any breach of this Agreement or
for any and all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses incident to any of
the foregoing (whether brought or incurred by a Party or by
any third party).
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the next page is the signature page]
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IN WITNESS WHEREOF, the Parties have executed this Contribution
Agreement on or as of October 8th, 2003.
ACQUIROR:
ORIGEN FINANCIAL, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Its: CEO
CONTRIBUTORS:
SOE, LLC,
a Michigan limited liability company
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Its: Manager
----------------------------------------
XXXXXXXX HOLDING, LLC,
a Michigan limited liability company
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Its: Manager
XXXXXXXX FAMILY LLC,
a Michigan limited liability company
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Its: Manager
----------------------------------------
XXXXXXX FINANCIAL SERVICES CORPORATION,
a Michigan corporation
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Its: CEO
----------------------------------------
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APPENDIX I
CONTRIBUTORS
CONTRIBUTED WARRANTS TO
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NAME CONTRIBUTED INTEREST PURCHASE SERIES E UNITS
---- -------------------- -----------------------
SOE, LLC 300,000 Series B Units 550,000
Xxxxxxxx Holding, LLC 400,000 Series C Units 400,000
Xxxxxxxx Family LLC 100,000 Series B Units 50,000
Xxxxxxx Financial Services Corporation 200,000 Series A Units 0
