exhibit103.htm - Generated by SEC Publisher for SEC Filing







Exhibit 10.3


 





ETRE FINANCIAL, LLC /ETRE
REIT, LLC TRADEMARK LICENSE AGREEMENT


 


            This ETRE FINANCIAL, LLC /ETRE
REIT, LLC TRADEMARK LICENSE AGREEMENT ("Agreement"), is entered into as of the [●] day of [●] 2014 ("Effective
Date"), by and between the Parties,


 


            ETRE Financial, LLC, a Delaware limited
liability company, having a principal place of business at 44 Wall Street, New
York, NY 10005 ("ETRE Financial"),
and


 


            ETRE REIT, LLC, a Delaware series limited liability company with
offices at 44 Wall Street, New York, NY 10005 ("ETRE REIT",
and together with ETRE Financial, the "Parties"), 


 


and the Parties
agree as follows:


 


A R T I C L E  1

BACKGROUND AND DEFINITIONS 


1.1             
ETRE Financial has
adopted, is using, and is the owner of the Licensed Mark (as defined in Article
1.7) in the United States for financial services.


1.2             
ETRE REIT intends for each of its
Series to elect and qualify as a real estate investment trust under the
Internal Revenue Code of 1986, as amended, and ETRE Financial intends for the
Administrative Agent to act as administrative agent on behalf of each Series of
ETRE REIT. 


1.3             
ETRE REIT
desires to use the Licensed Mark as part of the trade name "ETRE
REIT, LLC" and in connection with the Licensed Services (as defined in
Article 1.9).


1.4             
ETRE Financial desires to license
the Licensed Mark to ETRE REIT to be used as part of a the trade name ETRE
REIT, LLC and in connection with the Licensed Services subject to the terms and
conditions set forth in this Agreement. 


1.5             
"Administrative
Agent" means ETRE Asset Manager, LLC, a Delaware limited liability
company and a subsidiary of ETRE Financial.


1.6             
  "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person or entity, whether
through the ownership of voting securities, by contract or otherwise. 


1.7             
"Licensed Mark"
means the mark ETRE.


1.8             
"Licensed Trade Name"
means the limited liability company name ETRE REIT, LLC and any variation
thereof including the term ETRE that
is used by Licensed Users.


1.9             
"Licensed Services"
means commercial real estate investment products and services offered in the United States by Licensed Users.






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1.10         
"Licensed User"
and "Licensed Users" means ETRE REIT, ETRE REIT's Series  and ETRE
REIT's Subsidiaries.


1.11         
"Operating Agreement"
means the First Amended and Restated Limited Liability Company Agreement of
ETRE REIT, as it may be amended, modified, supplemented or restated from time
to time. 


1.12         
"Series" means a series of ETRE REIT, either
currently existing or designated hereafter pursuant to the Operating Agreement.


1.13         
"Subsidiary"
means any limited liability company, corporation, partnership or other legal
entity:


1.13.1   
more than fifty percent (50%) of
whose shares or outstanding securities (representing the right to vote for the
election of directors or other managing authority) are, now or hereafter,
Controlled, directly or indirectly by a Party hereto, but such entity shall be
deemed to be a Subsidiary for the purposes of this Agreement only so long as
such Control exists; or


1.13.2   
which does not have outstanding
shares or securities, as may be the case in a partnership, joint venture, or
unincorporated association, but more than fifty percent (50%) of whose
ownership interest representing the right to make decisions for such entity is
now or hereafter, Controlled, directly or indirectly by a Party hereto, but
such entity shall be deemed to be a Subsidiary for the purposes of this
Agreement only so long as such Control exists.  


A R T I C L E  2

LICENSE GRANT AND CONDITIONS OF LICENSED USE


2.1             
ETRE Financial hereby grants Licensed Users a nonexclusive,
nontransferable, nonsublicensable, royalty-free license to use and display the
Licensed Trade Name and the Licensed Mark in the United States solely in
connection with the Licensed Services.


2.2             
All use of the Licensed Mark by
Licensed Users, and all goodwill associated with such use, shall inure to the
benefit of ETRE Financial.


2.3             
Licensed Users shall use the
Licensed Mark in a form which is in accordance with sound trademark practice so
as not to weaken the value of the Licensed Mark.  Licensed Users shall use the
Licensed Mark in a manner that does not derogate, based on an objective
business standard, ETRE Financial's rights in the Licensed Mark or the value of
the Licensed Mark, and shall take no action that would, based on an objective
standard, interfere with, diminish or tarnish those rights or value. 


2.4             
The Licensed Mark shall remain the
exclusive property of ETRE Financial and nothing in this Agreement shall give Licensed
Users any right or interest in the Licensed Mark except the licenses expressly
granted in this Agreement.


2.5             
All of ETRE Financial's rights in
and to the Licensed Mark, including, but not limited to, the right to use and
to grant others the right to use the Licensed Mark, are reserved by ETRE
Financial.


