EXHIBIT 10.9
EXECUTION COPY
GUARANTY
Dated as of June 28, 2005
From
OCWEN FINANCIAL CORPORATION
as Guarantor
in favor of
THE GUARANTEED PARTIES (AS DEFINED HEREIN)
TABLE OF CONTENTS
Section Page
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Section 1. Guaranty.................................................. 1
Section 2. Guaranty Absolute......................................... 1
Section 3. Waivers and Acknowledgments............................... 2
Section 4. Subrogation............................................... 2
Section 5. Cash Collateral Account................................... 3
Section 6. Representations and Warranties............................ 3
Section 7. Affirmative Covenants..................................... 4
Section 8. Negative Covenants........................................ 4
Section 9. Amendments, Etc........................................... 6
Section 10. Notices Generally; Notice of Claims....................... 6
Section 11. No Waiver; Remedies....................................... 6
Section 12. Indemnification........................................... 6
Section 13. Subordination............................................. 7
Section 14. Continuing Guaranty; Assignments.......................... 7
Section 15. Third-Party Beneficiaries; Enforcement.................... 7
Section 16. Independent Counsel....................................... 8
Section 17. No Liability.............................................. 8
Section 18. Execution of counterparts................................. 8
Section 19. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc.... 8
GUARANTY
GUARANTY dated as of June 28, 2005 made by Ocwen Financial Corporation,
a Florida corporation (the "Guarantor"), in favor of the Guaranteed Parties
(this term and certain other capitalized terms are defined in Schedule 1).
PRELIMINARY STATEMENTS.
(1) Ocwen Federal Bank FSB (the "FSB"), a federal savings bank chartered
and regulated by the Office of Thrift Supervision (together with any
governmental authority succeeding to any of its principal functions in the event
that the Office of Thrift Supervision ceases to exist, the "OTS") pursuant to
the Home Owners' Loan Act, is wholly owned by the Guarantor and certain of the
wholly-owned subsidiaries of the Guarantor.
(2) The FSB desires to dissolve its corporate existence and terminate
its federal bank charter (the "Dissolution") and has submitted a Plan of
Voluntary Dissolution to OTS, duly approved by the FSB's board of directors,
pursuant to Section 546.4 of the rules and regulations of OTS, 12 C.F.R. Section
546.4 (the "Plan").
(3) The Plan provides for (a) the sale of the FSB's deposit liabilities
and certain assets used by the FSB at its sole branch location in Fort Lee, New
Jersey (the "Branch") or in connection with the business of the Branch (the
"Branch Sale") to Marathon National Bank of New York or its designee
("Marathon"), and (b) the subsequent transfer to Ocwen Loan Servicing, LLC, a
Delaware limited liability company ("OLS"), a wholly-owned subsidiary of the
Guarantor, of all remaining assets and liabilities of the FSB pursuant to the
Assignment and Assumption Agreement dated as of the date hereof among the
Guarantor, OLS and certain other parties thereto.
(4) OTS desires to protect the interests of the Guaranteed Parties after
the Dissolution.
(5) The Guarantor wishes to demonstrate to OTS its commitment to
ensuring that the FSB's obligations to the Guaranteed Parties that remain after
the Dissolution will be satisfied.
NOW, THEREFORE, in consideration of the premises and in order to induce
the OTS to approve the Plan, the Guarantor hereby agrees as follows:
Section 1. Guaranty. The Guarantor hereby absolutely, unconditionally
and irrevocably guarantees the punctual payment when due of all of the Assumed
Liabilities arising on or prior to the date hereof (regardless of whether any
Claim has been asserted with respect thereto as of the date hereof), whether
direct or indirect, absolute or contingent, and whether for principal, interest,
premiums, fees, indemnities, contract or tort causes of action, costs, expenses
or otherwise (collectively, the "Guaranteed Obligations"), and agrees to pay any
and all expenses (including, without limitation, fees and expenses of counsel)
incurred by OTS or any Guaranteed Party in enforcing any rights under this
Guaranty. Without limiting the generality of the foregoing, the Guarantor's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by the FSB or OLS to any Guaranteed Party but for
the fact that they are unenforceable or not allowable due to the existence of a
bankruptcy, conservatorship, receivership, reorganization or similar proceeding
involving the FSB or OLS.
