LICENSE AGREEMENT
This Agreement is made as of this 20th day of October, 2008, by and between
▇▇▇▇▇▇/▇▇▇▇▇▇ Investments, Inc., a Delaware corporation ("▇▇▇▇▇▇/▇▇▇▇▇▇"), and
▇▇▇ ▇▇▇▇▇▇ Funds Inc., a Delaware corporation ("▇▇▇ ▇▇▇▇▇▇").
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇/▇▇▇▇▇▇ is an investment adviser registered under the
Investment Advisers Act of 1940, as amended (the "Advisers Act");
WHEREAS, ▇▇▇▇▇▇/▇▇▇▇▇▇ uses in commerce and has certain trade name, trademark
and/or service ▇▇▇▇ rights to the designations "▇▇▇▇▇▇/▇▇▇▇▇▇ Investments, Inc."
and "▇▇▇▇▇▇/▇▇▇▇▇▇" (the "▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇");
WHEREAS, ▇▇▇▇▇▇/▇▇▇▇▇▇ owns rights to its use of a proprietary investment
process (the "▇▇▇▇▇▇/▇▇▇▇▇▇ Investment Process") and the ▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇
(such rights, including without limitation, copyright, patent, trademark or
proprietary rights and trade secrets, collectively referred to herein as the
"Property");
WHEREAS, ▇▇▇ ▇▇▇▇▇▇ sponsors, underwrites and distributes a wide array of
unit investment trusts ("UITs");
WHEREAS, ▇▇▇ ▇▇▇▇▇▇ desires to establish one or more UITs that will each
initially invest all or a portion of its assets in securities selected by ▇▇▇
▇▇▇▇▇▇ from a list provided by ▇▇▇▇▇▇/▇▇▇▇▇▇ in accordance with the securities
selection criteria set forth in Exhibit A attached hereto (such UITs are
referred to herein as the "Trusts");
WHEREAS, ▇▇▇ ▇▇▇▇▇▇, on behalf of the Trusts, desires to license the Property
for use in connection with the Trusts; and
WHEREAS, ▇▇▇ ▇▇▇▇▇▇, on behalf of the Trusts, desires to obtain certain
additional services from ▇▇▇▇▇▇/▇▇▇▇▇▇ with respect to the securities included
in the portfolio of a particular Trust; and
WHEREAS, ▇▇▇▇▇▇/▇▇▇▇▇▇ is willing to license the Property to ▇▇▇ ▇▇▇▇▇▇, on
behalf of itself and the Trusts, and is willing to provide the aforesaid
services to ▇▇▇ ▇▇▇▇▇▇, under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Grant of License. (a) Subject to the terms and conditions of this
Agreement, ▇▇▇▇▇▇/▇▇▇▇▇▇ hereby grants to ▇▇▇ ▇▇▇▇▇▇, on behalf of itself and
the Trusts, a nontransferable, limited, non-exclusive license to use and refer
within the United States to the Property solely in connection with the creation,
administration, marketing, promotion and distribution of the Trusts, in such
manner as may be reasonably deemed to be appropriate by ▇▇▇ ▇▇▇▇▇▇ and subject
to the terms hereof. It is expressly agreed and understood that no rights to use
the Property are granted hereunder other than those specifically described and
expressly granted herein.
(b) ▇▇▇▇▇▇/▇▇▇▇▇▇ covenants and agrees that no person or entity other than
▇▇▇ ▇▇▇▇▇▇ shall need to obtain any other license with respect to the Property
in connection with the initial sale of the Trusts or subsequent resales of the
Trusts in the secondary market.
(c) ▇▇▇▇▇▇/▇▇▇▇▇▇ represents and warrants that it has made common law claims
to or otherwise owns all proprietary rights, including, but not limited to,
trade name, trademark and/or service ▇▇▇▇ and trade secrets, in and to the
Property and has the right to license the same to ▇▇▇ ▇▇▇▇▇▇ and the Trusts
pursuant to this Agreement.
