EXHIBIT 10.30.3
AGREEMENT
FOR PURCHASE OF
MORTGAGE LOANS
CDC MORTGAGE CAPITAL INC.,
Seller
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.,
Buyer
AGREEMENT
FOR PURCHASE OF
MORTGAGE LOANS
This Mortgage Loans Purchase Agreement (the "Agreement") is made and
entered into as of August 25 2004, by and between Friedman, Billings, ▇▇▇▇▇▇ &
Co., Inc., a Delaware corporation located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Buyer"), and CDC Mortgage Capital Inc., a New
York corporation located at ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇ (the
"Seller").
WHEREAS, pursuant to that certain Master Repurchase Agreement, dated
as of July 30, 2004 (as amended, supplemented or otherwise modified from time to
time, the "Repurchase Agreement"), between Seller and Oak Street Mortgage, LLC
(the "Oak Street"). Oak Street has agreed to sell, from time to time, to Seller
certain mortgage loans (the "Mortgage Loans") as whole loans upon the terms and
subject to the conditions set forth therein;
WHEREAS, subject to the terms hereof, upon the occurrence of the
Purchase Condition, the Seller shall sell to the Buyer, and the Buyer shall
purchase from the Seller, the Mortgage Loans on a servicing-released basis as
described herein, and which shall be delivered as whole loans; and
NOW, THEREFORE, in consideration of the premises and mutual
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Buyer and the
Seller agree as follows:
1. DEFINITIONS.
Unless otherwise defined herein, terms defined in the Repurchase
Agreement and used herein shall have the meanings given to them in the
Repurchase Agreement. The following terms are defined as follows (except as
otherwise agreed in writing by the parties):
"Agreement": This Mortgage Loans Purchase Agreement and all
amendments hereof and supplements hereto.
"Assets for Purposes of Assessing Liquidity": At any time, the sum
of the following assets of FBR Group (calculated on an unconsolidated basis) at
such time:
(a) all debt securities (including loans) and equity securities held
in the merchant banking portfolio;
(b) all loans and advances to, and other investments in,
Subsidiaries, provided that only 50% of the aggregate principal amount of
temporary (i.e., not exceeding 45 days) subordinated loans supporting
underwritings by Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. shall be included
in the calculation under this clause (b);
(c) 4.5% of Eligible MBS;
(d) 10% of all asset-backed securities (other than mortgage-backed
securities) rated "A" (or equivalent) or better by Moody's, S&P or Fitch,
provided that if at any time securities of the same types referred to in
this clause (d) exceed 10% of the total assets of FBR Group at such time,
such excess shall be excluded from the calculation under this clause (d)
and shall be included in the calculation under clause (g) below;
(e) 5% of warehouse advances that are secured by Eligible Sub-Prime
Loans;
(f) 5% of Eligible Sub-Prime Loans; and
(g) all other assets of FBR Group (other than cash, Cash
Equivalents, and assets of a type specified in clauses (a) through (f)
above), including long-term assets of FBR Group such as goodwill and other
intangibles, plus all amounts in respect of assets of a type specified in
such clauses that are required to be included under this clause (g).
As used in this definition, mortgaged-backed securities and other
asset-backed securities shall be carried at fair value in accordance with GAAP,
with resulting charges (or credits, as applicable, to shareholders' equity.
"Cash Equivalents":
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within 90 days from the date of issuance thereof;
(b) investments in commercial paper maturing within 90 days from the
date of issuance thereof and having, at the date of acquisition thereof,
the highest credit ratings obtainable from S&P and from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 90 days from the date of issuance thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued of offered by, any domestic office of any commercial bank organized
under the laws of the United States of America or any State thereof and
which has the highest credit ratings obtainable from S&P and from Moody's;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; and
(e) money market fund that's (i) comply with the criteria set forth
in SEC rule 2a-7 under the Investment Company Act of 1940, (ii) are rated
"AAA" by S&P and "Aaa" by Moody's and (iii)have portfolio assets of at
least $5,000,000,000.
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"Code:" The Internal Revenue Code of 1986, as amended from time to
time.
"Custodial Agreement": The Custodial and Disbursement Agreement,
dated as of August 25, 2004, among Deutsche Bank National Trust Company, Seller
and Oak Street.
"Disqualified Mortgage Loan": Any mortgage loan that (a) (or any
characteristic of which or of the origination of which) triggers the thresholds
of Section 32 of Regulation Z of the Federal Reserve Board (12 C.F.R. Section
226.32) (b) is a "high cost" or "high risk" loan under any applicable state,
county or municipal law or regulation, (c) is a "covered" or "threshold" loan
under any applicable state, county or municipal law or regulation, but only to
the extent that such law or regulation expressly exposes assignees of mortgage
loans to possible civil or criminal liability or damages, or would expose any
lender or any administrative agent (whether or not as an assignee) to regulatory
action or enforcement proceedings, penalties or other sanctions, or would
materially impair the enforceability of such mortgage loan or (d) (or any
characteristic of which or of the origination of which) contains any term or
condition, or involves any loan origination practice, that has been defined as
"predatory" under any such applicable federal, state, county or municipal law or
regulation, or that has been expressly categorized as an "unfair" or "deceptive"
term, condition or practice in any such applicable federal, state, county or
municipal law or regulation.
