STOCK AND MEMBERSHIP PLEDGE AGREEMENT
Exhibit 10.6
Execution Version
THIS STOCK AND MEMBERSHIP PLEDGE AGREEMENT (the “Agreement”) is made as of April 8, 2008, by
and between Origen Financial L.L.C., a Delaware limited liability company (“Pledgor”), and ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ Trust u/a/d 12/13/04 (“Pledgee”).
RECITALS:
A. Pursuant to that certain Senior Secured Loan Agreement, of even date herewith between
Pledgor and Pledgee, Pledgee has loaned $46,000,000 to Pledgor, and pursuant to that certain
Amended and Restated Senior Secured Loan Agreement of even date herewith between Pledgor and
Pledgee, Pledgee has loaned the aggregate amount of $15,000,000 to Pledgor (collectively, the “Loan
Agreements”).
B. Pledgor owns 2,500 shares of the common stock, $0.01 par value per share (the “Pledged
Stock”), of Origen Servicing, Inc. (“OSI”). The Pledged Stock represents all of the issued and
outstanding shares of the OSI’s capital stock.
C. Pledgor owns a 100% membership interest (the “Membership Interest”, and together with the
Pledged Stock, the “Securities”) in Origen Securitization Company, LLC (“OSC” and together with
OSI, the “Companies”).
D. To induce Pledgee to provide financial accommodations to Pledgor and to secure the
repayment of the Obligations, Pledgor hereby grants to Pledgee a security interest in the
Securities and any sums due Pledgor from the Companies, upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, the parties agree as follows:
1. Pledge. As security for the full payment and performance of the Obligations,
Pledgor delivers, pledges and grants to Pledgee a continuing first priority security interest in
the following (the “Collateral”):
(a) the Securities;
(b) any notes payable or other indebtedness owing from the Companies to Pledgor,
whether evidenced by a promissory note, a book entry or otherwise; and
(c) the proceeds of each of the foregoing, including without limitation, any and all
dividends, cash, instruments and other property or income from time to time received,
receivable or otherwise distributed in respect of, or in exchange for, any of the above
(the “Proceeds”).
2. Stock Powers. Concurrently with execution of this Agreement, Pledgee shall deliver
to Pledgor certificate(s) representing the Securities, along with undated stock and membership
interests powers covering such certificate(s), in form and substance reasonably acceptable to
Pledgee, duly executed in blank by Pledgor.
3. Pledgee’s Duties. To the extent permitted under the Uniform Commercial Code as in
effect in the State of Michigan from time to time (the “Code”) and the provisions of this
Agreement, Pledgee shall have no duty with respect to the Collateral. Without limiting the
generality of the foregoing, Pledgee shall be under no obligation to take any steps necessary to
preserve rights in the Collateral against any other parties or to exercise any rights represented
thereby; provided, however, that Pledgee may, at its option, do so, and any and all
expenses incurred in connection therewith shall be for Pledgor’s sole account.
4. Distributions. So long as no Event of Default (as defined in the Loan Agreements)
has occurred and is continuing, Pledgor shall be entitled to receive for its own use all dividends
and distributions with respect to the Collateral. If an Event of Default has occurred and is
continuing, Pledgor shall not be entitled to receive or retain any dividends or distributions paid
in respect of the Collateral, and any and all such dividends or distributions shall be forthwith
delivered to the Pledgee to hold as collateral and shall, if received by Pledgor, be received in
trust for delivery to the Pledgee, and be segregated from the other property or accounts of Pledgor
until delivered to the Pledgee.
