ORIGEN FINANCIAL, LLC ENDORSEMENT SPLIT-DOLLAR PLAN
THIS ORIGEN FINANCIAL, LLC ENDORSEMENT SPLIT-DOLLAR PLAN (the "Plan"),
established as of November 14, 2003 (the "Effective Date"), by Origen Financial,
LLC, 27777 Franklin Road, Suite 1700, Southfield, MI 48034, a Delaware
liability company (the "Company" or "Employer"),
WHEREAS, the Company desires to establish this Plan for the benefit of
certain of its employees (the "Employees" or "Participants");
WHEREAS, this Plan will provide certain life insurance benefits for each
Participant in the event of his or her death as defined herein, under a policy
of life insurance insuring the life of the Participant (the "Policy");
WHEREAS, the Company shall be the Owner of each Policy hereunder (the
Company may sometimes be referred to herein as the "Owner"), and is willing to
pay the premiums due on each Policy as an additional employment benefit for each
Employee, on the terms and conditions hereinafter set forth;
WHEREAS, the Employee or a party designated in the Participation Agreement
(as hereinafter defined) shall be entitled to a portion of the death benefit of
each Policy and, as such, shall possess certain Incidents of Ownership in and to
the Policy, and
WHEREAS, the Company shall endorse certain rights in each Policy to the
Employee or a party designated in the Participation Agreement (as hereinafter
NOW, THEREFORE, the Company hereby establishes this Plan as of the
Effective Date on the following terms and conditions:
1. Establishment and Purpose. Company hereby establishes this Plan as of
the Effective Date. The Plan shall be known as the Origen Financial, LLC
Endorsement Split-Dollar Plan. The purpose of the Plan is to provide death
benefits to the beneficiary designated by the Employee (or the party designated
in the Participation Agreement) upon the Employee's death during the term of the
Employee's participation in this Plan.
2. Definitions. Except as otherwise provided herein, the following terms
shall have the definitions hereinafter indicated whenever used in this Plan with
initial capital letters:
a. Beneficiary or Designated Beneficiary shall mean any person,
entity or any combination thereof designated by the Employee (or the party
designated in the Participation Agreement) in accordance with the procedures of
the Insurer, as the beneficiary of the portion of the Policy death benefit
payable hereunder to the designated beneficiary.
b. Code shall mean the Internal Revenue Code of 1986, as amended, or
any successor provisions.
c. Company shall have the same meaning as the term "Employer."
d. Employee shall mean an employee of the Company selected by the
Company to participate in this Plan, and who elects to participate in this Plan
by executing and delivering to the Company a Participation Agreement, provided
that all Participants herein shall be members of a select group of management or
highly compensated employees.
e. Employer shall mean Origen Financial, LLC, 27777 Franklin Road,
Suite 1700, Southfield, MI 48034, a Delaware
limited liability company, and its
successors or assigns.
f. Endorsement shall mean the document under which the Company shall
endorse certain rights under the Policy to the Employee (or the party designated
in the Participation Agreement).
g. Incidents of Ownership shall have the same definition as in
Section 2042 of the Code, and all regulations thereunder.
h. Insurer shall mean the life insurance company issuing a Policy
with respect to an Employee under this Plan.
i. Participant shall have the same definition herein as the term
"Employee," provided that in the event the Participation Agreement designates an
irrevocable life insurance trust or other person or entity as the party to have
all Incidents of Ownership in the Endorsement and the Policy that otherwise
would be owned by the Employee, notwithstanding any other provision herein, such
trust or other person or entity shall be deemed to own all the Incidents of
Ownership that otherwise would be held by the Employee.
j. Participation Agreement shall mean an agreement in substantially
the same form as Exhibit A attached hereto and incorporated herein by this
reference, and as may be amended by the Employer from time to time, or any form
designated by the Employer from time to time as the Participation Agreement.
k. Plan shall mean this Origen Financial, LLC Endorsement
3. Eligibility and Participation. The Company shall select the employees
who may participate hereunder from time to time, provided that in order to
become a Participant hereunder, such employee must (i) execute a Participation
Agreement in such form as the Company may require from time to time, and (ii) be
a member of a select group of management or highly compensated employees.