Section 2. Guaranty Absolute. The Guarantor guarantees that the
Guaranteed Obligations will be paid strictly as, when and to the extent payable
by the FSB or OLS. The obligations of the Guarantor under or in respect of this
Guaranty are independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against the Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against the FSB or OLS
or whether the FSB or OLS is joined in any such action or actions. The liability
of the Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and the Guarantor hereby irrevocably waives any
defenses it may now have or hereafter acquire in any way relating to, any or all
of the following:
(a) any lack of validity or enforceability of the Cash Collateral
Agreement or any agreement or instrument relating thereto;
(b) any compromise or settlement of, or any change in the time, manner
or place of payment of, or in any other term of, all or any of the
Guaranteed Obligations;
(c) any taking, exchange, release or non-perfection of any Cash
Collateral or any other collateral, or any taking, release or amendment or
waiver of, or consent to departure from, any other guaranty, for all or any
of the Guaranteed Obligations;
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(d) any manner of application of Cash Collateral or any other
collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations, or any manner of sale or other disposition of any Cash
Collateral or any other collateral for all or any of the Guaranteed
Obligations or any other assets of the Guarantor, the FSB, OLS or any of
their respective Subsidiaries;
(e) any change, restructuring or termination of the corporate structure
or existence of the Guarantor, the FSB, OLS or any of their respective
Subsidiaries;
(f) any failure of OTS or any Guaranteed Party to disclose to the
Guarantor any information relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of the FSB or
OLS now or hereafter known to such OTS or such Guaranteed Party (the
Guarantor waiving any duty on the part of OTS and the Guaranteed Parties to
disclose such information);
(g) the failure of any other Person to execute or deliver any other
guaranty or agreement or the release or reduction of liability of any other
guarantor or surety with respect to the Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any representation by OTS
or any Guaranteed Party that might otherwise constitute a defense available
to, or a discharge of, the Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by any Guaranteed Party or any other Person upon
the insolvency, bankruptcy or reorganization of the FSB, OLS or the Guarantor or
otherwise, all as though such payment had not been made.
Section 3. Waivers and Acknowledgments. (a) The Guarantor hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance, presentment, demand for performance, notice of nonperformance,
default, acceleration, protest or dishonor and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that any
Guaranteed Party protect, secure, perfect or insure any Lien or any property
subject thereto or exhaust any right or take any action against any other Person
or any Cash Collateral or other collateral.
(b) The Guarantor hereby unconditionally and irrevocably waives any
right to revoke this Guaranty and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, regardless of whether any
Claim has been asserted with respect thereto as of the date hereof.
(c) The Guarantor hereby unconditionally and irrevocably waives (i) any
defense arising by reason of any claim or defense based upon an election of
remedies by OTS or any Guaranteed Party that in any manner impairs, reduces,
releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of the Guarantor or other
rights of the Guarantor to proceed against the FSB, OLS or any other guarantor
or any other Person or any Cash Collateral and (ii) any defense based on any
right of set-off or counterclaim against or in respect of the obligations of the
Guarantor hereunder.
(d) The Guarantor hereby unconditionally and irrevocably waives any duty
on the part of any Guaranteed Party or OTS to disclose to the Guarantor any
matter, fact or thing relating to the business, condition (financial or
otherwise), operations, performance, properties or prospects of the Guarantor,
the FSB, OLS or any of their Subsidiaries now or hereafter known by such
Guaranteed Party or OTS.
(e) The Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Guaranteed Obligations and notice or proof of
reliance by the Guaranteed Parties upon this Guaranty or acceptance of this
Guaranty. The Guaranteed Obligations shall be conclusively deemed to have been
created, contracted or incurred, or renewed, extended or amended in reliance
upon this Guaranty.
(f) The Guarantor acknowledges that it will receive substantial direct
and indirect benefits from the consummation of the Dissolution contemplated by
the Plan and that the waivers set forth in Section 2 and this Section 3 are
knowingly made in contemplation of such benefits.
Section 4. Subrogation. The Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter
acquire against the FSB, OLS or any other insider guarantor that arise from the
existence, payment, performance or enforcement of the Guarantor's obligations
under or in respect of this Guaranty or the Cash Collateral Agreement,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any
claim or
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remedy of OTS or any Guaranteed Party against the FSB, OLS or any other insider
guarantor or any Cash Collateral, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the FSB, OLS or any other insider
guarantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security on account of such claim, remedy or right,
until the Termination Date. If any amount shall be paid to the Guarantor in
violation of the immediately preceding sentence at any time prior to the
Termination Date, such amount shall be received and held in trust for the
benefit of the Guaranteed Parties, shall be segregated from other property and
funds of the Guarantor and shall forthwith be deposited into the Cash Collateral
Account in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Guaranteed Obligations and all
other amounts payable under this Guaranty, whether matured or unmatured, or to
be held as Cash Collateral (in accordance with the terms of the Cash Collateral
Agreement) for any Guaranteed Obligations or other amounts payable under this
Guaranty thereafter arising. If (i) the Guarantor shall make payment to any
Guaranteed Party of all or any part of the Guaranteed Obligations and (ii) the
Termination Date shall have occurred, the Guaranteed Parties will, at the
Guarantor's request and expense, execute and deliver to the Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Guaranteed Obligations resulting from such payment made by the
Guarantor pursuant to this Guaranty.
