Exhibit 10.4
TRADEMARK LICENSE AGREEMENT
This Agreement, effective June 24, 2005, is entered between Residential Capital
Corporation, a Delaware corporation, with its principal place of business at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("LICENSEE"), and GENERAL
MOTORS ACCEPTANCE CORPORATION ("GMAC"), a Delaware corporation, with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
and GENERAL MOTORS CORPORATION ("GM"), a Delaware Corporation, with its
principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Recitals
This Agreement is entered with reference to the following facts:
A. GMAC is the owner of the various trademarks (collectively "GMAC Marks") as
set forth on Annex A attached hereto.
B. GM is the owner of the various trademarks (collectively "▇▇ ▇▇▇▇▇") set
forth on Annex B attached hereto.
C. LICENSEE is or will be engaged in the financial services business
including but not limited to originating, purchasing, selling, servicing
and securitizing residential mortgage loans; providing warehouse financing
to residential mortgage loan originators and correspondent lenders to
originate residential mortgage loans; providing real estate brokerage,
relocation and closing services; and providing custodial services,
banking, consumer financial products, and business lending and investment
activities.
D. LICENSEE desires to use the GMAC Marks and ▇▇ ▇▇▇▇▇ in connection with its
business (the "Products and Services") and GMAC and GM are willing to
permit such use upon the terms and conditions in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
intending to be legally bound, LICENSEE, GMAC and GM hereby agree as follows:
ARTICLE I - TRADEMARK LICENSE
1.1 License Grant: GMAC and GM hereby grant to LICENSEE a royalty free,
nonexclusive license to use, and to grant sublicenses to LICENSEE'S
subsidiaries to use and to grant further sublicenses to their respective
subsidiaries and franchisees, worldwide in their respective GMAC Marks and
▇▇ ▇▇▇▇▇ in forms approved by the respective owner, GMAC or GM prior to
such use for the purposes of: (i) offering the Products and Services and
(ii) advertising and promoting the Products and Services. LICENSEE will be
required to manage the
use of GMAC Marks and ▇▇ ▇▇▇▇▇ in accordance with the GMAC and GM Brand
Standards published at ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ (the
"Brand Standards"). LICENSEE or its sublicensees may not use in any
company name ▇▇ ▇▇▇▇▇ or any confusingly similar marks, names or designs .
1.2 No Adverse Claims: LICENSEE recognizes GMAC's and GM's respective
ownership in and title to their respective GMAC Marks and ▇▇ ▇▇▇▇▇ and
LICENSEE and any sublicensees have not acquired, and will not acquire or
claim, any right, title or interest adverse to GMAC or GM in the
respective GMAC Marks or ▇▇ ▇▇▇▇▇ or any confusingly similar marks, names
or designs regardless of whether or not they are registered in the United
States or any other country. LICENSEE understands and agrees that all
sublicense agreements shall contain the same undertaking on behalf of the
sublicensees as provided herein with respect to the respective ownership
of the GMAC Marks and ▇▇ ▇▇▇▇▇. This provision shall survive the
expiration or termination of this Agreement. From time to time, upon the
written request of LICENSOR, LICENSEE shall forward to LICENSOR a status
report regarding all sub-licensees of LICENSEE, in a form mutually
agreeable to the parties. LICENSEE agrees to act as LICENSOR'S quality
control agent, enforcing all aspects of the sublicensees' activities under
the sublicense agreements, including termination of any sublicense
agreement if necessary.
1.3 Registration and Protection of GMAC Marks and ▇▇ ▇▇▇▇▇: GMAC will have the
exclusive right to register the GMAC Marks, and LICENSEE agrees to assist
GMAC in connection with maintaining such registrations, such as by
providing evidence of use, if so requested by GMAC. GM will have the
exclusive right to register the ▇▇ ▇▇▇▇▇, and LICENSEE agrees to assist GM
in connection with maintaining such registrations, such as by providing
evidence of use, if so requested by GM. LICENSEE will advise GMAC or GM,
as the case may be, promptly of any apparent infringements of the
respective GMAC Marks or ▇▇ ▇▇▇▇▇ which come to LICENSEE'S attention. GMAC
will have the exclusive right to bring legal action against the infringer
of the GMAC Marks and GM will have the exclusive right to bring legal
action against the infringer of the ▇▇ ▇▇▇▇▇. LICENSEE will cooperate, and
will cause its agents, franchisees, and sublicensees to cooperate, in
furnishing any relevant evidence in their possession that would be
beneficial in a legal action against an infringer.
