Exhibit 10.1
FORM OF MANAGEMENT AGREEMENT
THIS AGREEMENT, dated as of April , 1997 by and between OCWEN ASSET
INVESTMENT CORP., a Virginia corporation (the "REIT" and together with its
subsidiaries, the "Company"), and OCWEN CAPITAL CORPORATION, a Florida
corporation (the "Manager");
WITNESSETH:
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WHEREAS, the Company intends to invest in Subordinated Interests, Distressed
Real Property, MBS and other real estate related assets ("REIT Investments") and
expects to qualify for the tax benefits accorded by Sections 856 through 860 of
the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the Company desires to retain the Manager to acquire, sell and
otherwise manage the investments of the Company and to perform administrative
services for the Company in the manner and on the terms set forth herein;
NOW THEREFORE, in consideration of the mutual agreements herein set forth,
the parties hereto agree as follows:
SECTION 1. Definitions. Capitalized terms used but not defined herein shall
have the respective meanings assigned them in the Prospectus of the REIT dated
April , 1997. In addition, the following terms have the meanings assigned
them.
(a) "Agreement" means this Management Agreement, as amended from time to
time.
(b) "Closing Date" means the date of closing of the Company's initial
public offering of common stock.
(c) "Governing Instruments" means the articles of incorporation and
bylaws in the case of a corporation, or the partnership agreement in the
case of a partnership.
(d) "Subsidiary" means any subsidiary of the Company and any
partnership, the general partner of which is the Company or any subsidiary
of the Company.
SECTION 2. Duties of the Manager.
(a) The Manager at all times will be subject to the supervision of the
Company's Board of Directors and will have only such functions and authority as
the Company may delegate to it. The Manager will be responsible for the
day-to-day operations of the Company and will perform (or cause to be performed)
such services and activities relating to the assets and operations of the
Company as may be appropriate, including:
(i) serving as the Company's consultant with respect to formulation of
investment criteria and preparation of policy Guidelines by the Board of
Directors;
(ii) representing the Company in connection with the purchase and
commitment to purchase assets, the sale and commitment to sell assets, and
the maintenance and administration of its portfolio of assets;
(iii) furnishing reports and statistical and economic research to the
Company regarding the Company's activities and the services performed for
the Company by the Manager;
(iv) monitoring and providing to the Board of Directors on an ongoing
basis price information and other data, obtained from certain nationally
recognized dealers that maintain markets in assets identified by the Board
of Directors from time to time, and providing data and advice to the Board
of Directors in connection with the identification of such dealers;
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(v) providing the executive and administrative personnel and office
space and office services required in rendering services to the Company;
(vi) administering the day-to-day operations of the Company and
performing and supervising the performance of such other administrative
functions necessary in the management of the Company as may be agreed upon
by the Manager and the Board of Directors, including the collection of
revenues and the payment of the Company's debts and obligations and
maintenance of appropriate computer services to perform such administrative
functions;
(vii) communicating on behalf of the Company with the holders of any
equity or debt securities of the Company as required to satisfy the
reporting and other requirements of any governmental bodies or agencies and
to maintain effective relations with such holders;
(viii) to the extent not otherwise subject to an agreement executed by the
Company, designating a servicer for mortgage loans sold to the Company by
originators that have elected not to service such loans and arranging for
the monitoring and administering of such servicers;
(ix) counseling the Company in connection with policy decisions to be
made by the Board of Directors;
(x) counseling the Company regarding the maintenance of its status as a
REIT and monitoring compliance with the various REIT qualification tests and
other rules set out in the Code and regulations thereunder;
(xi) engaging in hedging activities on behalf of the Company, consistent
with the Company's status as a REIT and with the Guidelines; and
(xii) upon request by and in accordance with the directions of the Board
of Directors, investing or reinvesting any money of the Company.
(b) Real Estate Asset Portfolio Management. The Manager will perform
portfolio management services on behalf of OAIC and the Operating Partnership
with respect to the Company's REIT Investments. Such services will include, but
not be limited to, consulting the Company on purchase and sale opportunities,
collection of information and submission of reports pertaining to the Company's
assets, interest rates, and general economic conditions, periodic review and
evaluation of the performance of the Company's portfolio of assets, acting as
liaison between the Company and banking, mortgage banking, investment banking
and other parties with respect to the purchase, financing and disposition of
assets, and other customary functions related to real estate portfolio
management. The Manager may enter into subcontracts with other parties,
including its Affiliates, to provide any such services to the Company.
