EXHIBIT 10.5
SERVICES AGREEMENT , dated as of August 10, 2009, between
OCWEN FINANCIAL CORPORATION, a Florida corporation (“
OCWEN ” or together with its Affiliates “
OCWEN Group ”), and ALTISOURCE SOLUTIONS S.à
r.l., a private limited liability company organized under the laws
of the Grand Duchy of Luxembourg and an indirect, wholly-owned
subsidiary of OCWEN (“ ALTISOURCE ” or together
with its Affiliates “ ALTISOURCE Group
”).
RECITALS
WHEREAS,
OCWEN and Altisource Portfolio Solutions S.A. (formerly known as
Altisource Portfolio Solutions S.à r.l., formerly known as
Ocwen Luxembourg S.à r.l.), the sole parent of ALTISOURCE
(“ ALTISOURCE Parent ”), are parties to a
Separation Agreement dated as of August 10, 2009 (the “
Separation Agreement ”), pursuant to which OCWEN will
(i) separate the ALTISOURCE Business (as defined in the Separation
Agreement) and (ii) distribute (the “ Separation
”) to the holders of shares of OCWEN’s outstanding
capital stock all of the outstanding capital stock of ALTISOURCE
Parent;
WHEREAS,
following the Separation, ALTISOURCE will operate the ALTISOURCE
Business, and OCWEN will operate the OCWEN Business (as defined in
the Separation Agreement); and
WHEREAS,
following the Separation, OCWEN desires to receive, and ALTISOURCE
is willing to provide, or cause to be provided, certain services in
connection with the OCWEN Business, in each case subject to the
terms and conditions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the parties agree as
follows:
1.
Definitions .
(a) Capitalized
terms used herein and not otherwise defined have the meanings given
to such terms in the Separation Agreement.
(b) For
the purposes of this Agreement, the following terms shall have the
following meanings:
“
Affiliate ” means with respect to any Person (a
“Principal”) (a) any directly or indirectly
wholly-owned subsidiary of such Principal, (b) any Person that
directly or indirectly owns 100% of the voting stock of such
Principal or (c) a Person that controls, is controlled by or is
under common control with such Principal. As used herein,
“control” of any entity means the possession, directly
or indirectly, through one or more intermediaries, of the power to
direct or cause the direction of the management or policies of such
entity, whether through ownership of voting securities or other
interests, by contract or otherwise. Furthermore, with respect to
any Person that is partially owned by such Principal and does not
otherwise constitute an Affiliate (a “Partially-Owned
Person”), such Partially-Owned Person shall be considered an
Affiliate of such Principal for purposes of this Agreement if such
Principal can, after making a good faith effort to do so, legally
bind such Partially-Owned Person to this Agreement.
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“
Agreement ” means this Services Agreement, including
the Schedules hereto, any Services Letter, any Fee Letter and any
SOWs entered into pursuant to Section 2(b) .
“
Applicable Services ” means business process
outsourcing services of the type provided in the ordinary course of
business of the Providing Party as of the date of this
Agreement.
“
Customer Party ” means a party in its capacity of
receiving a Service hereunder, including OCWEN.
“
Fee Letter ” has the meaning set forth in Section
4(a) .
“
Fixed Price Project ” means any Service designated as
such on Schedule I , in the Services Letter or the
applicable SOW.
“
Providing Party ” means a party in its capacity of
providing a Service hereunder, including ALTISOURCE.
“
Services ” means the services set forth on Schedule
I (as further described in the Services Letter) and/or in any
SOWs, as the context requires.
“
SOW ” means a statement of work entered into between
the parties on an as-needed basis to describe a particular service
that is not covered specifically in a schedule hereto or in the
Services Letter, but has been agreed to be provided pursuant to the
terms of this Agreement except as otherwise set forth in such
SOW.
2.
Provision of Services .
(a)
Generally . Subject to the terms and conditions of this
Agreement, ALTISOURCE shall provide, or cause to be provided, to
OCWEN and the OCWEN Group, the services set forth on Schedule
I , in each case (i) as further described in a letter between
the Providing Party and the Customer Party dated as of the date
hereof (the “ Services Letter ”) and (ii) for
the periods commencing on the date hereof through the respective
period specified on Schedule I (the “ Service
Period ”), unless such period is earlier terminated in
accordance with Section 5 .