2.6             
No license, right, or immunity is
granted by either Party to the other, either expressly or by implication, or by
estoppel, or otherwise with respect to any trademarks, copyrights, or trade
dress, or other property right, other than with respect
to the Licensed Trade Name and the Licensed Mark in accordance with Article 2.1
of this Agreement.




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2.7             
Licensed Users acknowledge that ETRE
Financial is the sole owner of all right, title and interest in and to the
Licensed Mark, and that Licensed Users have not acquired, and shall not
acquire, any right, title or interest in or to the Licensed Mark except the
right to use the Licensed Mark in accordance with the terms of this Agreement.


2.8             
Licensed Users shall not register
the Licensed Mark in any jurisdiction without ETRE Financial's express prior
written consent, and ETRE Financial shall retain the exclusive right to apply
for and obtain registrations for the Licensed Mark throughout the world.


2.9             
Licensed Users shall not challenge
the validity of the Licensed Mark, nor shall Licensed Users challenge ETRE
Financial's ownership of the Licensed Mark or the enforceability of ETRE
Financial's rights therein.  


2.10         
Licensed Users shall designate the
first or a prominent use of the Licensed Mark in all promotional materials, documents,
brochures, and/or manuals with the symbol "SM".


2.11         
Licensed Users agree to cooperate
with ETRE Financial's preparation and filing of any applications, renewals or
other documentation necessary or useful to protect and/or enforce ETRE
Financial's intellectual property rights in the Licensed Mark.


2.11.1   
Licensed Users shall notify ETRE
Financial promptly of any actual or threatened infringements, imitations or
unauthorized uses of the Licensed Mark of which Licensed Users become aware.


2.11.2   
ETRE Financial shall have the sole
right, though it is under no obligation, to bring any action for any past,
present and future infringements of its intellectual property rights in the
Licensed Mark.


2.11.3   
Licensed Users shall cooperate
with ETRE Financial, at ETRE Financial's expense for any out-of-pocket costs
incurred by Licensed Users, in any efforts by ETRE Financial to enforce its
rights in the Licensed Mark or to prosecute third party infringers of the
Licensed Mark. 


2.11.4   
ETRE Financial shall be entitled
to retain any and all damages and other monies awarded or otherwise paid in
connection with any such action.  


2.12         
Quality Control.  In order to promote the goodwill symbolized by the
Licensed Mark, Licensed Users will insure that the Licensed Services shall be
of the same high quality as the services marketed or otherwise provided by ETRE
Financial.


2.12.1   
Licensed Users shall use the
Licensed Mark only in connection with services that meet or exceed generally
accepted industry standards of quality and performance.


2.12.2   
 ETRE Financial shall have the right to monitor the
quality of the services provided and promotional materials used by Licensed
Users, and Licensed Users shall use reasonable efforts to assist ETRE Financial
in monitoring the quality of the services provided and promotional materials
used by Licensed Users.






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2.12.3   
From time to time and upon ETRE
Financial's request, Licensed Users shall submit to ETRE Financial samples of
all materials bearing the Licensed Mark, including, without limitation, any
advertising, packaging and other publicly disseminated materials.


2.12.4   
If ETRE Financial discovers any
improper use of the Licensed Mark on any such submission and delivers a writing
describing in detail the improper use to ETRE REIT, Licensed Users shall remedy
the improper use immediately.  


A R T I C L E  3  


TERM
AND TERMINATION


3.1             
Either Party may terminate this
Agreement by giving the other Party thirty (30) days' prior written notice.


3.2             
This Agreement and all rights and
licenses granted under this Agreement shall terminate as soon as practicable, but
no longer than thirty (30) days, after:


3.2.1       
ETRE REIT is acquired by a third
party; or


3.2.2       
The Administrative Agent  no
longer acts as the administrative agent for any of the Series then existing.


3.3             
In the event that ETRE REIT loses
Control of a Subsidiary, all rights and licenses granted to the former
Subsidiary under this Agreement shall immediately terminate.  In the event that
a Series is terminated pursuant to the Operating Agreement, all rights and
licenses granted to such Series under this Agreement shall immediately
terminate.


3.4             
Upon termination of this
agreement, Licensed Users shall immediately cease use of the Licensed Trade
Name and Licensed Mark as soon as practicable, but no longer than thirty (30)
days, after termination.


A R T I C L E  4

GENERAL PROVISIONS


4.1             
Indemnification.  Licensed Users, at Licensed Users' own expense,
shall indemnify, hold harmless and defend ETRE Financial, its affiliates,
successors and assigns, and its and their directors, officers, employees and
agents, against any claim, demand, cause of action, debt, expense or liability
(including attorneys' fees and costs), to the extent that the foregoing
(a) is based on a claim resulting solely from any service provided or
offered by Licensed Users, (b) results from a material breach, or is based
on a claim that, if true, would be a material breach, of this Agreement by Licensed
Users, or (c) is based upon Licensed Users' unauthorized or improper use
of the Licensed Mark.


4.2             
LIMITATION OF WARRANTY AND
LIABILITY.  ETRE FINANCIAL DOES NOT
MAKE WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, RELATED TO OR ARISING
OUT OF THE LICENSED MARK OR THIS AGREEMENT.