1.4 No Misuse of GMAC Marks or ▇▇ ▇▇▇▇▇: LICENSEE will not continue, or permit
its sublicensees or agents to continue, any advertising or promotional
activity containing the GMAC Marks or ▇▇ ▇▇▇▇▇ or business activity
conducted under the GMAC Marks or ▇▇ ▇▇▇▇▇ if the respective owner GMAC or
GM objects that such advertising or promotional activity would be
unethical, in poor taste, misleading, deceptive or in the sole discretion
of the respective owner GMAC or GM would reflect unfavorably on GMAC or
GM.
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1.5 Indemnification: LICENSEE shall indemnify, defend and hold harmless GMAC
or GM, as the case may be, its officers, directors and employees from and
against any allegations, claims, demands, or causes of action, and all
damages, liabilities, judgments, costs (including settlement costs) and
expenses associated therewith (including but not limited to reasonable
third party attorney's fees) arising out of activities conducted by it or
its sublicensees, franchisees, or agents under the respective GMAC Marks
or ▇▇ ▇▇▇▇▇. GMAC or GM, as the case may be, shall indemnify, defend and
hold harmless LICENSEE and its sublicensees and each of their respective
officers, directors, employees, stockholders, agents and representatives
from and against any and all damages, to the extent arising or resulting
from any actual or alleged trademark violation caused by the authorized
use of the respective GMAC Marks or ▇▇ ▇▇▇▇▇ in connection with the
offering, advertising and promotion of the Products and Services as
authorized hereunder.
1.6 Quality Control: LICENSEE agrees that the nature and quality of the
Products and Services offered in relation to the GMAC Marks and ▇▇ ▇▇▇▇▇
will meet or exceed the Brand Standards. LICENSEE further agrees that its
and its agents', franchisees', and sublicensees' advertising, promotions,
and publicity will comply with applicable laws and regulations in all
material respects. LICENSEE and its agents, franchisees, and sublicensees
shall always use the GMAC Marks and ▇▇ ▇▇▇▇▇ in connection with the
Products and Services strictly conforming to the standards,
specifications, and instructions submitted or approved from time to time
by GMAC and GM. To assure compliance by LICENSEE and its agents,
franchisees, and sublicensees with these requirements, the representatives
and agents of GMAC and GM may inspect at all times and on the premises of
LICENSEE or its agents, franchisees, or sublicensees, the nature, quality,
and performance of the Products and Services. LICENSEE shall from time to
time inspect the nature, quality, and performance of the Products and
Services of its agents, franchisees, and sublicensees, and the use of the
GMAC Marks and ▇▇ ▇▇▇▇▇ by its agents, franchisees, and sublicensees, to
insure that they comply with the standards, specifications, and
instructions submitted and approved by GMAC and GM.
ARTICLE 2- TERM
2.1 Term and Automatic Termination: This Agreement will become effective as of
the date first written above and will remain in effect as long as the
Operating Agreement (the " Operating Agreement") between the LICENSEE and
GMAC is in effect or unless earlier terminated as provided herein. This
Agreement will automatically terminate, without the requirement of notice
set forth in Section 2.4, at any time that the Operating Agreement
terminates.
2.2 Grounds for GMAC or GM Termination: Subject to the termination procedure
set forth in Section 2.4, GMAC or GM may terminate this Agreement with
respect to
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their respective licensed GMAC Marks or ▇▇ ▇▇▇▇▇ upon the occurrence of
any of the following events:
(a) LICENSEE materially breaches this Agreement.
(b) LICENSEE fails to maintain any material permits, licenses or other
approvals necessary to offer the Products and Services.
(c) LICENSEE fails to comply with the written quality standards or
quality control provisions of GMAC or GM in any material respect as
set forth in Paragraph 1.6.