Section 5. Cash Collateral Account. Pursuant to the terms of the Cash
Collateral Agreement, the Guarantor shall establish and maintain the Cash
Collateral Account (as defined therein). On the date hereof, the Guarantor shall
fund the Cash Collateral Account with cash or Cash Equivalents (as defined in
the Cash Collateral Agreement) in an amount not less than the Minimum Cash
Collateral Amount. If, at any time prior to the Termination Date, the balance of
the Cash Collateral Account shall fall below the Minimum Cash Collateral Amount,
the Guarantor shall within five business days deposit into the Cash Collateral
Account the difference between the balance of the Cash Collateral Account at
such time and the Minimum Cash Collateral Amount.
Section 6. Representations and Warranties. The Guarantor hereby
represents and warrants as follows:
(a) The Guarantor (i) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
(ii) has the requisite corporate power and authority and the legal right to own
and operate its property, to lease the property it operates and to conduct the
business in which it is currently engaged.
(b) The execution, delivery and performance by the Guarantor of this
Guaranty and the Cash Collateral Agreement, are within the Guarantor's corporate
power, have been duly authorized by all necessary corporate action, and do not
(i) contravene the Guarantor's charter or bylaws, (ii) violate any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default or
require any payment to be made under, any contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting the
Guarantor, any of its Subsidiaries or any of their properties or (iv) except for
the Liens created under the Cash Collateral Agreement, result in or require the
creation or imposition of any Lien upon or with respect to any of the properties
of the Guarantor or any of its Subsidiaries.
(c) No governmental authorization, and no notice to or filing with, any
Governmental Authority or any other third party is required for (i) the due
execution, delivery or performance by the Guarantor of this Guaranty or the Cash
Collateral Agreement, (ii) the grant by the Guarantor of the Liens granted by it
pursuant to the Cash Collateral Agreement, (iii) the perfection or maintenance
of the Liens created under the Cash Collateral Agreement (including the first
priority nature thereof) or (iv) the exercise by OTS or any Guaranteed Party of
its rights under the Guaranty or the remedies in respect of the Cash Collateral
pursuant to the Cash Collateral Agreement.
(d) This Guaranty and the Cash Collateral Agreement have been duly
executed and delivered by the Guarantor. Each of this Guaranty and the Cash
Collateral Agreement is the legal, valid and binding obligation of the
Guarantor, enforceable against the Guarantor in accordance with its terms,
subject to the effect of applicable bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws relating to or affecting
creditors' rights generally.
(e) There are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived.
(f) The Guarantor has, independently and without reliance upon any other
Person and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Guaranty and the
Cash Collateral Agreement, and the Guarantor has established adequate means of
obtaining from the FSB and OLS on a continuing basis information pertaining to,
and is now and on a continuing basis will be completely familiar with, the
business, condition (financial or otherwise), operations, performance,
properties and prospects of the FSB and OLS.
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Section 7. Affirmative Covenants. The Guarantor covenants and agrees
that, until the Termination Date, the Guarantor will:
(a) Cash Collateral Account. Maintain the Cash Collateral Account,
perform and observe all of the terms of the Cash Collateral Agreement, and
maintain at all times the Minimum Cash Collateral Amount.
(b) Reporting Requirements. Furnish to OTS:
(i) Default Notice. As soon as possible and in any event within five
days after the occurrence of each Default hereunder, a statement of the
chief financial officer of the Guarantor setting forth details of such
Default and the action that the Guarantor has taken and proposes to take
with respect thereto.
(ii) Annual Financials. As soon as available and in any event within
90 days after the end of each fiscal year, a copy of the annual audit
report for such year for the Guarantor and its Subsidiaries, including
therein a Consolidated balance sheet of the Guarantor and its
Subsidiaries as of the end of such fiscal year and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Guarantor and its Subsidiaries for such fiscal year, in each case
accompanied by (A) an opinion as to such audit report of
PricewaterhouseCoopers LLP or other independent public accountants of
recognized standing and (B) a certificate of the chief financial officer
of the Guarantor stating that no Default has occurred and is continuing
or, if a Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Guarantor has taken and proposes
to take with respect thereto.
(iii) Quarterly Financials. As soon as available and in any event
within 60 days after the end of each of the first three quarters of each
fiscal year, a Consolidated balance sheet of the Guarantor and its
Subsidiaries as of the end of such quarter and a Consolidated statement
of income and a Consolidated statement of cash flows of the Guarantor
and its Subsidiaries for the period commencing at the end of the
previous fiscal quarter and ending with the end of such fiscal quarter
and a Consolidated statement of income and a Consolidated statement of
cash flows of the Guarantor and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the
end of such quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding date or period of the
preceding fiscal year, all in reasonable detail and duly certified
(subject to normal year-end audit adjustments) by the chief financial
officer of the Guarantor as having been prepared in accordance with
GAAP, together with a certificate of said officer stating that no
Default has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the action that
the Guarantor has taken and proposes to take with respect thereto.
(iv) Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before
any Governmental Authority affecting the Guarantor or any of its
Subsidiaries that could be reasonably likely to have a material adverse
effect on the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Guarantor or OLS.
(c) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions with any of their Affiliates on terms
that are fair and reasonable and no less favorable to the Guarantor or such
Subsidiary than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate.