Except as otherwise specifically provided herein, ▇▇▇ ▇▇▇▇▇▇ acknowledges
that ▇▇▇▇▇▇/▇▇▇▇▇▇ reserves all rights to the Property, and this Agreement shall
not be construed to transfer to ▇▇▇ ▇▇▇▇▇▇ any ownership right to, or equity
interest in, any of the Property. Such license shall terminate upon termination
of this Agreement.
2. Selection of Securities. During the period commencing on the date set
forth above and ending concurrently with the Initial Term (as defined in Section
5 hereof), ▇▇▇ ▇▇▇▇▇▇ shall provide ▇▇▇▇▇▇/▇▇▇▇▇▇ with reasonable advance notice
of the filing of each registration statement (inclusive of any post-effective
amendments) pertaining to a Trust (each, a "Registration Statement") and,
subject to the foregoing, ▇▇▇▇▇▇/▇▇▇▇▇▇ will provide to ▇▇▇ ▇▇▇▇▇▇ within ten
(10) days of ▇▇▇ ▇▇▇▇▇▇'▇ written request a list of securities in accordance
with the securities selection criteria set forth in Exhibit A in connection with
each Trust. ▇▇▇ ▇▇▇▇▇▇ will then choose the final portfolio of securities (the
"Selected Securities") based upon all information available to it, including,
among other factors, market capitalization and liquidity considerations. Such
Selected Securities will be deposited in the related Trust's portfolio (the
"Portfolio Securities");
In addition, ▇▇▇▇▇▇/▇▇▇▇▇▇ hereby agrees to consult periodically with and
advise ▇▇▇ ▇▇▇▇▇▇ regarding the securities or methodologies used to select the
Portfolio Securities at a time and place mutually agreed upon by the parties.
With the prior consent of ▇▇▇▇▇▇/▇▇▇▇▇▇, which consent will not be unreasonably
withheld, ▇▇▇ ▇▇▇▇▇▇ may permit others associated with the operation, management
or marketing of the Trusts to participate in these consultations. Each party
hereto shall be responsible for all of its own expenses incurred in connection
with this Agreement; provided, that in the event that a representative of
▇▇▇▇▇▇/▇▇▇▇▇▇ incurs travel expenses (i.e., transportation, hotel, meals) in
connection with the above-described activities, ▇▇▇ ▇▇▇▇▇▇ shall reimburse
▇▇▇▇▇▇/▇▇▇▇▇▇ for all such reasonable expenses. Notwithstanding the preceding,
▇▇▇▇▇▇/▇▇▇▇▇▇ is not, and shall not be, obligated to engage in any way or to any
extent in any marketing or promotional activities in connection with the Trusts
or in making any representation or statement to investors or prospective
investors in connection with the marketing or promotion of the Trusts by ▇▇▇
▇▇▇▇▇▇.
3. Proprietary Rights. ▇▇▇ ▇▇▇▇▇▇ acknowledges that the results of the
▇▇▇▇▇▇/▇▇▇▇▇▇ Investment Process are produced, compiled, coordinated, arranged
and prepared by ▇▇▇▇▇▇/▇▇▇▇▇▇ through the application of methods and standards
of judgment used and developed through the expenditure of considerable work,
time and money by ▇▇▇▇▇▇/▇▇▇▇▇▇. ▇▇▇ ▇▇▇▇▇▇ acknowledges that the selection of
the Portfolio Securities results from the application of the ▇▇▇▇▇▇/▇▇▇▇▇▇
Investment Process, which is ▇▇▇▇▇▇/Howard's valuable asset, and ▇▇▇ ▇▇▇▇▇▇
agrees that it will take reasonable measures to prevent any unauthorized use of
the information provided to it concerning the selection, compilation,
coordination, arrangement and preparation of such assets.
[4. Ongoing Services. During the term of this Agreement, ▇▇▇▇▇▇/▇▇▇▇▇▇ shall
provide to ▇▇▇ ▇▇▇▇▇▇, on behalf of the Trusts, the following ongoing
information services with respect to the Portfolio Securities: (i) a quarterly
letter that reviews sector trends and significant events regarding issuers of
Portfolio Securities, (ii) as necessary, notice of and information regarding
announced corporate actions occurring to issuers of Portfolio Securities and
(iii) as necessary, notice and information regarding significant downward price
declines and significant negative credit events regarding issuers of Portfolio
Securities. ▇▇▇ ▇▇▇▇▇▇ acknowledges and agrees that ▇▇▇▇▇▇/▇▇▇▇▇▇ provides
investment advice and recommendations to, and executes portfolio transactions on
behalf of, other clients and its own account, and that such advice and such
transactions may not be consistent with positions taken by ▇▇▇ ▇▇▇▇▇▇ or the
Trusts.]
