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EXHIBIT 10.6
LICENSE AGREEMENT
This License Agreement (this "Agreement"), effective as of February 1,
1998, is made and entered into by and between AMRESCO, INC., a Delaware
corporation ("Licensor"), and AMRESCO Capital Trust, a Texas real estate
investment trust ("Licensee").
ARTICLE 1
DEFINITIONS
1.1 "Intellectual Property" means "AMRESCO" the registered xxxx of
Licensor (Registration Number 1,757,736) and the unregistered trademark of
Licensor, a likeness of which is set forth on Exhibit "A" hereto.
1.2 "Management Agreement" means the Management Agreement to be
entered into on the date hereof between Licensee and AMREIT Managers, L.P., a
Delaware limited partnership and a subsidiary of Licensor.
ARTICLE 2
LICENSE GRANT
Licensor hereby grants to Licensee, subject to the terms and
conditions of this Agreement, a non-exclusive, royalty-free, non-transferrable
right and license to use the Intellectual Property in connection with the
conduct of the business of Licensee, as described in Licensee's Registration
Statement on Form S-11, including all amendments thereto, as filed with the
Securities and Exchange Commission.
ARTICLE 3
LIMITATIONS ON THE USE OF INTELLECTUAL PROPERTY
3.1 Licensee agrees not to use the Intellectual Property except as
specifically authorized by this Agreement.
3.2 All use of the Intellectual Property by Licensee under this
Agreement shall be deemed to be used by Licensor and shall accrue to the
benefit of Licensor.
3.3 Licensee agrees to comply with all laws pertaining to the
Intellectual Property. This provision includes compliance with marking
requirements.
3.4 Licensee shall not, either during the term of this Agreement
or thereafter, use any trademark or tradename confusingly similar to the
Intellectual Property.
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ARTICLE 4
QUALITY CONTROLS
4.1 Licensee agrees to deliver samples of all materials which bear
the Intellectual Property to Licensor for Licensor's approval and acceptance
prior to the use of such materials by Licensee. Licensor has 5 business days to
approve in writing the submitted materials. If Licensor has not notified
Licensee of its disapproval in writing within 5 business days, such materials
will be automatically assumed to have been approved by Licensor.
4.2 Licensee agrees not to alter, change, modify or supplement any
materials bearing the Intellectual Property without Licensor's prior written
consent.
4.3 Licensee acknowledges that the Intellectual Property is of
substantial value to Licensor and Licensee will fully comply with the
specifications, directions, and standards of quality imposed by Licensor from
time to time to preserve, maintain and enhance the reputation and goodwill in
the Intellectual Property developed by Licensor and its affiliates. Licensee
shall ensure that all materials on which the Intellectual Property is used or
associated therewith will meet all specifications, directions, and standards of
quality imposed by Licensor and will satisfy in performance, quality,
construction and use the reasonable requirements of Licensor and shall, upon
notice from Licensor, give Licensor or its authorized representative, free
access at any reasonable time to the premises of Licensee for the purpose of
ensuring that Licensee is observing these obligations.
4.4 Should Licensor notify Licensee that any use of the
Intellectual Property fails to comply with Licensor's specifications,
directions or standards of quality for such use, Licensee shall promptly
proceed to correct any defects in accordance with instructions from Licensor.
Failure to correct such defects will result in the termination of this
Agreement.
4.5 All use of the Intellectual Property by Licensee and its
affiliates shall conform with proper practices, as applicable. Licensee shall
take all reasonable actions to assist Licensor in protecting the Intellectual
Property.
4.6 Licensee shall use the Intellectual Property in the form
stipulated by Licensor and shall observe any reasonable directions given by
Licensor as to colors and sizes of the representations of the Intellectual
Property and their manner and disposition.
4.7 All material on or in relation to which Licensee proposes to
use the Intellectual Property shall bear a legible statement that identifies
Licensor as the owner of the Intellectual Property.
4.8 Licensee shall not associate any of the Intellectual Property
with any unauthorized trademark or tradename.
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ARTICLE 5
OWNERSHIP OF INTELLECTUAL PROPERTY
5.1 Licensee acknowledges that Licensor owns all right, title and
interest in and to the Intellectual Property and any registrations that have
issued or may issue thereon. Licensee agrees that it will not take, directly or
indirectly, any action which Licensee knows, or has reasonable cause to believe,
might weaken any of the Intellectual Property, impair any rights of Licensor in
and to such Intellectual Property, or create any rights adverse to those of
Licensor in the Intellectual Property.
5.2 Licensee undertakes not to do or permit to be done any act
which Licensee knows, or has reasonable cause to believe, would or might
jeopardize Licensor's rights in any Intellectual Property or registrations
thereof or which might prejudice the right or title of Licensor to any of the
Intellectual Property.
5.3 Licensee will not make any representation or do any act which
may be taken to indicate that it has any right, title or interest in or to the
ownership or use of any of the Intellectual Property except as specifically
allowed in this Agreement and Licensee acknowledges that nothing contained in
this Agreement shall give Licensee any right, title or interest in or to the
Intellectual Property save as granted hereby.
5.4 All rights in the Intellectual Property, other than those
specifically granted herein, are reserved by Licensor for its own use and
benefit.
5.5 Licensee shall cooperate with Licensor, including providing
any necessary samples, specimens, or affidavits of use, as required by Licensor
to secure, establish, maintain, and enforce Licensor's right and title in the
Intellectual Property. Licensor has the sole authority to register the
Intellectual Property.
