Exhibit 10.4
FORM OF ASSIGNMENT AND ASSUMPTION
AGREEMENT
ASSIGNMENT AND ASSUMPTION
AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION
AGREEMENT (this “ Agreement ”) is dated as of
May __, 2009, and is by and between FBR CAPITAL MARKETS
CORPORATION, a corporation organized under the laws of the
Commonwealth of Virginia (“ CMC ”), and
FRIEDMAN, BILLINGS, RAMSEY GROUP, INC. (d/b/a ARLINGTON ASSET
INVESTMENT CORP.), a corporation organized under the laws of the
Commonwealth of Virginia (“ Group ”). CMC and
Group are sometimes referred to herein individually as a “
Party ” and collectively as the “ Parties
.”
RECITALS
WHEREAS, pursuant to that certain
Stock Repurchase Agreement, dated as of May __, 2009, by and
between CMC, FBR TRS Holdings, Inc. (“ FBR TRS
”), and Group (the “ Repurchase Agreement
”), CMC has agreed to repurchase certain shares of capital
stock of CMC that are currently held of record by FBR TRS and
beneficially owned by Group; and
WHEREAS, in connection with the
entering into of the Repurchase Agreement, Group desires to assign
to CMC, and CMC desires to accept and receive from Group, all of
Group’s contract rights under certain agreements to which it
is a party all upon the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties
hereby agree as follows:
AGREEMENT
Section 1. Assignment and
Assumption . Group hereby assigns, sells, transfers and conveys
each applicable Assigned Contract (as hereinafter defined) (with
such assignment, sale, transfer and conveyance deemed to have been
effective as of the original date of each applicable Assigned
Contract) (the “ Assignment ”) to CMC and all of
the rights, title and interest of Group in and to, and all of
Group’s obligations in connection with, each of the
agreements identified on Exhibit A hereto (together with any
agreements identified in accordance with the terms of
Section 2 , the “ Assigned Contracts
”). CMC hereby accepts the Assignment and assumes and agrees
(with such assumption and agreement deemed to have been effective
as of the original date of each applicable Assigned Contract) to
perform all of the duties and obligations of Group under the
Assigned Contracts; provided , however , that
notwithstanding the foregoing, Group shall retain all
responsibility for, and CMC shall have no obligation or liabilities
with respect to, any such contracts to the extent that such
contracts pertain solely to Group separate and apart from CMC or
any subsidiary thereof.
Section 2. Additional
Agreements . The Parties agree that in the event that Group or
CMC later identifies any agreement to which Group is a party that
the Parties mutually agree in good faith relates at such time,
previously related, or will relate primarily to CMC’s
business,
Group will assign such agreement to CMC and CMC
will assume Group’s duties and obligations thereunder,
subject to the proviso in Section 1 .
Section 3. Approvals and
Consents; Further Actions .
(a) In the event an Assigned
Contract and any claim, right, benefit, duty or obligation arising
thereunder or resulting therefrom is not assignable or assumable
without the consent of the other party(ies) thereto, the Parties
will use commercially reasonable efforts to obtain as expeditiously
as possible the written consent of the other party(ies) to such
contract for the assignment or, if required, novation thereof to
CMC, and will execute and deliver any other documents and
instruments as are reasonably necessary in furtherance of such
assignment or novation. The Parties agree to equally share all
out-of-pocket costs and expenses (but not internal or employee
costs or expenses or allocations therefor) incurred in connection
with this Section 3(a) . In furtherance of the
foregoing, as soon as practicable following the date hereof, CMC
shall submit to the other party or parties to any such contract
documentation seeking the written waiver or approval of such other
contracting party or parties thereto to the transfer, assignment,
novation, or amendment of all of the applicable Group claims,
rights, benefits, and liabilities thereunder to CMC. In no event
shall Group or CMC be obligated to pay any money (other than a de
minimis amount) to any person or entity or to offer or grant other
financial or other accommodations to any person or entity in
connection with obtaining any consent, waiver, confirmation,
novation, amendment, or approval with respect to any Assigned
Contract.
(b) Until such time as any required
consent, waiver, confirmation, novation, or approval is obtained
with respect to any Assigned Contract, the Parties will cooperate
diligently and in good faith to establish a lawful and commercially
reasonable arrangement under which CMC would obtain, to the fullest
extent practicable and not prohibited by applicable law, the
economic claims, rights, and benefits and assume the corresponding
economic burdens and obligations thereunder in accordance with this
Agreement (including by means of any subcontracting, sublicensing,
or subleasing arrangement) or under which Group would enforce such
Assigned Contract at the direction of and for the benefit of CMC,
provided, that all reasonable out-of-pocket expenses of such
cooperation and related actions shall be paid by CMC. In such event
(i) Group will promptly pay, assign, a