(d) Preservation of Existence, etc. Preserve, renew and maintain, and
cause each of its Subsidiaries to preserve, renew and maintain, in full force
and effect their legal existence and good standing under the laws of their
jurisdiction of organization, except in a transaction permitted by Section 8(b).
(e) Unencumbered Financial Assets. The Guarantor shall maintain at all
times Financial Assets with a fair market value of not less than $35,000,000
that are (i) free and clear of any Lien and (ii) not the subject of any
transaction restricted under Section 8(c).
Section 8. Negative Covenants. The Guarantor covenants and agrees that,
until the Termination Date, the Guarantor will not, at any time:
(c) Debt. Create, incur or assume, or permit any of its Subsidiaries to
create, incur or assume, any Debt, except that the Guarantor or any Subsidiary
may create, incur or assume Debt if, immediately after giving effect to such
creation, incurrence or assumption, the ratio of (x) the Consolidated Debt of
the Guarantor and its Subsidiaries at such time to (y) the tangible net worth
(shareholders' equity less intangible assets, all determined in accordance with
GAAP, it being understood and agreed that servicing assets shall be considered
intangible assets for purposes of this calculation) of the Guarantor and its
Subsidiaries for the fiscal quarter most recently ended does not exceed 7.25 :
1.00 (the "Leverage Ratio").
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(d) Mergers, Etc. Merge into or consolidate with any Person or permit
any Person to merge into it, or transfer all or substantially all of its assets,
or permit any of its Subsidiaries to merge into or consolidate with any Person
or permit any Person to merge into it, or transfer all or substantially all of
its assets, except that, so long as no Default exists or would result therefrom:
(i) any Subsidiary of the Guarantor (other than OLS) may merge into
or consolidate with any other Subsidiary of the Guarantor; provided
that, in the case of any such merger or consolidation, the Person formed
by such merger or consolidation shall be a wholly-owned Subsidiary of
the Guarantor;
(ii) any Subsidiary of the Guarantor (other than OLS) may transfer
all or substantially all of its assets to the Guarantor or to a
wholly-owned Subsidiary of the Guarantor; and
(iii) the Guarantor may merge into or consolidate with, or permit to
merge into it, or transfer all or substantially all of its assets to, a
Qualifying Entity; provided, that the tangible net worth of the
Guarantor (or the surviving entity or transferee, as applicable) after
giving effect to such merger, consolidation or transfer and any related
transactions is (x) at least $350,000,000 and (y) no less than the
tangible net worth of the Guarantor as reflected in the most recent
financial statements of the Guarantor delivered pursuant to Section
7(b)(ii) or (iii). "Qualifying Entity" means a corporation or limited
liability company that (A) is organized under the laws of the United
States of America, any state thereof or the District of Columbia, (B)
has, immediately prior to such merger, consolidation or transfer, a
rating for its unsecured, non-credit-enhanced Debt of at least Baa2 from
Moody's or BBB from S&P, in each case, with a "stable" or "positive"
outlook (each, a "Minimum Rating") (and if the unsecured,
non-credit-enhanced Debt of such Person is rated by both Moody's and
S&P, Minimum Ratings from both for such Debt) and (C) assumes all of the
Guarantor's obligations under this Guaranty, the Cash Collateral
Agreement and the Collateral Trust Agreement pursuant to a writing, and
accompanied by such supporting corporate documents and opinions, in each
case as is acceptable to OTS, if the Guarantor is not the surviving
entity of any such merger or if there is any such transfer.
(c) Sales, Etc., of Assets. Sell, lease, transfer or otherwise dispose
of, or permit any of its Subsidiaries to sell, lease, transfer or otherwise
dispose of, any assets, or grant any option or other right to purchase, lease or
otherwise acquire, or permit any of its Subsidiaries to grant any option or
other right to purchase, lease or otherwise acquire, any assets, except for
sales, transfers or other dispositions of assets (i) for consideration
consisting of at least 85% cash and (ii) for fair value; provided that the
Guarantor shall be in compliance with the Leverage Ratio on a pro forma basis
after giving effect to any such sale, transfer or other disposition.
Notwithstanding the foregoing, the requirement set forth in subsection (c)(i)
above shall not apply to sales, transfers or other dispositions of any of the
assets listed on Schedule II hereto.
