LICENSE AGREEMENT
Exhibit
k.3
This
LICENSE AGREEMENT (this “Agreement”) is made
and effective as of July 14, 2010 (the “Effective Date”) by
and between FULL CIRCLE ADVISORS, LLC, a Delaware limited liability company (the
“Licensor”) and
FULL CIRCLE CAPITAL CORPORATION, a Maryland corporation (the “Company”) (each a
“party,” and
collectively, the “parties”).
RECITALS
WHEREAS,
Licensor is the owner of the trade name “FULL CIRCLE” (the “Licensed
Name”);
WHEREAS,
the Company is a closed-end management investment fund that intends to elect to
be treated as a business development company under the Investment Company Act of
1940, as amended;
WHEREAS,
pursuant to the Investment Advisory Agreement, dated as of July 13, 2010, by and
between the Licensor and the Company (the “Advisory Agreement”),
the Company has engaged the Licensor to act as the investment adviser to the
Company; and
WHEREAS,
the Company desires to use the Licensed Name in connection with the operation of
its business, and the Licensor is willing to permit the Company to use the
Licensed Name, subject to the terms and conditions of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
ARTICLE
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LICENSE
GRANT
1.1 License. Subject
to the terms and conditions of this Agreement, Licensor hereby grants to the
Company, and the Company hereby accepts from Licensor, a personal,
non-exclusive, royalty-free right and license to use the Licensed Name solely
and exclusively as an element of the Company’s own company name and in
connection with the conduct of its business. Except as provided
above, neither the Company nor any affiliate, owner, director, officer,
employee, or agent thereof shall otherwise use the Licensed Name or any
derivative thereof without the prior express written consent of the Licensor in
its sole and absolute discretion. All rights not expressly granted to
the Company hereunder shall remain the exclusive property of
Licensor.
1.2 Licensor’s
Use. Nothing in this Agreement shall preclude Licensor, its
affiliates, or any of its respective successors or assigns from using or
permitting other entities to use the Licensed Name whether or not such entity
directly or indirectly competes or conflicts with the Company’s business in any
manner.
ARTICLE
2
OWNERSHIP
2.1 Ownership. The
Company acknowledges and agrees that Licensor is the owner of all right, title,
and interest in and to the Licensed Name, and all such right, title, and
interest shall remain with the Licensor. The Company shall not
otherwise contest, dispute, or challenge Licensor’s right, title, and interest
in and to the Licensed Name.
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2.2 Goodwill. All
goodwill and reputation generated by Company’s use of the Licensed Name shall
inure to the benefit of Licensor. The Company shall not by any act or
omission use the Licensed Name in any manner that disparages or reflects
adversely on Licensor or its business or reputation. Except as
expressly provided herein, neither party may use any trademark or service xxxx
of the other party without that party’s prior written consent, which consent
shall be given in that party’s sole discretion.
ARTICLE
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COMPLIANCE
3.1 Quality
Control. In order to preserve the inherent value of the
Licensed Name, the Company agrees to use reasonable efforts to ensure that it
maintains the quality of the Company’s business and the operation thereof equal
to the standards prevailing in the operation of the Licensor’s and the Company’s
business as of the date of this Agreement. The Company further agrees
to use the Licensed Name in accordance with such quality standards as may be
reasonably established by Licensor and communicated to the Company from time to
time in writing, or as may be agreed to by Licensor and the Company from time to
time in writing.
3.2 Compliance With
Laws. The Company agrees that the business operated by it in
connection with the Licensed Name shall comply with all laws, rules, regulations
and requirements of any governmental body in the United States of America (the
“Territory”) or
elsewhere as may be applicable to the operation, advertising and promotion of
the business, and that it shall notify Licensor of any action that must be taken
by the Company to comply with such law, rules, regulations or
requirements.
3.3 Notification of
Infringement. Each party shall immediately notify the other
party and provide to the other party all relevant background facts upon becoming
aware of (i) any registrations of, or applications for registration of, marks in
the Territory that do or may conflict with the Licensed Name, and (ii) any
infringements, imitations, or illegal use or misuse of the Licensed Name in the
Territory.
ARTICLE
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REPRESENTATIONS AND
WARRANTIES
4.1 Mutual
Representations. Each party hereby represents and warrants to
the other party as follows:
(a) Due
Authorization. Such party is duly formed and in good standing
as of the Effective Date, and the execution, delivery and performance of this
Agreement by such party have been duly authorized by all necessary action on the
part of such party.