(c) Monitoring Special Servicing. The Manager will perform monitoring
services on behalf of the Company with respect to the Company's portfolio of
special servicing rights. Such monitoring services will include, but not be
limited to, the following activities: negotiating special servicing agreements;
serving as the Company's consultant with respect to the special servicing of
mortgage loans; collection of information and submission of reports pertaining
to the mortgage loans and to moneys remitted to the Manager or the Company;
acting as a liaison between the servicers of the mortgage loans and the Company
and working with servicers to the extent necessary to improve their servicing
performance; with respect to mortgage loans for which the Company is special
servicer, periodic review and evaluation of the performance of each servicer to
determine its compliance with the terms and conditions of the related servicing
agreement; review of and recommendations as to fire losses, easement problems
and condemnation, delinquency and foreclosure procedures with regard to mortgage
loans; review of servicers' delinquency, foreclosures and other reports on
mortgage loans; supervising claims filed under any mortgage insurance policies;
and enforcing the obligation of any servicer to repurchase mortgage loans. The
Manager may enter into subcontracts with other parties, including its
Affiliates, to provide any such services for the Manager.
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(d) Monitoring Servicing. The Manager will monitor and administer the
servicing of the Company's Mortgage Loans, other than loans pooled to back MBS
or pledged to secure MBS. Such monitoring and administrative services will
include, but not be limited to, the following activities: serving as the
Company's consultant with respect to the servicing of loans; collection of
information and submission of reports pertaining to the mortgage loans and to
moneys remitted to the Manager or the Company by servicers; periodic review and
evaluation of the performance of each servicer to determine its compliance with
the terms and conditions of the servicing agreement and, if deemed appropriate,
recommending to the Company the termination of such servicing agreement; acting
as a liaison between servicers and the Company and working with servicers to the
extent necessary to improve their servicing performance; review of and
recommendations as to fire losses, easement problems and condemnation,
delinquency and foreclosure procedures with regard to the Mortgage Loans; review
of servicers' delinquency, foreclosing and other reports on Mortgage Loans;
supervising claims filed under any mortgage insurance policies; and enforcing
the obligation of any servicer to repurchase Mortgage Loans from the Company.
(e) Best Efforts. The Manager agrees to use its reasonable best efforts at
all times in performing services for the Company hereunder.
SECTION 3. Additional Activities of Manager. Nothing herein shall prevent
the Manager or any of its Affiliates from engaging in other businesses or from
rendering services of any kind to any other person or entity, including
investment in, or advisory service to others investing in, any type of real
estate investment, including investments which meet the principal investment
objectives of the Company.
Notwithstanding the foregoing, the Manager will not and will not permit any
Affiliate of the Manager to invest in Distressed Real Property unless (a) the
Manager has determined in good faith that the Company should not make the
investment because (i) the investment is not well-suited for the Company or (ii)
the Company is unable financially to make the investment or (b) the Distressed
Real Property is offered for investment only as part of a pool of both real
estate and mortgage loans. The foregoing restriction does not apply to the
purchase of Distressed Real Property in connection with foreclosure (or deed in
lieu of foreclosure) on property securing a Mortgage Loan owned by the Manager
or an Affiliate of the Manager.
Moreover, the Manager will not and will not permit any Affiliate of the
Manager to invest in Subordinated Interests unless (a) the Manager has
determined in good faith that the Company should not make the investment because
(i) the investment is not well-suited for the Company or (ii) the Company is
unable financially to make the investment or (b) the mortgage loans
collateralizing the Subordinated Interests were owned by the Manager or an
Affiliate of the Manager.
Directors, officers, employees and agents of the Manager or Affiliates of
the Manager may serve as directors, officers, employees, agents, nominees or
signatories for the REIT or any Subsidiary, to the extent permitted by their
Governing Instruments, as from time to time amended, or by any resolutions duly
adopted by the Board of Directors pursuant to the REIT's Governing Instruments.