5. Representations, Warranties and Covenants. Pledgor represents, warrants and
covenants that:
(a) The Securities have been duly and validly issued. Pledgor is the record and
beneficial owner of, and has good and marketable title to, the Securities;
(b) There are no restrictions upon the transfer of any of the Collateral. Pledgor has
the right to pledge and grant a security interest in or otherwise transfer such Collateral
free of any encumbrances or rights of third parties;
(c) The Collateral is and shall remain free from all liens, claims, encumbrances and
purchase money or other security interests. Pledgor shall not sell, transfer or otherwise
dispose of any or all of the Collateral without Pledgee’s prior written consent. Pledgor
will defend the right, title and interest of Pledgee in and to the Collateral against the
claims and demands of all persons whomsoever;
(d) There are no options for the purchase of the Securities and all rights represented
thereby and Pledgor shall not grant any such options so long as this Agreement remains
outstanding;
(e) There are no existing agreements with respect to the Collateral between Pledgor and
any other person or entity;
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(f) Upon either (i) the delivery to Pledgee of the certificate(s) evidencing the
Pledged Stock and the Membership Interest and the stock and membership interest powers or
(ii) the filing of a financing statement listing Pledgor as debtor and Pledgee as secured
party and describing the Collateral, the security interest created by this Agreement will
constitute a valid, perfected first priority security interest in the Collateral granted by
Pledgor, enforceable in accordance with its terms against all creditors of Pledgor and any
persons purporting to purchase any Collateral from Pledgor, except as affected by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors’ rights generally, general equitable principles
(whether considered in a proceeding in equity or at law);
(g) If Pledgor shall, as a result of its ownership of any Securities, become entitled
to receive or shall receive any stock or membership certificate (including, without
limitation, any certificate representing a stock dividend or a distribution in connection
with any reclassification, increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights, whether in addition to, in
substitution of, as a conversion of, or in exchange for any Securities, or otherwise in
respect thereof, Pledgor shall accept the same as the agent of Pledgee, hold the same in
trust for Pledgee and deliver the same forthwith to Pledgee in the exact form received, duly
endorsed by Pledgor to Pledgee, if required, together with an undated stock power covering
such certificate duly executed in blank by Pledgor, to be held by Pledgee, subject to the
terms hereof, as additional collateral security for the Obligations. Any property
distributed to Pledgor upon or in respect of the Securities upon the liquidation,
dissolution, recapitalization or reorganization of either Company, shall be delivered to
Pledgor as additional collateral security for the Obligations. If any property distributed
in respect of the Securities shall be received by Pledgor while an Event of Default has
occurred and is continuing, Pledgor shall, until such property is delivered to Pledgee, hold
the property in trust for Pledgee, segregated from other property of Pledgor, as additional
collateral security for the Obligations;
(h) Without the prior written consent of Pledgee, Pledgor shall not vote to enable, or
take any other action to permit either Company to issue any stock, membership interest or
other equity securities of any nature or to issue any other securities convertible into or
granting the right to purchase or exchange for any stock, membership interest or other
equity securities of any nature of either Company;
(i) Upon the written request of Pledgee, and at its sole expense, Pledgor will promptly
and duly execute and deliver such further instruments and documents and take such further
actions as Pledgee may reasonably request for the purposes of obtaining or preserving the
full benefits of this Agreement and of the rights and powers herein granted. If any amount
payable under or in connection with any of the Collateral shall be or become evidenced by
any promissory note, other instrument or chattel paper, such note, instrument or chattel
paper shall be immediately delivered to Pledgee, duly endorsed in a manner satisfactory to
Pledgee, to be held as Collateral pursuant to this Agreement; and
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(j) Pledgor shall pay, and save Pledgee harmless from, any and all liabilities with
respect to, or resulting from any delay in paying, any and all stamp, excise, sales or
other taxes which may be payable or determined to be payable with respect to any of the
Collateral granted by Pledgor or in connection with any of the transactions contemplated by
this Agreement.
6. Voting Rights. Unless an Event of Default shall have occurred and be continuing,
Pledgor shall be permitted to exercise all voting and related rights with respect to the
Securities; provided, however, that no vote shall be cast or related right
exercised or other action taken which would impair the Collateral or which would be inconsistent
with or result in any violation of any provision of this Agreement.
7. Remedies.
(a) If an Event of Default has occurred and is continuing, Pledgee shall have, in addition to
any other rights given by law and the rights against Pledgor hereunder, and in any other documents
executed by Pledgor and Pledgee, all of the rights and remedies with respect to the Collateral of a
secured party under the Code, including, but not limited to, the right to collect, receive,
appropriate and realize upon the Collateral.