"Effective Duration": With respect to any mortgage-backed security,
an estimate, expressed as a whole number of a fraction thereof, of the
percentage change in the price of such mortgage-backed security for a 100 basis
point change in the applicable rate for such mortgage-backed security, further
adjusted by a prepayment model, which estimates mortgage-backed security price
changes as a function of prepayment rate movements.
"Eligible MBS": Mortgage-backed securities (including any current
principal and interest receivable there under) (i) that are guaranteed as to
principal and interest by ▇▇▇▇▇▇▇ Mac, ▇▇▇▇▇▇ ▇▇▇ or ▇▇▇▇▇▇ ▇▇▇, (ii) that are
backed by a pool or pools of undivided interests in residential mortgages, (iii)
that have been issued in a registered public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended (the "Act")
(it being understood that mortgage-backed securities issued in an offering
pursuant to Rule 144A under the Act do not qualify), (iv) that have an Effective
Duration of not more than 4.0 and (v) the value of which is represented by the
principal thereof and accrued and unpaid interest thereon; provided that if at
any time the aggregate amount of Eligible MBS having an Effective Duration of
more than 3.0 exceeds 20% of the total value of Eligible MBS at such time, such
excess shall be excluded from the calculation of the value of Eligible MBS at
such time for purposes of clause (c) of the definition of "Assets for Purposes
Assessing Liquidity" in this section (and such excess shall be included in the
calculation under clause (g) of such definition).
"Eligible Sub-Prime Loan": A performing, sub-prime, whole mortgage
loan that (a) is secured by a mortgage covering improved real property
containing a one-, two-, three- or four family residence that is not a mobile
home or manufactured housing, (b) is not eligible for purchase by ▇▇▇▇▇▇ Mae or
▇▇▇▇▇▇▇ Mac under any of their prime mortgage loan purchase programs (c)
conforms to market underwriting standards and is eligible for inclusion in a
pool baking asset-backed securities rated by ▇▇▇▇▇'▇, S&P and Fitch in
accordance with such rating agencies' respective published criteria therefore,
(d) at purchase not evidenced by a promissory
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note dated older than 180 days, (e) has not been held by FBR Group for more than
180 days and (f) is not a Disqualified Mortgage Loan.
"Equity Interest": Shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants, options
or other rights entitling the holder thereof to purchase or acquire any such
equity interest.
"▇▇▇▇▇▇ ▇▇▇": The Federal National Mortgage Association, or any
successor thereto.
"FBR Group": Friedman, Billings, ▇▇▇▇▇▇ Group, Inc., a Delaware
corporation, or its successors in interest.
"Fitch": Fitch, Inc., or its successor in interest.
"▇▇▇▇▇▇▇ Mac": The Federal Home Loan Mortgage Corporation, or any
successor thereto.
"▇▇▇▇▇▇ Mae": The Government National Mortgage Association, or any
successor thereto.
"Material Adverse Effect": With respect to the Buyer, a material
adverse effect on (a) the Property, business, operations or financial condition
of the Buyer, (b) the ability of the Buyer to perform its obligations under this
Agreement, (c) the validity or enforceability of this Agreement or (d) the
rights and remedies of Seller under this Agreement.
"Moody's": ▇▇▇▇▇'▇ Investors Service, Inc., or its successor in
interest.
"Obligations": Any and all representations, warranties, covenants
and other obligations of Oak Street under the Repurchase Documents.
"Payment Obligations": As of any date of determination, the
obligation of Oak Street to pay all amounts due and owing to Seller pursuant to
the Repurchase Agreement, the Custodial Agreement and each other Repurchase
Document (including, without limitation, interest accruing after the Repurchase
Date with respect to any Transaction and interest or other charges accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to Oak Street, whether
or not a claim for post filing or post petition interest is allowed in such
proceeding).
"Purchase Price": The fair market value of the Mortgage Loans as
determined by Buyer in its sole discretion but in no event less than all amounts
due and owing to Seller pursuant to the Repurchase Agreement, the Custodial
Agreement and each other Repurchase Document (including, without limitation,
interest accruing after the Repurchase Date with respect to any Transaction and
interest or other charges accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to Oak Street, whether or not a claim for post filing or
post petition interest is allowed in such proceeding).
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"Purchase Condition": The occurrence of an Event of Default and
acceleration of the Repurchase Date for each Transaction pursuant to Section 13
(a) of the Repurchase Agreement; provided that Seller has delivered to Buyer
notice of any claim for payment under the Repurchase Agreement simultaneously
with the notification of Oak Street of such claim and such payment claim has not
been paid by Oak Street within thirty (30) days of receipt of such notice.
Notwithstanding the foregoing notice requirement, the obligations of Buyer shall
not be subject to the notice delivery requirement except and only to the extent
that the failure to deliver such notice has a material adverse effect on the
Buyer's obligations hereunder.
"REIT": shall mean a real estate investment trust, as defined in
Section 856(a) of the Code.
"S&P": Standard & Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc., and its successors in interest.
"Tangible Net Worth": For FBR Group (determined on an unconsolidated
basis in accordance with GAAP), the sum of (a) shareholders' equity of FBR Group
minus (b) goodwill (including goodwill recorded as a result of the merger of FBR
Group and FBR Asset Investment Corporation, a Virginia Corporation).
"Unsecured Long-term Indebtedness": At any time, unsecured
Indebtedness of FBR Group with a remaining term of greater than one year to the
extent the same should be set forth on a balance sheet of FBR Group (excluding
items which appear solely in the footnotes thereto) in accordance with GAAP.