When executing documents or otherwise acting in such capacities for the Company,
such persons shall use their respective titles in the Company.
SECTION A. Commitments. In order to meet the investment requirements of the
Company, as determined by the Board of Directors from time to time, the Manager
agrees at the direction of the Board of Directors to issue on behalf of the
Company commitments on such terms as are established by the Board of Directors,
including a majority of the Unaffiliated Directors, for the purchase of REIT
Investments.
SECTION B. Bank Accounts. At the direction of the Board of Directors, the
Manager may establish and maintain one or more bank accounts in the name of the
REIT or any Subsidiary, and may collect and deposit into any such account or
accounts, and disburse funds from any such account or accounts, under such terms
and conditions as the Board of Directors may approve; and the Manager shall from
time to
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time render appropriate accountings of such collections and payments to the
Board of Directors and, upon request, to the auditors of the REIT or any
Subsidiary.
SECTION C. Records; Confidentiality. The Manager shall maintain appropriate
books of accounts and records relating to services performed hereunder, and such
books of account and records shall be accessible for inspection by
representatives of the REIT or any Subsidiary at any time during normal business
hours. The Manager shall keep confidential any and all information obtained in
connection with the services rendered hereunder and shall not disclose any such
information to nonaffiliated third parties except with the prior written consent
of the Board of Directors.
SECTION D. Obligations of Manager.
(a) The Manager shall require each seller or transferor of REIT Investments
to the Company to make such representations and warranties regarding such REIT
Investments as may, in the judgment of the Manager, be necessary and
appropriate. In addition, the Manager shall take such other action as it deems
necessary or appropriate with regard to the protection of the Company's
investments.
(b) The Manager shall refrain from any action that, in its sole judgment
made in good faith, would adversely affect the status of the REIT as a REIT or
that, in its sole judgment made in good faith, would violate any law, rule or
regulation of any governmental body or agency having jurisdiction over the REIT
or any Subsidiary or that would otherwise not be permitted by the REIT's or
Subsidiary's Governing Instruments. If the Manager is ordered to take any such
action by the Board of Directors, the Manager shall promptly notify the Board of
Directors of the Manager's judgment that such action would adversely affect such
status or violate any such law, rule or regulation or the Governing Instruments.
Notwithstanding the foregoing, the Manager, its directors, officers,
stockholders and employees shall not be liable to the REIT, any Subsidiary, the
Unaffiliated Directors, or the REIT's or a Subsidiary's stockholders or partners
for any act or omission by the Manager, its directors, officers, stockholders or
employees except as provided in Section 11 of this Agreement.
SECTION E. Compensation.
(a) The REIT shall pay to the Manager, for services rendered under this
Agreement, a quarterly base management fee in an amount equal to 1/4 of 1% of
the Average Invested Assets of the Company during each fiscal quarter (PRO RATA
amount based on the number of days elapsed during any partial fiscal quarter),
commencing with the first fiscal quarter after the Closing Date.
(b) The Manager shall be entitled to receive incentive compensation for each
fiscal quarter in an amount equal to the product of (A) 25% of the dollar amount
by which (1)(a) Funds from Operations (before the incentive fee but after the
base management fee) of the Company per share of Common Stock (based on the
weighted average number of shares) (b) plus gains (or minus losses) from debt
restructuring and sales of property per share of Common Stock (based on the
weighted average number of shares), exceed (2) an amount equal to (a) the
weighted average of the price per share at the initial offering and the prices
per share at any secondary offerings by the Company multiplied by (b) the
Ten-Year U.S. Treasury Rate plus five percent per annum multiplied by (B) the
weighted average number of shares of Common Stock outstanding during such
period. "Funds from Operations" shall be computed in accordance with the
definition thereof adopted by the National Association of Real Estate Investment
Trusts ("NAREIT") and shall mean net income (computed in accordance with GAAP)
excluding gains (or losses) from debt restructuring and sales of property, plus
depreciation and amortization on real estate assets, and after adjustments for
unconsolidated partnerships and joint ventures. As used in calculating the
Manager's compensation, the term "Ten Year U.S. Treasury Rate" means the
arithmetic average of the weekly average yield to maturity for actively traded
current coupon U.S. Treasury fixed interest rate securities (adjusted to
constant maturities of ten years) published by the Federal Reserve Board during
a quarter, or, if such rate is not published by the Federal Reserve Board, any
Federal Reserve Bank or agency or department of the federal government selected
by the Company. If the Company determines in good faith
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that the Ten Year U.S. Treasury Rate cannot be calculated as provided above,
then the rate shall be the arithmetic average of the per annum average yields to
maturities, based upon closing asked prices on each business day during a
quarter, for each actively traded marketable U.S. Treasury fixed interest rate
security with a final maturity date not less than eight nor more than twelve
years from the date of the closing asked prices as chosen and quoted for each
business day in each such quarter in New York City by at least three recognized
dealers in U.S. government securities selected by the Company.
