Exhibit 10.1
MANAGEMENT AGREEMENT
This Management Agreement ("Agreement") is made and entered into as of
December 17, 1997, by and between FBR Asset Investment Corporation, a Virginia
corporation (the "Company"), and Friedman, Billings, Xxxxxx Investment
Management, Inc., a Delaware corporation (the "Manager").
RECITALS
WHEREAS, the Company intends to conduct its business in the manner
described in the Private Offering Memorandum, dated December 11, 1997 (the
"Memorandum") 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 herein but not otherwise
defined shall have the respective meanings assigned them in the Memorandum. In
addition, the following terms shall 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 offering of common stock pursuant to the Memorandum.
(c) "Governing Instruments" means the articles of
incorporation and bylaws of a corporation.
SECTION 2. Duties of the Manager.
(a) Administration and Operation of the Company. 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 stated in this Agreement or 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 policy guidelines;
(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;
(v) providing certain executive and administrative personnel,
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 trading markets or 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 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;
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(xi) engaging in hedging activities on behalf of the Company,
consistent with the Company's status as a REIT;
(xii) upon request by and in accordance with the directions of
the Board of Directors, investing or reinvesting any money of the
Company; and
(xiii) counseling the Company regarding the maintenance of its
exemption from the Investment Company Act and monitoring compliance
with the various requirements for such exemption.
(b) Portfolio Management. The Manager will perform portfolio management
services on behalf of the Company with respect to the Company's investments.
Such services will include, but not be limited to, consulting with 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
portfolio management. The Manager may enter into subcontracts with other
parties, including its Affiliates, to provide any such services to the Company.
(c) Reasonable 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 that meet the principal investment
objectives of the Company.
The Manager will allocate investment opportunities among investors for
whom the Manager and its Affiliates manage assets based upon primary investment
objectives, applicable investment restrictions, and such other factors as the
Manager deems appropriate and fair under the circumstances.
Directors, officers, employees and agents of the Manager or its
Affiliates may serve as directors, officers, employees, agents, nominees or
signatories for the Company, to the extent permitted by the Company's Governing
Instruments, as from time to time amended, or by any resolutions duly adopted by
the Board of Directors pursuant to the Company'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.
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SECTION 4. 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 for the purchase of investments.
SECTION 5. 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 Company, 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 time render appropriate accountings of such collections and payments to
the Board of Directors and, upon request, to the auditors of the Company.
SECTION 6. 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 Company 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 7. Obligations of Manager.
(a) The Manager shall require each seller or transferor of investments
to the Company to make such representations and warranties regarding such
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 Company 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 Company or that would otherwise not be permitted by the Company'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 Company, the Independent
Directors, or the Company's stockholders or partners for any act or omission by
the Manager, its directors, officers, stockholders or employees except as
provided in Section 10 of this Agreement.
SECTION 8. Compensation.
(a) Commencing with the first calendar quarter ending after the Closing
Date, the Company shall pay to the Manager, for services rendered under this
Agreement, a quarterly base management fee in an amount equal to the sum of (a)
1/4 of 1% per annum (adjusted to reflect a quarterly period) of the Average
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Invested Mortgage Assets of the Company during each calendar quarter (or a pro
rata amount based on the number of days elapsed during any partial calendar
quarter) and (b) 3/4 of 1% per annum of the remainder of the Average Invested
Assets of the Company during each calendar quarter (or a pro rata amount based
on the number of days elapsed during any partial calendar quarter). After the
end of each calendar year (beginning with 1998), the Manager may, and at the
request of the Company shall, provide an analysis of the costs of providing
services under this Agreement during such calendar year. This information may be
used by the Company to adjust the base management fee in order to align it more
closely with the actual costs of such services, or with the consent of the
Manager, to reduce the base management fee to the extent the Company incurs
costs internally. No more than one such adjustment may be made in any calendar
year.
(b) The Manager shall be entitled to receive incentive compensation
based on the performance of the Company. At the end of 1998, the Manager will be
entitled to receive the Incentive Calculation Amount for the period from the
Closing Date through December 31, 1998. For each calendar quarter thereafter
beginning with the quarter ended March 31, 1999, the Manager will be entitled to
receive 25% of the Incentive Calculation Amount for the 12 month period ending
with the end of that calendar quarter.
As used herein, the Incentive Calculation Amount for any period
means 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 (based on the weighted average number
of shares outstanding) plus (b) gains (or minus losses) from debt restructuring
and sales of property per share (based on the weighted average number of shares
outstanding), exceed (2) an amount equal to (a) the weighted average of the
price per share at the Offering Price 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 Common
Shares 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 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
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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 calendar
quarter. A copy of the computations made by the Manager to calculate its
compensation shall thereafter promptly be delivered to the Company 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 calendar 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 provided, however, that (i) the amount of due diligence
costs for which the Manager receives reimbursement with respect to any asset
shall not exceed an arm's length due diligence fee for such asset and (ii) the
Manager shall not be entitled to reimbursement for any due diligence or employee
time costs associated with investments in securities being underwritten or
placed by an Affiliate of the Manager.