(d) Restricted Payments. Declare or pay any dividends, purchase, redeem,
retire, defease or otherwise acquire for value any of its capital stock or other
ownership or profit interests (or warrants, rights or options with respect
thereto) (collectively, the "Equity Interests") now or hereafter outstanding,
return any capital to its stockholders, partners or members (or the equivalent
Persons thereof) as such, make any distribution of assets, Equity Interests,
obligations or securities to its stockholders, partners or members (or the
equivalent Persons thereof) as such, or permit any of its Subsidiaries to do any
of the foregoing, or permit any of its Subsidiaries to purchase, redeem, retire,
defease or otherwise acquire for value any Equity Interests in the Guarantor,
except that, so long as no Default shall have occurred and be continuing at the
time of any action described below or would result therefrom:
(i) the Guarantor may (A) declare and pay dividends and distributions
payable only in common stock of the Guarantor (or rights to acquire the
same), (B) purchase, redeem, retire, defease or otherwise acquire (x) shares
of its capital stock with the proceeds received contemporaneously from the
issue of new shares of its capital stock with equal or inferior voting
powers, designations, preferences and rights or (y) any or all of its 3.25%
Contingent Convertible Senior Unsecured Notes due 2024, or (C) consistent
with Section 563.141 of the rules and regulations of the OTS, as if such
Section 563.141 were applicable to the Guarantor, declare, pay, purchase,
redeem, retire, defease or otherwise acquire any Equity Interests (each, a
"Capital Distribution"), provided that (x) the total amount of Capital
Distributions during any calendar year, inclusive of any proposed Capital
Distributions, does not exceed the Guarantor's consolidated net income for
such calendar year plus its retained earnings for the two preceding calendar
years, (y) the Guarantor's net worth is not less than $333,000,000 after
giving effect to any Capital Distribution and (z) the Guarantor's unsecured,
non-credit-enhanced Debt has a rating of at least B2 from Moody's and B-
from S&P at the time of any Capital Distribution, in each case, with a
"stable" or "positive" outlook.
(ii) any Subsidiary of the Guarantor may declare and pay cash dividends
to the Guarantor or to any wholly-owned Subsidiary of the Guarantor of which
it is a Subsidiary.
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(e) Partnerships, Etc. Become a general partner in any general or
limited partnership, or permit any of its Subsidiaries to do so, other than any
Subsidiary the sole assets of which consist of its interest in such partnership.
Section 9. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty and no consent to any departure by the Guarantor therefrom shall
in any event be effective unless the same shall be in writing and signed by OTS,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
Section 10. Notices Generally; Notice of Claims. (a) All notices and
other communications provided for hereunder shall be in writing (including
telegraphic, telecopy or electronic communication) and mailed, telegraphed,
telecopied or delivered to it, if to the Guarantor, the FSB or OLS, addressed to
the Guarantor, the FSB or OLS, as applicable, at:
1661 Worthington Road, Suite 100
West Palm Beach, FL 33401
Fax: (561) 692-8177
Attn: Secretary;
if to OTS, at:
Office of Thrift Supervision
Harborside Financial Center
Plaza Five, Suite 1600
Jersey City, New Jersey 07311
Fax: (201) 413-7543
Attn: Regional Director;
or, as to any party, at such other address as shall be designated by
such party in a written notice to each other party. All such notices and other
communications shall, when mailed, telegraphed, telecopied, or e-mailed, be
effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or sent by electronic communication, respectively.
Delivery by telecopier of an executed counterpart of a signature page to any
amendment or waiver of any provision of this Guaranty shall be effective as
delivery of an original executed counterpart thereof.
(b) The Guarantor will publicly disclose the existence of this Guaranty,
the Cash Collateral Agreement and the Collateral Trust Agreement, and will make
publicly available, through a notice that is conspicuously displayed on its web
site, (i) information regarding the purpose of this Guaranty and (ii)
instructions for making a claim hereunder and under the Collateral Trust
Agreement, including, without limitation, the name, address and contact
information of (A) its contact for purposes of making claims in respect of this
Guaranty and (B) the Collateral Trustee. Such information and instructions may,
upon notice posted to such web site, be changed from time to time by the
Guarantor, provided that such information and instructions remain conspicuously
displayed on such web site.
Section 11. No Waiver; Remedies. No failure on the part of OTS or any
Guaranteed Party to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 12. Indemnification. (a) Without limitation on any other
obligations of the Guarantor or remedies of OTS or the Guaranteed Parties under
this Guaranty, the Guarantor shall, to the fullest extent permitted by law,
indemnify, defend and save and hold harmless each Guaranteed Party and OTS and
each of their Affiliates and any of their respective officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against,
and shall pay on demand, any and all claims, damages, losses, liabilities and
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party in connection with or as a result of any failure of any Guaranteed
Obligations to be the legal, valid and binding obligations of the Guarantor,
enforceable against the Guarantor in accordance with their terms.
(b) The Guarantor hereby also agrees that none of OTS or any of OTS's
officers, employees, agents or advisors shall have any liability (whether direct
or indirect, in contract, tort or otherwise) to the Guarantor or any of its
Affiliates or any of their respective officers, directors, employees, agents and
advisors, and the Guarantor hereby agrees not to assert any claim against OTS or
any of OTS's officers, employees, agents or advisors on any theory of liability,
for (without limitation) special, indirect, consequential or punitive damages
arising out of or otherwise relating to this Guaranty, the Cash Collateral
Agreement, the Dissolution, or any of the transactions contemplated in
connection therewith.
