Exhibit 10.59


 


FORM OF
TRADEMARK LICENSE AGREEMENT


 


This
TRADEMARK LICENSE AGREEMENT (the “Agreement”)  made and entered into                 ,
2009 (“Effective Date”) by and between Walter Industries, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(“Walter”), and Walter Investment Management LLC, a limited liability
company duly organized and existing under the laws of the State of Delaware,
and a wholly-owned subsidiary of Walter (“Spinco,” and together with
Walter, the “Parties” and each a “Party”).


 


WHEREAS,
Walter owns all the limited liability company units of Spinco;


 


WHEREAS,
Walter intends to distribute all of its interest in Spinco to Walter’s
stockholders prior to the merger referred to below (the “Spin-Off”);


 


WHEREAS, pursuant
to the Second Amended and Restated Agreement and Plan of Merger dated February 6,
2009 (as may be further amended, supplemented, restated or otherwise modified,
the “Merger Agreement”) by and among Walter, Spinco, JWH Holding
Company, LLC (“JWHHC”), and Hanover Capital Mortgage Holdings, Inc.
(“Hanover”), following the Spin-Off, Spinco will merge into Hanover;


 


WHEREAS,
Walter or its subsidiaries (collectively, the “Walter Parties”) own
certain trademarks, domain names, corporate and/or trade names that JWHHC
and/or its subsidiaries have used in connection with its mortgage finance,
insurance, and reinsurance businesses;


 


WHEREAS,
prior to the Spin-Off, JWHHC will transfer its mortgage finance, insurance and
reinsurance businesses to Walter, and Walter will transfer such businesses to
Spinco; and


 


WHEREAS,
Spinco and its subsidiaries (collectively, the “Spinco Parties”) wish to
use certain trademarks, domain names, corporate and/or trade names following
the consummation of the Spin-Off and merger into Hanover, and Walter is willing
to permit such use;


 


NOW
THEREFORE, in consideration of the premises and the
mutual promises and covenants contained herein and for other good and valuable
consideration (including that recited in the Merger Agreement), the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:


 


SECTION 1 - GRANT OF
LICENSE


 


1.1.                            Licenses.


 


(a)                                  Walter,
on behalf of itself and the other Walter Parties, grants to the Spinco Parties
a perpetual, non-exclusive, paid-up, non-transferable (except as permitted in Section 7.4)
license to use the trademarks, corporate and/or trade names on Exhibit A
solely in the United States, its territories and possessions, and solely in
connection with mortgage finance, lending, insurance and reinsurance services
and financial services relating to the foregoing (the “Licensed Business”).


 

















 


(b)                                 Walter
hereby causes its subsidiary Jim Walter Homes, Inc. to grant to the Spinco
Parties the paid-up, non-transferable right to maintain the registrations for
the domain names on Exhibit A (the “Licensed Domains,” and together
with the other items on Exhibit A, the “Licensed Marks”) solely for
operating websites directed to customers in the United States, its territories
and possessions, and solely in connection with the Licensed Business.


 


1.2.                            Sublicensing.  Each Spinco Party may sublicense the Licensed
Marks to agents, distributors and other persons in connection with such Spinco
Party’s operation of its own business, but not for the separate or unrelated
use of any other person.  Spinco is
liable hereunder for any act or omission by any sublicensee that would breach
this Agreement if made by Spinco.


 


1.3.                            Reservations.


 


(a)                                  Spinco
acknowledges, on behalf of itself and the other Spinco Parties, that each of
them has no right under this Agreement to use any (i) trademarks, service
marks, domain names, logos, corporate or trade names, trade dress or other
source indicators (“Trademarks”) of the Walter Parties other than the
Licensed Marks; (ii) Trademark containing the term “JWH”; (iii) Trademark
containing the term “Walter,” other than the Licensed Marks; (iv) Trademark
containing the term “Jim Walter” and/or any version or variation of the “flying
W” logo depicted on Exhibit B; or (v) Trademark containing the term “Cardem.”


 


(b)                                 All
rights not expressly licensed to the Spinco Parties in Section 1.1 are
reserved to the Walter Parties, provided that
Walter agrees that each of the Walter Parties will not use or grant any person
a license to use in the Licensed Business the name “Walter” immediately
adjacent to the word “Mortgage,” “Reinsurance,” “Investment,” “Finance,” “Bank,”
or any other word that reasonably conveys to consumers any services included in
the Licensed Business.


