exhibit h(4)
SERVICE XXXX LICENSE AGREEMENT
THIS SERVICE XXXX LICENSE AGREEMENT (this "AGREEMENT"), dated as of
December 1, 2005 (the "EFFECTIVE DATE"), by and among Citigroup Inc., a
corporation incorporated in the State of Delaware ("CITIGROUP"), and each
investment company signing this Agreement (on behalf of itself and each series
thereof, as applicable) (each liquidity fund investment company and series, and
trust separately, a "LICENSEE").
WITNESSETH:
WHEREAS, Xxxx Xxxxx, Inc., a corporation incorporated in the State
of Maryland ("XXXX XXXXX") and Citigroup have entered into a Transaction
Agreement, dated as of June 23, 2005 and amended as of the Effective Date (as
amended, the "TRANSACTION AGREEMENT"), under which Citigroup is selling to Xxxx
Xxxxx substantially all of its global asset management business currently
operated as Citigroup Asset Management and Xxxx Xxxxx is selling the PC/CM
Business, including the private client business of Xxxx Xxxxx to Citigroup;
WHEREAS, pursuant to the Amended and Restated Global Distribution
Agreement, between Xxxx Xxxxx and Citigroup, dated as of October 3, 2005 (as
amended, the "DISTRIBUTION AGREEMENT"), Citigroup agreed to distribute through
certain Affiliates of Citigroup the Licensees (including any class, series or
shares of such Licensees) set forth on SCHEDULE A;
WHEREAS, effective as the Closing of the Transaction, an Affiliate
of Xxxx Xxxxx that is wholly-owned by Xxxx Xxxxx serves as the investment
adviser for each Licensee ("ADVISER");
WHEREAS, Citigroup owns all right, title and interest in the Citi
Marks (as defined below), and each Licensee desires a license to use the Citi
Marks and Citigroup is willing to grant such license to each Licensee, on the
terms and subject to the conditions contained herein;
WHEREAS, Citigroup prior to the Effective Date had granted
permission to Licensee to use the Citi Xxxx(s) designated under Licensee's name
in Schedule A (such names and marks that contain or otherwise reference CITI,
the "CITI MARKS"), and Licensee desires a license to continue to use such Citi
Xxxx(s) for a period of time and Citigroup is willing to grant such license to
each Licensee, on the terms and subject to the conditions contained herein;
WHEREAS, pursuant to that certain Service Xxxx License Agreement of
even date hereof between Citigroup and Xxxx Xxxxx, Citigroup is granting Xxxx
Xxxxx a license to use the Citi Marks solely in connection with the investment
advisory services provided by Xxxx Xxxxx or Affiliates thereof to each Licensee
as well as the advertising, marketing, promotion, and distribution of each
Licensee (the "XXXX XXXXX LICENSE"); and
WHEREAS, this Agreement serves as an individual license agreement
between Citigroup and each Licensee.
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NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the Parties hereby agree
as follows:
ARTICLE 1
DEFINITIONS
1.01 DEFINED TERMS. Initially capitalized terms shall have the
meaning respectively ascribed to them herein, including the following terms:
"ADVISER" has the meaning set forth in the Recitals.
"AFFILIATE" means, with respect to any specified Person, any other
Person that at the time of determination, directly or indirectly, through one or
more intermediaries, Controls, is Controlled by, or is under common Control
with, such specified Person.
"AGREEMENT" has the meaning set forth in the first paragraph of this
Agreement.
"BUSINESS DAY" means any day other than a Saturday, Sunday, or a
holiday on which commercial banks in the State of New York are closed.
"CITI MARKS" has the meaning set forth in the Recitals.
"CITIGROUP" has the meaning set forth in the first paragraph of this
Agreement.
"CONTROL" (including its correlative meanings "Controlled by" and
"under common Control with") means the possession, directly or indirectly, of
power to direct or cause the direction of the management or policies (whether
through ownership of securities or partnership or other ownership interest, by
contract or otherwise).
"DISTRIBUTION AGREEMENT" has the meaning set forth in the Recitals.