4. The Policy. The Company has purchased or shall purchase a Policy in
the initial face amount set forth in the Participation Agreement on the life of
the Employee. The Company
and each Employee agree to take all necessary action to cause an Insurer to
issue such a Policy and shall take any further action which may be necessary to
cause the Policy to conform to the provisions of this Plan. The parties hereto
agree that the rights to benefits under each Policy shall be subject to the
terms and conditions of this Plan, the applicable Participation Agreement, and
the Endorsement to the Policy filed with the Insurer.
5. Policy Ownership. The Company shall be the sole and absolute owner of
the Policy, and may exercise all ownership rights granted to the owner thereof
by the terms of the Policy, except as otherwise provided herein and in the
Endorsement document executed with respect to the Policy.
6. Beneficiary Designation. The Employee (or a party designated by the
Employee in the Participation Agreement) may select the settlement option of the
Policy and the Beneficiaries to receive the portion of Policy proceeds covered
by the Endorsement, by specifying the same in the manner permitted by the
Insurer. The parties hereto agree to take all action necessary to cause the
beneficiary designation and settlement election provisions of the Policy to
conform to the provisions hereof. Neither the Employee (nor the party designated
in the Participation Agreement) shall take any action that would jeopardize the
Company's ability to collect any amount that the Company is entitled to receive
under this Plan, without the express written consent of the Company.
7. Policy Premiums. On or before the due date of each Policy premium, or
within the grace period provided therein, the Company shall pay the full amount
of each premium to the Insurer, and shall, upon written request, promptly
furnish evidence of timely payment of such premium to the Employee (or the party
designated in the Participation Agreement). The Company shall annually furnish
the Employee with a statement of the amount of income
reportable by the Employee for federal and state income tax purposes, as a
result of its payment of such premium. The amount of income reportable for
income tax purposes by the Employee shall be measured by the lowest rate
permitted by the government.
8. Endorsement. The Company shall execute a separate Endorsement document
(at the time an Employee becomes a Participant hereunder or shortly thereafter)
under which the Company shall endorse certain rights to the Employee (or the
party designated in the Participation Agreement), including the right to be paid
the Target Death Benefit designated by the Employee's Participation Agreement,
and in the event this Agreement terminates during the Employee's lifetime, the
rights to acquire the Policy as provided herein. The Endorsement document
relating to the Policy hereunder shall not be terminated, altered or amended by
the Company, without the express written consent of the Employee (or the party
designated in the Participation Agreement). The parties hereto agree to take all
action necessary to cause the Endorsement to conform to the provisions of this
9. Certain Policy Rights.
a. Except as otherwise provided herein, the Owner shall not sell,
assign, transfer, surrender or cancel the Policy, without the express written
consent of the Employee (or the party designated in the Participation
b. In the event the Employee designates an irrevocable life
insurance trust or other person or entity under the Participation Agreement as
the party to have all Incidents of Ownership in the Endorsement and the Policy
that otherwise would be owned by the Employee, notwithstanding any other
provision herein, such trust or other person or entity shall be deemed to own
all the Incidents of Ownership that otherwise would be held by the Employee.
c. Notwithstanding any provision hereof to the contrary, the
Employee shall have the right, at any time, to absolutely and irrevocably give
to a donee (for example, an irrevocable life insurance trust), all of his or her
right, title, and Incidents of Ownership in and to the Endorsement (and the
Policy), subject to all the rights of the Company under this Agreement and in
the Policy. The Employee may exercise this right by executing a written
assignment or other document, and delivering notice thereof to the Company. Upon
receipt of a copy of such assignment form, executed by the Employee and duly
accepted by the donee thereof, the Company shall consent thereto in writing, and
shall thereafter treat the Employee's donee as the sole owner of all of the
Employee's right, title, and Incidents of Ownership in and to the Endorsement
and the Policy, subject to this Plan and the ownership of the Policy by the
Company. Thereafter, the Employee shall have no Incidents of Ownership in the
Endorsement or the Policy, all such rights being vested in and exercisable only
by such donee.