5. Fees. (a) For the license granted pursuant to Section 1, ▇▇▇ ▇▇▇▇▇▇, on
behalf of each of the Trusts, agrees that each Trust shall pay ▇▇▇▇▇▇/▇▇▇▇▇▇ an
annual fee equal to fifteen basis points (0.[150]%) of the average daily Net
Asset Value of such Trust (the "License Fee"). The trustee of each Trust shall
accrue such fee daily and pay such fee to ▇▇▇▇▇▇/▇▇▇▇▇▇ in quarterly
installments within fifteen (15) days following the end of each calendar quarter
during the term of such Trust. "Net Asset Value" as used in this Agreement shall
mean "current net asset value" as defined in Rule 2a-4 under the Investment
Company Act of 1940 (the "Investment Company Act").
(b) If independently audited financial statements for the Trusts are
prepared, upon request by ▇▇▇▇▇▇/▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ shall provide ▇▇▇▇▇▇/▇▇▇▇▇▇
with such audited financial statements promptly after receipt thereof by ▇▇▇
▇▇▇▇▇▇. ▇▇▇▇▇▇/▇▇▇▇▇▇ may use such audited financial statements to confirm the
accuracy of any one or more calculations of the License Fee. ▇▇▇▇▇▇/▇▇▇▇▇▇ shall
not bear the cost of any such audit. In addition, ▇▇▇▇▇▇/▇▇▇▇▇▇ shall have the
right to audit on a confidential basis the relevant books and records of ▇▇▇
▇▇▇▇▇▇ to confirm the accuracy of any one or more calculations of the License
Fee. ▇▇▇▇▇▇/▇▇▇▇▇▇ shall bear its own costs of any such audit unless it is
determined that ▇▇▇▇▇▇/▇▇▇▇▇▇ has been underpaid by five percent (5%) or more
with respect to the payments being audited, in which case ▇▇▇▇▇▇/Howard's costs
of such audit shall be paid by ▇▇▇ ▇▇▇▇▇▇.
6. Term. The term of this Agreement shall commence as of the date set forth
above (the "Effective Date") and shall remain in full force and effect until the
[fifth] anniversary of the Effective Date, unless this Agreement is terminated
earlier as provided herein (such term being referred to as the "Initial Term").
At the end of the Initial Term, this Agreement shall automatically renew for
successive one-year periods (each, a "Renewal Term") unless a party terminates
the Agreement by providing the other party a written notice to that effect
ninety (90) days prior to the end of the then-current term. The Initial Term and
any Renewal Term are referred to herein as the "Term".
7. Minimum Number of Trusts; Exclusivity; Right of First Refusal. (a) ▇▇▇
▇▇▇▇▇▇ agrees to use commercially reasonable efforts to establish at least one
Trust in each calendar year during the first eighteen months of the Initial
Term, and ▇▇▇▇▇▇/▇▇▇▇▇▇ covenants and agrees that neither ▇▇▇▇▇▇/▇▇▇▇▇▇, nor
anyone acting on its behalf, shall be associated or involved with any UIT
sponsor, distributor or seller in the creation, marketing or sale of any
non-exchange traded UIT selected using parameters substantially similar to those
described in Exhibit A within the United States other than the Trusts during the
period from the Effective Date until eighteen (18) months thereof (the "Initial
Exclusivity Period").