(c) The Manager shall compute the compensation payable under Sections 8(a)
and 8(b) of this Agreement within 45 days after the end of each fiscal quarter.
A copy of the computations made by the Manager to calculate its compensation
shall thereafter promptly be delivered to the Board of Directors and, upon such
delivery, payment of the compensation earned under Sections 8(a) and 8(b) of
this Agreement shown therein shall be due and payable within 60 days after the
end of such fiscal quarter.
(d) The Manager may charge the Company for any out of pocket expenses that
the Manager incurs in connection with any due diligence on assets considered for
purchase by the Company. Moreover, the Manager shall document the time spent by
the Manager's employees in performing such due diligence and shall be entitled
to reimbursement for the allocable portion of such employees' salaries and
benefits.
SECTION F. Expenses of the Company. The Company or any Subsidiary shall pay
all of its expenses and shall reimburse the Manager for documented expenses of
the Manager incurred on its behalf.
SECTION G. Calculations of Expenses. Expenses incurred by the Manager on
behalf of the Company shall be reimbursed quarterly to the Manager within 60
days after the end of each quarter. The Manager shall prepare a statement
documenting the expenses of the Company and those incurred by the Manager on
behalf of the Company during each quarter, and shall deliver such statement to
the Company within 45 days after the end of each quarter.
SECTION H. Limits of Manager Responsibility. The Manager assumes no
responsibility under this Agreement other than to render the services called for
hereunder in good faith and shall not be responsible for any action of the Board
of Directors in following or declining to follow any advice or recommendations
of the Manager, including as set forth in Section 7(b) of this Agreement. The
Manager, its directors, officers, stockholders and employees will not be liable
to the Company, any Subsidiary, the Unaffiliated Directors or the Company's or
any Subsidiary's stockholders or partners for any acts or omissions by the
Manager, its directors, officers, stockholders or employees under or in
connection with this Agreement, except by reason of acts constituting bad faith,
willful misconduct, gross negligence or reckless disregard of their duties. The
Company or a Subsidiary shall reimburse, indemnify and hold harmless the
Manager, its stockholders, directors, officers and employees of and from any and
all expenses, losses, damages, liabilities, demands, charges and claims of any
nature whatsoever, (including attorneys' fees) in respect of or arising from any
acts or omissions of the Manager, its stockholders, directors, officers and
employees made in good faith in the performance of the Manager's duties under
this Agreement and not constituting bad faith, willful misconduct, gross
negligence or reckless disregard of its duties.
SECTION I. No Joint Venture. The Company and the Manager are not partners or
joint venturers with each other and nothing herein shall be construed to make
them such partners or joint venturers or impose any liability as such on either
of them.
SECTION 1. Term; Termination. This Agreement shall commence on the Closing
Date and shall continue in force until the second anniversary of the Closing
Date, and thereafter, it may be extended only with the consent of the Manager
and by the affirmative vote of a majority of the Board of Directors, including a
majority of the Unaffiliated Directors.
Each extension shall be executed in writing by the parties hereto before the
expiration of this Agreement or any extension thereof. Each such extension shall
be effective for a period corresponding to the fiscal year of the Company, but
in no case exceeding twelve months.