"EFFECTIVE DATE" has the meaning set forth in the first paragraph of
this Agreement.
"GOVERNMENTAL AUTHORITY" means any federal, national, supranational,
state, provincial, local, or similar government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body, including the Securities and Exchange Commission and
any SRO within or outside the United States.
"INDEMNIFIED PARTY" has the meaning set forth in Article 9 of this
Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Article 9 of this
Agreement.
"LAW" means, with respect to any Person, any domestic or foreign
federal or state statute, law, ordinance, rule, administrative code,
administrative interpretation, regulation, order, consent, writ, injunction,
directive, judgment, decree, policy, ordinance, decision, guideline or other
requirement of (or agreement with) any Governmental Authority (including any
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memorandum of understanding or similar arrangement with any Governmental
Authority), in each case binding on that Person or its property or assets.
"XXXX XXXXX" shall have the meaning set forth in the Recitals.
"XXXX XXXXX LICENSE" shall have the meaning set forth in the
Recitals.
"LICENSE" has the meaning set forth in Section 2.01 of this
Agreement.
"LICENSEE" has the meaning set forth in the first paragraph of this
Agreement.
"NOTICE" has the meaning set forth in Section 10.01 of this
Agreement.
"PERSON" means any individual, corporation, business trust,
partnership, association, limited liability company, unincorporated organization
or similar organization, or any Governmental Authority.
"SRO" means the NASD, the National Futures Association, each
national securities exchange in the United States and each other board or body,
whether United States or foreign, that is charged with the supervision or
regulation of brokers, dealers, commodity pool operators, commodity trading
advisers, futures commission merchants, securities underwriting or trading,
stock exchanges, commodities exchanges, insurance companies or agents,
investment companies or investment advisers.
"TERM" has the meaning set forth in Section 7.01 of this Agreement.
"THIRD PARTY CLAIM" has the meaning set forth in Section 9.01 of
this Agreement.
"TRADEMARKS" means, collectively, whether registered or
unregistered, trademarks, service marks, certification marks, trade dress,
logos, trade names, slogans, designs, URL addresses, internet domain names, and
any similar indicia of source or origin, including the goodwill of the business
symbolized thereby or associated therewith, all statutory and common-law rights
thereto, and all rights therein provided by international treaties and
conventions.
"TRANSACTION AGREEMENT" has the meaning set forth in the Recitals.
1.02 OTHER DEFINITIONAL PROVISIONS. Capitalized terms not otherwise
defined herein have the meaning set forth in the Transaction Agreement. As used
in this Agreement, the words "herein", "hereof", and "hereunder" and other words
of similar import refer to this Agreement as a whole, including the Schedules
hereto, as the same may from time to time be amended or supplemented and not to
any particular subdivision contained in this Agreement. The word "including"
when used herein is not intended to be exclusive, or to limit the generality of
the preceding words, and means "including, without limitation". References
herein to an Article, Section, subsection, clause, or Schedule shall refer to
the appropriate article, section, subsection, clause, or schedule of this
Agreement, unless expressly stated otherwise.
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ARTICLE 2
LICENSE TO LICENSEE OF THE CITI MARKS
2.01 GRANT OF LICENSE. During the Term, and subject to the terms and
conditions of this Agreement and applicable Law, Citigroup hereby grants to
Licensee a non-exclusive, non-transferable (except as otherwise permitted in
Section 10.10), worldwide, fully paid-up and royalty-free, and
non-sublicenseable right and license to use the Citi Marks solely as part of the
name of Licensee as set forth in SCHEDULE A (the "LICENSE").
ARTICLE 3
OWNERSHIP OF THE CITI MARKS
3.01 OWNERSHIP OF CITI MARKS. Licensee acknowledges that as between
Citigroup, on the one hand, and Licensee, on the other, Citigroup is the owner
of the Citi Marks and the goodwill attached thereto. Licensee covenants and
agrees not to challenge the validity, enforceability or Citigroup's or its
Affiliates' ownership of the Citi Marks in any jurisdiction. Licensee shall not
acquire any ownership rights in the Citi Marks. Nothing herein shall be deemed,
intended, or implied to constitute a sale or assignment of the Citi Marks to
Licensee. Licensee agrees that all goodwill from its use of the Citi Marks under
this Agreement shall inure solely to the benefit of Citigroup, and this
Agreement does not confer on Licensee any goodwill or ownership interest in the
Citi Marks.