SECTION 9. 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 10. 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
Company 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 Affiliates, and their respective directors, officers, stockholders and
employees will not be liable to the Company, any subsidiary, the Independent
Directors or the Company's or any subsidiary's shareholders, creditors, or
partners for any acts or omissions by the Manager, its Affiliates, and their
respective 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 Manager
may consult with and rely upon counsel in any case where it appears to the
Manager to be necessary or desirable with respect to its authority and
obligations under this Agreement. Additionally, the Manager may rely and act
upon any certificates or other instruments believed in good faith by the Manager
to be genuine and to have been signed by any person duly authorized. The Company
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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 11. 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 12. 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 of
the Company, including a majority vote of the Independent Directors.
Each extension shall be executed in writing by the parties and shall be
dated as of the expiration of this Agreement or any extension thereof. Each such
extension shall not exceed twelve months.
Notwithstanding any other provision to the contrary, this Agreement, or
any extension hereof, may be terminated by the Company without cause, upon 60
days written notice, by a majority vote of the Independent Directors or by
majority vote of the holders of the outstanding Common Shares; provided that 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 12, 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 13. Assignments.
(a) Except as set forth in subsection (b) of this Section 13, 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 Company with the consent of a majority of the Independent 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
Company a counterpart of this Agreement naming such assignee as Manager. This
Agreement shall not be assigned by the Company without the prior written consent
of the Manager, except in the case of assignment by the Company to another
Company or other organization that is a successor (by merger, consolidation or
purchase of assets) to the Company, in which case such successor organization
shall be bound hereunder and by the terms of such assignment in the same manner
as the Company is bound hereunder.
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(b) Notwithstanding any provision of this Agreement, the Manager may
subcontract and assign any or all of its responsibilities under Sections 2(a)
and 2(b) of this Agreement to any of its Affiliates or to Blackrock Financial
Management, Inc., and the Company hereby consents to any such assignment and
subcontracting.
SECTION 14. Termination by Company for Cause. At the option of the
Company, this Agreement shall be and become terminated upon 60 days' written
notice of termination from a majority of the Independent 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 material 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.
If any of the events specified in this Section 14 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 15. Action Upon Termination. From and after the effective date
of termination of this Agreement pursuant to Sections 12, 13, or 14 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 by the Company pursuant to Section 12, 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
all money collected and held for the account of the Company pursuant to
this Agreement;
(b) deliver to the Company 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; and
(c) deliver to the Company all property and documents of the
Company then in the custody of the Manager.
SECTION 16. Release of Money or Other Property Upon Written Request.
The Manager agrees that any money or other property of the Company held by the
Manager under this Agreement shall be held by the Manager as custodian for the
Company, and the Manager's records shall be appropriately marked clearly to
reflect the ownership of such money or other property by the Company. 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 any money or
other property then held by the Manager for the account of the Company under
this Agreement, the Manager shall release such money or other property to the
Company 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 Independent Directors, or the Company's or a subsidiary's
stockholders or partners for any acts performed or omissions to act by the
Company in connection with the money or other property released to the Company
in accordance with this Section. The Company 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 in accordance with the terms of this Section
16. Indemnification pursuant to this provision shall be in addition to any right
of the Manager to indemnification under Section 10 of this Agreement.
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SECTION 17. Representations and Warranties.
(a) The Company hereby represents and warrants to the Manager as
follows:
(i) The Company is duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia, 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
Company and its subsidiaries, taken as a whole. The Company does not do
business under any fictitious business name.
(ii) The Company 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
Company, 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 Company
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 Company, 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 Company enforceable against
the Company 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
Company, or any order, judgment, award or decree of any court,
arbitrator or governmental authority binding on the Company, or the
Governing Instruments of, or any securities issued by the Company or of
any mortgage, indenture, lease, contract or other agreement, instrument
or undertaking to which the Company is a party or by which the Company
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 Company 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 Company as
follows:
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(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 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
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.
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SECTION 18. 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 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 Company:
FBR Asset Investment Corporation
0000 Xxxxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
with a copy given in the manner prescribed
above, to:
Xxxxxx X. Xxxxxx, III, Esquire
Hunton & Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
(b) If to the Manager:
Friedman, Billings, Xxxxxx Investment Management, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
with a copy given in the manner prescribed
above, to:
Xxxxxx X. Xxxxxx, III, Esquire
Hunton & Xxxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
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 18 for the giving of notice.
SECTION 19. 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.
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SECTION 20. 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 21. 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 22. 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 23. 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 24. 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.
SECTION 25. 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 26. 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.
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SECTION 27. Computation of Interest. Interest will be computed on the
basis of a 360-day year consisting of twelve months of thirty days each.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the parties hereto have executed this Management
Agreement as of the date first written above.
FBR ASSET INVESTMENT CORPORATION
By: /s/ W. Xxxxxxx Xxxxxx
--------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: President
FRIEDMAN, BILLINGS, XXXXXX
INVESTMENT MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