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Section 13. Subordination. The Guarantor hereby subordinates any and all
debts, liabilities and other obligations owed to the Guarantor by the FSB or OLS
(the "Subordinated Obligations") to the Guaranteed Obligations to the extent and
in the manner hereinafter set forth in this Section 13:
(a) Prohibited Payments, Etc. Except (i) during the continuance of a
Default or (ii) upon the commencement and during the continuance of any
proceeding under any Bankruptcy Law relating to the FSB or OLS, the
Guarantor may receive regularly scheduled payments from the FSB or OLS on
account of the Subordinated Obligations. After the occurrence and during the
continuance of any Default, or upon the commencement and during the
continuance of any proceeding under any Bankruptcy Law relating to the FSB
or OLS, however, unless OTS otherwise agrees, the Guarantor shall not
demand, accept or take any action to collect any payment on account of the
Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under any
Bankruptcy Law relating to the FSB or OLS, the Guarantor agrees that the
Guaranteed Parties shall be entitled to receive payment in full in cash of
all Guaranteed Obligations (including all interest and expenses accruing
after the commencement of a proceeding under any Bankruptcy Law, whether or
not constituting an allowed claim in such proceeding ("Post Petition
Interest")) before the Guarantor receives payment of any Subordinated
Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any
Default, or upon the commencement and during the continuance of any
proceeding under any Bankruptcy Law relating to the FSB or OLS, the
Guarantor shall, if OTS so requests, collect, enforce and receive payments
on account of the Subordinated Obligations as trustee for the Guaranteed
Obligations and deposit such payments into the Cash Collateral Account on
account of the Guaranteed Obligations (including all Post Petition
Interest), together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability of
the Guarantor under the other provisions of this Guaranty.
(d) OTS Authorization. After the occurrence and during the continuance
of any Default, OTS is authorized and empowered (but without any obligation
to so do), in its discretion, (i) in the name of the Guarantor, to collect
and enforce, and to submit claims in respect of, Subordinated Obligations
and to apply any amounts received thereon to the Guaranteed Obligations
(including any and all Post Petition Interest), and (ii) to require the
Guarantor (A) to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to deposit any amounts received on such
obligations into the Cash Collateral Account for application to the
Guaranteed Obligations (including any and all Post Petition Interest).
Section 14. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
Termination Date (except that the last sentence of Section 2 shall continue to
remain in effect after the Termination Date), (b) be binding upon the Guarantor,
its successors and assigns and (c) inure to the benefit of and be enforceable by
the Guaranteed Parties and the OTS and their successors, transferees and
assigns. Without limiting the generality of clause (c) of the immediately
preceding sentence, any Guaranteed Party may assign or otherwise transfer all or
any portion of its rights and obligations under this Guaranty to any other
Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Guaranteed Party herein or
otherwise. The Guarantor shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of OTS.
Section 15. Third-Party Beneficiaries; Enforcement. (a) The Guarantor
and OTS acknowledge that each Guaranteed Party is an intended third party
beneficiary of this Guaranty, and shall have the right to: (i) make any demand
for payment hereunder with respect to (I) any Guaranteed Obligation that (A) has
been reduced to judgment and enforcement thereof has not been effectively stayed
or (B) that is otherwise matured and fixed and presently due and payable, and
(II) any other amount payable hereunder and (ii) enforce such rights directly
against the Guarantor. The rights and remedies provided in this subsection (a)
shall be the sole rights and remedies available to Guaranteed Parties other than
(x) Substantial Guaranteed Parties, who shall have the additional rights and
remedies set forth in subsection (b) below and (y) OTS, which may enforce the
terms and conditions of this Guaranty directly against the Guarantor as provided
in subsections (b) and (c) below and in any other manner provided or permitted
by law.
(b) The Guarantor acknowledges and agrees that if any Substantial
Guaranteed Party or OTS has good cause to believe that the Guarantor or any of
its Affiliates has taken or is about to take any action, including, without
limitation, any action that would constitute a breach of the covenants set forth
in Sections 7 or 8 above, that would impair the ability of the Guarantor to
perform its obligations under this Guaranty, such Substantial Guaranteed Party
and/or OTS will have the right to pursue an action against the Guarantor for
injunction or other appropriate relief. This subsection (b) confers additional
rights upon Substantial Guaranteed Parties and shall not be construed to limit
their rights as Guaranteed Parties in any way.
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(c) The Guarantor hereby acknowledges and agrees that OTS is relying
upon this Guaranty in connection with its approval of the FSB's application
under Section 546.4 of the rules and regulations of OTS, and that this Guaranty
shall be deemed to be a "written agreement" for purposes of Section 1818 of the
Federal Deposit Insurance Act, 12 U.S.C. Section 1818, fully enforceable as such
by OTS.
(d) The Guarantor will not challenge the jurisdiction or venue of any
United States District Court in any action to enforce the terms of this
Guaranty. Nothing in this subsection (d) shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Guaranty
in the courts of any jurisdiction or the Guarantor's right, if any, to seek
removal of any such action or proceeding from state court to federal court.