2. PURCHASE OBLIGATION; CONVEYANCE FROM SELLER TO BUYER.
2.1 Purchase Obligation; Closing Date; Assignment and Assumption.
(a) Upon the occurrence of the Purchase Condition, Seller shall (i)
notify Buyer of the failure of Oak Street to pay the Payment Obligations and
(ii) provide any documentation of such claim in its possession to Buyer, and
Buyer shall purchase the Mortgage Loans for the Purchase Price on a date to be
determined by the parties hereto, which in no event shall be more than 10 days
after the occurrence of the Purchase Condition (the "Closing Date"). On the
Closing Date, the Seller shall execute and deliver an Assignment and Conveyance
Agreement in the form attached hereto as Exhibit A (the "Assignment and
Conveyance Agreement").
(b) All rights arising out of the Mortgage Loans including, but not
limited to, all funds received by the Seller after the Closing Date on or in
connection with a Mortgage Loan shall be vested in the Buyer or one or more
designees of the Buyer; provided, however, that all funds received on or in
connection with a Mortgage Loan shall be received and held by the Seller in
trust for the benefit of the Buyer or the appropriate designee of the Buyer, as
the case may be, as the owner of the Mortgage Loans pursuant to the terms of
this Agreement.
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(c) The Buyer shall remain obligated hereunder notwithstanding that,
without any reservation of rights against the Buyer and without notice to or
further assent by the Buyer, any demand for repurchase or other performance or
payment under any of the Obligations made by Seller upon Oak Street may be
rescinded by such party and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof,
or any collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
Seller, and the Repurchase Agreement, the Custodial Agreement and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as Seller may deem
advisable from time to time, and any collateral security, guarantee or right of
offset at any time held by Seller for the payment of the Obligations may be
sold, exchanged, waived, surrendered or released, in each case with written
notice to the Buyer. Seller shall have no obligation to protect, secure, perfect
or insure any lien at any time held by it as security for the Obligations or for
this Agreement or any property subject thereto. Except as set forth in Section
2.1 (a) hereof, when making any demand hereunder against the Buyer, Seller may,
but shall be under no obligation to, make a similar demand on Oak Street or any
guarantor, and any failure by Seller to make any such demand or to collect any
payments from Oak Street or any such guarantor or any release of the Seller or
such guarantor shall not relieve the Buyer of its obligations or liabilities
hereunder, and shall not impair or affect the rights and remedies, express or
implied, or as a matter of law, of Seller against the Buyer. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
(d) The Buyer waives any and all notice of the creation, renewal,
extension or accrual of any of the Obligations and notice of or proof of
reliance by Seller upon this Agreement or acceptance of this Agreement, and any
creation, renewal extension or accrual of any of the Obligations, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this Agreement; and all dealings
between Oak Street and the Buyer, on the one hand, and Seller and Oak Street, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon this Agreement. The Buyer waives diligence,
presentment, protest, demand for payment and notice of default or nonpayment to
or upon Oak Street or the Buyer with respect to the Payment Obligations, except
as set forth in Section 2.1(a) hereof. The Buyer understands and agrees that
this Agreement shall be construed as a continuing, absolute and unconditional
guarantee of payment of the Purchase Price upon the occurrence of the Purchase
Condition and not of collection without regard to (a) the validity, regularity
or enforceability of the Repurchase Agreement, the Custodial Agreement, or any
other Repurchase Document, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by Seller, (b) any defense, set-off or
counterclaim (other than a defense of payment or performance in full) which may
at any time be available to or be asserted by Oak Street against Seller, or (c)
any other circumstance whatsoever (other than a defense of payment or
performance in full) (with or without notice to or knowledge of Oak Street or
the Buyer) which constitutes, or might be construed to constitute, an equitable
or legal discharge of Oak Street from the Obligations, or of the Buyer under
this Agreement, in bankruptcy or in any other instance. When pursuing its rights
and remedies hereunder against the Buyer, Seller may, but shall be under no
obligation to (except as set forth in Section 2.1(a)), pursue such rights and
remedies as it may have against Oak Street or any other Person or against
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any collateral security or guarantee for the Payment Obligations or any right of
offset with respect thereto and any failure by Seller to pursue such other
rights or remedies or to collect any payments from Oak Street or any such other
Person or to realize upon any such collateral security or guarantee or to
exercise any such right of offset, or any release of Oak Street or any such
other Person or any such collateral security, guarantee or right of offset shall
not relieve the Buyer of any liability hereunder, and shall not impair or affect
the rights and remedies, whether express, implied or available as a matter of
law, of Seller against the Buyer.
2.2 Delivery of Mortgage Loan Documents. The Mortgage Loan Documents
are being held in custody by Deutsche Bank National Trust Company (the
"Custodian") on behalf of the Seller. Upon receipt of the Purchase Price, the
Seller agrees to cause the related Custodial Agreement to be terminated with
respect to the Mortgage Loans and shall pay any outstanding custodial fees with
respect to such Mortgage Loans and at such time, the Custodian shall hold the
Mortgage Loan Documents on behalf of Buyer pursuant to the applicable custodial
agreement between the Custodian and the Buyer.
3. PURCHASE PRICE.
(a) The Purchase Price shall be paid by the Buyer on the Closing
Date by wire transfer of immediately available federal funds without set-off or
counterclaim in U.S. Dollars to the account of Seller specified in Section 8 of
the Repurchase Agreement.