 


1.4.                            Future
Transfer.  If at any time after the
Effective Date Walter determines it no longer wishes to own any of the Licensed
Marks, it shall notify Spinco, and upon Spinco’s request, the Parties shall
execute a transfer of any such Licensed Marks to Spinco on mutually agreeable
terms.


 


SECTION 2 – OWNERSHIP


 


Each Spinco Party agrees that, as between the
Walter Parties and Spinco Parties, the Walter Parties are the sole and
exclusive owners of the Licensed Marks and all intellectual property rights
therein.  Each Spinco Party shall, upon
the reasonable request and expense of Walter, take further actions and execute
additional documents to establish and perfect the above rights.  Each Spinco Party agrees not to question or
contest the validity of, or the Walter Parties’ rights in the Licensed Marks
and the associated goodwill.  For
clarity, the foregoing shall not limit Spinco from bringing any claim that
Walter has breached this Agreement.


 


SECTION 3 – USE


 


3.1.                            New
Marks.  Each Spinco Party may adopt
and use as Trademarks any variations of the Licensed Marks on Part I of Exhibit A,
if such Trademarks use “Walter” immediately adjacent to the word “Mortgage,” “Reinsurance,”
“Investment,” “Finance,” or any other word that reasonably conveys to consumers
any services included in the Licensed Business. 
Each


 

















 


Spinco Party may adopt and use
reasonable variations of the Licensed Marks on Part II of Exhibit A
in its discretion, subject to Section 1.3. 
Spinco will give Walter prompt notice of any such new Trademark, which
will be included in the definition of “Licensed Marks” for all purposes
hereunder.


 


3.2                               Domain Names/Internet. 
Each Spinco Party will not be deemed to have breached the territorial
restriction in Section 1.1(b) if persons outside the United States access
any Internet websites operated under the Licensed Domains, provided that such
websites are controlled by such Spinco Party and are directed at U.S.
customers.  Walter will cause the
transfer of the registrations for the Licensed Domains to a designated Spinco
Party within 30 days of the Effective Date, at Spinco’s expense for Walter’s
out-of-pocket costs.


 


3.3                               Quality Assurance. 
Each Spinco Party will use the Licensed Marks solely (i) in
accordance with good trademark practice; and (ii) in connection with
products, services, content and materials maintaining quality levels at least
as high as those of Walter’s past practice and that reflect favorably on
Walter.  Each Spinco Party will not take
any action that could reasonably be expected to harm the Licensed Marks or
their associated goodwill.  Each Spinco
Party shall, at its sole expense, comply at all times with all applicable laws,
regulations, rules and reputable industry practice pertaining to the
Licensed Business and its use of the Licensed Marks.


 


3.4                               Samples.  To ensure
the Spinco Parties’ compliance with Section 3.3, upon Walter’s request,
Spinco will provide Walter with representative samples of all materials bearing
the Licensed Marks in any media, no more than once a year (unless reasonably
justified under the circumstances).  If,
in the exercise of its commercially reasonable judgment, Walter finds that any
samples violate Section 3.3, Walter will inform Spinco in writing.  Spinco will correct such non-compliance
within a reasonable time thereafter, not to exceed 30 days.


 


SECTION 4 -  INFRINGEMENT


 


Spinco will notify Walter
promptly after any Spinco Party becomes aware of any actual or threatened
infringement, imitation, dilution, misappropriation, or other unauthorized use
or conduct in derogation of the Licensed Marks. 
Walter will have the sole right to bring any claim, action, suit or
proceeding (“Action”) to remedy the foregoing, and the Spinco Parties
will cooperate with Walter in same at Walter’s expense.