(b) Provided that ▇▇▇ ▇▇▇▇▇▇ is in material compliance with all terms and
conditions contained in this Agreement, ▇▇▇▇▇▇/▇▇▇▇▇▇ covenants and agrees that,
during the Initial Exclusivity Period, neither ▇▇▇▇▇▇/▇▇▇▇▇▇ nor anyone acting
on its behalf shall be associated or involved with anyone in connection with the
creation, administration, management, marketing or sale of any UIT within the
United States unless ▇▇▇▇▇▇/▇▇▇▇▇▇ shall have first promptly delivered a bona
fide written offer to ▇▇▇ ▇▇▇▇▇▇ to act as sponsor, depositor, adviser,
promoter, underwriter or distributor of such a UIT and ▇▇▇ ▇▇▇▇▇▇ shall have
failed to provide a written acceptance of such offer to ▇▇▇▇▇▇/▇▇▇▇▇▇ within 30
days after receipt of such offer.
(c) Nothing contained herein shall limit the right of ▇▇▇▇▇▇/▇▇▇▇▇▇ to
participate in the sponsoring, creation, marketing or promotion of any
exchange-traded funds, closed-end funds, private placements, separately managed
accounts, mutual funds or any product not subject to the registration
requirements under the Investment Company Act, including, but not limited to,
any investment company (as defined in Section 3(a)(1) of the Investment Company
Act, disregarding the provisions of Sections 3(b) and 3(c) thereof).
8. Assignment. Neither of the parties hereto may assign its respective rights
and obligations under this Agreement without the prior written consent of the
other party, except that an assignment to an affiliate shall be permitted solely
upon written notice to the other party.
9. Relationship of the Parties. The parties understand and agree that this
Agreement shall not be deemed to create any partnership or joint venture between
▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇/▇▇▇▇▇▇, and that the services performed hereunder by
▇▇▇▇▇▇/▇▇▇▇▇▇ shall be as an independent contractor and not as an employee or
agent of ▇▇▇ ▇▇▇▇▇▇ or any Trust. Neither party shall have authority whatsoever
to bind the other (or, in the case of ▇▇▇▇▇▇/▇▇▇▇▇▇, any Trust) on any agreement
or obligation and each of the parties agrees that it shall not hold itself out
as an employee or agent of the other (or, in the case of ▇▇▇▇▇▇/▇▇▇▇▇▇, of any
Trust).
10. Termination. (a) ▇▇▇▇▇▇/▇▇▇▇▇▇ may immediately terminate this Agreement
upon a material breach of any representation, warranty or covenant of ▇▇▇ ▇▇▇▇▇▇
that is not remedied within ten (10) business days after written notice.
(b) ▇▇▇ ▇▇▇▇▇▇ may immediately terminate this Agreement upon a material
breach of any representation, warranty or covenant of ▇▇▇▇▇▇/▇▇▇▇▇▇ that is not
remedied within ten (10) business days after written notice thereof.
(c) ▇▇▇▇▇▇/▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ may terminate this Agreement at any time
upon mutual written agreement to that effect.
Any termination under Section 10(a) or (b) shall not limit any other remedies
for breach the non-breaching party may have at law or in equity. Notwithstanding
any provision of this Agreement to the contrary, termination of this Agreement
shall not constitute termination of any Trust. Following any termination,
however, ▇▇▇▇▇▇/▇▇▇▇▇▇ shall receive all fees as they become due with respect to
all then existing Trusts in accordance with Section 5 hereof.
11. Confidentiality. (a) The parties agree that certain material and
information which has or may come into the possession or knowledge of each party
in connection with this Agreement or the performance hereof (e.g., proprietary
business information (including, without limitation, the names and addresses or
other personal information of customers, distributors, information providers and
suppliers)), consists of confidential and proprietary data whose disclosure to
or use by third parties would be damaging. In addition, a party may reasonably
designate, by notice in writing delivered to the other party, other information
as being confidential or a trade secret.
(b) All such proprietary or confidential information of each party hereto
shall be kept secret by the other party to the degree it keeps secret its own
confidential or proprietary information. Such information belonging to any party
shall not be disclosed by another party to its employees, officers, agents,
service providers or affiliates, except on a need-to-know basis, but may be
disclosed by such other party to state, Federal, or other governmental agencies,
authorities or courts as required by law or regulation, or upon their order or
request provided prompt notice of such order or request is given by such other
party to the party to which such information belongs, if such notice is legally
permitted.