10. Death Benefit.
a. If the Employee dies while he or she is a Participant under this
Plan, the Company shall cooperate with the Beneficiary designated by the
Employee (or the party designated in the Participation Agreement) to take
whatever action is necessary to collect the death benefit provided under the
b. Upon the death of the Employee, the Beneficiary shall receive a
portion of such death benefit equal to the Target Death Benefit designated by
the Employee's Participation Agreement. The balance of the death benefit
provided under the Policy, if any, shall be paid to the Company. The parties
hereto agree that the beneficiary designation provision of the Policy shall
conform to the provisions hereof.
c. In the event that, for any reason whatsoever, the Employee is the
sole insured and no death benefit is payable under the Policy upon the death of
the Employee and in lieu thereof the Insurer refunds all or any part of the
premiums paid for the Policy, the Company and the Beneficiary shall share such
premiums based on the same ratio that would have been used to divide a death
benefit payable under the Policy.
11. Termination of this Plan for All Participants, and Termination of an
a. The participation of all Employees hereunder (and all rights held
by persons or entities designated in a Participation Agreement) shall terminate,
without notice, upon the occurrence of any of the following events: (i) total
cessation of the Company's business; (ii) bankruptcy, receivership or
dissolution of the Company; or (iii) termination of this Plan by the Company in
accordance with Section 16 hereof.
b. In addition, the Company and an Employee (or the party designated
in the Participation Agreement) may mutually agree to terminate an Employee's
participation hereunder (and all rights held by persons or entities designated
in a Participation Agreement) at any time. Such termination shall be effective
as of the date agreed upon.
c. Also, an Employee's participation hereunder will automatically
terminate upon the Employee's termination of employment, and if not sooner
terminated, shall automatically terminate upon the Employee completing ten (10)
Years of Participation under the Origin Financial, LLC Capital Accumulation Plan
(the "Capital Accumulation Plan"), which is dated effective as of November 14,
2001, as amended. Any such event shall also automatically terminate all rights
held by persons or entities designated in a Participation Agreement.
12. Disposition of the Policy on Termination of Participation.
a. For sixty (60) days after the date of termination of
participation under this Plan, the Employee (or the party designated in the
Participation Agreement) shall have the option of acquiring the Policy from the
Company. To obtain such release, the Employee (or the party designated in the
Participation Agreement) shall pay to the Company an amount equal to the cash
surrender value of the Policy, less any indebtedness secured by the Policy which
was incurred by the Company and remains outstanding as of the date of such
termination, including any interest due on such indebtedness (herein the
"Payment Amount"). Upon receipt of the Payment Amount, the Company shall
transfer ownership of the Policy to the Employee (or the party designated in the
Participation Agreement), by the execution and delivery of appropriate transfer
of ownership documents, or such other documentation as shall be reasonably
necessary to transfer ownership of the Policy.
b. If the Employee (or the party designated in the Participation
Agreement) fails to exercise such option within such sixty (60) day period,
then, at the request of the Company, the Employee (or the party designated in
the Participation Agreement) shall execute any document or documents required by
the Insurer to cancel the Endorsement, Alternatively, the Company may enforce
its right to be paid an amount equal to the Payment Amount from the cash
surrender value of the Policy under the Policy. Thereafter, neither the Employee
(nor the party designated in the Participation Agreement) nor his, her or its
respective heirs, assigns or beneficiaries shall have any further interest in
and to the Policy, either under the terms of the Endorsement or under this Plan.