 


SECTION 5 - WARRANTY
AND INDEMNITY


 


5.1.                            By
Each Party.  Each Party represents
and warrants to the other Party that (i) the warranting Party has the
requisite corporate or company power and authority to enter into this
Agreement; (ii)  the warranting Party’s execution, delivery and performance
of this Agreement has been duly authorized by all requisite corporate or
company action on its part; (iii) this Agreement has been duly executed
and delivered by the warranting Party and, assuming due authorization,
execution and delivery, constitutes a legal, valid and binding agreement,
enforceable against the warranting Party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general application relating to or affecting creditors’ rights and to general
equity principles; and (iv) neither the execution and


 

















 


delivery by the warranting
Party of this Agreement or compliance and performance with any of the
provisions hereof results in a default (or an event that, with notice or lapse
of time or both, would become a default) or gives rise to any right of
termination by any third Party, cancellation, amendment or acceleration of any
obligation or the loss of any benefit under, any contract binding the
warranting Party.


 


5.2.                            DISCLAIMER.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1,
THE WALTER PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THIS AGREEMENT OR THE LICENSED MARKS, AND EXPRESSLY DISCLAIM
SAME, INCLUDING ANY WITH RESPECT TO TITLE, NON-INFRINGEMENT, MERCHANTABILITY,
VALUE, RELIABILITY OR FITNESS FOR USE. 
EACH SPINCO PARTY’S USE OF THE LICENSED MARKS IS ON AN “AS IS” BASIS AND
IS AT ITS OWN RISK.


 


5.3.                            Indemnity.
Each Party will defend at its expense, hold harmless and indemnify the other
Party and its affiliates and their respective directors, officers,
shareholders, agents and employees against any third-party Actions and all
related losses, awards, judgments, settlements, costs, fees, expenses,
liabilities and damages (including reasonable attorneys’ fees and costs of
suit) to the extent arising out of or relating to the indemnifying Party’s
breach of this Agreement or any representations, warranties, covenants or
agreements herein.


 


SECTION 6 - TERM


 


6.1.                            Term.  The term of this Agreement commences as of
the Effective Date and lasts in perpetuity, unless termination occurs pursuant
to Section 6.2 or 6.3.


 


6.2.                            Breach.  If either Party materially breaches any
provision hereof, the non-breaching Party may terminate this Agreement if the
breaching Party does not cure such
breach within 30 days following written notice thereof (or any mutually-agreed
extension).  Any such termination shall
be effective upon written notice by Walter to Spinco made after such 30-day period
(or any mutually-agreed extension).


 


6.3.                            Bankruptcy.  To the fullest extent permitted by applicable
law, if Spinco (i) is unable to
pay its debts when due, (ii) makes any assignment for the benefit of
creditors,  (iii) files any petition
under the bankruptcy or insolvency laws, (iv) has a receiver or trustee to
be appointed for its business or property, or (v) is adjudicated bankrupt
or insolvent, Walter may at its discretion terminate this Agreement,
upon 30 days’ prior written notice.


 


6.4.                            Survival.  Sections 2, 5, 6.4, 7.5 & 7.7 shall
survive any termination of this Agreement.


 


SECTION 7 -  MISCELLANEOUS


 


7.1.                            Notice. 
All notices hereunder will be in writing and will be deemed given upon (a) confirmed
receipt of a facsimile transmission, (b) confirmed delivery of a standard
overnight courier or when delivered by hand or (c) five business days
after the date mailed by certified or registered mail (return receipt
requested), postage prepaid, to the Parties at the following addresses (or at
such other addresses for a Party as will be specified by like notice):


 

















 


	
  If to
  Walter:

  	
   

  	
  If to Spinco:

  
	
   

  	
   

  	
   

  
	
  Walter Industries, Inc.

  	
   

  	
  Walter Investment
  Management, LLC

  
	
  4211 W. Boy Scout
  Blvd., 10th Floor

  	
   

  	
  4211 W. Boy Scout
  Blvd., 4th Floor

  
	
  Tampa, Florida
  33607-5724

  	
   

  	
  Tampa, Florida
  33607-5724

  
	
  Attention: General Counsel

  	
   

  	
  Attention: General
  Counsel

  
	
  Facsimile: (813) 871-4399

  	
   

  	
  Facsimile: (813)
  871- 4430

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
  Simpson Thacher & Bartlett LLP

  	
   

  	
  Simpson Thacher & Bartlett LLP

  
	
  425 Lexington Avenue

  	
   

  	
  425 Lexington Avenue

  
	
  New York, New York
  10017

  	
   

  	
  New York, New York
  10017

  
	
  Attention: Peter
  J. Gordon, Esq. and

  	
   

  	
  Attention: Peter
  J. Gordon, Esq. and

  
	
   

  	
  Lori E.
  Lesser, Esq.

