Exhibit (h)(xvi) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
SERVICE XXXX LICENSE AGREEMENT
THIS AGREEMENT made as of the 22nd day of September, 2003, by and
between Manufacturers and Traders Trust Company, a New York state bank and
trust company having its principal office in Buffalo, New York (hereinafter
"Licensor"), and MTB Group of Funds (formerly named, Vision Group of Funds),
a Delaware statutory trust, created under, governed by and construed and
administered according to the laws of the state of Delaware, having its
principal place of business in Pittsburgh, Pennsylvania (hereinafter
"Licensee").
WITNESSETH:
WHEREAS, Licensor is the owner of the service xxxx "MTB" for banking
services including US Registration No. 18211683 hereinafter ("Service Xxxx")
and is the owner of an intent-to-use application for the Service Xxxx for
certain financial services which is now pending in the United States Patent
and Trademark Office ("PTO") (Serial No. 78/260987); and
WHEREAS, Licensee wishes to use, and Licensor is willing to permit use
of the Service Xxxx as part of Licensee's trade name "MTB Group of Funds"
and in the names of certain portfolios offered by the Licensee, there being
no assurances given by Licensor that such application pending in the PTO
will result in the Federal registration sought or that others might not
contest the foregoing registration, pending application and/or use; and
WHEREAS, Licensee is organized to operate as a registered investment
company, the purpose of which is to invest and reinvest amounts contributed
by investors in designated types of securities, to distribute the income of
those investments, and to redeem at net asset value (plus any applicable
sales charge or redemption fee) interests tendered for redemption by
investors;
WHEREAS, the Board of Trustees of Licensee approved its name change,
effective August 15, 2003, with the acquiescence and notice to Licensor, and
both parties wish to further document their agreement on the terms of the
use of the Service Xxxx, and
WHEREAS, Licensor has entered into Investment Advisory Contracts with
Licensee dated November 1, 2000 ("November Contracts"), pursuant to which
Licensor, through its separately identifiable department, M&T Asset
Management, has provided investment management advice to the Licensee with
respect to the Licensee's services to be conducted under the Service Xxxx,
WHEREAS, the November Contracts have been superseded by substantially
identical advisory agreements between the Licensee and Licensor's
wholly-owned subsidiary, MTB Investment Advisors, Inc., effective August
22, 2003 ("August Contracts") and Licensor may desire that an affiliate of
Licensor provide investment advice to Licensee under investment advisory
agreements substantially identical to the August Contracts (such advisory
agreements and any replacement agreements that the parties or their
affiliates or successors may agree to from time to time are referred to
herein as the "Investment Advisory Contracts"); and
WHEREAS, Licensee desires a non-exclusive and non-transferable license
for the use of the Service Xxxx in connection with Licensee's business as a
registered investment company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, the parties agree as follows:
1. Grant of License. Licensor hereby grants to Licensee for the
duration of this Agreement, upon the terms and conditions set forth herein,
a royalty-free, non-exclusive and non-transferable right and license to use
the Service Xxxx, or any xxxx in which part or all of the Service Xxxx is
used, worldwide, in connection with Licensee's business as a registered
investment company sponsoring investment vehicles to be offered to
Licensor's customers and those of Licensor's affiliates (hereinafter the
"Services"), but only so long as the Service Xxxx is used in accordance with
the standards of quality and controlled use established by Licensor and so
long as the Investment Advisory Contracts are in force.
2. Use of Service. For the continued right to use the Service Xxxx,
Licensee agrees to adhere to the established rules and regulations
promulgated by law and by Licensor for controlled use of the Service Xxxx
including any specifications as to form, style, design and color as such
rules, regulations, and specifications, may be amended, modified or revised
from time to time.
In addition, Licensee agrees to use the Service Xxxx in advertising
and promoting the Services, to adhere to the standards of quality and
controlled use established by Licensor and communicated to Licensee orally
or in writing from time to time, and to perform the Services identified by
the Service Xxxx in accordance with the standards of business practice
prescribed by Licensor.
3. Protection of Service Xxxx. Licensee acknowledges Licensor's sole
ownership of, and exclusive right of use of, the Service Xxxx. Licensee
represents, warrants and agrees that it shall take no steps to challenge
Licensor's exclusive right, title and interest in and to the Service Xxxx or
do any act or thing in derogation of Licensor's rights therein. Licensee
shall supply Licensor or Licensor's designee with examples of all proposed
uses of the Service Xxxx, and all advertising or promotional materials or
other documents utilizing or displaying the Service Xxxx shall be submitted
to Licensor or Licensor's designee by Licensee for Licensor's or such
designee's approval prior to Licensee's use thereof.