3.02 NOTICES WITH RESPECT TO CITI MARKS. Licensee acknowledges and
agrees that it shall not create or distribute any materials (whether in written,
electronic, or other form) bearing the Citi Marks.
3.03 AVOIDANCE OF ADVERSE ACTIONS BY LICENSEE. Licensee shall not:
(i) take any action that would disparage or diminish the value or reputation of
the Citi Marks; (ii) either directly or indirectly apply for the registration or
renewal of registration of the Citi Marks or any variation thereon, or any
Trademark which contains or is confusingly similar to the Citi Marks or their
transliteration in any language; (iii) subject to Section 7.02(d) use the Citi
Marks in any jurisdiction after such time that Licensee knows that such use in
such jurisdiction infringes or is credibly alleged to infringe the Trademark
rights or other proprietary rights of another Person (PROVIDED, HOWEVER, that
Citigroup may agree to permit Licensee to continue to use the Citi Marks in such
jurisdiction if Citigroup determines that there are reasonable defenses to such
claim of infringement); or (iv) without Citigroup's prior written consent, which
may in Citigroup's sole good faith discretion be withheld (and Citigroup will
provide Licensee with a written explanation for its disapproval at the time of
such disapproval), combine the Citi Marks with any other Trademark, any prefix
or suffix, or any other modifying word or term, other than as expressly provided
in SCHEDULE A.
3.04 RECORDINGS. In the event Citigroup reasonably deems recordation
necessary, Licensee shall, to the extent it has the power and authority to do
so, reasonably cooperate with Citigroup at Citigroup's sole expense, for
Licensee's reasonable out-of-pocket costs, in connection with the recording of
this Agreement with the appropriate Governmental Authorities and, if necessary,
in the renewal of such recordation, including the prompt execution of all
documents necessary in connection with such recording. To the extent it has the
power and
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authority to do so, Licensee shall provide documents and other information to
Citigroup as reasonably necessary to accomplish such recordation, including by
submitting a revised version of this Agreement in a form necessary, but without
change of substance (except where such change is necessary for purposes of
recordation) hereof, for recordation. At Citigroup's expense, for Licensee's
reasonable out-of-pocket costs, and to the extent it has the power and authority
to do so, Licensee shall cooperate to effect a cancellation or termination of
any recordation of this Agreement with the appropriate Governmental Authorities
upon termination or expiration of this Agreement, but in no event, later than
twenty (20) days following the termination or expiration of this Agreement.
Licensee hereby grants to Citigroup an irrevocable power of attorney coupled
with an interest solely to effect such cancellation.
3.05 DOMAIN NAMES. Licensee represents that it does not own any
Internet domain names containing Citi Marks.
ARTICLE 4
QUALITY CONTROL
4.01 QUALITY OF LICENSEE'S SERVICES. Licensee shall not provide
services under the Citi Marks.
4.02 COMPLIANCE WITH LAW AND GOVERNMENT APPROVALS. Licensee shall,
beginning on the Effective Date, comply with all applicable Laws in connection
with its use of the Citi Marks, its conduct of business under the Citi Marks,
and the performance of any other obligations under this Agreement, to the extent
such non-compliance could reasonably be expected to have an adverse effect on
Citigroup or any of the Citi Marks or the goodwill or reputation associated
therewith. Licensee shall be responsible for the expense of obtaining and
maintaining all licenses, permits, and regulatory approvals which are required
by any Governmental Authority with respect to Licensee's business, if any, and
of complying with any requirements of such Governmental Authorities, including
providing all appropriate notices to investors, if applicable. Without
limitation to the foregoing, in the event that applicable Law prohibits or
restricts or requires expanded use of the Citi Marks hereunder, the License
shall automatically be deemed to be so restricted or expanded, and Licensee
shall comply with such applicable Law, provided that in the event of the
expansion of a License pursuant to this Section 4.02, to the extent it has the
power and authority to do so, Licensee shall (i) immediately notify Citigroup in
writing of such requirement, (ii) use all commercially reasonable efforts, as
requested by Citigroup, to avoid any expansion of such use and still comply with
any applicable Law, and (iii) otherwise cooperate with Citigroup's reasonable
requests to avoid such expansion without violating any applicable Law.
