Exhibit 22(h-9)
FORM OF LICENSE AGREEMENT
This License Agreement (this "Agreement") is entered into as of the ____
day of July, 2004, by and between Bank of Hawaii Corporation, a Delaware
("BOHC"), and PACIFIC CAPITAL FUNDS, a Massachusetts business trust (the
"Trust").
WHEREAS, BOHC is the owner of service xxxx registration for the service
xxxx "PACIFIC CAPITAL FUNDS" (Federal Registration No. 1908769); and
WHEREAS, the Trust was organized by Bank of Hawaii, a Hawaii corporation
("BOH"), a banking subsidiary of BOHC (which has at all times since the
organization of the Trust acted as investment adviser to the Trust), and the
Trust has at all times since it began operation in 1993 done business under a
name including the words "PACIFIC CAPITAL FUNDS"; and
WHEREAS, BOHC has at all times since the organization of the Trust
consented to the use of the phrase "PACIFIC CAPITAL FUNDS" (the "Service Xxxx")
in the name of the Trust and/or one or more of the series of shares of
beneficial interest of the Trust (collectively "Series"); and
WHEREAS, the parties wish to enter into a written agreement to confirm the
terms of such use by the Trust and the Series;
NOW, THEREFORE, BOHC and the Trust hereby acknowledge and confirm their
prior understanding and agreement as follows:
1. The Trust hereby acknowledges and agrees that the name "PACIFIC CAPITAL
FUNDS" and, by extension, the Service Xxxx, are valuable proprietary rights of
BOHC and that the Trust has no rights to use such name or Service Xxxx in the
name of the Trust or that of any of its Series except as are provided to the
Trust by BOHC. The Trust shall not in any manner represent that it has any
rights of ownership or use with respect to the name "PACIFIC CAPITAL FUNDS" or
the Service Xxxx except as set forth herein, and acknowledges that all uses of
such name and Service Xxxx by it have inured and shall in the future inure to
the benefit of BOHC.
2. BOHC hereby confirms its grant to the Trust of a non-exclusive,
personal, indivisible, nontransferable and royalty-free license to use the
Service Xxxx in the names of the Trust and/or any one or more of its Series.
BOHC hereby confirms its consent to the qualification of the Trust to do
business under the laws of any state of the United States with the name "PACIFIC
CAPITAL FUNDS" in its name or that of any of its Series and agrees to execute
such formal consents as may be necessary in connection with such qualifications.
3. The Trust hereby confirms its understanding and agreement that BOHC
reserves and retains the right to grant to any other person, including without
limitation any other investment company, the right to use the name "PACIFIC
CAPITAL FUNDS" and the Service Xxxx or variations thereof in its name and no
consent or permission of the Trust shall be necessary for such use; provided,
however, that if required by the applicable law of any state, the
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Trust shall forthwith grant all requisite consents. The Trust further confirms
its understanding and agreement that it shall take such actions as BOHC may
reasonably require to protect the rights of BOHC to such name and Service Xxxx.
4. The Trust hereby confirms its agreement and understanding that (a) the
Trust shall reproduce and include trademark and/or service xxxx symbols and
legends, or other proprietary markings as required by BOHC, whenever the Service
Xxxx is used for any purpose; (b) the Trust shall not use any other trademark,
service xxxx, trade name or logotype in combination with the Service Xxxx
without the prior approval of BOHC; (c) the Trust shall not alter, modify,
dilute or otherwise misuse the Service Xxxx; and (d) the Trust shall not,
without the express prior written consent of BOHC, apply for registration, seek
to obtain ownership, or contest or challenge BOHC's exclusive ownership of the
Service Xxxx or any similar, related or derivative right, in any state or
nation. The provisions of this Section 4 shall survive the expiration or
termination of this Agreement, irrespective of the reasons therefor. The Trust
acknowledges and agrees that the quality of the services provided by the Trust
under the Service Xxxx shall conform to applicable industry standards for the
applicable services and shall be subject to such inspection by BOHC (at such
time or times as BOHC may determine in its sole discretion), upon reasonable
notice to the Trust, of such materials upon which the Service Xxxx appears.