(c) No information that would otherwise be proprietary or confidential for
purposes of this Agreement pursuant to subsections (a) or (b) above shall be
subject to the restrictions on disclosure imposed by this Section in the event
and to the extent that (i) such information is in, or becomes part of, the
public domain otherwise than through the fault of a party to which such
information does not belong, (ii) such information was known to such party prior
to the execution of this Agreement, or (iii) such information was revealed to
such party by a third person, and which the receiving party reasonably believes
has been obtained by such third person not in violation of any existing
confidentiality or non-disclosure agreement.
(d) Each party acknowledges and agrees that a breach of this Section would
cause a permanent and irreparable damage for which money damages would be an
inadequate remedy. Therefore, each party shall be entitled to seek equitable
relief (including injunction and specific performance) in the event of any
breach of the provisions of this Section, in addition to all other remedies
available to such party at law or in equity.
(e) The covenants set forth in this Section shall survive the termination of
this Agreement.
12. Covenants. During the period of this Agreement and for as long as any of
the Trusts remains outstanding, each of the parties agrees to:
(a) comply with all codes, regulations and laws applicable to the performance
of its obligations under this Agreement and obtain or have obtained all
necessary permits, licenses and other authorizations necessary for such
performance and maintain its business reputation and good standing;
(b) take such other actions as the other party hereto may reasonably request
to more effectively carry out its obligations under this Agreement; and
(c) do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations, including, but not by way of limitation,
obtaining all consents, approvals, and authorizations, required of such party in
connection with the consummation of the transactions contemplated by this
Agreement. No party shall take any action that would be expected to result in
any of its representations and warranties set forth in this Agreement being or
becoming untrue in any material respect.
In addition, neither party may refer to the other party or any of the other
party's affiliates, in any kind of communications, whether oral, written or
electronic, or otherwise, and whether in a piece published by such party or in
response to questions of the media or others, without the other party's prior
consent, except that such consent shall not be required to the extent that the
content of a communication is substantially similar to information included in
(i) a communication to which the party has previously given consent, (ii) any
Registration Statement or (iii) other publicly available materials produced by
the party that is being referred to or described. Notwithstanding anything to
the contrary in this paragraph, a party may withdraw consent upon reasonable
written notice to the other party. Upon withdrawal of consent, the notified
party may continue to distribute any existing inventories of previously
consented-to printed materials.
13. Indemnification. (a) By ▇▇▇ ▇▇▇▇▇▇. In the event any claim is brought by
any third party against ▇▇▇▇▇▇/▇▇▇▇▇▇ or any of its affiliates that relates to,
arises out of or is based upon the performance by ▇▇▇ ▇▇▇▇▇▇ of its obligations
hereunder (including, but not limited to, the marketing, promotion and
distribution of the Trusts), or the failure of ▇▇▇ ▇▇▇▇▇▇, or any of ▇▇▇
▇▇▇▇▇▇'▇ affiliates, as the case may be, to comply with any law, rule or
regulation relating to the Trusts, or use of the Property by the Trusts, ▇▇▇
▇▇▇▇▇▇, or any of ▇▇▇ ▇▇▇▇▇▇'▇ affiliates, ▇▇▇▇▇▇/▇▇▇▇▇▇ or any of its
affiliates shall promptly notify ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ shall defend such
claim at ▇▇▇ ▇▇▇▇▇▇'▇ expense and under ▇▇▇ ▇▇▇▇▇▇'▇ control. ▇▇▇ ▇▇▇▇▇▇ shall
indemnify and hold harmless ▇▇▇▇▇▇/▇▇▇▇▇▇ or any of its affiliates against any
judgment, liability, loss, cost or damage (including litigation costs and
reasonable attorneys' fees) arising from or related to such claim whether or not
such claim is successful. ▇▇▇▇▇▇/▇▇▇▇▇▇ or any of its affiliates shall have the
right, at their expense, to participate in the defense of such claim through
counsel of their own choosing; provided, however, that ▇▇▇ ▇▇▇▇▇▇ shall not be
required to pay any settlement amount that it has not approved in advance.