4.03 THIRD PARTY DISTRIBUTORS. Licensee agrees that any third party
distributors of the Funds will be subject to Citigroup's prior written approval,
which approval may be withheld by Citigroup only if Citigroup reasonably
believes such third party distributor would adversely affect Citigroup or any of
the Citi Marks or the goodwill or reputation associated therewith, PROVIDED THAT
the third party distributors of the Funds immediately prior to the Effective
Date shall be deemed approved hereunder.
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ARTICLE 5
INTELLECTUAL PROPERTY PROTECTION
5.01 PROTECTION OF THE CITI MARKS. To the extent it has the power
and authority to do so and is permitted by applicable Law, Licensee agrees, as
Citigroup may reasonably request and at Citigroup's expense, for Licensee's
reasonable out-of-pocket costs, to cooperate with Citigroup or its Affiliates in
the prosecution and elimination of any unauthorized use or infringement of the
Citi Marks. Notwithstanding any other provision of this Agreement, Citigroup
shall have the sole right to control the prosecution and defense of any claim
alleging infringement or other violation of the Citi Marks, PROVIDED THAT to the
extent resolution of any such claim is reasonably likely to have an adverse
impact on Licensee, Citigroup shall consult with Licensee or Xxxx Xxxxx on
behalf of Licensee in connection therewith.
ARTICLE 6
RECORDS; AUDITS AND INSPECTIONS
6.01 MAINTENANCE OF RECORDS. In accordance with federal securities
laws and other applicable Law, Licensee shall maintain accurate books, records,
and accounts, including financial and accounting records, relating to Licensee's
business (such books, records, and accounts, collectively, the "COVERED BOOKS
AND RECORDS").
6.02 RIGHT OF INSPECTION AND AUDIT. On a quarterly basis, and to the
extent permissible under applicable Law and except for the disclosure of
Licensee's holdings at any particular date prior to such disclosure to the
public, Citigroup and its Affiliates, and their officers, employees, and agents,
and regulatory officials with regulatory authority over Citigroup, may perform
reviews, including onsite visits and audits of the Covered Books and Records,
solely to the extent reasonably necessary to ensure that Licensee is not in
material breach of this Agreement. In connection therewith, Licensee shall
provide to such Person, during normal business hours and with reasonable advance
Notice, access to such Covered Books and Records as they or Citigroup may
reasonably request for such purpose.
ARTICLE 7
TERM AND TERMINATION
7.01 TERM. This Agreement (and the rights granted to Licensee
hereunder) shall become effective on the Effective Date and shall endure with
respect to any Licensee until the earlier of the expiration or earlier
termination of the Xxxx Xxxxx License or the expiration or earlier termination
of any applicable rights with respect to such Licensee under the Xxxx Xxxxx
License (the "TERM").
