TRADEMARK LICENSE AGREEMENT
This
TRADEMARK LICENSE AGREEMENT (this “Agreement”) is made
and effective as of
[ ],
2010 (the “Effective
Date”), by and between Xxxxx Capital Management LLC, a Delaware limited
liability company (the “Licensor”), and Xxxxx
Capital BDC, Inc., a corporation organized under the laws of the State of
Delaware (the “Licensee”) (each a
“party,” and
collectively, the “parties”).
RECITALS
WHEREAS,
Licensee is a newly organized, externally managed, closed-end, non-diversified
management investment company that has filed notice with the Securities and
Exchange Commission that it intends to elect to be treated as a business
development company under the Investment Company Act of 1940, as amended (the
“1940
Act”);
WHEREAS,
Licensor is an affiliate of Xxxxx Capital Incorporated, a Delaware corporation
(“GCI”), which,
together with its affiliates, provides investment management, investment
consultation and investment advisory services;
WHEREAS,
GCI and its affiliates, including GC Advisors LLC, a Delaware limited liability
company (“Adviser”), have used
the xxxx “Xxxxx Capital” (the “Licensed Xxxx”) in
the United States of America (the “Territory”) in
connection with the investment management, investment consultation and
investment advisory services they provide;
WHEREAS,
the Licensee is entering into an investment advisory and management agreement
with Adviser (the “Advisory Agreement”),
wherein Licensee shall engage Adviser to act as the investment adviser to the
Licensee;
WHEREAS,
it is intended that Adviser be a third party beneficiary of this Agreement;
and
WHEREAS,
Licensee desires to use the Licensed Xxxx as part of its corporate name and in
connection with the operation of its business, and Licensor is willing to grant
Licensee a license 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 Licensee,
and Licensee hereby accepts from Licensor, a personal, non-exclusive,
royalty-free right and license to use the Licensed Xxxx solely and exclusively
as a component of Licensee’s own corporate name and in connection with marketing
the
investment
management, investment consultation and investment advisory services that
Adviser may provide to Licensee. During the term of this Agreement, Licensee
shall use the Licensed Xxxx only to the extent permitted under this License, and
except as provided above, neither Licensee nor any affiliate, owner, director,
officer, employee or agent thereof shall otherwise use the Licensed Xxxx or any
derivative thereof in the Territory without the prior express written consent of
Licensor in its sole and absolute discretion and shall not use the Licensed Xxxx
for any purpose outside the Territory. All rights not expressly granted to
Licensee hereunder shall remain the exclusive property Licensor.
1.2. Nothing
in this Agreement shall preclude Licensor or any of its 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 Licensee’s
business in any manner.
ARTICLE
2.
COMPLIANCE
2.1. Quality Control. In
order to preserve the inherent value of the Licensed Xxxx, Licensee agrees to
use reasonable efforts to ensure that it maintains the quality of the Licensee’s
business and the operation thereof equal to the standards prevailing in the
operation of Licensee’s business as of the date of this
Agreement. The Licensee further agrees to use the Licensed Xxxx in
accordance with such quality standards as may be reasonably established by
Licensor and communicated to the Licensee from time to time in writing, or as
may be agreed to by Licensor and the Licensee from time to time in
writing.
2.2. Compliance With Laws.
Licensee 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, marketing, and promotion of the business and shall notify Licensor of
any action that must be taken by Licensee to comply with such law, rules,
regulations or requirements.
2.3. 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
(a) any registrations of, or applications for registration of, marks in the
Territory that do or may conflict with the Licensor’s rights in the Licensed
Xxxx or the rights granted to the Licensee under this Agreement, (b) any
infringements or misuse of the Licensed Xxxx in the Territory by any third party
(“Third Party
Infringement”), or (c) any claim that Licensee’s use of the Licensed Xxxx
infringes the intellectual property rights of any third party in the Territory
(“Third Party
Claim”). Licensor shall have the exclusive right, but not the
obligation, to prosecute, defend and/or settle in its sole discretion, all
actions, proceedings and claims involving any Third Party Infringement or Third
Party Claim, and to take any other action that it deems necessary or proper for
the protection and preservation of its rights in the Licensed Xxxx. Licensee
shall cooperate with Licensor in the prosecution, defense or settlement of such
actions, proceedings or claims.