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Notwithstanding any other provision to the contrary, this Agreement, or any
extension hereof, may be terminated by the Company, upon 60 days' written
notice, by majority vote of the Unaffiliated Directors or by majority vote of
the Stockholders; provided that a termination fee, equal to the sum of the base
management fee and incentive management fee earned during the twelve months
preceding such termination, will be due.
If this Agreement is terminated pursuant to this Section 13, such
termination shall be without any further liability or obligation of either party
to the other, except as provided in Section 16 of this Agreement.
SECTION 2. Assignments.
(a) Except as set forth in Section 14(b) of this Agreement, this Agreement
shall terminate automatically in the event of its assignment, in whole or in
part, by the Manager, unless such assignment is consented to in writing by the
REIT with the consent of a majority of the Unaffiliated Directors. Any such
assignment shall bind the assignee hereunder in the same manner as the Manager
is bound. In addition, the assignee shall execute and deliver to the REIT a
counterpart of this Agreement naming such assignee as Manager. This Agreement
shall not be assigned by the REIT without the prior written consent of the
Manager, except in the case of assignment by the REIT to another REIT or other
organization which is a successor (by merger, consolidation or purchase of
assets) to the REIT, in which case such successor organization shall be bound
hereunder and by the terms of such assignment in the same manner as the REIT is
bound hereunder.
(b) Notwithstanding any provision of this Agreement, the Manager may
subcontract and assign any or all of its responsibilities under Sections 2(b),
2(c) and 2(d) of this Agreement to any of its Affiliates, and the REIT hereby
consents to any such assignment and subcontracting.
SECTION 3. Termination by REIT for Cause. At the option of the REIT, this
Agreement shall be and become terminated upon 60 days' written notice of
termination from the Board of Directors to the Manager, without payment of any
termination fee, if any of the following events shall occur:
(a) if the Manager shall violate any provision of this Agreement and,
after notice of such violation, shall not cure such violation within 30
days; or
(b) there is entered an order for relief or similar decree or order with
respect to the Manager by a court having competent jurisdiction in an
involuntary case under the federal bankruptcy laws as now or hereafter
constituted or under any applicable federal or state bankruptcy, insolvency
or other similar laws; or the Manager (i) ceases, or admits in writing its
inability to pay its debts as they become due and payable, or makes a
general assignment for the benefit of, or enters into any composition or
arrangement with, creditors; (ii) applies for, or consents (by admission of
material allegations of a petition or otherwise) to the appointment of a
receiver, trustee, assignee, custodian, liquidator or sequestrator (or other
similar official) of the Manager or of any substantial part of its
properties or assets, or authorizes such an application or consent, or
proceedings seeking such appointment are commenced without such
authorization, consent or application against the Manager and continue
undismissed for 30 days; (iii) authorizes or files a voluntary petition in
bankruptcy, or applies for or consents (by admission of material allegations
of a petition or otherwise) to the application of any bankruptcy,
reorganization, arrangement, readjustment of debt, insolvency, dissolution,
liquidation or other similar law of any jurisdiction, or authorizes such
application or consent, or proceedings to such end are instituted against
the Manager without such authorization, application or consent and are
approved as properly instituted and remain undismissed for 30 days or result
in adjudication of bankruptcy or insolvency; or (iv) permits or suffers all
or any substantial part of its properties or assets to be sequestered or
attached by court order and the order remains undismissed for 30 days.
(c) If any of the events specified in Section 15(b) of this Agreement
shall occur, the Manager shall give prompt written notice thereof to the
Board of Directors upon the happening of such event.
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SECTION 4. Action Upon Termination. From and after the effective date of
termination of this Agreement, pursuant to Sections 13, 14, or 15 of this
Agreement, the Manager shall not be entitled to compensation for further
services hereunder, but shall be paid all compensation accruing to the date of
termination and, if terminated pursuant to Section 13, the applicable
termination fee. Upon such termination, the Manager shall forthwith:
(a) after deducting any accrued compensation and reimbursement for its
expenses to which it is then entitled, pay over to the Company or a
Subsidiary all money collected and held for the account of the Company or a
Subsidiary pursuant to this Agreement;
(b) deliver to the Board of Directors a full accounting, including a
statement showing all payments collected by it and a statement of all money
held by it, covering the period following the date of the last accounting
furnished to the Board of Directors with respect to the Company or a
Subsidiary; and
(c) deliver to the Board of Directors all property and documents of the
Company or any Subsidiary then in the custody of the Manager.