7.02 TERMINATION OF LICENSE. Upon the expiration or earlier
termination of this Agreement (or of a Licensee's rights to use the Citi Marks
hereunder, in which case the following provisions of this Section 7.02 shall
apply only with respect to such Licensee):
(a) Subject to Section 7.02(d), Licensee's License to use the
Citi Marks immediately and automatically shall terminate and all rights
in the Citi Marks granted to Licensee shall revert to Citigroup, and at
Citigroup's request, Licensee shall assign any
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goodwill accrued to Licensee under the Citi Marks, if any, to Citigroup
(the parties acknowledge that no such assignment is necessary or required
with respect to use of the Citi Marks within the United States);
(b) Licensee immediately shall destroy all materials in its
custody and control, if any, utilizing the Citi Marks and provide
confirmation of same to Citigroup, except that Licensee shall be permitted
to keep copies of such materials as may be required by applicable Law and
such additional number of copies as it reasonably deems appropriate for
internal recordkeeping purposes;
(c) Licensee immediately shall take all steps necessary, and
fully cooperate with Citigroup and/or its Affiliates at Citigroup's
request and sole expense, for Licensee's reasonable out of pocket costs,
to cancel any recordation of this Agreement with any Governmental
Authorities;
(d) Notwithstanding the foregoing clauses (a) - (c), Licensee
shall not be required to cease a particular use of the Citi Marks in the
event that such continued use of such xxxx is required by any applicable
Law, PROVIDED THAT Licensee (i) immediately notifies Citigroup in writing
of such requirement, (ii) uses all commercially reasonable efforts to
cease such use and still comply with any applicable Law, and (iii)
cooperates with Citigroup with respect to such efforts to cease use
without violating any applicable Law. For purposes of clarification, the
foregoing shall not relieve Licensee from its obligation to cure a breach
of this Agreement; and
(e) For purposes of clarity, and except as otherwise
prohibited under applicable Law, nothing in this Agreement shall preclude
any good faith uses of the Citi Marks by Licensee that are (i) not in
commerce, (ii) nominative references to Citigroup in a manner that could
generally be made by Licensee with respect to third-party financial
services companies (I.E., not in a manner that states a present or past
affiliation between the Parties or their respective Affiliates (unless and
to the extent required by Law or specifically permitted pursuant to
another agreement between the Parties)), or (iii) factual references to
the Citi Marks in historical and tax records.
7.03 CHANGE OF COMPANY NAME FOLLOWING TERMINATION. Upon expiration
or earlier termination of this Agreement (or of a Licensee's rights to use the
Citi Marks hereunder, in which case the following provisions of this Section
7.03 shall apply only with respect to such Licensee), Licensee shall take all
actions necessary or appropriate to the extent within its control, and cooperate
with Citigroup and its Affiliates, to (x) de-register Licensee's corporate name
that contains Citi Marks, (y) cancel any recordation of this Agreement with
Governmental Authorities, and (z) change its name to a name that does not
include the Citi Marks, or any variation, derivation or colorable imitation
thereof.
7.04 SURVIVAL. Notwithstanding any provisions of this Article
stating otherwise, Sections 3.01, 3.03, 3.04, 7.02, 7.03, and 7.04, and Articles
8, 9, and 10 of this Agreement shall survive any expiration or termination of
this Agreement.
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ARTICLE 8
DISCLAIMER
8.01 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES. CITIGROUP HEREBY
SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR
IMPLIED (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, VALIDITY, REGISTRABILITY, OR NON-INFRINGEMENT
AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE),
REGARDING THE CITI MARKS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
LICENSEE ACKNOWLEDGES THAT THE LICENSE GRANTED IN THIS AGREEMENT AND THE CITI
MARKS, ARE PROVIDED "AS IS."
8.02 EXCLUSION OF LIABILITY. EXCEPT FOR THE PARTIES' INDEMNIFICATION
OBLIGATIONS PROVIDED FOR HEREIN AND EXCEPT IN THE CASE OF A PARTY'S WILLFUL
MISCONDUCT, GROSS NEGLIGENCE OR BAD FAITH BREACH HEREUNDER, NEITHER PARTY NOR
ANY OF ITS AFFILIATES WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE) TO THE OTHER PARTY OR ANY OTHER PERSON FOR
DAMAGES FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
RELATING TO THIS AGREEMENT.
ARTICLE 9
INDEMNIFICATION
9.01 INDEMNIFICATION BY CITIGROUP. Citigroup (as the "INDEMNIFYING
PARTY") hereby agrees to indemnify and hold harmless Licensee, and its
respective directors, officers, employees and agents (collectively, as the
"INDEMNIFIED PARTY") with respect to any Losses incurred, arising from, or based
in any respect on any action, suit, proceeding, claim, demand, investigation or
assessment made or brought by a third party that is unaffiliated with a Party
hereto (each, a "THIRD PARTY CLAIM") of Trademark infringement or dilution, to
the extent arising from the use by Licensee of the Citi Marks as expressly
permitted under this Agreement.
