Exhibit 10.2
LICENSE AGREEMENT
This License Agreement ("Agreement") is entered into as of the 17th day
of December, 1997, by and between Friedman, Billings, Xxxxxx Group, Inc., a
Virginia corporation ("FBR Group"), and FBR Asset Investment Corporation, a
Virginia corporation ("FBRAIC").
RECITALS
WHEREAS, FBR Group owns the name and xxxx "FBR", as used in connection
with financial management, investment brokerage, and associated services, in
both its typed word format (the "FBR Word Xxxx") and in the design format show
in Exhibit A hereto (the "FBR Design Xxxx") (together, the "FBR Marks");
WHEREAS, FBR Group owns the name and xxxx "Friedman, Billings, Xxxxxx &
Co., Inc." as used in connection with financial management, investment
brokerage, and associated services (the "Xxxxxxxx, Xxxxxxxx Xxxx");
WHEREAS, FBR Group has an application pending in the United States
Patent & Trademark Office for federal registration of the FBR Word Xxxx, the FBR
Design Xxxx, and the Xxxxxxxx, Xxxxxxxx Xxxx as service marks (Application
Serial Nos. 75-275,555; 75-275, 266; 75-275,261);
WHEREAS, Friedman, Billings, Xxxxxx Investment Management, Inc. ("FBR
Investment Management"), a wholly-owned subsidiary of FBR Group, has entered
into a Management Agreement, dated December 17, 1997, with FBRAIC (the
"Management Agreement"), pursuant to which FBR Investment Management has agreed
to manage the assets and operations of FBRAIC;
WHEREAS, FBRAIC intends to conduct its business in a manner described
in the Private Placement Memorandum, dated December 11, 1997, attached hereto as
Exhibit B (the "Memorandum");
WHEREAS, in connection with the operation of its business, FBRAIC
wishes to identify and promote itself under the FBR Word Xxxx and the FBR Design
Xxxx;
WHEREAS, FBR Group has not assigned to FBRAIC the FBR Marks; and
WHEREAS, FBR Group and FBRAIC wish to set forth the terms and
conditions pursuant to which FBRAIC may use the FBR Marks;
NOW, THEREFORE, in consideration of the Recitals set forth above and of
the covenants, conditions, and agreements set forth below, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. License. FBR Group hereby grants to FBRAIC a non-exclusive, no-fee
license to use the FBR Marks, whether separate, together, or as part of the name
"FBR Asset Investment Corporation", in connection with its operations as such
are described in the Memorandum. FBRAIC understands and acknowledges that this
license pertains only to the FBR Marks and does not include any other xxxx. In
particular, FBRAIC understands and acknowledges that it acquires no right or
license hereunder to use the Xxxxxxxx, Xxxxxxxx Xxxx.
2. Quality Control. The services that FBRAIC provides under the FBR
Marks shall be of a first-rate nature and shall reflect well on FBR Group and
the goodwill that FBR Group has developed in connection with the FBR Marks.
3. Compliance with Applicable Laws. FBRAIC's operations under the FBR
Marks shall comply with all applicable statutes, regulations, ordinances, and
other laws.
4. Trademark Notice. FBRAIC shall utilize proper trademark notice in
connection with the FBR Marks whenever the FBR Marks appear in printed and
published advertising and promotional pieces.
5. Ownership of FBR Xxxx. FBR Group is and shall at all times remain
the owner of all right, title, and interest in and to the FBR Marks. As the
exclusive owner, FBR Group shall have the exclusive right to apply for, own, and
maintain federal, state, or other registrations on the FBR Marks or similar
marks. Upon request FBRAIC shall provide FBR Group with reasonable assistance in
applying for and maintaining any such registrations of the FBR Marks, including
providing trademark specimens. FBRAIC shall not, at any time during or after the
Term of this Agreement, dispute or contest, directly or indirectly, FBR Group's
exclusive right and title to the FBR Marks or any registrations thereof. All
goodwill resulting from FBRAIC's use of the FBR Xxxx shall inure to the benefit
of FBR Group. Nothing in this agreement shall restrict or limit FBR Group's
right and ability to use or to license others to use the FBR Marks.