SECTION 5. Release of Money or Other Property Upon Written Request. The
Manager agrees that any money or other property of the Company or Subsidiary
held by the Manager under this Agreement shall be held by the Manager as
custodian for the Company or Subsidiary, and the Manager's records shall be
appropriately marked clearly to reflect the ownership of such money or other
property by the Company or such Subsidiary. Upon the receipt by the Manager of a
written request signed by a duly authorized officer of the Company requesting
the Manager to release to the Company or any Subsidiary any money or other
property then held by the Manager for the account of the Company or any
Subsidiary under this Agreement, the Manager shall release such money or other
property to the Company or any Subsidiary within a reasonable period of time,
but in no event later than 60 days following such request. The Manager shall not
be liable to the Company, any Subsidiary, the Unaffiliated Directors, or the
Company's or a Subsidiary's stockholders or partners for any acts performed or
omissions to act by the Company or any Subsidiary in connection with the money
or other property released to the Company or any Subsidiary in accordance with
this Section. The Company and any Subsidiary shall indemnify the Manager, its
directors, officers, stockholders and employees against any and all expenses,
losses, damages, liabilities, demands, charges and claims of any nature
whatsoever, which arise in connection with the Manager's release of such money
or other property to the Company or any Subsidiary in accordance with the terms
of this Section 19 of this Agreement. Indemnification pursuant to this provision
shall be in addition to any right of the Manager to indemnification under
Section 11 of this Agreement.
SECTION 6. Representations and Warranties.
(a) The Company hereby represents and warrants to the Manager as follows:
(i) The REIT is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, has the corporate power to
own its assets and to transact the business in which it is now engaged and is
duly qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, except for failures to be so qualified,
authorized or licensed that could not in the aggregate have a material adverse
effect on the business operations, assets or financial condition of the REIT and
its subsidiaries, taken as a whole. The REIT does not do business under any
fictitious business name.
(ii) The REIT has the corporate power and authority to execute, deliver and
perform this Agreement and all obligations required hereunder and has taken all
necessary corporate action to authorize this Agreement on the terms and
conditions hereof and the execution, delivery and performance of this Agreement
and all obligations required hereunder. No consent of any other person
including, without limitation, stockholders and creditors of the REIT, and no
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
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required by the REIT in connection with this Agreement or the execution,
delivery, performance, validity or enforceability of this Agreement and all
obligations required hereunder. This Agreement has been, and each instrument or
document required hereunder will be, executed and delivered by a duly authorized
officer of the REIT, and this Agreement constitutes, and each instrument or
document required hereunder when executed and delivered hereunder will
constitute, the legally valid and binding obligation of the REIT enforceable
against the REIT in accordance with its terms.
(iii) The execution, delivery and performance of this Agreement and the
documents or instruments required hereunder will not violate any provision of
any existing law or regulation binding on the REIT, or any order, judgment,
award or decree of any court, arbitrator or governmental authority binding on
the REIT, or the Governing Instruments of, or any securities issued by the REIT
or of any mortgage, indenture, lease, contract or other agreement, instrument or
undertaking to which the REIT is a party or by which the REIT or any of its
assets may be bound, the violation of which would have a material adverse effect
on the business operations, assets or financial condition of the REIT and its
subsidiaries, taken as a whole, and will not result in, or require, the creation
or imposition of any lien on any of its property, assets or revenues pursuant to
the provisions of any such mortgage, indenture, lease, contract or other
agreement, instrument or undertaking.
(b) The Manager hereby represents and warrants to the REIT as follows:
(i) the Manager is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation, has the corporate power to
own its assets and to transact the business in which it is now engaged and is
duly qualified to do business and is in good standing under the laws of each
jurisdiction where its ownership or lease of property or the conduct of its
business requires such qualification, except for failures to be so qualified,
authorized or licensed that could not in the aggregate have a material adverse
effect on the business operations, assets or financial condition of the Manager
and its subsidiaries, taken as a whole. The Manager does not do business under
any fictitious business name.
