TRADEMARK LICENSE AGREEMENT
This TRADEMARK LICENSE AGREEMENT (this "Agreement") is made and
effective as of March 25, 2004 (the "Effective Date") by and between Apollo
Management, L.P. (the "Licensor"), and Apollo Investment Corporation, a
corporation organized under the laws of the State of Maryland ("Corporation")
(each a "party," and collectively, the "parties").
RECITALS
WHEREAS, Licensor is the owner of the trade name "APOLLO" (the
"Licensed Xxxx") in the United States of America (the "Territory").
WHEREAS, Corporation is a newly organized closed-end management
investment company that has elected to be treated as a business development
company under the Investment Company Act of 1940 (the "1940 Act");
WHEREAS, pursuant to that certain investment advisory and management
agreement dated as of March 25, 2004 between Apollo Investment Management L.P.
(the "Adviser"), an affiliate of Licensor, and Corporation (the "Advisory
Agreement"), Corporation has engaged Adviser to act as the investment adviser to
the Corporation; and
WHEREAS, Corporation desires to use the Licensed Xxxx in connection
with the operation of its business, and Licensor is willing to permit
Corporation to use the Licensed Xxxx, 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 1
LICENSE GRANT
1.1 License. Subject to the terms and conditions of this Agreement,
Licensor hereby grants to Corporation, and Corporation hereby accepts from
Licensor, a personal, non-exclusive, royalty-free right and license to use the
Licensed Xxxx solely and exclusively as an element of Corporation's own company
name and in connection with the Corporation. Except as provided above, neither
Corporation nor any affiliate, owner, director, officer, employee, or agent
thereof shall otherwise use the Licensed Xxxx or any derivative thereof without
the prior express written consent of Licensor in its sole and absolute
discretion. All rights not expressly granted to Corporation 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 their respective successors or assigns from using or
permitting other entities to use the Licensed Xxxx whether or not such entity
directly or indirectly competes or conflicts with Corporation's business in any
manner.
Article 2
OWNERSHIP
2.1 Ownership. Corporation acknowledges and agrees that Licensor is the
owner of all right, title, and interest in and to the Licensed Xxxx, and all
such right, title, and interest shall remain with the Licensor. Corporation
shall not otherwise contest, dispute, or challenge Licensor's right, title, and
interest in and to the Licensed Xxxx.
2.2 Goodwill. All goodwill and reputation generated by Corporation's
use of the Licensed Xxxx shall inure to the benefit of Licensor. Corporation
shall not by any act or omission use the Licensed Xxxx 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 3
COMPLIANCE
3.1 Quality Control. In order to preserve the inherent value of the
Licensed Xxxx, Corporation agrees to use reasonable efforts to ensure that it
maintains the quality of the Corporation's business and the operation thereof
equal to the standards prevailing in the operation of Licensor's and
Corporation's business as of the date of this Agreement. The Corporation further
agrees to use the Licensed Xxxx in accordance with such quality standards as may
be reasonably established by Licensor and communicated to the Corporation from
time to time in writing, or as may be agreed to by Licensor and the Corporation
from time to time in writing.
3.2 Compliance With Laws. Corporation agrees that the business operated
by it in connection with the Licensed Xxxx shall comply with all laws, rules,
regulations and requirements of any governmental body in the Territory or
elsewhere as may be applicable to the operation, advertising and promotion of
the business, and shall notify Licensor of any action that must be taken by
Corporation 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 any
Licensed Xxxx, and (ii) any infringements, imitations, or illegal use or misuse
of the Licensed Xxxx in the Territory.
Article 4
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 a corporation duly incorporated
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 charter or by-laws (or similar 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.
Article 5
TERM AND TERMINATION
5.1 Term. This Agreement shall expire (i) upon expiration or
termination of the Advisory Agreement; (ii) if the Adviser ceases to serve as
investment adviser to Corporation; or (iii) by Licensor or Corporation upon
sixty (60) days' written notice to the other party.
5.2 Upon Termination. Upon expiration or termination of this Agreement,
all rights granted to Corporation under this Agreement with respect to the
Licensed Xxxx shall cease, and Corporation shall immediately discontinue use of
the Licensed Xxxx. For twelve (12) months following termination of this
Agreement, Corporation shall specify on all public-facing materials in a
prominent place and in prominent typeface that Corporation is no longer
operating under the Licensed Xxxx and is no longer associated with Licensor.
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.
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 respective parties at the following addresses:
If to Licensor: If to Corporation:
Apollo Management, L.P. Apollo Investment Corporation
1301 Avenue of the Americas 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Tel. No.: (000) 000-0000 Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000 Fax No.: (000) 000-0000
Attn: General Counsel Attn: Chief Compliance Officer
6.4 Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without giving effect to
the principles of conflicts of law rules. 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.
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 when executed shall be deemed to be an original
instrument and all of which taken together shall constitute one and the same
agreement.
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, between 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.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, each party has caused this Agreement to be executed
as of the Effective Date by its duly authorized officer.
ADVISER:
Apollo Management, L.P.
By: AIF III Management, Inc., its
general partner
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
CORPORATION:
Apollo Investment Corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title Vice President and Secretary
