AGREEMENT
This AGREEMENT is made and entered into as of the 24th day of
August, 1999 (the "Agreement") among OCWEN FINANCIAL CORPORATION, a Florida
corporation ("Ocwen Financial"), and XXXXXX X. XXXXX, XXXXX X. SMALL and XXXXXXX
X. XXXXX (each, a "Director" and together, the "Directors").
WITNESSETH, in consideration of the mutual promises set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. INDEMNITY. (a) Ocwen Financial hereby agrees to hold
harmless and indemnify each Director, jointly and severally, with respect to any
liability, loss, damage, claim, settlement, cost or Expense whatsoever in any
way relating to, resulting from or arising out of, directly or indirectly, the
declaration of, payment of, or failure to pay, the dividend of $.82 per common
share ("1998 REIT Dividend") declared by the Board of Directors of OAC on or
about August 23, 1999 with respect to the outstanding common stock, par value
$.01 per share ("OAC Common Stock"), of Ocwen Asset Investment Corp. ("OAC"),
provided however that Ocwen Financial shall not be liable under this Agreement
to make any payment of amounts otherwise indemnifiable hereunder (or any payment
called for by paragraph 2 below) if and to the extent that a Director has
otherwise indefeasibly actually received payment with respect thereto as a
result of the Restated and Amended Articles of Incorporation of OAC, the Bylaws
of OAC, any directors' and officers' liability or other insurance policy or any
employment, indemnity or other agreement, each as amended from time to time
(collectively, the "Existing Indemnification Arrangements"). To the extent that
any such indefeasible actual payment from the Existing Indemnification
Arrangements only partly indemnifies any such Director for any such liability,
loss, damage, claim, settlement, cost or Expense, Ocwen Financial shall still
indemnify such Director for any such liability, loss, damage, claim, settlement,
cost or Expense as to which such Director has not actually and indefeasibly
received payment from the Existing Indemnification Arrangements.
(b) Within ten days after the receipt by Ocwen Financial of a
statement or statements from such Director requesting such indemnification,
whether prior to or after final disposition of the Proceeding in question, and
notwithstanding any other provision of this Agreement, Ocwen Financial shall
make payment for any liability, loss, damage, claim, settlement, cost or
Expenses arising from such Proceeding, to such Director that are not paid to
such Director under any of the Existing Indemnification Arrangements. Within ten
days after the receipt by Ocwen Financial of a statement or statements from such
Director requesting such advance or advances, from time to time, whether prior
to or after final disposition of the Proceeding in question, and notwithstanding
any other provision of this Agreement, Ocwen Financial shall advance all
Expenses arising from such Proceeding, to such Director that are not advanced to
such Director under any of the Existing Indemnification Arrangements. Such
statement or statements shall reasonably evidence the Expense, liability, loss,
damage, claim, cost or settlement incurred by the Director and shall include or
be preceded or accompanied by a written affirmation by such Director that such
advance or payment was not indefeasibly and actually made under any of the
Existing Indemnification Arrangements, and a written undertaking by or on behalf
of such Director to repay any Expenses advanced or payments made if such
Director indefeasibly receives such payment for such Expenses or liabilities,
losses, damages, claims, settlements or costs pursuant to any of the Existing
Indemnification Arrangements. Any undertakings to repay pursuant to this Section
1(b) shall be unlimited, unsecured general obligations of the Director and shall
be interest free; any advances made pursuant to this Section 1(b) shall be
unsecured and interest free.
(c) Without the consent of Ocwen Financial, which will not be
unreasonably withheld, a Director will not enter into a settlement of any
Proceeding as to which settlement such Director seeks payment from Ocwen
Financial under this Agreement. Ocwen Financial will not be required to pay the
settlement of a Proceeding unless the consent of Ocwen Financial to such
settlement is obtained, which consent will not be unreasonably withheld. If the
Director seeks payment under this Agreement with respect to a Proceeding, such
Director will tender the defense of such Proceeding to Ocwen Financial and Ocwen
Financial will assume such defense. Ocwen Financial will consult with such
Director concerning the choice of counsel for such defense and such counsel
shall be reasonably acceptable to such Director.
2. CONTRIBUTION. If the indemnification provided for in this
Agreement is unavailable to or insufficient to hold harmless a Director in
respect of any liability, loss, damage, claim, settlement, cost or Expense with
respect to any Proceeding, then Ocwen Financial shall contribute to the amount
paid or payable by such Director the full amount of any such deficiency.