(d) LICENSEE, or its officers or agents engage in any business activity
that in GMAC's or GM's sole determination reflects unfavorably in
any material respect on GMAC or GM.
2.3 Grounds for LICENSEE Termination: Subject to the termination procedure set
forth in Section 2.4, LICENSEE may terminate this Agreement with respect
to the respective licensed GMAC Marks or ▇▇ ▇▇▇▇▇ upon the occurrence of
any material breach of this Agreement by GMAC or GM.
2.4 Termination Procedure: A party intending to terminate this Agreement shall
first notify the other party of the grounds for the intended termination.
In the event the other party fails to remedy such grounds for termination
within ninety days after such notice, then the terminating party may
terminate this Agreement effective immediately upon notice to the other
party.
ARTICLE 3- EFFECTS OF TERMINATION
3.1 Surviving Obligations: Termination of this Agreement for any reason will
not relieve a party of any obligation arising prior to such termination.
3.2 Cessation of Use: Upon termination of this Agreement for any reason,
LICENSEE will as reasonably practical cease all use, and will cause each
of its sublicensees, agents, or branch offices to cease all use, of the
respective GMAC Marks or ▇▇ ▇▇▇▇▇ and all marks, names, or designs which
maybe confusingly similar to the GMAC Marks or ▇▇ ▇▇▇▇▇. With regard to
franchisees, LICENSEE shall advise all of its franchisees of the
termination of this Agreement and shall cooperate with GMACin connection
with either the termination of the sublicense agreements (as permitted
under the terms of the sub-license agreements) or the assignment of the
rights and obligations of LICENSEE pursuant to such sublicense agreements
to GMAC or another licensee of LICENSOR.
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3.3 Materials Bearing GMAC Marks or ▇▇ ▇▇▇▇▇: Upon termination of this
Agreement for any reason, LICENSEE will as reasonably practical return and
cause its agents, franchisees, and sublicensees to return to the
respective owner either GMAC or GM, or their authorized agent, any
materials bearing the respective GMAC Marks or ▇▇ ▇▇▇▇▇ then owned by GMAC
or GM or, if GMAC or GM elects, destroy, or cause to be destroyed, all
other materials bearing the respective GMAC Marks or ▇▇ ▇▇▇▇▇ then in the
possession of or controlled by LICENSEE or its sublicensees, franchisees,
agents or branch offices.
ARTICLE 4- GOVERNING LAW AND VENUE
THIS AGREEMENT WILL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF MICHIGAN WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS, AND LITIGATION SHALL BE COMMENCED BY A PARTY, IF AT
ALL, ONLY IN AN APPROPRIATE MICHIGAN FORUM.
ARTICLE 5- GENERAL PROVISIONS
6.1 No Agency: This Agreement does not constitute a party as the agent or
legal representative of any other party. No party is authorized to create
any obligation owing to a third party on behalf of any other party.
6.2 Notices: All notices, requests demands and other communications made or
given under the terms of this Agreement or in connection herewith will be
made in accordance with Section 5 of the Operating Agreement and
with a copy to:
General Motors Legal Staff
Trademark Counsel
300 Renaissance Center
Mailcode: 482-C23-B21
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: 3l3-665-4976
6.3 Amendment: No amendment to this Agreement will be binding upon any party
unless it is in writing and is signed by the relevant parties. This
Agreement supersedes any prior agreements between the parties concerning
the subject matter herein.
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6.4 Assignment or Sublicense: Except as otherwise provided in Section 1.1, no
party may assign or sublicense any of its rights or delegate any of its
duties under this Agreement without first obtaining the written consent of
the other relevant party.
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IN WITNESS WHEREOF, the parties have caused two originals of this Agreement to
be signed by their duly authorized representatives.
RESIDENTIAL CAPITAL CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Financial Officer
GENERAL MOTORS ACCEPTANCE CORPORATION
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief Financial Officer
GENERAL MOTORS CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
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Annex A
GMAC TRADEMARKS LICENSED
GMAC
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Annex B
GM TRADEMARKS LICENSED
GM
GM FAMILY FIRST
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