(ii) The Manager has the corporate power and authority to execute, deliver
and perform this Agreement and all obligations required hereunder and has taken
all necessary partnership action to authorize this Agreement on the terms and
conditions hereof and the execution, delivery and performance of this Agreement
and all obligations required hereunder. No consent of any other person
including, without limitation, partners and creditors of the Manager, and no
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required by the Manager in connection with this Agreement or the execution,
delivery, performance, validity or enforceability of this Agreement and all
obligations required hereunder. This Agreement has been, and each instrument or
document required hereunder will be, executed and delivered by a duly authorized
agent of the Manager, and this Agreement constitutes, and each instrument or
document required hereunder when executed and delivered hereunder will
constitute, the legally valid and binding obligation of the Manager enforceable
against the Manager in accordance with its terms.
(iii) The execution, delivery and performance of this Agreement and the
documents or instruments required hereunder, will not violate any provision of
any existing law or regulation binding on the Manager, or any order, judgment,
award or decree of any court, arbitrator or governmental authority binding on
the Manager, or the partnership agreement of, or any securities issued by the
Manager or of any mortgage, indenture, lease, contract or other agreement,
instrument or undertaking to which the Manager is a party or by which the
Manager or any of its assets may be bound, the violation of which would have a
material adverse effect on the business operations, assets or financial
condition of the Manager and its subsidiaries, taken as a whole, and will not
result in, or require, the creation or imposition of any lien on any of its
property, assets or revenues pursuant to the provisions of any such mortgage,
indenture, lease, contract or other agreement, instrument or undertaking.
SECTION 7. Notices. Unless expressly provided otherwise herein, all notices,
requests, demands and other communications required or permitted under this
Agreement shall be in writing and shall be deemed
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to have been duly given, made and received when delivered against receipt or
upon actual receipt of registered or certified mail, postage prepaid, return
receipt requested, addressed as set forth below:
(a) If to the REIT:
Ocwen Asset Investment Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
with a copy given in the manner prescribed
above, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, Esquire
Hunton & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(b) If to the Manager:
Ocwen Capital Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
with a copy given in the manner prescribed
above, to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, Esquire
Hunton & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Either party may alter the address to which communications or copies are to
be sent by giving notice of such change of address in conformity with the
provisions of this Section 21 for the giving of notice.
SECTION 8. Binding Nature of Agreement; Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, successors and assigns as
provided herein.
SECTION 9. Entire Agreement. This Agreement contains the entire agreement
and understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or written, of any nature
whatsoever with respect to the subject matter hereof. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
SECTION 10. Controlling Law. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement shall be governed by
and construed, interpreted and enforced in accordance with the laws of the
Commonwealth of Virginia, notwithstanding any Virginia or other conflict-of-law
provisions to the contrary.
SECTION 11. Schedules and Exhibits. All Schedules and Exhibits referred to
herein or attached hereto are hereby incorporated by reference into, and made a
part of, this Agreement.
SECTION 12. Indulgences, Not Waivers. Neither the failure nor any delay on
the part of a party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence. No waiver shall be effective unless it is
in writing and is signed by the party asserted to have granted such waiver.
SECTION 13. Costs and Expenses. Each party hereto shall bear its own costs
and expenses (including the fees and disbursements of counsel and accountants)
incurred in connection with the negotiations and preparation of and the closing
under this Agreement, and all matters incident thereto.
SECTION 14. Titles Not to Affect Interpretation. The titles of paragraphs
and subparagraphs contained in this Agreement are for convenience only, and they
neither form a part of this Agreement nor are they to be used in the
construction or interpretation hereof.
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SECTION 15. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
SECTION 16. Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
SECTION 17. Gender. Words used herein regardless of the number and gender
specifically used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context requires.
SECTION J. Computation of Interest. Interest will be computed on the basis
of a 360-day year consisting of twelve months of thirty days each.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
OCWEN ASSET INVESTMENT CORP.
By:
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Its:
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OCWEN CAPITAL CORPORATION
By:
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Its:
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