Exhibit 10.7
FORM OF TRADEMARK LICENSE
AGREEMENT
TRADEMARK LICENSE AGREEMENT
by and between
FBR CAPITAL MARKETS CORPORATION
and
FRIEDMAN, BILLINGS, RAMSEY GROUP, INC.
(d/b/a
ARLINGTON ASSET INVESTMENT CORP.)
Dated as of May
,
2009
TRADEMARK LICENSE
AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT
(this “ Agreement ”) is dated as of the May __,
2009 (the “ Effective Date ”), and is by and
between FBR CAPITAL MARKETS CORPORATION, a Virginia corporation
(“ Licensor ”), and FRIEDMAN, BILLINGS, RAMSEY
GROUP, Inc (d/b/a ARLINGTON ASSET INVESTMENT CORP.), a Virginia
corporation (“ Licensee ”) (each of Licensor and
Licensee a “ Party ” and collectively, the
“ Parties ”).
RECITALS
WHEREAS, pursuant to that certain
Stock Repurchase Agreement, dated as of May __, 2009 (the
“Repurchase Agreement”), by and between Licensor,
Licensee, and FBR TRS Holdings, Inc. (“ FBR TRS
”), Licensor has repurchased certain shares of common stock
of Licensor from Licensee and FBR TRS;
WHEREAS, Licensor and Licensee
previously had entered into that certain Trademark License
Agreement, dated as of July 20, 2006 (the “
Terminated Trademark License ”), which agreement
terminated in conjunction with the entering into of the Repurchase
Agreement.
WHEREAS, prior to the consummation
of the transactions contemplated by the Repurchase Agreement and
the termination of the Terminated Trademark License, Licensee and
Licensor each used certain service marks, trademarks, corporate
names and trade names including without limitation “Friedman
Billings, Ramsey” and “FBR” (and various
additional related names and marks);
WHEREAS, upon consummation of the
transactions contemplated by the Repurchase Agreement and that
certain Trademark and Copyright Assignment, dated as of May __,
2009, by and between the Parties (the “ Assignment
”), Licensor shall own certain trademarks and service marks
transferred under the Assignment, including the United States
registrations therefor;
WHEREAS, the parties to the
Repurchase Agreement contemplated that Licensee would have the
right to continue using certain of the trademarks and service marks
transferred under the Assignment, subject to the terms and
conditions contained herein, in connection with the operation of
its business following the consummation of the transactions
contemplated by the Repurchase Agreement; and
WHEREAS, Licensor is willing to
grant, and Licensee is willing to accept, a license to use the
trademarks and service marks set forth on Schedule A hereto
(the “ Marks ”) on the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of
the premises and the mutual promises and covenants contained herein
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto
agree as follows:
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AGREEMENT
Article 1.
Grant of Rights .
Subject to the terms and conditions herein, Licensor hereby grants
to Licensee for itself and its subsidiaries a paid-up,
non-exclusive, limited and non-transferable right and license,
without the right to sublicense, under Licensor’s right,
title and interest in the Marks, to use and display the Marks in
the United States and any other jurisdictions in which Licensee or
any of its subsidiaries has heretofore used the Marks solely to the
extent and in the manner which the Marks heretofore have been used
in connection with Licensee’s and its subsidiaries’
businesses, including as part of the corporate name Friedman,
Billings, Ramsey Group, Inc., (the “ Corporate
Name ”). For the avoidance of doubt, the license granted
by Licensor hereunder extends to (i) the use of the ticker
symbol “FBR” by the Licensee until the ticker symbol is
changed by Licensee (which Licensee shall do as soon as reasonably
practicable) and (ii) use of the Marks in connection with the
outstanding trust preferred securities (“ TruPS
”) issued by FBR Capital Trust(s), including in connection
with any consent solicitation with respect to holders of
outstanding TruPS issued by FBR Capital Trust(s). All rights not
expressly granted to Licensee in this Article 1 are
reserved to Licensor.
Article 2.
Ownership . The
Parties agree that, as between the Parties, Licensor is the sole
owner of the Marks. Licensee agrees not to directly or indirectly
challenge or contest the validity of, or Licensor’s rights in
the Marks (and the associated goodwill), including without
limitation, arising out of or relating to any third-party claim,
allegation, action, demand, proceeding or suit (“
Action ”) regarding enforcement of this Agreement or
involving any third party. The Parties intend that any and all
goodwill in the Marks arising from Licensee’s use of the
Marks shall inure solely to the benefit of the Licensor.