(b) The Buyer shall be entitled to (1) all principal received after
the Closing Date, (2) all other recoveries of late charges, assumption fees or
other charges collected after the Closing Date, (3) all payments of interest on
the Mortgage Loans after the Closing Date and (4) all rights of Seller under the
Repurchase Agreement.
(c) Anything herein to the contrary notwithstanding, the maximum
liability of the Buyer hereunder shall in no event exceed the amount which can
be guaranteed by the Buyer under applicable federal and state laws relating to
the insolvency of the debtors.
(d) Except as set forth in Section 2.1(a), no actions or payments
made by Oak Street, the Buyer, any guarantor or any other Person or received or
collected by Seller from Oak Street, the Buyer, any guarantor or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Payment Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of the Buyer hereunder which shall, notwithstanding any
such payment or payments other than payments made by the Buyer in respect of the
Purchase Price or payments received or collected from the Buyer in respect of
the Purchase Price, remain liable for the Purchase Price hereunder until the
Obligations are paid in full and the Repurchase Agreement and each other
Repurchase Document is terminated.
(e) The Buyer agrees that whenever, at any time, or from time to
time, it shall make any payment to Seller on account of its liability hereunder,
it will notify Seller in writing that such payment is made under this Agreement
for such purpose.
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4. SERVICING OF THE MORTGAGE LOANS.
The Mortgage Loans have been sold by the Seller to the Buyer on a
servicing released basis and are being serviced by Oak Street. Pursuant to the
Repurchase Agreement, the Buyer may transfer servicing of the Mortgage Loans in
accordance with the terms of the Repurchase Agreement.
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF BUYER.
The Buyer hereby makes the following representations and warranties
to the Seller:
(a) it is duly organized, validly existing and in good standing
under the laws of the state of Delaware;
(b) it has the power and authority and the legal right to execute
and deliver, and to perform its obligations under, this Agreement, and has taken
all necessary action to authorize its execution, delivery and performance of
this Agreement;
(c) this Agreement has been duly executed and delivered on behalf of
the Buyer, and constitutes a legal, valid and binding obligation of the Buyer
enforceable in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered on a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing;
(d) neither the execution and delivery of this Agreement, nor the
fulfillment of or compliance with the terms and conditions of this Agreement,
will conflict with or result in a breach of any of the material terms,
conditions or provisions of the Buyer's organizational documents or any
agreement or instrument to which the Buyer is now a party or by which it is
bound, or constitute a material default or result in an acceleration under any
of the foregoing, or result in the material violation of any law, rule,
regulation, order, judgment or decree to which the Buyer or its property is
subject;
(e) no consent or authorization of, filing with, notice to, or other
act by or in respect of, any governmental authority or any other Person
(including, without limitation, any stockholder or creditor of the Buyer) is
required in connection with the execution, delivery, performance, validity or
enforceability of this Agreement, other than such consents, authorization of,
filing with, notice to, or other act which has been previously been obtained or
made;
(f) there are no actions, suits, arbitrations, investigations
(including, without limitation, any of the foregoing which are pending or
threatened) or other legal or arbitrable proceedings affecting the Buyer or any
of its subsidiaries or affecting any of its properties before any governmental
authority which (i) questions or challenges the validity or enforceability of
this
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Agreement or any action to be taken in connection with the transactions
contemplated hereby, or (ii) individually or in the aggregate could reasonably
be likely to have a Material Adverse Effect;
(g) The consolidated balance sheet of FBR Group as of December 31,
2003 and the related consolidated statements of income and retained earnings and
of cash flows for such fiscal year, reported on by PricewaterhouseCoopers LLP
copies of which have heretofore been furnished to Seller, are complete and
correct and present fairly the financial condition of FBR Group as at such date,
and the results of its operations and its cash flow for such fiscal year. The
consolidated balance sheet of FBR Group for the quarterly fiscal period as of
March 31, 2004 and June 30, 2004 and its consolidated balance sheet as of March
31, 2004 and June 30, 2004 and the related consolidated statements of income and
retained earnings and of cash flows for such period, certified by a responsible
officer, copies of which have heretofore been furnished to Seller, are complete
and correct and present fairly the financial condition of FBR Group as of such
date, and the results of its operations and its cash flows for such periods
(subject to normal year-end audit adjustments). All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP applied consistently throughout the periods involved
(except as approved by such accountants or responsible officer, as the case may
be, and as disclosed therein). At the date of the most recent balance sheet
referred to above, FBR Group had no material guarantee obligation, contingent
liability or liability for taxes, or any long-term lease or unusual forward or
long-term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction or other financial derivative,
which is not reflected in the foregoing statements or in the notes thereto.
During the period from June 30, 2004, to and including the date hereof there has
been no sale, transfer or other disposition by FBR Group of any material part of
its business or property and no purchase or other acquisition of any business or
property (including any capital stock of any other Person) material in relation
to the financial condition of FBR Group at June 30, 2004;
(h) The information, reports, financial statements, exhibits and
schedules furnished in writing by or on behalf of Buyer to Seller in connection
with the negotiation, preparation or delivery of this Agreement or included
herein or delivered pursuant hereto (other than with respect to the Mortgage
Loans), when taken as a whole, do not contain any untrue statement of material
fact or omit to state any material fact necessary to make the statements herein
or therein, in light of the circumstances under which they were made, not
misleading. There is no fact known to a Responsible Officer of Buyer, after due
inquiry, that could reasonably be expected to have a Material Adverse Effect on
the Buyer that has not been disclosed herein, in the other Repurchase Documents
or in a report, financial statement, exhibit, schedule, disclosure letter or
other writing furnished to Seller for use in connection with the transactions
contemplated hereby or thereby; and
(i) FBR Group has elected to be taxed as a REIT under the Code. FBR
Group has qualified as a REIT under the Code for its taxable year ended December
31, 2003. FBR Group's present and contemplated operations, assets and income
will enable FBR Group to meet the requirements for qualification and taxation as
a REIT under the Code.