Notwithstanding the above, ▇▇▇▇▇▇/▇▇▇▇▇▇ or its affiliates shall not be entitled
to indemnification hereunder to the extent that the judgment, liability, loss,
cost or damage arising from a claim for which indemnification is sought
hereunder results directly or indirectly from the gross negligence or willful
misconduct of ▇▇▇▇▇▇/▇▇▇▇▇▇ or such affiliates.
(b) By ▇▇▇▇▇▇/▇▇▇▇▇▇. In the event any claim is brought by any third party
against ▇▇▇ ▇▇▇▇▇▇, any of the Trusts, or any of ▇▇▇ ▇▇▇▇▇▇'▇ affiliates that
relates to, arises out of or is based upon the performance by ▇▇▇▇▇▇/▇▇▇▇▇▇ of
its obligations hereunder, or the failure of ▇▇▇▇▇▇/▇▇▇▇▇▇ to comply with any
law, rule or regulation, ▇▇▇ ▇▇▇▇▇▇, the Trusts, or ▇▇▇ ▇▇▇▇▇▇'▇ affiliates, as
the case may be, shall promptly notify ▇▇▇▇▇▇/▇▇▇▇▇▇ and, subject to Section 13
herein, ▇▇▇▇▇▇/▇▇▇▇▇▇ shall defend such claim at its expense and under its
control. ▇▇▇▇▇▇/▇▇▇▇▇▇ shall indemnify and hold harmless ▇▇▇ ▇▇▇▇▇▇, the Trusts,
and ▇▇▇ ▇▇▇▇▇▇'▇ affiliates against any judgment, liability, loss, cost or
damage (including litigation costs and reasonable attorneys' fees) arising from
or related to such claim, whether or not such claim is successful. ▇▇▇ ▇▇▇▇▇▇,
the Trusts, or ▇▇▇ ▇▇▇▇▇▇'▇ affiliates, as the case may be, shall have the
right, at their expense, to participate in the defense of such claim through
counsel of their own choosing; provided, however, ▇▇▇▇▇▇/▇▇▇▇▇▇ shall not be
required to pay any settlement amount that it has not approved in advance.
Notwithstanding the above, none of ▇▇▇ ▇▇▇▇▇▇, the Trusts, or any of ▇▇▇
▇▇▇▇▇▇'▇ affiliates shall be entitled to indemnification hereunder to the extent
that the judgment, liability, loss, cost or damage arising from a claim for
which indemnification is sought hereunder results directly or indirectly from
the gross negligence or willful misconduct of ▇▇▇ ▇▇▇▇▇▇, the Trusts, or ▇▇▇
▇▇▇▇▇▇'▇ affiliates.
(c) The indemnifications set forth in this Section 13 shall survive the
termination of this Agreement for any cause whatsoever.
14. Limitation of Damages. (a) ▇▇▇▇▇▇/▇▇▇▇▇▇ shall not be liable to ▇▇▇
▇▇▇▇▇▇, a Trust or any unitholders of the Trusts for any loss or damage
hereunder resulting from ▇▇▇▇▇▇/Howard's actions or omissions to act or
otherwise; provided, however, that the foregoing shall not be effective to the
extent not permitted by law. ▇▇▇▇▇▇/▇▇▇▇▇▇ MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO RESULTS TO BE OBTAINED BY ▇▇▇ ▇▇▇▇▇▇, INVESTORS IN THE TRUSTS, OR
ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SELECTED SECURITIES OR THE
▇▇▇▇▇▇/▇▇▇▇▇▇ INVESTMENT PROCESS OR ANY DATA RELATED THERETO. ▇▇▇▇▇▇/▇▇▇▇▇▇
EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR USE.
(b) Neither ▇▇▇ ▇▇▇▇▇▇ nor ▇▇▇▇▇▇/▇▇▇▇▇▇ shall have any liability to the
other or to any other party for lost profits or indirect, punitive, special or
consequential damages (including lost profits) arising out of this Agreement,
even if advised of the possibility of such damages.