(b)
Statements of Work . In addition to the services set forth
on Schedule I , from time to time during the term of this
Agreement the parties shall have the right to enter into SOWs to
set forth the terms of any related or additional services to be
performed hereunder. Any SOW shall be agreed to by each party,
shall be in writing and (I) shall contain, to the extent
applicable: (i) the identity of each of the Providing Party and the
Customer Party; (ii) a description of the Services to be performed
thereunder; (iii) the applicable Performance Standard for the
provision of such Service, if different from the Performance
Standard; (iv) a description of the penalties of nonperformance and
the incentives for performance in accordance with the applicable
Performance Standard; (v) a description of the Customer
Party’s criteria for evaluating the acceptance of
deliverables; (vi) the amount, schedule and method of compensation
for provision of such Service; and (vii) the Customer Party’s
standard operating procedures for receipt of services similar to
such Service, including operations, compliance requirements and
related training schedules; and (II) may contain (i) a description
of the renewal option for such SOW; (ii) information technology
support requirements of the Customer Party with respect to such
Service; (iii) training and support commitments with respect to
such Service; (iv) the number of full-time employees required for
such Service; and (v) any other terms the parties desired by. For
the avoidance of doubt, the terms and conditions of this Agreement
shall apply to any SOW.
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(c) The
Services shall be performed on Business Days during hours that
constitute regular business hours for each of OCWEN and ALTISOURCE,
unless otherwise agreed or as provided on Schedule I , in
the Services Letter or an applicable SOW. No Customer Party, nor
any member of its respective Group, shall resell, subcontract,
license, sublicense or otherwise transfer any of the Services to
any Person whatsoever or permit use of any of the Services by any
Person other than by the Customer Party and its Affiliates directly
in connection with the conduct of the Customer Party’s
respective business in the ordinary course of business.
(d) Notwithstanding
anything to the contrary in this Section 2 (but subject to
the second succeeding sentence), the Providing Party shall have the
exclusive right to select, employ, pay, supervise, administer,
direct and discharge any of its employees who will perform
Services. The Providing Party shall be responsible for paying such
employees’ compensation and providing to such employees any
benefits. With respect to each Service, the Providing Party shall
use commercially reasonable efforts to have qualified individuals
participate in the provision of such Service; provided ,
however, that (i) the Providing Party shall not be obligated to
have any individual participate in the provision of any Service if
the Providing Party determines that such participation would
adversely affect the Providing Party or its Affiliates; and (ii)
none of the Providing Party or its Affiliates shall be required to
continue to employ any particular individual during the applicable
Service Period.
3.
Standard of Performance . The Providing Party shall use
commercially reasonable efforts to provide, or cause to be
provided, to the Customer Party and its Group, each Service with
such quality standards, service level requirements, specifications
and acceptance criteria identified in the Services Letter or the
respective SOW (including any “Critical Performance
Standards” as identified in any therein) (the “
Performance Standard ”), unless otherwise specified in
this Agreement. Notwithstanding the foregoing, no Providing Party
shall have any obligation hereunder to provide to any Customer
Party any improvements, upgrades, updates, substitutions,
modifications or enhancements to any of the Services unless
otherwise specified in the Services Letter or applicable SOW. The
Customer Party acknowledges and agrees that the Providing Party may
be providing services similar to the Services provided hereunder
and/or services that involve the same resources as those used to
provide the Services to its and its Affiliates’ business
units and other third parties.
4.
Fees for Services .
(a) As
compensation for a particular Service, the Customer Party agrees to
pay to the Providing Party, for each of the first two (2)
successive years during which such Service is provided (the “
Initial Fee Period ”), the respective amount set forth
in (i) the Services Letter (or, if applicable, in a separate fee
letter to be delivered by the Providing Party to the Customer Party
dated as of the date hereof (the “ Fee Letter
”)) or (ii) with respect to any Service performed pursuant to
an SOW, in such SOW. The parties intend that any such fees reflect
the market rate for comparable services. In the event the Services
provided are increased or decreased during the Service Period, the
fees associated therewith shall be increased or decreased, as
applicable, on a pro rata basis.