6. Assignment; Sublicensing. FBRAIC shall not assign, license, or
sublicense any of its rights or obligations under this Agreement without the
express prior written approval of FBR Group, and such approval may be granted or
withheld at FBR Group's discretion.
7. Indemnification.
A. By FBR Group. FBR Group shall indemnify and hold FBRAIC harmless
from and against, and shall defend and reimburse FBRAIC for, any and all losses
that FBRAIC may at any time suffer or incur, or become subject to, as a result
of claims, actions, or proceedings alleging that FBRAIC's use of the FBR Marks
in accordance with this Agreement infringes upon a prior, valid trademark right
or similar proprietary right.
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B. By FBRAIC. FBRAIC shall indemnify and hold FBR Group harmless
from and against, and shall defend and reimburse FBR Group for, any and all
losses that FBR Group may at any time suffer or incur, or become subject to, as
a result of any acts or omissions relating to FBRAIC's use of the FBR Marks not
in accordance with this Agreement.
8. Assistance in Enforcement of Trademark Rights. In the event that
FBRAIC becomes aware of any actual or potential infringements of the FBR Marks
by third parties, FBRAIC shall promptly notify FBR Group of such actual or
potential infringements. FBR Group shall have the right to control any action to
enforce its rights in the FBR Marks, including but not limited to litigation,
arbitration, mediation, negotiation, or settlement. Such enforcement actions
shall be at FBR Group's expense. FBRAIC shall provide FBR Group with reasonable
assistance in any such actions. In the event that FBRAIC requests to control any
such enforcement actions, and FBR Group grants such request, then the expenses
of such enforcement actions shall be borne by FBRAIC.
9. Relationship. Nothing in this Agreement shall render FBRAIC a
franchisee or agent of FBR Group.
10. Term. This Agreement shall remain in effect until the date upon
which any Affiliate of FBR Group, as defined in the Memorandum, ceases to be the
manager of FBRAIC.
11. Termination. Either party may terminate this Agreement in the event
of a material breach of this Agreement, or any provision hereof, by the other
party, provided that the breaching party is given written notice of the breach
and fails to cure the breach within sixty (60) days after receipt of such
written notice.
12. Cessation of Use. Within 90 days of the expiration or termination
of this Agreement pursuant to Sections 10 or 11 hereof, FBRAIC shall cease all
use of the FBR Marks, including its use of the FBR Marks as part of the name
"FBR Asset Investment Corporation", and shall use its good faith reasonable
efforts to remove the FBR Marks from its Certificate of Incorporation.
13. Remedies. FBRAIC acknowledges that any use of the FBR Marks in
excess of the license granted hereunder will cause irreparable harm to FBR Group
and that, in addition to being entitled to exercise all rights granted to it by
law, FBR Group will be entitled to seek preliminary and permanent injunctive
relief to enforce this Agreement.
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14. Entire Agreement; Amendment; No Waiver. This Agreement constitutes
the entire agreement between the parties pertaining to the subject matter
hereof, and supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions of the parties, whether oral or written, pertaining
to the subject matter hereof. No amendment, supplement, modification, waiver, or
termination of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision of this
Agreement, whether or not similar; nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
15. Governing Law. This Agreement shall be construed and interpreted
according to the substantive laws of the Commonwealth of Virginia without regard
to the conflicts of law rules thereof.
16. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
17. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
18. Severability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SIGNATURE PAGE FOLLOWS
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IN WITNESS HEREOF, each party hereto has caused this License Agreement
to be duly executed and delivered as of the day and year first written above.
FRIEDMAN, BILLINGS, XXXXXX GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman
FBR ASSET INVESTMENT CORPORATION
By: /s/ W. Xxxxxxx Xxxxxx
-------------------------------------
Name: W. Xxxxxxx Xxxxxx
Title: President
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EXHIBIT A
FBR DESIGN XXXX ("Pegasus" logo)
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