During the term of this Agreement, the Trust shall furnish at the Trust's
expense samples of advertising brochures and other materials bearing the Service
Xxxx for inspection and analysis at least annually, and also as BOHC may
reasonably request.
5. The Trust hereby confirms its agreement, to the fullest extent
permitted by law, to indemnify, protect, defend and hold harmless BOHC from and
against any and all losses, costs, expenses (including without limitation
reasonable attorneys' fees), damages, injuries, liabilities, claims, demands,
penalties or causes of action arising out of or relating to any breach by the
Trust of this Agreement.
6. The Trust hereby confirms that it shall promptly notify BOHC of the
assertion of any claim that the Service Xxxx or the Trust's use thereof
infringes on the trademark, trade name, service xxxx, service name, copyright or
other proprietary right of any other party, and shall cooperate with and
otherwise assist BOHC in the investigation and resolution of any such claim at
BOHC's expense. In addition, the Trust shall promptly notify BOHC of any known
or suspected use of the Service Xxxx by others not duly authorized by BOHC.
Notification of such infringement shall include all details known by the Trust
that would enable BOHC to investigate such infringement. Nothing in this Section
6 shall require BOHC to bring suit for the infringement of the Service Xxxx. The
Trust shall have no right to initiate an action of its own against an alleged
infringer without first obtaining the prior express written approval of BOHC.
The Trust agrees to fully cooperate with BOHC in prosecution of any action
against an infringer, including without limitation the provision of evidence and
testimony in such action. In the event that BOHC should attempt to pursue any
infringer and obtain a recovery from such infringer, whether by adjudication or
settlement, BOHC shall be entitled to retain the entirety of any such recovery
to the exclusion of the Trust. BOHC shall not have any liability for failure to
pursue an infringer.
7. The Trust hereby confirms its understanding that the Trust shall have
no right to grant to any other person a sublicense to use a name containing the
Service Xxxx, and that the
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Trust shall have no right to assign its interest in this Agreement or any part
thereof to any other person without the prior written consent of BOHC, which may
be withheld in the sole and absolute discretion of BOHC.
8. The parties acknowledge their agreement that the license provided to
the Trust hereunder shall terminate and be of no further force or effect at such
time as BOH no longer provides investment advisory services to the Trust or any
of its Series, and that the license provided to the Trust for use by any Series
hereunder shall terminate with respect to such Series and be of no further force
or effect at such time as BOH no longer provides investment advisory services to
such Series. In either such event, the Trust confirms that it shall as promptly
as practicable take such actions as may be necessary to change its name and/or
the names of the Series to names that do not include the name "PACIFIC CAPITAL,"
or infringe or dilute "PACIFIC CAPITAL."
9. This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and may not be amended at any time except
by a writing signed by the parties hereto.
10. All of the terms of this Agreement shall be binding upon, and except
as set forth herein shall inure to the benefit of, the successors and assigns of
the parties.
11. BOHC acknowledges that it has received a copy of the Declaration of
Trust of the Trust dated ______________. BOHC further acknowledges and agrees
that the obligations of the Trust under this Agreement are not binding on any
officers, trustees or shareholders of the Trust individually, but are binding
only upon the assets and properties of the Trust.
12. The invalidity or unenforceability of any term or condition in this
Agreement does not affect the validity of the rest of the Agreement, and all
other terms and conditions remain in full force and effect.
13. This Agreement shall be construed in accordance with the laws of the
State of Hawaii and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws without reference to
the principles of conflicts of law thereof.
14. No failure or delay by either party to exercise, and no course of
dealing with respect to, any right of such party regarding an obligation of the
other party to this Agreement, shall operate as a waiver thereof, unless agreed
to in writing by both parties. Any single or partial exercise by either party of
any of its rights shall not preclude such party from any other or further
exercise of any such right or the exercise of any other right. Any single or
partial exercise by either party of any obligation of the other party under this
Agreement shall constitute a waiver of such obligation only as specified in such
waiver and shall not constitute a waiver of any other obligation.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
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BANK OF HAWAII CORPORATION
_______________________________
By: ___________________________
PACIFIC CAPITAL FUNDS
_______________________________
By: ___________________________
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