9.02 CLAIMS.
(a) Upon receipt by an Indemnified Party of Notice of a Third
Party Claim with respect to a matter for which such Indemnified Party is
indemnified under this Article 10 which has, or is reasonably expected to,
give rise to a claim for Losses, the Indemnified Party shall as soon as
practicable notify the Indemnifying Party, in writing, indicating the
nature of such Third Party Claim and the basis therefor; PROVIDED,
HOWEVER, that any delay or failure by the Indemnified Party to give Notice
to the Indemnifying Party shall relieve the Indemnifying Party of its
obligations hereunder only to the extent, if at all, that it is prejudiced
by reason of such delay or failure. Such written Notice shall (i) describe
such Third Party Claim in reasonable detail including the sections of this
Agreement which form the basis for such claim; PROVIDED that the failure
to identify a particular section in such Notice shall not preclude the
Indemnified Party
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from subsequently identifying such section as a basis for such claim, (ii)
attach copies of all substantive written evidence thereof and (iii) if
possible, set forth an estimate of the amount of Losses that have been or
may be sustained by an Indemnified Party; PROVIDED that such estimate
shall not be binding or used in place of the actual amount of
Losses subject to this Article IX.
(b) Except for actions involving alleged infringement or
dilution arising from the use of the Citi Marks, the Indemnifying Party shall
have five (5) Business Days after receipt of Notice to elect, at its option, to
assume and control the defense of, at its own expense and by its own counsel,
any such Third Party Claim and shall be entitled to assert any and all defenses
available to the Indemnified Party to the fullest extent permitted under
applicable Law.
(c) If the Indemnifying Party shall undertake to compromise
any such Third Party Claim, it shall promptly, but in any event within ten (10)
Business Days of the receipt of Notice from the Indemnified Party of such Third
Party Claim, notify the Indemnified Party of its intention to do so, and the
Indemnified Party agrees to cooperate fully with the Indemnifying Party and its
counsel in the compromise of any such Third Party Claim; PROVIDED, HOWEVER, that
the Indemnifying Party shall not settle, compromise or discharge, or admit any
liability with respect to, any such Third Party Claim without the prior written
consent of the Indemnified Party (which consent will not be unreasonably
withheld or delayed) unless the relief consists solely of money Losses to be
paid by the Indemnifying Party and includes a provision whereby the plaintiff or
claimant in the matter releases the Purchaser Indemnified Parties or Seller
Indemnified Parties, as applicable, from all liability with respect thereto.
(d) Notwithstanding an election to assume the defense of any
action or proceeding, and except for actions involving alleged infringement or
dilution arising from the use of the Citi Marks, the Indemnified Party shall
have the right to employ separate counsel and to participate in the defense of
such action or proceeding, and the Indemnifying Party shall bear the reasonable
fees, costs and expenses of such separate counsel if the (i) Indemnified Party
shall have determined in good faith that an actual or potential conflict of
interest makes representation by the same counsel or the counsel selected by the
Indemnifying Party inappropriate or (ii) Indemnifying Party shall have
authorized the Indemnified Party to employ separate counsel at the Indemnifying
Party's expense.
(e) The Indemnified Party and Indemnifying Party and their
counsel shall cooperate in the defense of any Third Party Claim subject to this
Article 10, keep such Persons informed of all developments relating to any such
Third Party Claims and provide copies of all relevant correspondence and
documentation relating thereto. All costs and expenses incurred in connection
with the Indemnified Party's cooperation shall be borne by the Indemnifying
Party. In any event, the Indemnified Party shall have the right at its own
expense to participate in the defense of such asserted liability.