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(b) The
fees for the Services other than Fixed Price Projects shall be
adjusted in each year subsequent to the Initial Fee Period as
negotiated between the parties in good faith based on prevailing
market conditions and inflation.
(c) The
Customer Party shall not be obligated to pay fees for (i) new
Services, other than Additional Services or Services requested
pursuant to a SOW, which the Providing Party performs without the
authorization of the Customer Party or of any member of its Group
or (ii) Services not provided due to a Force Majeure Event (as
defined below).
(d) The
parties will adhere to the business practices regarding invoicing
and payment in place at the time of execution of this Agreement for
all Services initially provided by the Providing Party for a
maximum period of one year from the date of this Agreement. After
one year or in the case of any SOW and unless otherwise specified
in the applicable SOW, the Providing Party shall submit statements
of account to the Customer Party (including any Sales Tax, as
defined in Section 16 ) on a monthly basis with respect to
all amounts payable by the Customer Party to the Providing Party
hereunder (the “ Invoiced Amount ”), setting out
the Services provided (by reference to the particular SOW, if
applicable), and the amount billed in United States Dollars to the
Customer Party as a result of providing such Services. The Customer
Party shall pay the Invoiced Amount to the Providing Party by wire
transfer of immediately available funds to an account or accounts
specified by the Providing Party, or in such other manner as
specified by the Providing Party in writing, or otherwise
reasonably agreed to by the Parties, within 30 days of the date of
delivery to the Customer Party of the applicable statement of
account; provided , that, in the event of any dispute as to
an Invoiced Amount, the Customer Party shall pay the undisputed
portion, if any, of such Invoiced Amount in accordance with the
foregoing, and shall pay the remaining amount, if any, promptly
upon resolution of such dispute.
(e) The
Providing Party shall maintain books and records adequate for the
provision of the Services. At its own expense, the Customer Party
may request an audit of the books and records of the Providing
Party to determine performance in accordance with Section
4(d) . If such audit reveals an underpayment of fees, the
Customer Party shall promptly pay the underpayment amount in
accordance with the terms of this Agreement. If such audit reveals
an overpayment of fees, the Providing Party shall promptly refund
the overpayment amount in accordance with Section 4(d)
.
(f) The
Providing Party may, in its discretion and without any liability,
suspend any performance under this Agreement upon failure of the
Customer Party to make timely any payments required under this
Agreement beyond the applicable cure date specified in Section
6(b)(1) of this Agreement.
(g) In
the event that the Customer Party does not make any payment
required under the provisions of this Agreement (including, for the
avoidance of doubt, the Services Letter and/or the Fee Letter) to
the Providing Party when due in accordance with the terms hereof,
the Providing Party may, at its option, charge the Customer Party
interest on the unpaid amount at the rate of 2% per annum above the
prime rate charged by JPMorgan Chase Bank, N.A. (or its successor).
In addition, the Customer Party shall reimburse the Providing Party
for all costs of collection of overdue amounts, including any
reasonable attorneys’ fees.
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(h) In
the event that (i) Providing Party agrees to provide services that
are the same or substantially similar to the Services and
Additional Services provided hereunder to a third party (“
Relevant Services”) , (ii) such Relevant Services are
delivered and priced in a manner substantially similar to the
delivery and pricing structure provided for by this Agreement, the
Services Letter and the Fee Letter (if any) and are of a similar
volume, (iii) the fees to be received by Providing Party from each
of Customer Party and such third party are reasonably expected to
exceed $1,000,000 per year, (iv) the fee rates in the aggregate to
be charged by the Providing Party for any particular Relevant
Service (a “ Reduced Cost Service ”) are less
than the fee rates in the aggregate for the corresponding Service
or Additional Service charged under this Agreement, the Services
Letter and the Fee Letter (if any), and (v) after giving good faith
consideration to any higher fee rates charged by Providing Party
for any other Relevant Services other than the Reduced Cost Service
being provided to such third party, the aggregate economic benefit
received by Providing Party for providing all such Relevant
Services is less than the aggregate economic benefit received by
Providing Party for providing the Services and Additional Services,
then within thirty Business Days of entering into a binding
agreement to provide the Relevant Services to such third party,
Providing Party shall offer to provide to Customer Party the
Service and/or Additional Service corresponding to the Reduced Cost
Service at the same rate as Providing Party provides the Reduced
Cost Service to such third party. The fees provided for under this
Agreement, the Services Letter and the Fee Letter (if any) shall be
reduced to an amount equal to the fees charged for the Reduced Cost
Service effective as of the later of (x) the first day of the
immediately succeeding calendar quarter after the date on which
Providing Party notifies Customer Party of the Reduced Cost Service
or (y) thirty days after the date on which Providing Party notifies
Customer Party of the Reduced Cost Service. For purposes of
clarification only, this Section 4(h) shall not apply to
situations where Providing Party agrees to provide test or trial
services to a third party.
