EXHIBIT 4.5
DECLARATION OF TRUST OF OCWEN CAPITAL TRUST II
This DECLARATION OF TRUST, dated as of September 29, 1998 (this
"Declaration of Trust"), between Ocwen Financial Corporation, a Florida
corporation, as "Sponsor," and Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as trustee (the
"Trustee"). The Sponsor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Ocwen Capital Trust II"
(the "Trust"), in which name the Trustee or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitutes
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et seq. (the "Business Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in accordance with the provisions of the Business
Trust Act.
3. The Sponsor and the Trustee will enter into an amended and restated
Declaration of Trust, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Capital Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Declaration of Trust, (i)
the Trustee shall not have any duty or obligation hereunder or with respect to
the trust estate, except as otherwise required by applicable law, and (ii) the
Sponsor shall take any action as may be necessary to obtain, prior to such
execution and delivery, any licenses, consents or approvals required by
applicable law or otherwise.
4. The Sponsor is hereby authorized, in its discretion, (i) to prepare
and file with the Securities and Exchange Commission (the "Commission") and
execute, in each case on behalf of the Trust, (a) the Registration Statement on
Form S-3 (the "1933 Act Registration Statement"), including any pre-effective or
post-effective amendments to such 1933 Act Registration Statement (including the
prospectus and the exhibits contained therein), relating to the registration
under the Securities Act of 1933, as amended, of the Capital Securities of the
Trust and certain other securities and (b) a Registration Statement (the "1934
Act Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Capital Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with such securities exchange or exchanges or the Nasdaq National Market System
("Nasdaq"), as shall be determined by the Sponsor, and prepare and execute on
behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Capital Securities to be listed on such securities
exchanges or quoted on Nasdaq, as applicable; (iii) to prepare, file and execute
on
behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Capital Securities
under the securities or "Blue Sky" laws, and to obtain any permits under the
insurance laws of such jurisdictions as the Sponsor, on behalf of the Trust, may
deem necessary or desirable; (iv) to prepare, execute and deliver letters or
documents to, or instruments for filing with, a depositary relating to the
Capital Securities of the Trust; (v) to negotiate, execute, deliver and perform,
on behalf of the Trust an underwriting agreement and one or more other similar
or related agreements providing for or relating to the sale and issuance of the
Capital Securities of the Trust and/or any other interests in the Trust; and
(vi) to prepare, execute and deliver on behalf of the Trust any and all
instruments, documents and papers as may be desirable in connection with the
foregoing. In the event that any filing referred to in clauses (i), (ii) and
(iii) above is required by the rules and regulations of the Commission, any
securities exchange, Nasdaq or state securities or blue sky laws to be executed
on behalf of the Trust by the Trustee, Wilmington Trust Company, in its capacity
as trustee of the Trust, is hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that the Trustee, in its capacity as trustee of the Trust,
shall not be required to join any such filing or execute on behalf of the Trust
any such document unless required by the rules and regulations of the
Commission, any securities exchange, Nasdaq or state securities or blue sky
laws. In connection with all of the foregoing, the Sponsor hereby constitutes
and appoints Xxxxxxx X. Xxxxx, Xxxx X. Xxxxx and Xxxxxxxxx X. Xxxxx, and each of
them, as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Sponsor or in the Sponsor's name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as the Sponsor might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their respective substitute or substitutes, shall do or cause to
be done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be one (1) and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise meets
the requirements of applicable Delaware law. Subject to the foregoing, the
Sponsor is entitled to appoint or remove without cause the Trustee at any time.
The Trustee may resign upon 30 days' prior notice to the Sponsor.
7. The Sponsor hereby agrees to (i) reimburse the Trustee for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts); (ii) indemnify, defend and hold harmless the Trustee and each of the
officers, directors, employees and agents of the Trustee
2
(collectively, including the Trustee in its individual capacity, the
"Indemnified Persons") from and against any and all losses, damages,
liabilities, claims, actions, suits, costs, expenses, disbursements (including
the reasonable fees and expenses of counsel), taxes and penalties of any kind
and nature whatsoever (collectively, "Expenses"), to the extent that such
Expenses arise out of or are imposed upon or asserted at any time against such
Indemnified Persons with respect to the performance of this Declaration of
Trust, the creation, operation, administration or termination of the Trust, or
the transactions contemplated hereby; provided, however, that the Sponsor shall
not be required to indemnify an Indemnified Person for Expenses to the extent
such Expenses result from the willful misconduct, bad faith or gross negligence
of such Indemnified Person; and (iii) advance to each Indemnified Person
Expenses (including reasonable legal fees) incurred by such Indemnified Person
in defending any claim, demand, action, suit or proceeding prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Sponsor of an undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified therefor under this Section 7.
8. The Trustee shall take such action or refrain from taking such
action under this Declaration of Trust as it may be directed in writing by the
Sponsor from time to time; provided, however, that the Trustee shall not be
required to take or refrain from taking any such action (i) if it shall be
determined, or shall have been advised by counsel, that such performance is
likely to involve the Trustee in personal liability or (ii) it shall have actual
knowledge, or shall have been advised by counsel, that such performance is
contrary to the terms of this Declaration of Trust or of any document
contemplated hereby to which the Trust or the Trustee is a party or is otherwise
contrary to law. If at any time the Trustee determines that it requires or
desires guidance regarding the application of any provision of this Declaration
of Trust or any other document, then the Trustee may deliver a notice to the
Sponsor requesting written instructions as to the course of action desired by
the Sponsor, and such instructions shall constitute full and complete
authorization and protection for actions taken by the Trustee in reliance
thereon. The Trustee shall refrain from taking any action with respect to the
matters described in such notice to the Sponsor until the Trustee has received
such instructions.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regarding to
conflict of laws principles).
3
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
OCWEN FINANCIAL CORPORATION, as
Sponsor
By: /s/ Xxxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: President
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Trustee
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
Title: Administrative Account
Manager
4