(b) With respect to the Collateral, Pledgee may sell or cause the same to be sold at any
public or private sale, in one or more sales or lots, at such price as Pledgee may deem best, and
for cash or on credit or for future delivery, without assumption of any credit risk, and the
purchaser of any or all of the Collateral so sold shall thereafter hold the same absolutely, free
from any claim, encumbrance or right of any kind whatsoever and free of any right or equity of
redemption in Pledgor, which right or equity is hereby waived or released. The proceeds of sale
will be applied to the expenses of retaking, holding, preparing for disposition, processing and
disposing of the Collateral and, to the extent not prohibited by law, reasonable attorney’s fees
and legal expenses incurred by Pledgee. All remaining proceeds will be applied to the Obligations.
Any surplus remaining, subject to any rights of the holder of a subordinate security interest or
lien, will be paid to Pledgor. To the extent permitted by applicable law, Pledgor waives all
claims, damages and demands it may acquire against Pledgor arising out of the exercise by it of
any rights hereunder, except such claims and damages arising out of the gross negligence or willful
misconduct of Pledgee. Pledgor shall remain liable for any deficiency if the proceeds of any sale
or other disposition of Collateral are insufficient to pay the Obligations and the reasonable fees
and disbursements of any attorneys employed by Pledgor to collect such deficiency. Pledgor agrees
that any transfer or sale of the Collateral conducted in conformity with reasonable commercial
practices of banks, insurance companies or other financial institutions disposing of property
similar to the Collateral shall be deemed to be commercially reasonable. Any requirement of
reasonable notice shall be met if such notice is mailed to Pledgor at the address set forth in this
Agreement at least five business days before the time of the sale or disposition. Pledgor, to the
extent permitted by law, waives any other requirement of notice, demand or advertisement for sale.
Pledgee may, in its own name, or in the name of a designee or nominee, buy the Collateral at any
public sale of the Collateral. Pledgee shall have the right to execute any document or form, in
its
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name or in Pledgor’s name, which may be necessary or desirable in connection with such sale of
Collateral.
In view of the fact that federal and state securities laws may impose certain restrictions on
the method by which a sale of the Collateral may be effected after an Event of Default, Pledgor
agrees that upon the occurrence and continuation of an Event of Default, Pledgee may from time to
time attempt to sell all or any part of the Collateral by a private placement, restricting the
bidders and prospective purchasers to those who will represent and agree that they are “accredited
investors” within the meaning of Regulation D promulgated pursuant to the Securities Act of 1933,
as amended (the “Securities Act”), and are purchasing for investment only and not for distribution.
In so doing, Pledgee may solicit offers to buy the Collateral, or any part of it, for cash from a
limited number of investors deemed by Pledgee, in its sole discretion, to be responsible parties
who might be interested in purchasing the Collateral.
Notwithstanding the above, should Pledgee determine that, prior to any public offering of any
securities contained in the Collateral, such securities should be registered under the Securities
Act and/or registered or qualified under any other federal or state law, and that such registration
and/or qualification is not practical, then Pledgor agrees that Pledgee’s compliance with any
applicable state or federal laws in connection with the private sale of the Collateral will not be
considered to adversely affect the commercial reasonableness of any sale of the Collateral.
(c) If an Event of Default shall occur and be continuing, Pledgee shall have the right to have
any or all of the Securities registered in its name or the name of its nominee, and Pledgee or its
nominee may thereafter exercise all voting, related and other rights pertaining to such Securities
at any meeting of stockholders or members of the Companies or otherwise and any and all rights of
conversion, exchange, subscription and any other rights, privileges or options pertaining to the
Securities as if it were the absolute owner thereof (including, without limitation, the right to
exchange at Pledgee’s discretion any and all of the Securities upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate or limited liability
company structure of the Companies, as applicable, or upon the exercise by Pledgor or Pledgee of
any right, privilege or option pertaining to the Securities, and in connection therewith, the
right to deposit and deliver any and all of the Securities with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as Pledgee may
determine).
(d) Pledgee shall not be liable for any failure to demand, collect or realize upon all or any
part of the Collateral or for any delay in doing so, nor shall Pledgee be under any obligation to
sell or otherwise dispose of any Collateral upon the request of Pledgor or any other person or to
take any other action whatsoever with regard to the Collateral or any part thereof.