5.
Term .
(a)
Initial Term . This Agreement shall commence on the
Distribution Date and shall continue in full force and effect,
subject to Section 5(b) , until the date that is eight (8)
years from the Distribution Date (the “ Initial Term
”), or the earlier date upon which this Agreement has been
otherwise terminated in accordance with the terms
hereof.
(b)
Renewal Term . This Agreement may be renewed for successive
two (2) year terms (each, a “ Renewal Term ) by mutual
written agreement of the parties hereto, executed not less than six
(6) months prior to the expiration of the Initial Term or any
Renewal Term, as applicable.
(c) In
the event either party decides that it does not wish to renew this
Agreement or any particular Service or SOW hereunder before the
expiration of the Initial Term or any Renewal Term, as applicable,
such party shall so notify the other party at least nine (9) months
before the completion of the Initial Term or Renewal Term, as
applicable.
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6.
Termination .
(a)
Termination by Customer Party . During the term of this
Agreement, the Customer Party may terminate this Agreement (or,
with respect to all items except items (2) and (7) below, the
particular Service or SOW only):
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(1)
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if the Customer Party is
prohibited by law from receiving such Services from the Providing
Party;
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(2)
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in the event of a material breach
of any covenant or representation and warranty contained herein or
otherwise directly relating to or affecting the Services to be
provided hereunder of the Providing Party that cannot be or has not
been cured by the 30 th day from the Customer
Party’s giving of written notice of such breach to the
Providing Party, which notice shall be given within 45 days of the
later of the occurrence of such breach or Customer Party’s
discovery of such breach;
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(3)
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if the Providing Party fails to
comply with all applicable regulations to which the Providing Party
is subject directly relating to or affecting the Services to be
performed hereunder, which failure cannot be or has not been cured
by the 30 th day from the Customer Party’s giving
of written notice of such failure to the Providing Party, which
such notice shall be given within 45 days of the later of the
occurrence of such failure or Customer Party’s discovery of
such failure;
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(4)
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if the Providing Party or any
member of its Group providing Services hereunder is cited by a
Governmental Authority for materially violating any law governing
the performance of a Service, which violation cannot be or has not
been cured by the 30 th day from the Customer
Party’s giving of written notice of such citation to the
Providing Party, which such notice shall be given within 45 days of
the later of the occurrence of such citation or Customer
Party’s discovery of such citation;
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(5)
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if the Providing Party fails to
meet any Critical Performance Standard for a period of two
consecutive months or three nonconsecutive months in any rolling
12-month period, which failure cannot be or has not been cured by
the 30 th day from the Customer Party’s giving of
written notice of such failure to the Providing Party, which such
notice shall be given within 45 days of the later of the occurrence
of such failure or Customer Party’s discovery of such
failure;
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(6)
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if the Providing Party fails to
meet any Performance Standard for a period of two consecutive
months or four nonconsecutive months in any rolling 12-month
period, which failure cannot be or has not been cured by the 30
th day from the Customer Party’s giving of written
notice of such failure to the Providing Party, which such notice
shall be given within 45 days of the later of the occurrence of
such failure or Customer Party’s discovery of such failure;
and
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(7)
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if the Providing Party (A)
becomes insolvent, (B) files a petition in bankruptcy or
insolvency, is adjudicated bankrupt or insolvent or files any
petition or answer seeking reorganization, readjustment or
arrangement of its business under any law relating to bankruptcy or
insolvency, or if a receiver, trustee or liquidator is appointed
for any of the property of the other party and within 60 days
thereof such party fails to secure a dismissal thereof or (C) makes
any assignment for the benefit of creditors, which bankruptcy,
insolvency or assignment cannot be or has not been cured by the 30
th day from the Customer Party’s giving of written
notice of such event to the Providing Party, which such notice
shall be given within 45 days of the later of the occurrence of
such event or Customer Party’s discovery of such event,
and
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(8)
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in the event of any material
infringement of such Customer Party’s Intellectual Property
(as defined in the Intellectual Property Agreement), including
intellectual property developed hereunder pursuant to Section
10 below, by the Providing Party, which infringement cannot be
or has not been cured by the 30 th day from the Customer
Party’s giving of written notice of such event to the
Providing Party, which such notice shall be given within 45 days of
the later of occurrence of such event or Customer Party’s
discovery of such event.
