TRADEMARK LICENSE AGREEMENT
This TRADEMARK LICENSE AGREEMENT ("AGREEMENT") is dated as of February 15,
2006 (the "EFFECTIVE DATE") by and between XXX XXXXX CAPITAL MANAGEMENT, INC., a
corporation organized and existing under the laws of North Carolina
("LICENSOR"), and XXX XXXXX TRUST, formerly The Tuscarora Investment Trust, a
business trust organized and existing under the laws of Commonwealth of
Massachusetts ("LICENSEE").
WHEREAS, Licensor and Licensee have entered into that certain License
Agreement dated May 23, 1995 ("1995 LICENSE AGREEMENT") pursuant to which
Licensor granted Licensee the right to use the Marks in connection with the
Fund;
WHEREAS, Licensor and Licensee wish to update and replace the 1995 License
Agreement with this Agreement;
WHEREAS, Licensee desires to obtain the right and license to use the Marks
in connection with the Fund, pursuant to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises, covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following capitalized
terms shall have the meanings set forth below.
1.1 "FUND" means the XXX XXXXX FUND, a series operated and administered by
Licensee.
1.2 "MARKS" means the trademarks set forth on SCHEDULE A.
1.3 "TERRITORY" means the United States and its territories and
possessions.
1.4 "TERM" has the meaning set forth in Paragraph 9.
2. License.
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2.1 Subject to the terms and conditions of this Agreement, Licensor grants
to Licensee a non-exclusive, non-sublicensable, non-transferable license to use
the Marks in the Territory as the name of the Fund and in prospectuses, proxy
statements, sales literature, and in promotional and advertising materials
related to the Fund, during the Term.
2.2 Licensee shall not distribute or circulate any prospectus, proxy
statement, sales literature, promotional material and other printed matter
required to be filed with the Securities and Exchange Commission under Section
24(b) of the Investment Company Act of 1940, as amended, which contains any
references to or uses the Marks without the prior written approval
of Licensor, and Licensee shall submit to Licensor all such materials in draft
form at least thirty (30) prior to any such filing.
3. OWNERSHIP OF THE XXXX. Licensee acknowledges that Licensor owns all
right, title and interest in and to the Marks and the goodwill associated
therewith and any use of the Marks by Licensee and any goodwill associated
therewith shall inure to the benefit of Licensor for purposes of trademark,
service xxxx, and trade name ownership, registration, maintenance, and
enforcement. Licensee shall not attempt to register any Xxxx or any confusingly
similar trademarks or domain names, or any variation or extension of the
foregoing, anywhere in the world.
4. Quality Control.
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4.1 Licensee acknowledges that the Marks have established valuable goodwill
and are well-regarded by consumers in connection with investment products and
services of the highest caliber.
4.2 All marketing materials, advertising, products and services covered by
the grant of the license hereunder shall conform to standards of quality at
least comparable to that of Licensee immediately before the Effective Date of
this Agreement with respect to the display of and business conducted under the
Marks.
4.3 Licensee agrees that, upon Licensor's reasonable written request, it
will supply to Licensor samples of any marketing materials and advertising and
products used in connection with the Xxxx, performance results of the Fund, and
information about Fund managers. In addition, upon reasonable request, Licensor
may inspect during regular business hours all facilities operated by Licensee to
verify proper use of the Marks as provided herein. If Licensor reasonably
determines that Licensee fails to maintain a consistent level of quality in
accordance with the terms of this Agreement, then Licensor may request that
Licensee take reasonable steps to remedy any such deficiencies and Licensee
shall promptly comply with such requests.
5. REPRESENTATIONS AND WARRANTIES. At all times, Licensee's business
operations in connection with the Marks shall be in compliance with all
applicable laws and regulations, including without limitation, all applicable
securities laws, and Licensee's use of the Marks shall not be in conflict with
any other agreement.
6. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY. THE XXXX IS PROVIDED
"AS IS." LICENSOR MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN
RELATION TO THE MARKS OR THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING,
LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
EXCEPT FOR LICENSEE'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OF THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA, LOSS OF BUSINESS OR OTHER
LOSS ARISING OUT OR
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RESULTING FROM THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
7. INDEMNIFICATION. Licensee shall indemnify, defend, and hold harmless,
Licensee and its parent, subsidiaries, and affiliates, and their respective
officers, directors, shareholders, employees, agents, legal representatives,
successors, and assigns ("INDEMNIFIED PARTIES") from and against any damages,
liabilities, costs and expenses (including reasonable attorneys' and
professionals' fees and litigation costs) that arise out of (i) Licensee's
breach of its representations, warranties, and covenants under this Agreement,
(ii) Licensee's use of the Marks, and (iii) operation of Licensee's business;
provided however, that: (a) the Indemnified Parties promptly provide Licensee
with written notice thereof and reasonable cooperation, information, and
assistance in connection therewith; and (b) Licensee shall have sole control and
authority with respect to the defense, settlement, or compromise thereof,
provided that any settlement of such claim include a full release for the
Indemnified Parties.