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6. COVENANTS OF BUYER.
On and as of the date of this Agreement and until this Agreement is
no longer in force, Buyer covenants that:
(a) Buyer shall deliver to Seller:
(A) [Reserved]
(B) as soon as available and in any event within five (5)
Business Days after filing with the Securities and Exchange
Commission, the consolidated balance sheets of FBR Group and its
consolidated Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and
of cash flows for FBR Group and its consolidated Subsidiaries for
such year, setting forth in each case in comparative form the
figures for the previous year, accompanied by an opinion thereon of
independent certified public accountants of recognized national
standing, which opinion shall not be qualified as to scope of audit
or going concern and shall state that said consolidated financial
statements fairly present the consolidated financial condition and
results of operations of FBR Group and its respective consolidated
Subsidiaries as at the end of, and for, such fiscal year in
accordance with GAAP, and a certificate of such accountants stating
that, in making the examination necessary for their opinion, they
obtained no knowledge, except as specifically stated, of any Default
or Event of Default;
(C) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of Buyer or FBR Group or compliance with the terms of this
Agreement as the Seller may reasonably request; and
(b) Buyer will furnish to Seller, at the time Buyer furnishes each
set of financial statements pursuant to paragraphs (a)(A) and (a)(B) above, a
certificate of a Responsible Officer of Buyer to the effect that, to the best of
such Responsible Officer's knowledge, Buyer during such fiscal period or year
has observed or performed in all material respects all of its covenants and
other agreements, and satisfied every condition, contained in this Agreement to
be observed, performed or satisfied by it, and that such Responsible Officer has
obtained no knowledge of any default under this Agreement except as specified in
such certificate (and, if any default has occurred and is continuing, describing
the same in reasonable detail and describing the action Buyer has taken or
proposes to take with respect thereto).
(c) Buyer will promptly, and in any event within ten (10) Business
Days after service of process on any of the following, give to Seller notice of
all litigation, actions, suits, arbitrations, investigations (including, without
limitation, any of the foregoing which are threatened or pending) or other legal
or arbitrable proceedings affecting Buyer or any of its Subsidiaries or
affecting any of the Property of any of them before any Governmental Authority
that (i) questions or challenges the validity or enforceability of any of this
Agreement or any
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action to be taken in connection with the transactions contemplated hereby or
(ii) which, individually or in the aggregate could be reasonably likely to have
a Material Adverse Effect.
(d) Buyer shall:
(A) preserve and maintain its legal existence and all of its
material rights, privileges, licenses and franchises necessary for
the operation of its business (provided that nothing in this Section
6(d)(A) shall prohibit any transaction expressly permitted under
Section 6(e));
(B) comply with the requirements of all applicable laws,
rules, regulations and orders of Governmental Authorities if failure
to comply with such requirements could be reasonably likely (either
individually or in the aggregate) to have a Material Adverse Effect;
(C) keep adequate records and books of account, in which
complete entries will be made in accordance with GAAP consistently
applied;
(D) permit representatives of Seller, upon reasonable notice
and at its sole expense (unless a default under this Agreement shall
have occurred and is continuing, in which case, no prior notice
shall be required and any expenses shall be payable as set forth in
Section 2(c)), during normal business hours, to examine, copy and
make extracts from its books and records, and to discuss its
business and affairs with its officers, all to the extent reasonably
requested by Seller; provided that prior to any such examinations,
Seller shall execute a confidentiality agreement reasonably
satisfactory to Buyer.
(e) Buyer shall not enter into any transaction of merger or
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation, winding up or dissolution) or sell all or substantially
all of its assets; provided, that Buyer may merge or consolidate with (i) any
wholly owned subsidiary of Buyer, or (ii) any other Person if Buyer is the
surviving corporation; and provided, further, that if after giving effect
thereto, no default would exist hereunder.
(f) Buyer shall give notice to Seller:
(A) promptly upon receipt of notice or knowledge of the
occurrence of any default hereunder; and
(B) promptly upon any material change in the market value of
any or all of Buyer's assets which could reasonably be expected to
have a Material Adverse Effect.
(g) Each notice pursuant to Section 6(f) shall be accompanied by a
statement of a Responsible Officer of Buyer setting forth details of the
occurrence referred to therein and stating what action Buyer has taken or
proposes to take with respect thereto.
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(h) The Buyer shall not at any time permit Tangible Net Worth of FBR
Group to be less than the sum of (A) $1,000,000,000 plus (B) 75% of the
aggregate proceeds received by FBR Group in respect of the issuance of any
Equity Interests by FBR Group after June 30, 2004.
(i) The Buyer will not permit at any time the sum of (A)
shareholder's equity of FBR Group at such time (calculated on an unconsolidated
basis in accordance with GAAP) plus (B) Unsecured long-Term Indebtedness of FBR
Group at such time to be less than Assets for Purposes of Assessing Liquidity at
such time.