Section 16. Independent Counsel. The Guarantor will pay on demand the
amount of any and all reasonable fees and expenses incurred in connection with
retention by the OTS of legal counsel, consultants, and other advisers deemed
necessary or appropriate by the OTS in connection with the administration or
enforcement of this Guaranty, the Cash Collateral Agreement, and the Collateral
Trust Agreement.
Section 17. No Liability. (a) OTS shall not be required to take any
action under the Guaranty, the Cash Collateral Agreement or the Collateral Trust
Agreement, and neither OTS nor any of its agents or employees shall be liable
for any action taken or omitted to be taken by it or them under or in connection
with the Guaranty, the Cash Collateral Agreement or the Collateral Trust
Agreement. Without limitation of the generality of the foregoing, OTS: (i) may
consult with and rely on legal counsel (including counsel for the Guarantor or
any of its Affiliates), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to any
Guaranteed Party and shall not be responsible to any Guaranteed Party for any
statements, warranties or representations (whether written or oral) made in or
in connection with the Guaranty, the Cash Collateral Agreement or the Collateral
Trust Agreement; (iii) shall not have any duty to ascertain or to inquire as to
the performance, observance or satisfaction of any of the terms, covenants or
conditions of the Guaranty, the Cash Collateral Agreement or the Collateral
Trust Agreement on the part of the Guarantor or the existence at any time of any
Default under the Guaranty; (iv) shall not be responsible to any Guaranteed
Party for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in connection with, the
Guaranty or the Cash Collateral Agreement or any other instrument or document
furnished pursuant thereto; and (v) shall incur no liability under or in respect
of the Guaranty, the Cash Collateral Agreement or the Collateral Trust Agreement
by acting upon any notice, consent, certificate or other instrument or writing
(which may be by telegram, telecopy or electronic communication) believed by it
to be genuine and signed or sent by the proper party or parties.
(b) Any Notice of Non-Objection delivered to the Collateral Trustee by
the OTS pursuant to Section 4.02(c) of the Collateral Trust Agreement shall be
conclusive and binding on all parties (including, without limitation, the
Guaranteed Parties). Without limitation of subsection (a) above, the OTS shall
incur no liability whatsoever to any Guaranteed Party in connection with the
delivery of such a Notice of Non-Objection on the basis of any good-faith belief
(without any requirement that the OTS independently investigate the same or make
an independent determination with respect thereto) that the Termination Date has
occurred.
Section 18. Execution in Counterparts. This Guaranty and each amendment,
waiver and consent with respect hereto may be executed in any number of
counterparts and by different parties thereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Guaranty by telecopier shall be
effective as delivery of an original executed counterpart of this Guaranty.
Section 19. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a)
This Guaranty shall be governed by, and construed in accordance with, the laws
of the State of New York.
(b) The Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any federal court
of the United States of America sitting in New York City, and any appellate
court thereof, or, if any such court refuses jurisdiction, the Supreme Court of
the State of New York in and for New York County, in any action or proceeding
arising out of or relating to this Guaranty, the Cash Collateral Agreement or
the Collateral Trust Agreement, or for recognition or enforcement of any
judgment, and the Guarantor hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined, to the extent permitted by law, in such federal court or, if such
federal court refuses jurisdiction, in the Supreme Court of the State of New
York in and for New York County. The Guarantor agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Guaranty shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Guaranty in the courts
of any jurisdiction.
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(c) The Guarantor irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Guaranty, the Cash Collateral Agreement or the
Collateral Trust Agreement in any federal court. The Guarantor hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such suit, action or proceeding in any
such court.
(d) THE GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, THE CASH COLLATERAL
AGREEMENT OR THE COLLATERAL TRUST AGREEMENT OR THE ACTIONS OF OTS OR ANY
GUARANTEED PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
OF ANY THEREOF.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
OCWEN FINANCIAL CORPORATION
By /s/ WILLIAM C. ERBEY
-------------------------
Name: William C. Erbey
Title: Chairman and CEO
SCHEDULE I
Certain Defined Terms
All accounting terms not specifically or completely defined herein shall
be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent
with that used in preparing the financial statements required to be delivered
pursuant to Sections 7(b)(ii) and (iii), except as otherwise specifically
prescribed herein.
As used in this Guaranty, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Action" means any claim, action, suit, arbitration, inquiry, proceeding
or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to a particular Person, (a) any Person
which, directly or indirectly, controls, is controlled by, or is under common
control with such particular Person, or (b) any Person who is a director or
officer of such particular Person. For purposes of this definition, control of a
Person shall mean the power, direct or indirect, (i) to vote 5% or more of the
securities having ordinary voting power for the election of directors of such
Person, or (ii) to direct or cause the direction of the management and policies
of such Person whether by contract or otherwise.
"Assumed Liabilities" means all Liabilities of the FSB (other than
Liabilities assumed by Marathon in connection with the Branch Sale).
"Bankruptcy Law" means Title 11, U.S. Code, 12 U.S.C. 1464(d)(2), or any
similar federal or state law for the relief of debtors.