(f) Except for actions involving alleged infringement or
dilution arising from the use of the Citi Marks, if the Indemnifying Party
receiving such Notice of a Third Party Claim does not elect to defend such Third
Party Claim pursuant to Section 9.02(a), or does not defend such Third Party
Claim in good faith, the Indemnified Party shall have the right, in addition to
any other right or remedy it may have hereunder, at the Indemnifying Party's
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expense, to defend such Third Party Claim; PROVIDED, HOWEVER, that the
Indemnified Party shall not settle, compromise or discharge, or admit any
liability with respect to, any such Third Party Claim without the written
consent of the Indemnifying Party (which consent will not be unreasonably
withheld or delayed).
(g) Notwithstanding any other provision of this Section 9.02,
in the event a Third Party Claim under this Article 9 is asserted alleging
infringement or dilution arising from the use of the Citi Marks, (i) Citigroup
shall, and shall have the sole right to, defend or otherwise resolve such Third
Party Claim, and (ii) subject to 7.02(d), Licensee shall at Citigroup's request
promptly phase out use of such challenged Citi Xxxx(s) in the relevant
jurisdictions(s) if in Citigroup's reasonable judgment there exists colorable
grounds for such third party claim.
9.03 EXCLUSIONS. Notwithstanding anything contained in this
Agreement to the contrary, in no event shall any Indemnifying Party be obligated
under this Article 10 to indemnify an Indemnified Party otherwise entitled to
indemnity hereunder in respect of any Losses to the extent that such Losses
result from (i) the Indemnified Party's willful misconduct or negligence, (ii)
the Indemnified Party's failure to perform its obligations under this Agreement,
or (iii) the Indemnified Party's violation of Law.
ARTICLE 10
MISCELLANEOUS
10.01 NOTICES. All notices, requests, demands and other
communications required or permitted to be given or made under this Agreement or
in connection with this Agreement ("NOTICE") will be deemed to have been duly
given when delivered by hand, courier or overnight delivery service or, if
mailed, two (2) Business Days after deposit in the mail and sent certified or
registered mail, return receipt requested and with first-class postage prepaid,
or in the case of facsimile Notice, when sent and transmission is confirmed,
and, regardless of method, addressed to the Party at its address or facsimile
number set out below (or at such other address or facsimile number as the Party
furnishes the other Party in accordance with this Section):
If to Citigroup:
Citigroup
000 Xxxxx Xxx.
00xx Xxxxx
Xxx Xxxx, XX 00000
XXX
Attention: Xxxx Xxxxx, Esq.
Assistant Secretary and Chief Trademark Counsel
Facsimile: 0-000-000-0000
If to Licensee:
Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxxxx Xxxxx, 0xx floor
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Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
10.02 RELATIONSHIP BETWEEN THE PARTIES. Nothing contained in this
Agreement will be deemed to be construed by the Parties or any third party as
creating a partnership, an agency relationship or joint venture between the
Parties or any of their respective employees, representatives or agents.
10.03 AMENDMENT AND WAIVERS. No amendment to this Agreement will be
effective unless it is in writing and signed by each Party. Any failure of a
Party to comply with any obligation, covenant, agreement or condition contained
in this Agreement may be waived by the Party entitled to the benefits of the
provision only by a written instrument duly executed and delivered by the Party
granting the waiver, but the waiver or failure to insist upon strict compliance
with such obligation, covenant, agreement or condition will not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure of
compliance.
10.04 SEVERABILITY. In the event that any of the provisions in this
Agreement is determined invalid, void or unenforceable, the provision will be
deemed deleted from this Agreement and the remaining provisions of this
Agreement will continue in full force and effect.
10.05 GOVERNING LAW. The provisions of this Agreement are to be
governed by and construed in accordance with the Laws of the State of New York
applicable to the agreements made and to be performed entirely within the State,
without regard to the conflicts of laws principles of the State.
10.06 JURISDICTION
THE PARTIES IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF
ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE PARTIES IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL COURT. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT THEY
MAY LEGALLY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING. THE PARTIES AGREE THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING WILL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER
JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
10.07 EQUITABLE RELIEF. Licensee acknowledges and agrees that
violation of the provisions of this Agreement may cause Citigroup irreparable
injury not compensable by money damages for which Citigroup may not have an
adequate remedy at law, and if Citigroup institutes an action or proceeding to
enforce the provisions of this Agreement and seeks injunctive or other equitable
relief as may be necessary to enjoin, prevent or curtail any breach thereof,
threatened or actual, then Citigroup shall not be required to prove irreparable
injury, and shall be entitled to such relief without the posting of any bond or
other security.