(j) The Buyer will not at any time permit Unsecured Long-Term
Indebtedness of FBR Group to be greater than an amount equal to 25% of the sum
of (A) Tangible Net Worth of FBR Group plus (B) Unsecured Long-Term Indebtedness
of FBR Group at such time.
(k) The Buyer will provide to Seller promptly after the same become
publicly available, copies of all periodic reports and proxy statements and all
other material documents filed by FBR Group or any Subsidiary with the SEC or
the NYSE, any other national securities, any commodities exchange or any
self-regulatory organization, or distributed by FBR Group to its shareholders
generally, as the case may be.
(l) Buyer shall provide Seller no later than the tenth (10th)
calendar day of each fiscal quarter of the Buyer, a compliance report, in the
form of Exhibit B attached hereto, demonstrating therein the calculations Buyer
utilized to determine its compliance with the financial covenants set forth in
clauses (h), (i) and (j) of this Section 6 as of the end of the immediately
preceding month. Such compliance report shall be delivered by Buyer to Seller in
accordance with Section 13 and shall also be delivered by Buyer to Seller at ▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Telecopier No.:
(▇▇▇) ▇▇▇-▇▇▇▇, Telephone No.: (▇▇▇)▇▇▇-▇▇▇▇.
(m) All written information furnished after the date hereof by or on
behalf of Buyer to Seller required to be delivered under this Agreement (other
than with respect to the Mortgage Loans) will be true, complete and accurate in
every material respect, or (in the case of projections) based on reasonable
estimates, on the date as of which such information is stated or certified.
(n) All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Default if such action is taken or
condition exists.
(o) FBR Group shall elect to be taxed as a REIT under the Code. FBR
Group shall continue to meet the requirements for qualification and taxation as
a REIT under the Code.
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7. NO SUBROGATION.
Notwithstanding any payment or payments made by the Buyer hereunder
or any set off or application of funds of the Buyer by Seller, the Buyer shall
not be entitled to be subrogated to any of the rights of Seller against Oak
Street or any guarantor of Oak Street or any collateral security or guarantee or
right of offset held by Seller for the payment of the Payment Obligations, nor
shall the Buyer seek or be entitled to seek any contribution or reimbursement
from the Seller or any guarantor in respect of any payments made by the Buyer
hereunder, until all amounts owing to Seller are paid in full and the Repurchase
Agreement and each other Repurchase Document is terminated. If any amount shall
be paid to the Buyer on account of such subrogation rights at any time when any
of the Payment Obligations are due and shall not have been paid in full, such
amount shall be held by the Buyer in trust for Seller segregated from other
funds of the Buyer, and shall, forthwith upon receipt by the Buyer, be turned
over to Seller, in the exact form received by the Buyer (duly indorsed by the
Buyer to Seller, if required), to be applied against the Payment Obligations,
whether matured or unmatured, in such order as Seller may determine.
8. RIGHT OF SET-OFF.
The Buyer hereby irrevocably authorizes Seller at any time and from
time to time without notice to the Buyer, any such notice being expressly waived
by the Buyer, to set-off and appropriate and apply any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by Seller to or for the credit or the account of the Buyer, or any
part thereof in such amounts as Seller may elect, against and on account of the
Payment Obligations and any other liabilities of the Buyer to Seller hereunder,
in any currency, as Seller may elect, to the extent Seller has made any demand
for payment in accordance with Section 2.1 (a) hereof. Seller shall notify the
Buyer promptly of any such set-off and the application made by Seller; provided
that the failure to give such notice shall not affect the validity of such
set-off and application, unless such failure to do so materially adversely
prejudices the Buyer. The rights of Seller under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which Seller may have.
9. CLOSING.
The closing for the purchase and sale of the Mortgage Loans shall
take place on the Closing Date. At the Seller's option, the Closing shall be
either: by telephone, confirmed by letter or wire as the parties shall agree; or
conducted in person, at such place as the parties shall agree. The closing shall
be subject to each of the following conditions:
(a) the Purchase Condition shall have occurred;
(b) Buyer shall have received, or the Buyer's attorneys shall have
received in escrow, the Assignment and Conveyance duly executed by all
signatories other than the Buyer as required pursuant to the respective terms
thereof;
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(c) all other terms and conditions of this Agreement shall have been
complied with; and
(d) the Buyer shall have paid to the Seller on the Closing Date the
Purchase Price pursuant to Section 3 of this Agreement, by wire transfer of
immediately available funds to the account designated by the Seller.
10. AMENDMENTS IN WRITING; NO WAIVER; CUMULATIVE REMEDIES.
(a) None of the terms or provisions of this Agreement may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Buyer and the Seller.
(b) The Seller shall not by any act, delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any breach of any of the terms and conditions hereof. No failure
to exercise, nor any delay in exercising, on the part of the Seller, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by Seller of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which Seller
would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
11. COSTS.
The Buyer further agrees to pay any and all expenses (including,
without limitation, all fees and disbursements of counsel) which may be paid or
incurred by Seller in enforcing, or obtaining advice of counsel in respect of,
any rights with respect to, or collecting, any or all of the Payment Obligations
and/or enforcing any rights with respect to, or collecting against, the Buyer
under this Agreement, subject to the requirements of Section 2.1 (a). This
Agreement shall remain in full force and effect until the Obligations are
performed and/or paid in full and the Repurchase Agreement, the Custodial
Agreement and each other Repurchase Agreement is terminated, notwithstanding
that from time to time prior thereto the Oak Street may be free from any Payment
Obligations.