If the cash surrender value is insufficient to pay the Company an amount equal
to the Payment Amount for any reason, neither the Employee, the party designated
in the Participation Agreement, nor any other party shall have any liability
hereunder for such deficiency.
13. Termination of Employee's Participation and Forfeiture of Company's
Interest if Company Misses a Premium. If the Company fails to pay a premium on a
Policy on an Employee's life within sixty (60) days of the due date (as extended
for any grace period), (i) such Employee's participation in this Plan shall
terminate, (ii) the Company shall automatically forfeit all of its rights with
respect to such Policy under this Plan, or under any other document, and the
Company shall transfer ownership of the Policy to the Employee (or the party
designated in the Participation Agreement); (iii) the Company shall execute any
documents (and take any other actions) reasonably necessary to evidence that its
interest in such Policy has been forfeited, and (iv) the Company's obligation
under the Capital Accumulation Plan shall be reduced as provided in Section 6e
of the Capital Accumulation Plan.
14. Insurer Not a Party. The Insurer shall be fully discharged from its
obligations under the Policy by payment of the Policy death benefit to the
beneficiary or beneficiaries named in the Policy, subject to the terms and
conditions of the Policy. In no event shall the Insurer be considered a party to
this Plan, or any modification or amendment hereof. No provision of this Plan,
nor of any modification or amendment hereof, shall in any way be construed as
enlarging, changing, varying, or in any other way affecting the obligations of
the Insurer as expressly provided in the Policy, except insofar as the
provisions hereof are made a part of the Policy by the Endorsement executed by
the Company and filed with the Insurer in connection herewith.
15. Named Fiduciary, Determination of Benefits, Claims Procedure and
a. Named Fiduciary and Determinations. The Company is the named
fiduciary under this Plan. The Company, or a committee or other group designated
by the Company, shall make all determinations as to rights to benefits under
this Plan. The Company (or its designee) shall have full power and authority to
interpret, construe and administer this Plan in its sole and absolute
discretion. The interpretation and construction of this Plan by the Company (or
its designee), and any action taken pursuant thereto, shall be binding and
conclusive upon all parties in interest.
b. No Liability. In no event shall any employee, agent, officer or
director of the Company (or its designee) be liable to any person for any action
taken or omitted to be taken in connection with the interpretation, construction
or administration of this Plan, so long as such action or omission to act is
made in good faith.
c. Designation of Board of Managers. The Company hereby designates
the Board of Managers to administer this Plan. The Board of Managers shall have
all the authority as is granted to the Company under the terms of this Plan for
the administration of this Plan in accordance with its terms and in ruling on
such questions arising out of the administration, interpretation and application
of the Plan. The Board of Managers may approve or disapprove all documents in
connection herewith, and make all other determinations hereunder. Members of the
Board of Managers may participate in the Plan, but no member of the Board of
Managers shall be entitled to make decisions which relate solely to his or her
own participation. The Company reserves the right to designate a different group
or committee to administer this Plan from time to time, or to make any
determinations directly at any time. If no such committee is
designated at any time, such functions, as appropriate, may be conducted by the
Company's Board of Managers or other governing body. The Company's Board of
Managers or other governing body hereby reserves the right to revoke such
designation at any time and to make other designations (and to revoke such
designations) at any time.
d. Claims Procedure. The following provisions are hereby made a part
of this Plan and are intended to meet the requirements of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"). The following
claims procedures shall apply for purposes of this Plan. Any and all persons
presenting claims hereunder (individually or collectively, "Claimant") must
follow these procedures.