8. INFRINGEMENT CLAIMS AGAINST THIRD PARTIES. Licensor shall have the sole
right to commence an action for infringement of the Marks against any third
party ("OFFENSIVE INFRINGEMENT CLAIM"); provided that, before commencing any
Offensive Infringement Claim which could potentially have an effect on
Licensee's use of the Marks under this Agreement, Licensor shall provide
Licensor ten (10) days prior written notice of such Offensive Infringement Claim
and of Licensor's intent to file such action.
9. Term and Termination.
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9.1 This Agreement shall remain in effect for as long as Licensor acts as
Licensee's investment advisor for the Fund ("TERM"), or until terminated
pursuant to this Paragraph 9.
9.2 Licensor shall have the right to terminate this Agreement upon written
notice if Licensee is in default of any material provision of this Agreement and
such default is not cured to Licensor's reasonable satisfaction within thirty
(30) days of Licensee's receipt of written notice of the default.
9.3 Licensor shall have the right to terminate this Agreement upon six (6)
months prior written notice to Licensee.
9.4 Licensee shall have the right to terminate this Agreement upon sixty
(60) days prior written notice to Licensor.
9.5 Each party shall have the right to terminate this Agreement immediately
upon written notice if the other party (a) voluntarily or involuntarily becomes
the subject of a petition in bankruptcy or of any proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors; or (b) admits in writing its inability to pay its debts as they
become due.
9.6 In the event this Agreement terminates or expires for any reason,
Licensee shall:
(a) change its corporate and/or trade name and the name of the Fund (and
any associated logos) in a manner that is not confusingly similar to any of the
Marks;
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(b) promptly take all necessary director or shareholder action to cause its
Agreement and Declaration of Trust to be amended to reflect the foregoing; and
(c) within ninety (90) days, cease all use of the Marks, including without
limitation, use in any prospectus, sales literature, and promotional materials.
10. Miscellaneous.
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10.1 ASSIGNMENT. Licensee may not assign its rights and obligations
hereunder to any third party without Licensor' prior written consent. Subject to
the foregoing, this Agreement, and the licenses, restrictions and obligations
set forth herein, shall be binding upon and inure to the benefit of the parties
hereto and their permitted successors and assigns.
10.2 PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of Licensor and Licensee, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement except as expressly set forth herein.
10.3 NOTICES. All notices or other communications required or permitted
hereunder (collectively, "NOTICES") shall be sufficiently given if sent by
registered mail or certified mail, postage prepaid, or by overnight courier
service:
If to Licensee, to: Xxxx X. Xxxxxx, Managing Director
Ultimus Fund Solutions, LLC
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
with a copy to:
and if to Licensor, to: Xxxxx X. Xxxxx, Xx., CEO & President
Xxx Xxxxx Capital Management, Inc.
0000 Xxxxx Xxxx, #000
Xxxxxx, XX 00000
with a copy to: Xxxxxxxx X. Xxxxxx, Senior VP
Xxx Xxxxx Capital Management, Inc.
0000 Xxxxx Xxxx, #000
Xxxxxx, XX 00000
or to such other address as shall be furnished in writing by Licensor or
Licensee, as the case may be, to the other, and any such notice or communication
shall be deemed to have been given on the next business day if sent via
overnight courier or 4 days after the mailing date (except that a
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notice of change of address shall not be deemed to have been given until
received by the addressees).
10.4 GOVERNING LAW; CHOICE OF FORUM. This Agreement is governed by the laws
of the State of New York, without reference to its conflict of law principles.
The parties hereby consent to the jurisdiction of the courts located in New
York, New York, in any action arising out of or relating to this Agreement, and
agree that any action arising out of or relating to this Agreement shall be
maintained in the same jurisdiction.
10.5 INTEGRATED AGREEMENT; AMENDMENTS AND WAIVERS. This Agreement and the
Schedules hereto, any written amendments to this Agreement (i) constitute the
entire agreement among Licensor and Licensee with respect to the subject matter
hereof or thereof, and (ii) supersede and replace all correspondence,
understandings and communications between the parties hereto with respect to the
transactions contemplated by this Agreement, including without limitation the
1995 License Agreement. This Agreement may be amended, supplemented or modified,
and any of the terms, covenants, representations, warranties or conditions may
be waived, only by a written instrument executed by Licensor and Licensee, or in
the case of a waiver, by the party waiving compliance. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar), and no such waiver shall
constitute a continuing waiver unless otherwise expressly provided.
10.6 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when such counterparts have been signed by each party
hereto and delivered to the other party hereto.
10.7 INVALIDITY. If any one or more of the provisions contained in this
Agreement or in any other instrument referred to herein, shall, for any reason,
be held to be invalid, illegal or unenforceable in any respect, the parties
shall use their reasonable efforts, including the amendment of this Agreement,
to ensure that this Agreement shall reflect as closely as practicable the intent
of the parties hereto on the date hereof.
10.8 HEADINGS. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be a part of,
or to affect the meaning or interpretation of, this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf by its officers or representatives thereunto duly
authorized, as of the date first above written.
LICENSOR:
XXX XXXXX CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
Title: CEO & President
LICENSEE:
XXX XXXXX TRUST
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Chairman
SCHEDULE A
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Marks
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XXX XXXXX
XXX XXXXX FUND
XXX XXXXX TRUST
[NOTE: DEPICTIONS OF APPLICABLE LOGOS OMITTED]
