Exhibit (h)(2)(ii)
AMENDED AND RESTATED
TRADE NAME
AND
SERVICE XXXX LICENSE AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT (the "Agreement") made this 23rd day of
January, 1999, by and between Xxxxx Xxxxxx Management Company, an Illinois
Corporation, having its principal office and place of business at 000 Xxxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, hereinafter for convenience referred to
as "Adviser," and Xxxxx Xxxxxx Investment Trust, a Massachusetts business trust
having its principal office and place of business at 000 Xxxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, hereinafter for convenience referred to as "Fund."
WHEREAS, Adviser has obtained a license together with the right sublicense
the trade name and service xxxx "Xxxxx Xxxxxx" and the stylized logo "WH" for
financial and investment services and organizations, by mesne license from Xxxxx
Xxxxxx Investments L.L.C., a Delaware limited liability company, hereinafter
referred to as "Owner"; and
WHEREAS, Fund desires the right to use said trade name and service xxxx for
the described businesses and services;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration by each of the parties to the other in hand paid, the
receipt of which is hereby acknowledged, and of the following mutual promises,
covenants and undertakings, the parties hereto have agreed and do hereby agree
as follows:
1. Adviser hereby grants to Fund and each series thereof a non-exclusive,
royalty-free right and license to use (a) the trade name and service xxxx "Xxxxx
Xxxxxx," and (b) the stylized
logo "WH," hereinafter collectively referred to as the "Licensed Name and Xxxx,"
for financial and investment business and services, hereinafter referred to as
the "Licensed Businesses and Services," in the territory consisting of the
United States of America, its territories and dependencies, hereinafter referred
to as the "Licensed Territory."
2. The nature and quality of the Licensed Businesses and Services in
connection with which the Licensed Name and Xxxx xxx be used, including but not
limited to the manner of use by Fund, shall have the approval of Adviser.
3. Upon execution of this Agreement and from time to time thereafter,
Adviser and/or Owner will furnish Fund with written standards of quality for the
Licensed Businesses and Services; and Fund agrees to meet the standards of
quality so established. Owner shall be the sole judge of whether or not Fund has
met or is meeting the standards of quality so established.
4. Adviser and Owner shall each have the right to inspect the premises of
Fund where the Licensed Businesses and Services are being conducted and offered,
at reasonable intervals and during regular business hours in order to determine
that said written standards of quality are being met.
5. Fund shall obtain the written approval of Adviser with respect to all
signs, brochures, bulletins, promotional materials, advertising or the like
bearing the Licensed Name and Xxxx xxxxx to the use thereof; and such approval
of Adviser shall not be unreasonably withheld. For the term of this Agreement,
Fund shall not use a name or xxxx identical with or confusingly similar to the
Licensed Name and Xxxx except as permitted by the license hereof.
6. Fund shall have the right to terminate this Agreement at any time upon
thirty (30) days' written notice to Adviser.
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7. In the event that Fund shall substantially breach any of the terms of
this Agreement, Adviser shall have the right to terminate the license granted
hereunder by ninety (90) days' written notice to Fund specifying the breach
complained of, provided that, if during such ninety (90) day period Fund shall
correct the breach, then this license shall continue as if no notice had been
given.
8. Adviser shall have the right to terminate this Agreement immediately
in the event of the bankruptcy of Fund, or upon the appointment of a receiver
for the assets of Fund, or in the event Fund shall make an assignment for the
benefit of creditors, or in the event that Adviser shall cease to act as the
investment adviser to the Fund, or in the event that Owner shall cease to act as
the distributor and shareholder service agent for the Fund.
9. Fund agrees: (a) that nothing contained in this Agreement shall give
Fund any right, title or interest in the Licensed Name and Xxxx, except the
right to use the Licensed Name and Xxxx in accordance with the terms of this
Agreement; (b) that the Licensed Name and Xxxx is the sole property of Owner;
and (c) that any and all uses of the Licensed Name and Xxxx by Fund shall inure
to the benefit of Owner.
10. Fund agrees not to raise or to cause to be raised any questions
concerning or objections to the validity of the Licensed Name and Xxxx or any
registrations thereof or to the right of Owner thereto, on any grounds
whatsoever.
11. In the event of cancellation or termination of this Agreement in
accordance with Paragraphs 6, 7 or 8 hereof, Fund shall thereupon cease to use
and shall never again use the Licensed Name and Xxxx and to deliver to Adviser,
free of any charge to adviser, all signs, brochures, bulletins, promotional
materials, advertising or the like bearing the Licensed Name and Xxxx that are
then in the possession of Fund.
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12. In the event of cancellation or termination in accordance with the
provisions of Paragraphs 6, 7 or 8 hereof, Fund's obligations and agreements set
forth in Paragraphs 9, 10 and 11 hereof shall remain in full force and effect.
13. Fund agrees to notify Adviser of any adverse use in the Licensed
Territory of a name or names or a xxxx or marks confusingly similar to the
Licensed Name and Xxxx and agrees to take no action of any kind with respect
thereto except by the express written authorization of Adviser and concurrence
by Owner; and Owner agrees to protect Fund against any unauthorized use, in the
Licensed Territory, of the Licensed Name and Xxxx, or any name or xxxx
confusingly similar thereto, to the extent that Owner, upon being given notice
of activities deemed to constitute an infringement of the Licensed Name and Xxxx
and upon concurring in the determination that such activities constitute
infringement, which concurrence shall not be unreasonably withheld, shall file
suit or resolve the matter within ninety (90) days of such notification. In any
suit brought by Owner for infringement of the Licensed Name and Xxxx, Fund shall
have the right to be represented by counsel of its own selection and at its own
expense.
14. The license herein granted shall not be assignable or transferable in
any manner whatsoever nor shall Fund have the right to grant any sublicenses.
15. This Agreement embodies the entire understanding of the parties and
supersedes any prior understanding or agreement entered into by the parties
either written or oral. No variation or modification of this Agreement or waiver
of the terms or provisions hereof shall be operative or valid unless in writing
and signed by both parties.
16. All notices, disclosures and other communications hereunder shall be
in writing and shall be deemed to be duly given if delivered or mailed by
certified mail addressed to the parties as
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indicated hereinabove or to such other address as either of the parties may
furnish to the other in writing.
17. This Agreement is executed by or on behalf of the Fund and the Adviser
is hereby expressly put on notice of the limitation of Shareholder liability as
set forth in the Fund's Agreement and Declaration of Trust filed with the
Secretary of the Commonwealth of Massachusetts and agrees that the obligations
assumed by the Fund pursuant to this Agreement shall be limited in all cases to
the Fund and its assets, and the Adviser shall not seek satisfaction of any such
obligations from the Shareholders or any Shareholder of the Fund. In addition,
the Adviser shall not seek satisfaction of any such obligations from the
Trustees or Officers of the Fund or any individual Trustee or Officer.
18. This Agreement shall be construed in accordance with applicable
federal law and (except as to paragraph 17 hereof which shall be construed in
accordance with the laws of the Commonwealth of Massachusetts) the laws of the
State of Illinois and shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors, subject to paragraph 14
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate by their duly authorized representatives as of the day and
year first set forth above.
XXXXX XXXXXX INVESTMENT TRUST
By: /s/ Xxxxxx X. Xxxxxxx
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XXXXX XXXXXX MANAGEMENT COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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CONSENTED TO:
XXXXX XXXXXX INVESTMENTS L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Date: January 23, 1999
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