(b) Due
Execution. This Agreement has been duly executed and delivered
by such party and, with due authorization, execution and delivery by the other
party, constitutes a legal, valid and binding obligation of such party,
enforceable against such party in accordance with its terms.
(c) No
Conflict. Such party’s execution, delivery and performance of
this Agreement do not: (i) violate, conflict with or result in the breach of any
provision of the organizational documents of such party; (ii) conflict with or
violate any law or governmental order applicable to such party or any of its
assets, properties or businesses; or (iii) conflict with, result in any breach
of, constitute a default (or event which with the giving of notice or lapse of
time, or both, would become a default) under, require any consent under, or give
to others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of any contract, agreement, lease, sublease, license,
permit, franchise or other instrument or arrangement to which it is a
party.
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ARTICLE
5
TERM AND
TERMINATION
5.1 Term. This
Agreement shall expire upon expiration or termination of the Advisory
Agreement.
5.2 Upon
Termination. Upon expiration or termination of this Agreement,
all rights granted to the Company under this Agreement with respect to the
Licensed Name shall cease, and the Company shall immediately discontinue use of
the Licensed Name.
ARTICLE
6
MISCELLANEOUS
6.1 Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Neither party
may assign, delegate or otherwise transfer this Agreement or any of its rights
or obligations hereunder without the prior written consent of the other
party. No assignment by either party permitted hereunder shall
relieve the applicable party of its obligations under this
Agreement. Any assignment by either party in accordance with the
terms of this Agreement shall be pursuant to a written assignment agreement in
which the assignee expressly assumes the assigning party’s rights and
obligations hereunder. Notwithstanding anything to the contrary contained in
this Agreement, the rights and obligations of the Company under this Agreement
shall be deemed to be assigned to a newly-formed entity in the event of the
merger of the Company into, or conveyance of all of the assets of the Company
to, such newly-formed entity; provided, further, however, that the
sole purpose of that merger or conveyance is to effect a mere change in the
Company’s legal form into another limited liability entity.
6.2 Independent
Contractor. Except as expressly provided or authorized in the
Advisory Agreement, neither party shall have, or shall represent that it has,
any power, right or authority to bind the other party to any obligation or
liability, or to assume or create any obligation or liability on behalf of the
other party.
6.3 Notices. All
notices, requests, claims, demands and other communications hereunder shall be
in writing and shall be given or made (and shall be deemed to have been duly
given or made upon receipt) by delivery in person, by overnight courier service
(with signature required), by facsimile, or by registered or certified mail
(postage prepaid, return receipt requested) to the other party at its principal
office.
6.4 Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts formed and to be performed entirely
within the State of New York, without regarding the conflicts of law principles or rules thereof, to the
extent such principles would require to permit the applicable of the laws of
another jurisdiction. The parties unconditionally and irrevocably consent
to the exclusive jurisdiction of the courts located in the State of New York and
waive any objection with respect thereto, for the purpose of any action, suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
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6.5 Amendment. This
Agreement may not be amended or modified except by an instrument in writing
signed by all parties hereto.
6.6 No
Waiver. The failure of either party to enforce at any time for
any period the provisions of or any rights deriving from this Agreement shall
not be construed to be a waiver of such provisions or rights or the right of
such party thereafter to enforce such provisions, and no waiver shall be binding
unless executed in writing by all parties hereto.
6.7 Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any law or public policy, all other terms and provisions of
this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby are consummated as originally contemplated to the greatest extent
possible.
6.8 Headings. The
descriptive headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
6.9 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, and all of which together shall be deemed to be one
and the same instrument. Any party may deliver an executed copy of
this Agreement and of any documents contemplated hereby by facsimile or other
electronic transmission to another party and such delivery shall have the same
force and effect as any other delivery of a manually signed copy of this
Agreement or of such other documents.
6.10
Entire
Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
agreements and undertakings, both written and oral, among the parties with
respect to such subject matter.
6.11
Third-Party
Beneficiaries. Nothing in this Agreement, either express or
implied, is intended to or shall confer upon any third party any legal or
equitable right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
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IN
WITNESS WHEREOF, each party has caused this Agreement to be executed as of the
Effective Date by its duly authorized officer.
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FULL
CIRCLE CAPITAL CORPORATION
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By:
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/s/ Xxxx X. Xxxxxx | ||
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Name:
Xxxx X. Xxxxxx
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Title:
President and Chief Executive
Officer
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FULL
CIRCLE ADVISORS, LLC
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By:
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/s/ Xxxx X. Xxxxxx | ||
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Name:
Xxxx X. Xxxxxx
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Title:
Managing Member
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