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For
the avoidance of doubt, with respect to all items except item (1)
above, if the Providing Party has cured the underlying event or
circumstance giving rise to written notice of the same, within the
time period specified above, the Customer Party may not terminate
this Agreement or the applicable Service or SOW; provided ,
however, that the Customer Party may, if it so states in the
written notice required to be provided to the Providing Party
pursuant to the above, cause the Providing Party to suspend the
Service performed under this Agreement or the applicable SOW until
the Providing Party has cured such breach, failure, insolvency,
bankruptcy or assignment, as the case may be. Furthermore, if the
Providing Party is unable to effect a cure of the event or
circumstance occurring under this Section 6(a) within the
time period specified, despite a good faith effort to effect such
cure, the Customer Party shall allow the Providing Party such
additional time as reasonably required to effect such cure without
termination of this Agreement or the applicable Service or SOW, but
in no event shall such additional time exceed 90 days unless
otherwise agreed by the parties.
(b)
Termination by Providing Party . During the term of this
Agreement, the Providing Party may terminate this Agreement or the
particular Service or SOW only:
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(1)
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if the Customer Party fails to
make any payment for any portion of Services the payment of which
is not being disputed in good faith by the Customer Party, which
payment remains unmade by the 90 th day from the
Providing Party’s giving of written notice of such failure to
the Customer Party;
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(2)
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if the Customer Party, or any
member of its Group providing Services hereunder, or the Providing
Party receives an order from a Governmental Authority prohibiting
the performance of the Services;
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(3)
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if the Providing Party or any
member of its Group providing Services hereunder is notified by a
Governmental Authority, due to the actions of the Customer Party,
for materially violating any law governing the performance of a
Service, which violation cannot be or has not been cured by the
Customer Party by the 60 th day from the receipt of
notice of such violation;
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(4)
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if the Customer Party or any
member of its Group (A) becomes insolvent, (B) files a petition in
bankruptcy or insolvency, is adjudicated bankrupt or insolvent or
files any petition or answer seeking reorganization, readjustment
or arrangement of its business under any law relating to bankruptcy
or insolvency, or if a receiver, trustee or liquidator is appointed
for any of the property of the other party and within 60 days
thereof such party fails to secure a dismissal thereof or (C) makes
any assignment for the benefit of creditors;
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(5)
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in the event of any material
infringement of such Providing Party’s Intellectual Property
(as defined in the Intellectual Property Agreement), including
intellectual property developed hereunder pursuant to Section
10 below, by the Customer Party or any member of its Group;
and
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(6)
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in the event of a material breach
of any covenant or representation and warranty contained herein or
otherwise directly relating to or affecting the Services to be
provided hereunder of the Customer Party or any member of its Group
that cannot be or has not been cured by the 60 th day
from the Providing Party’s giving of written notice of such
breach to the Customer Party.
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For
the avoidance of doubt, with respect to items (3) and (6) above, if
the Customer Party has cured the underlying event or circumstance
giving rise to written notice of the same, within the time period
specified above, the Providing Party may not terminate this
Agreement or the applicable Service or SOW; provided ,
however, that the Providing Party may, if it so states in the
written notice required to be provided to the Customer Party
pursuant to the above, suspend the Service performed hereunder or
under the applicable SOW until the Customer Party has cured such
violation or breach, as the case may be. Furthermore, if the
Customer Party is unable to effect a cure of