ARTICLE 6
INFRINGEMENT
6.1 Licensee shall, as soon as it becomes aware thereof, give
Licensor in writing full particulars of any use or proposed use by any other
person, firm or company of a tradename, trademark or trade dress of goods or
mode of promotion or advertising which amounts or might amount either to
infringement of Licensor's rights in relation to any of the Intellectual
Property.
6.2 If Licensee becomes aware that any other person, firm or
company alleges that any of the Intellectual Property is invalid or that use of
the Intellectual Property is otherwise attacked or attackable, Licensee shall
immediately give Licensor full particulars in writing thereof and shall make no
comment or admission to any third party in respect thereof.
6.3 Upon notification of Licensor of such infringement or
misappropriation, Licensor and Licensee shall take counsel together on the
action to be taken against the infringing third party. Such action may be
brought either jointly by Licensor and Licensee in which case the expenses,
benefits, or damages resulting therefrom shall be equally shared between the
parties; or by Licensee, who shall bear the expenses and risks or collect the
damages due, if any, if such action is taken by Licensee singly with the prior
approval of Licensor.
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6.4 The parties shall cooperate fully with each other and perform
such acts or execute such documents as one party may request of the other party
to assist the requesting party in any suit or legal proceedings to protect the
Intellectual Property.
6.5 Licensee may not settle any suit or action without the written
consent of Licensor.
ARTICLE 7
TERM AND TERMINATION
7.1 This Agreement may be terminated by Licensor, in its sole
discretion, at any time following the termination of the Management Agreement.
7.2 In the event of any breach or default by Licensee in any of
the terms and conditions of this Agreement or the Management Agreements,
Licensor may terminate this Agreement by giving written notice of such
termination to Licensee.
7.3 In the event of default or termination of this Agreement,
Licensee shall cease and desist from all use of the Intellectual Property in any
way without the written consent of Licensor, and, within 90 days of such
termination, Licensee will deliver to Licensor, or its duly authorized
representatives, all materials upon which the Intellectual Property appears, and
furthermore, Licensee will not at any time adopt or use without Licensor's prior
consent, any word or xxxx which is similar to or likely to be confused with any
of the Intellectual Property.
7.4 Licensor may terminate this Agreement if Licensee becomes
insolvent, has a receiver appointed over the whole or any part of its assets,
enters into any debt reorganization with its creditors, or declares bankruptcy,
by giving notice to Licensee of its intention to terminate. In any of the
foregoing events, such terminations shall be effective immediately upon notice.
7.5 In the event of termination of this Agreement, Licensee agrees
to abide by all obligations which, from the context hereof, are intended to
survive the termination of this Agreement, including but not limited to Article
5, Article 6, Article 7, Article 8 and Article 9.
7.6 Should this Agreement be terminated for any reason, Licensee
shall not be able to claim from Licensor any damages or compensation for losses
or expenses incurred or lost profits.
ARTICLE 8
GENERAL PROVISIONS
8.1 Licensor assumes no liability to Licensee or to any third
parties with respect to any claim based on the sale, alleged defects in, or use
of goods or services provided by Licensee in association with the Intellectual
Property.
8.2 This Agreement is entered in connection with, and as a
condition to, Licensee entering into the Management Agreement. This Agreement
sets forth the
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entire agreement of the parties with respect to the subject matter hereof and
supersedes all previous representations, agreements, understandings or
negotiations, oral or written, with respect to the subject matter herein.
8.3 If any of the provisions of this Agreement are determined to
be invalid or unenforceable, such invalidity or unenforceability will not
invalidate or render unenforceable the remainder of this Agreement, but rather
the entire agreement will be construed as if not containing the particular
invalid or unenforceable provision or provisions, and the rights and
obligations of the parties hereto shall be construed and enforced accordingly.
The parties hereto acknowledge that if any provision of this Agreement is
determined to be invalid or unenforceable, it is their desire and intention
that such provision be reformed and construed in such manner that it will, to
the maximum practicable, be deemed to be valid and enforceable.
8.4 Licensee shall not assign or delegate any rights or
obligations under this Agreement without the prior written consent of Licensor.
8.5 No modification, addition to, or amendment of this Agreement
shall be binding upon a party unless made in writing and signed by an
authorized representative of both parties.
8.6 The waiver by Licensor of any breach of this Agreement by
Licensee shall not be effective unless in writing and no such waiver shall
operate or be construed as a waiver of the same or any other existing or future
breach.
8.7 This Agreement will be governed by, construed and enforced in
accordance with the laws of the State of Texas.
ARTICLE 9
NOTICES
Any notices required or permitted to be given under this Agreement
shall be deemed sufficiently given if hand delivered with receipt acknowledged,
or mailed by certified or registered mail, postage prepaid, or mailed by an
internationally recognized overnight delivery service addressed to the party to
be notified at its address shown below, or to such other person or at such
other address as may be furnished in writing to the other party hereto.
(a) If to Licensor: AMRESCO, INC.
Attn: General Counsel
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000, XX 000
Xxxxxx, Xxxxx 00000
(000) 000-0000
(b) If to Licensee: AMRESCO Capital Trust
Attn: General Counsel
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000, XX 000
Xxxxxx, Xxxxx 00000
(000) 000-0000
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IN WITNESS WHEREOF, the undersigned have caused their duly authorized
representatives to execute this Agreement in the capacity shown below.
LICENSOR:
AMRESCO, INC.
By:
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Name:
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Title:
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LICENSEE:
AMRESCO CAPITAL TRUST
By:
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Name:
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Title:
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