(a) For claims procedure purposes, the "Claims Manager" shall be
the chairperson of the Executive Committee (or the chairperson of any other
group or committee designated by the Employer to administer the Plan, or a
designated member of the Board of Managers or other governing body of the
(b) A Claimant shall make a claim for benefits hereunder by
submitting a written claim to the Company (or its designee) in accordance
with any procedures and guidelines established from time to time by the
Company, and in the absence of any specific procedures or guidelines shall
be delivered in the manner set forth herein for providing notice to the
Company under this Plan. The Claims Manager shall decide whether the claim
shall be allowed, and the following claims procedures shall apply:
(i) If for any reason a claim for benefits under this Plan
is denied by the Claims Manager, the Claims Manager shall deliver
to the Claimant a written explanation setting forth: the specific
reason or reasons
for the denial; specific references to pertinent Plan provisions;
a description of any additional material or information necessary
for the Claimant to perfect the claim and an explanation of why
such material or information is necessary; and appropriate
information as to the steps to be taken if the Claimant wishes to
submit his or her claim for review, all written in a manner
calculated to be understood by the Claimant. For this purpose:
(A) The Claimant's claim shall be deemed filed when
delivered in writing as provided herein.
(B) The Claims Manager's explanation shall be in
writing delivered to the Claimant within 90 days
of the date the claim is filed, unless special
circumstances require an extension of time for
processing the claim. If such an extension of time
for processing is required, written notice of the
extension shall be furnished to the Claimant prior
to the termination of the initial 90 days. The
extension notice shall indicate the special
circumstances requiring an extension of time and
the date by which the Claims Manager expects to
render the final decision.
(ii) The Claimant shall have 60 days following his or her
receipt of the denial of the claim to file with the Claims
Manager a written
request for review of the denial. For such review, the Claimant
or his or her representative may review pertinent documents and
submit issues and comments in writing.
(iii) On review, a decision shall be made within 60 days
after the Claims Manager's receipt of the request for review,
unless special circumstances require an extension of time for
processing, in which case a decision shall be rendered as soon as
possible, but not later than 120 days after receipt of the
request for review. If such an extension of rime for review is
required because of special circumstances, written notice of the
extension shall be furnished to the Claimant prior to the
commencement of the extension. The decision on review shall be in
writing and shall include specific reasons for the decision,
written in a manner calculated to be understood by the Claimant,
as well as specific references to the pertinent Plan provisions
on which the decision is based. If the decision on review is not
furnished within such time, the claim shall be deemed denied on
review. The Claims Manager may designate an appropriate person to
review the claim, who may be a member of the Company's Board of
Managers or other governing body, or a member of any other group
or committee designated hereunder.
(c) Conflicts of Interest. If the person who otherwise would
make a determination under this Section 14 is the Claimant or is a member
of the Claimant's family (within the definition of "family" under Section
267(c)(4) of the Code), the Board of Managers shall appoint another person
to make any such determination.
16. Amendment or Termination. The Company may amend, alter, modify or
terminate this Plan on a prospective basis at any time, provided that no such
amendment, modification, alteration or termination shall adversely affect a
Participant or Beneficiary's entitlement to benefits previously accrued under
this Plan. This Plan may not be amended, altered or modified retroactively,
except by a written instrument signed by the Company and the Participants who
would be adversely affected thereby or their respective successors.
17. Notices. Any notice, consent or demand required or permitted to be
given under the provisions of this Plan shall be in writing, and shall be signed
by the party giving or making the same. If such notice, consent or demand is
mailed to a party hereto, it shall be sent by United States certified mail,
postage prepaid, addressed to such party's last known address as shown on the
records of the Company. In the case of a notice sent to the Company, the notice
shall be sent to the attention of the Chief Executive Officer of the Company.
The date of such mailing shall be deemed the date of notice, consent or demand.
18. Governing Law. This Plan shall be governed by and construed in
accordance with the laws of the State of Michigan
, without regard to its
conflict of law rules.
IN WITNESS WHEREOF, the Company has executed this Plan effective as of the
ORIGEN FINANCIAL, LLC
By /s/ W. Anderson Geater
Print Name: W. Anderson Geater
Print Title: Chief Financial Officer