"Cash Collateral" has the meaning specified in the Cash Collateral
Agreement.
"Cash Collateral Account" has the meaning specified in the Cash
Collateral Agreement.
"Cash Collateral Agreement" means that certain Cash Collateral Agreement
dated the date hereof by and among the Guarantor, the Collateral Trustee and the
Account Bank described therein, in substantially the form of Exhibit A.
"Claim" means (a) any right to payment, whether or not such right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured, or (b)
any right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured, or unsecured.
"Collateral Trust Agreement" means that certain Collateral Trust
Agreement dated the date hereof between the Guarantor and the Collateral
Trustee.
"Collateral Trustee" has the meaning specified in the Collateral Trust
Agreement.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Contracts" means all contracts, subcontracts, agreements, leases,
licenses, commitments, sales or purchase orders, and other instruments,
arrangements or understandings of any kind.
"Debt" of any Person means, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) all obligations of such Person for the
deferred purchase price of property or services, (c) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all obligations of such Person created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that have
been or should be, in accordance with GAAP, recorded as capital leases, (f) all
obligations of such Person under acceptance, letter of credit or similar
facilities, (g) all obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any Equity Interests in such
Person or any other Person or any warrants, rights or options to acquire such
Equity
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Interests, (h) all Debt of other Persons referred to in clauses (a) through (g)
above or clause (i) below and other payment obligations guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person and (i) all indebtedness and other payment obligations
referred to in clauses (a) through (h) above of another Person secured by (or
for which the holder of such Debt has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of such indebtedness or
other payment obligations.
"Default" means any failure by the Guarantor to perform or observe any
term, covenant or agreement contained in this Guaranty or the Cash Collateral
Agreement on its part to be performed or observed.
"Equity Interests" has the meaning specified in Section 8(d).
"Event of Default" means a Default that remains unremedied for 10 days
after the earlier of the date on which (a) any officer of the Guarantor becomes
aware of such Default or (b) written notice of such Default has been given to
the Guarantor by OTS or any Substantial Guaranteed Party.
"Financial Asset" shall have the meaning set forth in Article 8 of the
Uniform Commercial Code as in effect from time to time in the State of New York.
"GAAP" means generally accepted accounting principles in the United
States set forth in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"Governmental Authority" means any nation or government, any state,
province, city, municipal entity or other political subdivision thereof, and any
governmental, executive, legislative, judicial, administrative or regulatory
agency, department, authority, instrumentality, commission, board, bureau or
similar body, whether federal, state, provincial, territorial, local or foreign.
"Guaranteed Obligations" has the meaning specified in Section 1.
"Guaranteed Party" means (a) any holder of any Claim with respect to the
Assumed Liabilities and (b) the OTS.
"Liability" means any debt, liability, commitment or obligation of every
kind and description, whether accrued or fixed, absolute or contingent, matured
or unmatured, determined or determinable, known or unknown, including those
arising under any law or order of any Governmental Authority and those arising
under any Contract or in connection with any Action.
"Lien" means any lien, security interest or other charge or encumbrance
of any kind, or any other type of preferential arrangement, including, without
limitation, the lien or retained security title of a conditional vendor and any
easement, right of way or other encumbrance on title to real property.
"Minimum Cash Collateral Amount" means (a) so long as no Event of
Default has occurred and is continuing, $5,000,000, and (b) upon the occurrence
and during the continuance of an Event of Default, $20,000,000.
"Moody's" means Moody's Investors Service, Inc. and any successor
thereto.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government or
any political subdivision or agency thereof.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.
"Subsidiaries" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital of such partnership, joint venture
or limited liability company or (c) the beneficial interest in such trust or
estate is at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or more of
such Person's other Subsidiaries.
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"Substantial Guaranteed Party" means (a) any authorized representative
of the Guaranteed Parties party to the action pending in the United States
District Court for the Northern District of Illinois under caption styled: In re
Ocwen Federal Bank FSB Mortgage Servicing Litigation, MDL Docket No. 1604,
provided that the plaintiffs in such action are certified as a class; (b) any
Guaranteed Party that has obtained a judgment against the FSB or OLS for an
aggregate amount of $5,000,000 or more, regardless of whether such judgment has
been stayed pending appeal; and (c) any other creditor of the FSB and/or OLS
holding matured, fixed, and presently due and payable Claims in respect of any
Guaranteed Obligations in an aggregate amount in excess of $5,000,000.
"Termination Date" means the later of (a) the sixth anniversary of the
date on which the FSB's federal bank charter is cancelled and (b) the date on
which both of the following have been indefeasibly paid in full in cash: (i) all
Guaranteed Obligations with respect to which a Claim has been asserted (whether
under this Guaranty or otherwise) on or prior to the sixth anniversary of the
date on which the FSB's federal bank charter is cancelled and (ii) all other
amounts payable by the Guarantor under this Guaranty (whether in respect of
enforcement costs, indemnification payments or otherwise).
3