8. Pledgee as Pledgor’s Attorney-in-Fact. Pledgor irrevocably appoints Pledgee as
Pledgor’s attorney-in-fact, with full power of substitution, to (a) take any and all appropriate
action and execute any and all documents and instruments which may be necessary to accomplish the
purposes of this Agreement, including, without limitation, any financing statements, endorsements,
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assignment or other instruments of transfer and (b) to arrange for the transfer of the Collateral
and other collateral on the Companies’ books to the name of Pledgee or to the name of its nominee,
all such acts of such attorney being ratified and confirmed and such power being coupled with an
interest and irrevocable until the Obligations are irrevocably paid or performed in full.
9. Duty of the Pledgee. Pledgee’s sole duty with respect to the custody, safekeeping
and physical preservation of the Collateral in its possession shall be to deal with it in the same
manner as the Pledgee deals with similar securities and property for its own account. Neither
Pledgee nor its agents shall be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of Pledgor or any other person or to take any other
action whatsoever with regard to the Collateral or any part thereof.
10. Further Assurances. Pledgor agrees that Pledgor will cooperate with Pledgee and
will execute and deliver, or cause to be executed and delivered, all such other stock or membership
interest powers, proxies, instruments and documents and will take all such other action as Pledgee
may reasonably request from time to time to carry out the provisions and purposes hereof.
11. Notices. All notices, demands, instructions and other communications required or
permitted to be given to or made upon any party shall be in writing and shall be personally
delivered or sent by registered or certified mail, postage prepaid and, if mailed, shall be deemed
to be received for purposes of this Agreement five (5) business days after mailing by the sender.
Unless otherwise specified in a notice sent or delivered in accordance with the foregoing
provisions of this Section 8, notices, demands, instructions and other communications in writing
shall be given to or made upon the parties at the following addresses:
| If to Pledgor: | Origen Financial L.L.C. | ||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| With a copy to: | Jaffe, Raitt, Heuer & ▇▇▇▇▇, PC | ||
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| ▇▇▇▇▇ ▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Attention: ▇▇▇▇▇ Sugar | |||
| Fax. No.: (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇ | |||
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| If to Lender: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust u/a/d 12/13/04 | ||
| ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ | |||
| ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| With a copy to: | ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ LLP | ||
| 2290 First National Building | |||
| ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Fax No: (▇▇▇) ▇▇▇-▇▇▇▇ | |||
| Phone Number: (▇▇▇) ▇▇▇-▇▇▇▇ |
12. Choice of Law. The law of the State of Michigan shall govern the perfection, the
effect of perfection or non-perfection, and the priority of a security interest in the Collateral.
The validity of this Agreement, its construction, interpretation and enforcement and the rights of
the parties shall be determined under, governed by and construed in accordance with the internal
laws of the State of Michigan, without regard to principles of conflicts of law.
13. Miscellaneous Provisions.
(a) The terms and provisions of this Agreement shall be binding upon, inure to the
benefit or and be enforceable by the parties and their heirs and assigns.
(b) This Agreement, together with any other writing referred to in this Agreement or
delivered pursuant to this Agreement, contains the entire understanding of the parties.
There are no other representations, promises, warranties, covenants or undertakings except
as expressly set forth herein or therein. This Agreement supersedes all prior agreements
and understandings among the parties with respect to the subject matter of this Agreement.
(c) This Agreement may be amended only by a written instrument duly executed by the
parties or their assigns.
(d) 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.
(e) This Agreement may be executed in two counterparts, each of which shall constitute
an original and both of which taken together shall constitute one and the same instrument.
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(f) Pledgor irrevocably authorizes Pledgor at any time and from time to time to file
any financing statements and amendments thereto describing the Collateral in order for
Pledgee to perfect its security interest therein.
(g) No provision of this Agreement may be waived, amended or modified except pursuant
to an agreement in writing entered into by Pledgor and Pledgee.
(h) This Agreement shall be binding upon and inure to the benefit of Pledgor and
Pledgee, and their respective successors and assigns, provided, however, that Pledgor
may not, without the prior written consent of Pledgee, assign any rights, powers, duties or
obligations under this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first written above.
| PLEDGOR: | ||||||
| ORIGEN FINANCIAL L.L.C., a Delaware limited liability company | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|||||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇ | ||||||
| Title: Chief Executive Officer | ||||||
| PLEDGEE: | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ TRUST U/A/D 12/13/04 | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
|||||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||||
| Title: Title | ||||||
[Signature page to Pledge Agreement]
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