(c) ▇▇▇ ▇▇▇▇▇▇ shall include the statement contained in Exhibit B hereto in
any filing with a governmental agency, and each prospectus and registration
statement (and upon request shall furnish copies thereof to ▇▇▇▇▇▇/▇▇▇▇▇▇), and
▇▇▇ ▇▇▇▇▇▇ expressly agrees to be bound by the terms of the statement contained
in Exhibit B hereto (which terms are expressly incorporated herein by reference
and made a part hereof). Any changes in the statement contained in Exhibit B
hereto must be approved in advance in writing by an authorized officer of
▇▇▇▇▇▇/▇▇▇▇▇▇.
(d) Notwithstanding any provision of this Agreement, and without limiting the
disclaimers set forth in this Agreement (including in Exhibit B hereto), in no
event shall the cumulative liability of ▇▇▇▇▇▇/▇▇▇▇▇▇ to ▇▇▇ ▇▇▇▇▇▇ and its
affiliates (including the Trusts) under or relating to this Agreement at any
time exceed the aggregate amount of License Fee actually received by
▇▇▇▇▇▇/▇▇▇▇▇▇ pursuant to this Agreement.
(e) Notwithstanding anything herein to the contrary, neither ▇▇▇▇▇▇/▇▇▇▇▇▇
nor ▇▇▇ ▇▇▇▇▇▇ shall bear responsibility or liability for any losses arising out
of any delay in or interruptions of performance of their respective obligations
under this Agreement due to any act of God, act of governmental authority, or
act of public enemy, or due to war, the outbreak or escalation of hostilities,
riot, fire, flood, civil commotion, insurrection, labor difficulty (including,
without limitation, any strike, other work stoppage, or slow-down), severe or
adverse weather conditions, power failure, communications line or other
technological failure, or other similar cause beyond the reasonable control of
the party so affected.
(f) This Section 14 shall survive any termination of this Agreement.
15. Warranties. Each party represents and warrants to the other that it has
the authority to enter into this Agreement according to its terms, and that its
execution and delivery of this Agreement and its performance hereunder will not
violate any agreement applicable to it or violate any applicable law or
regulation. ▇▇▇ ▇▇▇▇▇▇ further represents and warrants to ▇▇▇▇▇▇/▇▇▇▇▇▇ that the
issuance, marketing, promotion, sale and resale of the Trusts by ▇▇▇ ▇▇▇▇▇▇ will
not violate any agreement applicable to ▇▇▇ ▇▇▇▇▇▇ or violate any applicable
laws, rules or regulations, including without limitation, securities,
commodities and banking laws.
16. Governing Law. This Agreement shall be interpreted, construed and
enforced in accordance with the laws of the State of New York without reference
to or inclusion of the principles of choice of law or conflicts of law of that
jurisdiction. It is the intent of the parties that the substantive laws of the
State of New York govern this Agreement and not the law of any other
jurisdiction incorporated through choice of law or conflicts of law principles.
▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇/▇▇▇▇▇▇ each agrees that any legal action, proceeding,
controversy or claim between the parties arising out of or relating to this
Agreement may be brought and prosecuted only in the United States District Court
for the Southern District of New York or in the Supreme Court of the State of
New York in and for the First Judicial Department, and by execution of this
Agreement each party hereto submits to the exclusive jurisdiction of such court
and waives any objection it might have based upon improper venue or inconvenient
forum. Each of ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇/▇▇▇▇▇▇ hereby waives any right it may have
in the future to a jury trial in connection with any legal action, proceeding
controversy or claim between the parties arising out of or relating to this
Agreement.
17. Waiver of Breach. The failure of any party to require the performance of
any term of this Agreement or the waiver of any party of any breach hereunder
shall not prevent a subsequent enforcement of such term nor be deemed a waiver
of any subsequent breach.
18. Scope of Agreement. This document constitutes the entire Agreement of the
parties with respect to the subject matter hereof, supersedes all prior oral or
written agreements, and can be amended only by a writing executed by all of the
parties.
19. Survival. Sections 5, 9, 10, 11, 13, 14 and 16 shall survive the
expiration or termination of this Agreement.