Notwithstanding the foregoing, in the event that Licensee is deemed
to own any rights in the Marks (including any trademark, service
mark or trade name rights in the Corporate Name), Licensee hereby
assigns such rights to the Licensor.
Article 3.
Use of the Marks
.
Section 3.1.
Licensee agrees to maintain and
preserve the quality of the Marks, and to use the Marks in good
faith and in a dignified manner consistent with Licensee’s
prior use of the Marks and in a manner consistent with
Licensor’s existing standards of and reputation for quality.
Licensee shall not take any action that it should reasonably know
would be detrimental to the Marks or their associated goodwill. If
Licensor decides in its sole discretion to register the Marks or
Corporate Name, Licensee agrees to affix all such trademark notices
as may be reasonably requested by Licensor or required under
applicable laws.
Section 3.2.
Upon request by Licensor, Licensee
shall furnish to Licensor’s representative samples of all
advertising and promotional materials in any media that are used in
connection with the Marks and that are materially different from
such materials that Licensee used prior to the date hereof.
Licensee shall make any changes to such materials that Licensor
reasonably requests to comply with Section 3.1 , or
preserve the validity of, or Licensor’s rights in, the
Marks.
Section 3.3.
Licensee shall, at its sole expense,
comply at all times with all applicable laws, regulations, exchange
and other rules and reputable industry practice pertaining to its
business and the use of the Marks.
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Article 4.
Termination
.
Section 4.1.
The term of this Agreement (“
Term ”) commences on the Effective Date and terminates
on the earlier of (x) that date that Licensee completes its
name change and ceases all use of the Marks, and (y) the date
that is six months after the Effective Date, unless earlier
termination occurs pursuant to the other provisions of this
Article 4 .
Section 4.2.
If Licensor materially breaches one
or more of its obligations hereunder, Licensee may terminate this
Agreement, effective upon written notice, if Licensor does not cure
such breach within 45 days of written notice thereof (or any
mutually-agreed extension). If Licensee materially breaches one or
more of its obligations hereunder, Licensor may terminate this
Agreement, effective upon written notice, if Licensee does not cure
such breach within 45 days of written notice thereof (or any
mutually-agreed extension). Licensor may terminate this Agreement
immediately, effective upon written notice, if Licensee violates
Article 7 .
Section 4.3.
Licensor has the right to terminate
this Agreement immediately upon written notice to Licensee if
(i) Licensee makes an assignment for the benefit of creditors;
(ii) Licensee admits in writing its inability to pay debts as
they mature; (iii) a trustee or receiver is appointed for a
substantial part of Licensee’s assets; and (iv) to the
extent termination is enforceable under applicable law, a
proceeding in bankruptcy is instituted against Licensee which is
acquiesced in, is not dismissed within 60 days, or results in an
adjudication of bankruptcy.
Section 4.4.
Upon termination of this Agreement
for any reason, (i) Licensee shall terminate all use of the
Marks within ten (10) days (except for limited transitional
use of the Corporate Name, for a period of up to 30 days after the
effective date of the termination of this Agreement) and destroy
all materials or forms bearing the Marks; and (ii) this
Section 4.4 and Sections 6.3 , 6.4 ,
6.5 and 6.6 shall survive any such event.
Notwithstanding the foregoing, Licensee shall be permitted to use
Marks after the effective date of the termination of this Agreement
solely to the extent reasonably required to administer
Licensee’s TruPS incorporating the Marks.
Article 5.
Infringement, Protection and
Quality Control .
Section 5.1.
Licensee agrees to notify Licensor
promptly after it becomes aware of any actual or threatened
infringement, imitation, dilution, misappropriation or other
unauthorized use or conduct in derogation (“
Infringement ”) of either Mark. Licensor shall have
the sole right to bring any Action to remedy the foregoing (or to
refrain from taking any Action in its sole discretion), and
Licensee shall cooperate with Licensor in same, at Licensor’s
expense.
Section 5.2.
Licensee shall, at its expense,
reasonably cooperate and in good faith with Licensor for the
purpose of securing, preserving and protecting Licensor’s
rights in and to its Marks. At the request of Licensor, and at
Licensee’s expense, Licensee shall execute and deliver to
Licensor any and all documents and do all other acts and things
which are reasonably requested by Licensor to make fully effective
or to implement the provisions of this Agreement relating to the
ownership, registration, maintenance or renewal of the Marks;
provided that all fees and expenses associated with such ownership,
registration, maintenance or renewal shall be
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the sole responsibility of Licensor. Licensor
shall have sole control and discretion over the prosecution and
maintenance of its Marks and shall take or refrain from taking all
actions it deems necessary and/or reasonable to pr