4.2.1       
ETRE FINANCIAL SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, AND/OR TITLE, AND ALL OTHER
WARRANTIES THAT MAY OTHERWISE ARISE FROM COURSE OF DEALING, USAGE OF TRADE OR
CUSTOM.




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4.2.2       
IN NO EVENT SHALL ETRE FINANCIAL OR
ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS OR OTHER
REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES,
OR DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL,
COMPUTER FAILURE OR MALFUNCTION OR OTHERWISE, ARISING FROM OR RELATING TO THIS
AGREEMENT OR THE LICENSED MARK, EVEN IF ETRE FINANCIAL IS EXPRESSLY ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.  The foregoing limitation of liability and
exclusion of certain damages shall apply regardless of the failure of essential
purpose of any remedies available to either party.


4.3             
Non-Transferable Agreement.  Licensed Users may not assign this Agreement and/or
any rights and/or obligations hereunder without the prior written consent of ETRE
Financial and any such attempted assignment shall be void.  


4.4             
Remedies.  Licensed Users acknowledge that a material breach
of Licensed Users' obligations under this Agreement would cause ETRE Financial
irreparable damage.  Accordingly, Licensed Users agree that in the event of
such breach or threatened breach, in addition to remedies at law, ETRE
Financial shall have the right to enjoin Licensed Users from the unlawful
and/or unauthorized use of the Licensed Trade Name and/or the Licensed Mark and
other equitable relief to protect ETRE Financial's rights in the Licensed Mark.


4.5             
Integration.  This Agreement contains the entire agreement of the
Parties.  No promise, inducement, representation or agreement, other than as
expressly set forth herein, has been made to or by the Parties hereto.  All
prior agreements and understandings related to the subject matter hereof,
whether written or oral, are expressly superseded hereby and are of no further
force or effect.


4.6             
Binding Agreement.  This Agreement shall be binding upon the Parties'
permitted assigns and successors and references to each Party shall include
such assigns and successors.


4.7             
Amendment.  This Agreement cannot be altered, amended or
modified in any respect, except by a writing duly signed by both Parties.


4.8             
No Strict Construction.  The normal rule of construction to the effect that
any ambiguities are to be resolved against the drafting Party shall not be
employed in the interpretation of this Agreement. Headings are for reference
and shall not affect the meaning of any of the provisions of this Agreement.


4.9             
Waiver.  At no time shall any failure or delay by either
party in enforcing any provisions, exercising any option, or requiring
performance of any provisions, be construed to be a waiver of same.


4.10         
Governing Law and Jurisdiction.  The provisions of this Agreement shall be governed
by and construed in accordance with the laws of the State of New York (excluding
any conflict of law rule or principle that would refer to the laws of another
jurisdiction).  Each Party hereto irrevocably submits to the jurisdiction of
the state and federal courts located in New York, in any action or proceeding
arising out of or relating to this Agreement, and each Party hereby irrevocably
agrees that all claims in respect of any such action or proceeding must be
brought and/or defended in any such court; provided,
however, that matters which are under the exclusive jurisdiction of the federal
courts shall be brought in the U.S. Federal District Court for the Southern District
of New York.  Each Party hereto consents to service of process by any means
authorized by the applicable law of the forum in any action brought under or
arising out of this Agreement, and each Party irrevocably waives, to the
fullest extent each may effectively do so, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court.




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4.11         
Attorney's Fees.  In the event any suit or other legal proceeding is
brought for the enforcement of any of the provisions of this Agreement, the Parties
hereto agree that the prevailing party shall be entitled to recover from the
other party upon final judgment on the merits reasonable attorneys' fees (and
sales taxes thereon, if any), including attorneys' fees for any appeal, and
costs incurred in bringing such suit or proceeding.


4.12         
Relationship
of the Parties. 
Nothing in this Agreement will be
construed as creating a joint venture, partnership, or employment relationship
between ETRE Financial and ETRE REIT or any of ETRE REIT's Series or Subsidiaries. 
Neither Party will have the right, power or implied authority to create any
obligation or duty on behalf of the other Party.


4.13         
Notices.  Unless otherwise specified in this Agreement, all
notices shall be in writing and delivered personally, mailed, first class mail,
postage prepaid, or delivered by confirmed electronic or digital means, to the
addresses set forth at the beginning of this Agreement and to the attention of
the undersigned.  Either Party may change the addresses or addressees for
notice by giving notice to the other.  All notices shall be deemed given on the
date personally delivered, when placed in the mail as specified or when
electronic or digital confirmation is received.  


4.14         
Counterparts.  This Agreement may be executed in counterparts, by
manual or facsimile signature, each of which will be deemed an original and all
of which together will constitute one and the same instrument.


 


[Signature PageS Follow] 









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IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed as of the
____ day of __________ 2014.


	
  ETRE
  Financial, LLC

  	
  ETRE REIT, LLC

  
	
   

  	
   

  
	
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