Licensee shall xxxx all documents, instruments, papers, letters,
advertisements, etc. displaying the Service Xxxx with any notices of
Licensor's Service Xxxx ownership or registration as may be required by law
or Licensor.
4. Inspection by Licensor. Licensor shall have the right to inspect
the use of the Service Xxxx by Licensee and to check the operating methods
of the Licensee at any time it deems necessary or desirable during
Licensee's normal business hours for the purpose of determining whether
Licensee is adhering to the terms and conditions hereof as well as the
quality standards established by Licensor from time to time for use of the
Service Xxxx and performance of the Services provided under the Service
Xxxx. Moreover, Licensee shall, upon request, supply Licensor with
specimens of its use of the Service Xxxx.
5. Licensee Not to Impair Value of Service Xxxx. Licensee will not at
any time, either during the term of this Agreement or after termination
hereof, adopt or use any word or xxxx that is similar to or confusing with
the Service Xxxx, without Licensor's prior written consent. Licensee will
not represent that it has any ownership in the Service Xxxx or in its
registration.
6. Ownership of Service Xxxx. Licensor shall retain full ownership
of the Service Xxxx and any similar marks and the corresponding
registrations and applications, and all use of the Service Xxxx and any
similar xxxx, including but not limited to all good will associated with the
Service Xxxx and any similar xxxx shall inure to the benefit of the
Licensor. Licensor may sell, assign, grant, license or otherwise transfer
the Service Xxxx and any similar marks as it shall, in its sole discretion,
decide. Apart from its license rights under this Agreement, Licensee shall
not acquire any right, title or interest in or to the use of the Service
Xxxx. Licensee shall not acquire any right, title or interest in or to the
use of the Service Xxxx which may be construed to survive the termination of
this Agreement and of the license granted hereby.
Licensee shall notify Licensor as soon as it acquires any knowledge of
any infringement of the Service Xxxx or if any claim of infringement is made
against it based on its use of the Service Xxxx. Licensor shall conduct the
prosecution or defense of any lawsuit arising from such infringement or
claim of infringement and Licensee shall cooperate with Licensor in the
prosecution or defense of any such suit.
7. Indemnification of Licensee. Licensor hereby agrees to indemnify
and hold harmless Licensee, and any of its portfolios now or hereinafter
created during the term of this Agreement which uses the Service Xxxx from
and against any and all loss, cost, damage and expense (including reasonable
attorney's fees and court costs) finally awarded, or agreed to in a
settlement of which Licensor is a party as a result of any claim of
trademark or service xxxx infringement by any third party against the
Licensor, the Licensee or any of said portfolios in connection with the
license in the Service Xxxx granted hereunder, provided that, at all times
relating to such claim, Licensee shall have been in full compliance with the
terms and conditions hereof and provided that Licensee promptly notifies
Licensor in writing of such claim, provides Licensor a copy of all
information received by Licensee with respect to a claim or proceeding,
cooperates with Licensor in defending or settling the claim or proceeding,
and allows Licensor to control the defense and settlement of the proceeding,
including the selection of attorneys. Licensee may observe any proceeding
and confer with Licensor at its own expense. If a suit or proceeding is
brought or appears to Licensor to be likely to be brought, Licensor may, at
its sole option and expense, obtain the right for Licensee to continue using
the allegedly infringing Service Xxxx. If Licensor finds that this
alternative is not available to it on commercially reasonable terms,
Licensor may terminate this Agreement and the license for the Service Xxxx
hereunder.
8. Automatic Termination. This Agreement and the license granted
hereby shall automatically terminate upon the occurrence of any of the
following events:
(a) any action by any governmental authority which terminates or
materially impairs the right of Licensee to conduct its business as a
registered investment company;
(b) Licensee's failure to comply with Licensor's standards of
quality or controlled use or business practices;
(c) Licensee liquidates and makes distribution to its shareholders
of the assets comprising the portfolios of Licensee;
(d) Licensee dissolves or is dissolved, voluntarily or by operation
of law, is liquidated, or otherwise terminates its existence;
(e) a trustee, receiver, liquidator or custodian shall be appointed
for Licensee or for any substantial part of Licensee's property;
(f) Licensee shall become insolvent, make a general assignment for
the benefit of its creditors, or admit in writing its inability to
pay, or shall generally cease paying, its debts as they mature or
become due;
(g) any bankruptcy, insolvency, reorganization, arrangement or
similar proceedings shall be instituted by or against Licensee under
any bankruptcy, insolvency or similar law providing for the relief of
debtors, and such proceeding shall not be dismissed within thirty (30)
days;
(h) an order for relief shall be entered against Licensee in any
involuntary case commenced under the U.S. Bankruptcy Code;
(i) any account of Licensee shall be attached or become subject to
any writ, judgment, warrant of attachment, execution or similar
process; or
(j) The Licensee ceases to use Licensor or one of its affiliates or
successors as investment adviser.