3. REMEDIES. (a) In the event that (i) the advancement of
Expenses provided for in this Agreement is not timely made or (ii) payment of
indemnification is not made pursuant to this Agreement within (10) days after
receipt by Ocwen Financial of a written request therefor, such Director shall be
entitled to an adjudication in an appropriate court of the Commonwealth of
Virginia, or in any other court of competent jurisdiction, of his entitlement to
such indemnification.
(b) In the event that a Director, pursuant to this Section 3,
seeks a judicial adjudication of his rights under, or to recover damages for
breach of, or otherwise to enforce the terms of, this Agreement with respect to
indemnification or advancement of Expenses, Ocwen Financial shall pay on his
behalf, in advance and promptly upon receipt of request for payment therefor
(but in no event later than 10 days after receipt of such notice), any and all
Expenses incurred by him in such judicial adjudication, regardless of whether
such Director ultimately is determined to be entitled to such indemnification or
advancement of Expenses hereunder.
(c) Ocwen Financial shall be precluded from asserting in any
judicial proceeding commenced pursuant to this Section 3 that this Agreement and
the procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate in any such court that Ocwen Financial is bound
by all the provisions of this Agreement.
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4. OTHER. In the event of any payment under this Agreement,
Ocwen Financial shall be subrogated to the extent of such payment to all of the
rights of recovery of a Director, including under the Existing Indemnification
Agreements, and such Director shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents as
are necessary to enable Ocwen Financial to bring suit to enforce such rights.
5. SEVERABILITY. If any provision or provisions of this
Agreement shall be held by a court of competent jurisdiction to be invalid,
void, illegal or otherwise unenforceable for any reason whatsoever: (a) the
validity, legality and enforceability of the remaining provisions of this
Agreement (including, without limitation, each portion of any section of this
Agreement containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or unenforceable) shall not
in any way be affected or impaired thereby and shall remain enforceable to the
fullest extent permitted by law; and (b) to the fullest extent possible, the
provisions of this Agreement (including, without limitation, each portion of any
section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested thereby.
6. DEFINITIONS. (a) "Expenses" shall include all attorneys'
fees, court costs, transcript costs, fees of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges,
postage, delivery service fees, and all other disbursements or expenses of the
types customarily incurred in connection with prosecuting, defending, preparing
to prosecute or defend, investigating, participating, or being or preparing to
be a witness in a Proceeding.
(b) "Proceeding" includes any threatened, pending or completed
action, suit, arbitration, alternate dispute resolution mechanism,
investigation, inquiry, administrative hearing or any other actual, threatened
or completed proceeding, whether brought by or in the right of OAC or otherwise
and whether civil, criminal, administrative or investigative, in which a
Director was, is or will be involved as a party or otherwise, (i) by reason of
the fact that such Director approved, authorized or ratified the 1998 REIT
Dividend, or (ii) involving any other matter or otherwise in any way relating
to, resulting from or arising out of, directly or indirectly, the declaration
of, payment of, or failure to pay, the 1998 REIT Dividend.
7. NOTICES. Each Director agrees promptly to notify Ocwen
Financial in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information or other similar document relating to the
1998 REIT Dividend or matter which may be subject to indemnification or
advancement of Expenses hereunder; provided, that the failure to so notify Ocwen
Financial shall not relieve Ocwen Financial of any obligation which it may have
to such Director under this Agreement or otherwise, except to the extent that
Ocwen Financial suffers material detriment as a result of such failure.
8. GENERAL. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral, written and implied,
between the parties hereto with respect to the subject matter hereof. All
agreements and obligations of Ocwen Financial contained herein shall continue
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during the period a Director is serving as a director of OAC and shall continue
thereafter whenever and so long as such Director shall be subject to any
Proceeding without regard to when such Proceeding shall be initiated. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors (including any direct or
indirect successor by purchase, merger, consolidation or otherwise to all or
substantially all of the business or assets of Ocwen Financial), assigns,
spouses, heirs, executors and personal and legal representatives. No supplement,
modification, termination or amendment of this Agreement shall be binding unless
executed in writing by the parties hereto. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar) nor shall such waiver constitute a
continuing waiver. This Agreement may be executed in one or more counterparts,
each of which shall for all purposes be deemed to be an original but all of
which together shall constitute one and the same Agreement. The parties agree
that this Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the Commonwealth of Virginia without application of
the conflict of laws principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
OCWEN FINANCIAL CORPORATION
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
/s/ XXXXX X. SMALL Title: Senior Managing Director
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Xxxxx X. Small
/s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
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