12. INTEGRATION.
This Agreement together with the Letter Agreement between Buyer and
Seller dated as of the date hereof, represents the agreement of the Buyer and
the Seller and supercedes any and all previous agreements, oral or written, with
respect to the subject matter hereof.
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13. NOTICES.
All notices, requests and demands which are required or permitted to
be given under this Agreement shall be in writing (or by telex, fax or similar
electronic transfer confirmed in writing) and shall be deemed to have been duly
given or made (1) when delivered by hand or (2) if given by mail, when deposited
in the mails by certified mail, return receipt requested, or (3) if by telex,
fax or similar electronic transfer, when sent and receipt has been confirmed,
addressed as follows:
(a) if to Seller, at its address or transmission number for notices
provided in Section 17 of the Repurchase Agreement; and
(b) if to the Buyer, at its address or transmission number for
notices set forth under its signature below.
Seller and the Buyer may change its address and transmission numbers
for notices by notice in the manner provided in this Section.
14. TERMINATION.
(a) This Agreement shall remain in full force and effect and be
binding in accordance with and to the extent of its terms upon the Buyer and the
successors and assigns thereof, and shall inure to the benefit of Seller, and
its respective successors, endorsees, transferees and assigns, until all the
Obligations and the obligations of the Buyer under this Agreement shall have
been satisfied by complete performance and payment in full and the Repurchase
Agreement and each other Repurchase Document shall be terminated,
notwithstanding that from time to time during the term of the Repurchase
Agreement there may be no Payment Obligations outstanding.
(b) This Agreement shall continue to be effective, or be reinstated,
as the case may be, if at any time payment and/or performance, or any part
thereof, of any of the Obligations is rescinded or must otherwise be restored or
returned by Seller upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Oak Street or the Buyer, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, Oak Street or the Buyer or any substantial part of their respective
property, or otherwise, all as though such payments had not been made.
15. SEVERABILITY CLAUSE.
Any part, provision, representation or warranty of this Agreement
that is prohibited or that is held to be void or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof. Any part, provision,
representation or warranty of this Agreement that is prohibited or unenforceable
or is held to be void or unenforceable in any jurisdiction shall be ineffective,
as to such jurisdiction, to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction as to any Mortgage Loan shall not
invalidate or render unenforceable such provision in any other jurisdiction. To
the
15
extent permitted by applicable law, the parties hereto waive any provision of
law that prohibits or renders void or unenforceable any provision hereof. If the
invalidity of any part, provision, representation or warranty of this Agreement
shall deprive any party of the economic benefit intended to be conferred by this
Agreement, the parties shall negotiate, in good-faith, to develop a structure,
the economic effect of which is as close as possible to the economic effect of
this Agreement, without regard to such invalidity.
16. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument.
17. PLACE OF DELIVERY AND GOVERNING LAW.
This Agreement shall be deemed in effect when a fully executed
counterpart thereof is received by the Seller in the State of New York and shall
be deemed to have been made in the State of New York.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPALS.
18. FURTHER AGREEMENTS.
The Buyer and the Seller each agree to execute and deliver to the
other such additional documents, instruments or agreements as may be necessary
or appropriate to effectuate the purposes of this Agreement.
19. INTENTION OF THE PARTIES.
It is the intention of the parties that the Buyer is purchasing, and
the Seller is selling, 100% ownership interest in the Mortgage Loans and not a
debt instrument of the Seller or another security. Accordingly, the parties
hereto each intend to treat the transaction for Federal income tax purposes as a
sale by the Seller, and a purchase by the Buyer, of the Mortgage Loans.
Moreover, the arrangement under which the Mortgage Loans are held shall be
consistent with classification of such arrangement as a grantor trust in the
event it is not found to represent direct ownership of the Mortgage Loans.
20. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the successors and assigns of
the Buyer and shall inure to the benefit of Seller and its successors and
assigns. This Agreement may not be assigned by the Buyer without the prior
written consent of Seller, which consent shall be at Seller's sole discretion.
This Agreement may be assigned by Seller without the consent of the Buyer (but
with written notice to the Buyer) to any Affiliate of Seller that is an assignee
of the
16
Repurchase Agreement. This Agreement may not be assigned by Seller without the
consent of Buyer to any assignee of the Repurchase Agreement (other than as set
forth in the preceding sentence) without the prior written consent of the Buyer
which shall not be unreasonably withheld.
21. WAIVERS; OTHER AGREEMENTS.
No term or provision of this Agreement may be waived or modified
unless such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced.
22. ACKNOWLEDGEMENTS.
The Buyer hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement;
(b) Seller does not have any fiduciary relationship with or duty to
the Buyer arising out of or in connection with this Agreement, and the
relationship between the Buyer, Oak Street and the Seller; and
(c) no joint venture is created hereby or otherwise exists by virtue
of the transactions contemplated hereby among the Buyer, Oak Street and the
Seller.
23. EXHIBITS.
The exhibits to this Agreement are hereby incorporated and made a
part hereof and are an integral part of this Agreement.