  	
   

  	
   

  	
  Lori E.
  Lesser, Esq.

  
	
  Facsimile: (212)
  455-2502

  	
   

  	
  Facsimile: (212)
  455-2502

  
					



 


7.2.                            Construction.  The article
and section headings in this Agreement are for reference purposes only and will
not affect the interpretation of this Agreement.


 


7.3.                            Severability.  If any
provision of this Agreement or the application of any such provision to any
person or entity or circumstance, shall be declared judicially to be invalid,
unenforceable or void, such decision shall not have the effect of invalidating
or voiding the remainder of this Agreement, it being the Parties’ intent and
agreement that this Agreement shall be deemed amended by modifying such
provision to the extent necessary to render it valid, legal and enforceable
while preserving its intent or by substituting another provision that is legal
and enforceable and that achieves the same objective.


 


7.4.                            Assignment;
Binding Effect.  Neither this Agreement nor any of the rights,
benefits or obligations hereunder may be assigned or assumed by a Party
(whether by operation of law or otherwise) without the prior written consent of
the other Party, which consent will not be unreasonably withheld, except to an
affiliate as a result of an internal reorganization for tax or administrative
purposes.  For clarity, a merger,
reorganization (including in bankruptcy), change of control or sale of all or
substantially all of the assets or business to which this Agreement relates
constitutes an “assignment” hereunder. 
In the event of a permitted assignment hereunder, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and permitted assigns.  Any attempted assignment in violation of the
foregoing will be null and void at the outset.


 


7.5.                            Third
Parties. 
No person or entity (other than as specified in this Agreement) will be
deemed a third party beneficiary under or by reason of this Agreement.  Spinco is liable


 

















 


hereunder for any act or
omission by any Spinco Party that would breach this Agreement if made by
Spinco.


 


7.6.                            Entire
Agreement. 
This Agreement constitutes the entire agreement of the Parties
and supersedes all prior and contemporaneous agreements and understandings,
both written and oral, between the Parties with respect to the subject matter
hereof.  Exhibits A and B are expressly
made a part of, and incorporated by reference into this Agreement.


 


7.7.                            Governing
Law/Jurisdiction.  This Agreement will be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts made and to be performed therein. 
Each Party irrevocably submits to the jurisdiction of the state or
federal courts in New York, New York for the purposes of any Action arising out
of this Agreement.  Each party
unconditionally waives any right to a trial by jury in respect of any such
action.  The Parties agree that
irreparable damage would occur to Walter in the event that Spinco materially
breaches any provision of Sections 1-3 of this Agreement.  Therefore, Walter may seek an injunction to
prevent or enjoin such breach in the above courts without posting bond or other
security.


 


7.8.                            Counterparts.  This
Agreement may be executed in one or more counterparts, each of which will be
deemed to be an original, but all of which together will constitute one
agreement.  Facsimile signatures will
serve as originals for purposes of binding the Parties hereto.


 


IN
WITNESS WHEREOF, the Parties have caused this
Agreement to be executed as of the date written above.


 


	
   

  	
  WALTER INDUSTRIES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WALTER INVESTMENT

  MANAGEMENT LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


EXHIBIT A — LICENSED MARKS


 


Part I


 


Walter Investment Management
Corp.


 


Walter Investment Management LLC


 


Walter Mortgage Company


 


WMC


 


Walter Investment Reinsurance Co.
Ltd.


 


walterinvestment.com


 


walterinvestmentcorp.com


 


walter-investment.com


 


walter-investment.net


 


walter-investment.org


 


walter-investments.com


 


walter-investments.net


 


walter-investments.org


 


walterinv.com


 


walterinv.net


 


walterinv.org


 


waltermortgage.com


 


waltermortgage.net


 


waltermortgage.org


 


waltermortgageservicing.com


 


gowimc.com


 


A-1

















 


Part II


 


Best Insurors


 


Best Insurors, Inc.


 


Mid-State Capital Corporation


 


Mid-State Homes, Inc.


 


Mid-State Capital, LLC


 


bestinsurors.com


 


bestinsurorsinc.com


 


A-2

















 


EXHIBIT B


 


	
  The “flying W” logo —

  	
  

  



 


 


A-3