20. Notices. All notices from any party to the other pursuant to this
Agreement shall be in writing or by facsimile transmission and shall be sent to
the following addresses, or to such addresses as the parties hereto may be
notified in writing from time to time:
If to ▇▇▇▇▇▇/▇▇▇▇▇▇:
▇▇▇▇▇▇/▇▇▇▇▇▇ Investments, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
If to ▇▇▇ ▇▇▇▇▇▇:
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
With copy to:
▇▇▇ ▇▇▇▇▇▇ Investments Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Office of the General Counsel
Notices shall be deemed given upon receipt via certified mail, overnight
courier, or hand delivery.
21. Severability. In the event that any provision of this Agreement or
application hereof to any person or in any circumstances shall be determined to
be invalid, unlawful, or unenforceable to any extent, the remainder of this
Agreement, and the application of any provision to persons or circumstances
other than those as to which it is determined to be unlawful, invalid or
enforceable, shall not be affected thereby, and each remaining provision of this
Agreement shall continue to be valid and may be enforced to the fullest extent
permitted by law.
22. Conflicts. In the event that any provision in this Agreement conflicts in
any way with the trust agreement governing a particular Trust, the provisions of
the trust agreement in respect thereof shall control.
23. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to
be executed by a duly authorized representative thereof as of the date first
above written.
▇▇▇ ▇▇▇▇▇▇ FUNDS INC.
By _______________
Name
Title
▇▇▇▇▇▇/▇▇▇▇▇▇ INVESTMENTS, INC.
By _______________
Name
Title
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EXHIBIT A
The list provided by ▇▇▇▇▇▇/▇▇▇▇▇▇ to ▇▇▇ ▇▇▇▇▇▇ for its selection of the
portfolio of each Trust will consist of securities issued by small and mid sized
banks, as well as large banks and other financial institutions. When selecting
companies for the portfolio, factors taken into consideration may be attractive
valuation, management quality and customer base, risk capital compared to
regulatory requirement, insider buying and potential candidates for acquisition.
A portion of the portfolio will focus on larger-capitalization stocks that may
be banks or other financial service companies. The emphasis for larger companies
will be on those that do not need to raise capital, that benefit from
governmental interventions in the financial markets, and that have unique
franchises or brands that immunize them to some extent from competition. Their
long-term durability is more important than apparent discount pricing.
EXHIBIT B
▇▇▇▇▇▇/▇▇▇▇▇▇ is not an affiliate of the Sponsor. ▇▇▇▇▇▇/▇▇▇▇▇▇ may use the
applicable list of Securities in its independent capacity as an investment
adviser and distribute this information to various individuals and entities.
▇▇▇▇▇▇/▇▇▇▇▇▇ may recommend or effect transactions in the Securities. This
may have an adverse effect on the prices of the Securities. This also may have
an impact on the price the [Trust product(s)] pays for the Securities and the
price received upon Unit redemptions or [Trust product(s)] termination.
▇▇▇▇▇▇/▇▇▇▇▇▇ may act as agent or principal in connection with the purchase and
sale of equity securities, including the Securities, and may act as a market
maker in the Securities. ▇▇▇▇▇▇/▇▇▇▇▇▇ may also issue reports and makes
recommendations on the Securities. ▇▇▇▇▇▇/Howard's research departments may
receive compensation based on commissions generated by research and/or sales of
Units. The [Trust product(s)] is not sponsored, sold or promoted by
▇▇▇▇▇▇/▇▇▇▇▇▇ and ▇▇▇▇▇▇/▇▇▇▇▇▇ does not determine investor suitability.
Neither ▇▇▇▇▇▇/▇▇▇▇▇▇ nor the Sponsor manage the [Trust product(s)]. You
should note that ▇▇▇▇▇▇/▇▇▇▇▇▇ applied the selection criteria to the Securities
for inclusion in the [Trust product(s)] prior to the Initial Date of Deposit.
After this time, the Securities may no longer meet the selection criteria.
Should a Security no longer meet the selection criteria, we will generally not
remove the Security from the [Trust product(s)]. In offering the Units to the
public, neither the Sponsor nor any broker-dealers are recommending any of the
individual Securities but rather the entire pool of Securities in the [Trust
product(s)] taken as a whole, which are represented by the Units.