24. GENERAL INTERPRETIVE PRINCIPLES.
For purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Agreement have the meanings assigned to
them in this Agreement and include the plural as well as the singular, and the
use of any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
17
(d) a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to Paragraphs and
other subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(f) the term "include" or "including" shall mean without limitation
by reason of enumeration.
25. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications which may hereafter be
executed, (b) documents received by any party at the closing, and (c) financial
statements, certificates and other information previously or hereafter
furnished, may be reproduced by any photographic, photostatic, microfilm,
micro-card, miniature photographic or other similar process. The parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
26. MODIFICATION.
If at any ▇▇▇▇ ▇▇▇▇▇▇ notifies Buyer that, due to a change in law,
rule or regulation, or judicial or administrative interpretation thereof, or a
change in a material fact with respect to FBR Group, Buyer, Oak Street, any
Affiliate of FBR Group or this Agreement, the Repurchase Agreement or the other
Repurchase Documents in each case to the extent related to, or with respect to,
the Insurance Law of New York State, modifications to this Agreement or the
transactions contemplated thereby are, based on advice of counsel, necessary so
that there is no impediment to the enforcement of this Agreement against Buyer
or the performance of Buyer under this Agreement, then Buyer shall cooperate
with Seller to make such modifications to this Agreement or the transactions
contemplated thereby or provide such other or other agreements, instruments or
arrangements designed to provide the Seller substantially the same economic
benefits as are provided by this Agreement, in each case as Seller may
reasonably request at the expense of Buyer; provided, however, that if the
parties shall have been unable to agree on and implement such modifications or
other agreements, instruments or arrangements as Seller may reasonably request,
within not more than 30 days following the date of Seller's notice to Buyer
referred to above, then Seller shall have the right, in its sole discretion, to
terminate this Agreement.
27. SUBMISSION TO JURISDICTION; WAIVERS.
EACH OF SELLER AND BUYER HEREBY IRREVOCABLY AND UNCONDITIONALLY:
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(a) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY
JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL JURISDICTION OF THE COURTS
OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN, THE FEDERAL COURTS
OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
APPELLATE COURTS FROM ANY THEREOF;
(b) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT
COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(c) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS AS SET
FORTH PURSUANT TO SECTION 13 HEREOF; AND
(d) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
TO ▇▇▇ IN ANY OTHER JURISDICTION.
(e) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(f) WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN
THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
19
IN WITNESS WHEREOF, the Seller and the Buyer have caused their names
to be signed hereto by their respective officers thereunto duly authorized as of
the date first above written.
CDC MORTGAGE CAPITAL, INC.
(Seller)
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: MANAGING DIRECTOR
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
(Buyer)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Operating Officer
Address for Notices:
Friedman, Billings, ▇▇▇▇▇▇ & Co, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No: (▇▇▇)▇▇▇-▇▇▇▇
EXHIBIT A
ASSIGNMENT AND CONVEYANCE
On this________day of___________________,_______ , CDC Mortgage
Capital Inc. ("Seller"), as the Seller under that certain Mortgage Loan Purchase
Agreement, dated as of August 25, 2004 (the "Purchase Agreement") does hereby
sell, transfer, assign, set over and convey to Friedman, Billings, ▇▇▇▇▇▇ & Co.,
Inc. ("Buyer") as the Buyer under the Purchase Agreement, without recourse, but
subject to the terms of the Purchase Agreement, (i) all right, title and
interest of, in and to the Mortgage Loans listed on the Mortgage Loan Schedule
attached hereto as Exhibit A (the "Mortgage Loans"), together with the Mortgage
Files and all rights and obligations arising under the documents contained
therein and (ii) all rights and obligations of Seller as Buyer under the
Repurchase Agreement and each other Repurchase Document. The ownership of each
Mortgage Note, Mortgage and the contents of the Mortgage File is vested in the
Buyer and the ownership of all records and documents with respect to the related
Mortgage Loan prepared by or which come into the possession of the Seller shall
immediately vest in the Buyer and shall be retained and maintained, in trust, by
the Seller at the will of the Buyer in such custodial capacity only.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Purchase Agreement.
[SIGNATURE PAGE FOLLOWS]
CDC MORTGAGE CAPITAL INC.
By:_____________________________________________
Name:
Title:
By:_____________________________________________
Name:
Title:
Accepted and Agreed:
FRIEDMAN, BILLINGS, ▇▇▇▇▇▇ & CO., INC.
By:_________________________________________
Name:
Title:
2
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
OFFICER'S CERTIFICATE
I, __________________, the duly appointed, qualified and acting
_____________________________ of Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc., a
Delaware corporation (the "Company"), hereby certify to CDC Mortgage Capital
Inc. ("CDC") as follows:
1. This certificate is being furnished to CDC pursuant to Section
6(1) of the Mortgage Loan Purchase Agreement, dated as of
August 25, 2004 (the "MLPA"), between the Company and CDC.
2. After a review of the Company's activities during the period
from _____________________________________, 200_ ended
________________, 200_ (the "Subject Period"), I have
determined the following: (a) if applicable for the Subject
Period, the Company has complied with the financial covenant
set forth in Sections 6(h), 6(i) and 6(j) of the MLPA; and (b)
compliance by the Company with the above-referenced financial
covenants is accurately calculated on Schedule 1 attached
hereto.
Capitalized terms used herein without definition have the meanings
given them in the Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, I have signed my name this [_] day of
[_____________________________________ ], 200_.
By:_____________________________________________
Name:
Title:
2