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10.08 REMEDIES CUMULATIVE. All remedies in this Agreement are
cumulative, in addition to and not in lieu of any other remedies available to a
Party at Law or in equity, subject only to the express limitations on
liabilities and remedies set forth herein.
10.09 ENTIRE AGREEMENT. This Agreement (including all Schedules
hereto), embody the entire agreement of the Parties hereto with respect to the
subject matter hereof and supersede all prior agreements with respect thereto.
The Parties intend that this Agreement shall constitute the complete and
exclusive statement of its terms and that no extrinsic evidence whatsoever may
be introduced in any judicial proceeding involving this Agreement.
10.10 NO ASSIGNMENT. No Party may assign or transfer all or part of
its rights and/or obligations under this Agreement without the prior written
consent of the other Party and any purported assignment without such consent
will be void; PROVIDED, that such prior written consent will not be required in
the event that (i) Licensee or Citigroup sells, transfers, divests or otherwise
disposes of all or substantially all of its business to one or more of its
Controlled Affiliates, or (ii) Citigroup assigns one or more of the Citi Marks
to one or more of its Controlled Affiliates. This Agreement shall be binding on
the successors and permitted assigns of each Party hereto.
10.11 PARTIES. All references herein to "LICENSEE" are to each of
the entities signing this Agreement (and each series thereof), individually, as
if this Agreement were between Citigroup and such individual entity or series.
Any reference in this Agreement to the "PARTIES" or "PARTY" shall mean Citigroup
and such individual Licensee.
10.12 NO THIRD-PARTY BENEFICIARIES. Except as expressly provided
herein, no third party is intended, or shall be deemed, to be a beneficiary of
any provision of this Agreement.
10.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
10.14 FURTHER ASSURANCES AND COOPERATION. Each Party agrees to
execute and deliver such other documents and to take all such other actions as
the other Parties may reasonably request to effect the terms of this Agreement.
10.15 NO STRICT CONSTRUCTION; TABLE OF CONTENTS AND HEADINGS. The
language used in this Agreement shall be deemed to be the language chosen by the
Parties hereto to express their mutual intent and no rule of strict construction
against either Party shall apply to any term or condition of this Agreement. The
table of contents, article and section headings of this Agreement are for
reference purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
10.16 ENFORCEABILITY. The Parties represent that this Agreement has
been duly authorized, executed and delivered by, and constitutes the valid and
legally binding obligations of, such representing Party, enforceable against
such representing Party in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
to general principles of equity, where applicable.
12
IN WITNESS WHEREOF, this Agreement has been duly executed on the
Effective Date.
CITIGROUP INC.
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Assistant Secretary
13
LICENSEES
EACH OF THE ENTITIES (AND SERIES
THEREOF) LISTED ON SCHEDULE A
HERETO
By: /s/ R. Xxx Xxxxxx
-------------------------------
Name: R. Xxx Xxxxxx
Title: President
14
SCHEDULE A
UNITED STATES
CITIFUNDS INSTITUTIONAL TRUST
Citi Institutional Liquid Reserves
Citi Institutional Cash Reserves
Citi Institutional US Treasury Reserves
Citi Institutional Tax Free Reserves
Citi Institutional Enhanced Income Fund
CITIFUNDS PREMIUM TRUST
Citi Premium Liquid Reserves
Citi Premium US Treasury Reserves
CITIFUNDS TRUST III
Citi California Tax Free Reserves
Citi Cash Reserves
Citi Connecticut Tax Free Reserves
Citi New York Tax Free Reserves
Citi Tax Free Reserves
Citi U.S. Treasury Reserves
CITIFUNDS TRUST I
Citi Institutional Money Reserves
15