9. Breach of Contract. In the event Licensor determines at any time
in its sole discretion that Licensee has breached any of the terms and
conditions hereof, Licensor shall have the right to terminate this Agreement
and the license granted hereby, immediately upon written notice to
Licensee. Licensee agrees that upon receipt of such notice of termination,
it will cease all use of or reference to the Service Xxxx as soon as
practicable, but no later than thirty (30) days.
10. Return of Materials Upon Termination. All materials in the
possession of Licensee or subject to its control, on or in connection with
which the Service Xxxx appears, shall be destroyed by Licensee or delivered
to Licensor or its designated representative within thirty (30) days after
the date of termination of this Agreement.
11. Governing Law. This Agreement and the license granted hereby
shall be governed by and construed in accordance with the internal laws of
the State of New York, without regard to the conflicts of laws rules of said
State, and the service xxxx and trademark laws of the United States of
America. The parties agree that any legal action, suit or proceeding
pertaining to this Agreement or the license granted hereunder will be
brought in the Courts of the State of New York or of the United States of
America for the State of New York and Licensee expressly consents and
submits to the jurisdiction of said courts.
12. Term. This Agreement shall be effective as of the date of
execution hereof and, subject to the termination provisions hereof, shall
extend until terminated as herein provided.
13. Amendments, etc. No amendment, modification, termination or
waiver of any provision of this Agreement, nor consent to any departure by
any party therefrom, shall be of any effect unless in writing and signed by
persons authorized to sign agreements on behalf of the party to be charged,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No notice to or
demand upon either party in any case shall entitle either party to any other
or further notice or demand in similar or other circumstances.
14. No Waivers. No delay or omission by either party hereto in
exercising or enforcing any right or remedy reserved to it, or to require
performance of any of the agreements hereunder, shall be a waiver of any
such right or remedy or affect the right to enforce the performance of any
such agreement. A waiver by either of the parties hereto of any of the
covenants, conditions or agreements to be performed by the other shall not
be construed to be a waiver of any succeeding breach thereof or of any other
covenant, condition or agreement herein contained.
15. Prior Agreements. This Agreement supersedes all prior agreements
between the parties relating to the subject matter hereof.
16. Notices. All notices, demands and other communications required
or permitted to be given or made hereunder or in connection herewith shall
be in writing and shall be deemed duly given, made or sent, and received,
when personally delivered, or on the next succeeding business day when sent
overnight mail via a nationally recognized delivery service (e.g., Federal
Express)), or on the fourth business day next succeeding the day on which
the same is sent by registered or certified mail, postage prepaid, to the
party intended as the recipient thereof at its address specified below, or
at such other address as such party may have provided to the other for such
purpose in a notice complying with the terms of this Section 16.
If to Licensor: Manufacturers and Traders Trust Company
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Fax: 000-000-0000
Phone: 000-000-0000
With a copy to:
Manufacturers and Traders Trust Company
Counsel's Office, 00xx Xxxxx
Xxx X&X Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: IT Attorney
Fax: 000-000-0000
Phone: 000-000-0000
If to Licensee: MTB Group of Funds
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Secretary
Fax: 000-000-0000
Phone: 000-000-0000
17. Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Licensee is not permitted to assign this
Agreement or the license granted hereunder (by operation of law or
otherwise), or any interest herein or therein, without the prior written
consent of the Licensor. Licensor shall have the right to assign this
Agreement (by operation of law or otherwise) and any of its rights
hereunder, including its ownership of the Service Xxxx, and to delegate any
of its duties hereunder, to one or more affiliates or to any transferee of
the business of Licensor, without Licensee's prior written consent.
18. Counterparts. This Agreement may be executed and delivered by
the parties in any number of counterparts, each of which, when so executed
and delivered, shall be deemed to be an original and all of which, taken
together, shall constitute but one and the same instrument.
19. Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
20. Headings. Section headings used herein are for convenience of
reference only, and shall not enter into or affect the interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date
first above written.
MANUFACTURERS AND TRADERS TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Administrative Vice President
MTB GROUP OF FUNDS
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