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ARTICLE
3.
REPRESENTATIONS AND
WARRANTIES
3.1. Licensee
accepts this license on an “as is” basis. Licensee acknowledges that
Licensor makes no explicit or implicit representation or warranty as to the
registrability, validity, enforceability, ownership of the Licensed Xxxx, or as
to Licensee’s ability to use the Licensed Xxxx without infringing or otherwise
violating the rights of others, and Licensor has no obligation to indemnify
Licensee with respect to any claims arising from Licensee’s use of the Licensed
Xxxx, including without limitation any Third Party Claim.
3.2. 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, upon due
authorization, execution and delivery of this Agreement 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 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
4.
TERM AND
TERMINATION
4.1. Term. This Agreement
shall expire if the Adviser or one of its affiliates ceases to serve as investment adviser to
the Licensee. This Agreement shall be terminable by Licensor at
any time and in its sole discretion in the event that Licensor or Licensee
receives notice of any Third Party Claim arising out of Licensee’s use of the
Licensed Xxxx; by Licensor or Licensee upon sixty (60) days’ written notice
to the other party; or by Licensee at any time in the event Licensee assigns
or attempts to assign or sublicense this Agreement or any of Licensee’s rights
or duties hereunder without the prior written consent of Licensor.
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4.2. Upon Termination.
Upon expiration or termination of this Agreement, all rights granted to Licensee
under this Agreement with respect to the Licensed Xxxx shall cease, and Licensee
shall immediately delete the term “Xxxxx Capital” from its corporate name and
shall discontinue all other use of the Licensed Xxxx. For twenty-four
(24) months following termination of this Agreement, Licensee shall specify on
all public-facing materials in a prominent place and in prominent typeface that
Licensee is no longer operating under the Licensed Xxxx, is no longer associated
with Licensor, or such other notice as may be deemed necessary by Licensor in
its sole discretion in its prosecution, defense, and/or settlement of any Third
Party Claim.
ARTICLE
5.
MISCELLANEOUS
5.1. Third Party
Beneficiaries. The parties agree that Adviser shall be a third party
beneficiary of this Agreement, and shall have the rights and protections
provided to Licensee under this Agreement. Nothing in this Agreement,
either express or implied, is intended to or shall confer upon any third party
other than Adviser any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
5.2. Assignment. Licensee
shall not sublicense, assign, pledge, grant or otherwise encumber or transfer to
any third party all or any part of its rights or duties under this Agreement, in
whole or in part, without the prior written consent from Licensor, which consent
Licensor may grant or withhold in its sole and absolute discretion. Any
purported transfer without such consent shall be void ab initio.
5.3. Independent
Contractor. 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.
5.4. 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 (or such other address as the parties may provide to each other by
written Notice):
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If
to Licensor:
Xxxxx
Capital Management LLC
000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Tel.
No.: 000.000.0000
Fax
No.:
Attn:
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If
to Licensee:
Xxxxx
Capital BDC, Inc.
000
Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxxx 00000
Tel.
No.: 000.000.0000
Fax
No.:
Attn:
Chief Executive Officer
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5.5. Governing Law. This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York. The parties unconditionally and
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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.
5.6. Amendment. This
Agreement may not be amended or modified except by an instrument in writing
signed by each party hereto.
5.7. 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.
5.8. 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.
5.9. 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.
5.10. 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.
5.11. 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.
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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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LICENSOR:
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| XXXXX CAPITAL MANAGEMENT LLC | |||
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By:
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| Name: | |||
| Title: | |||
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LICENSEE:
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| XXXXX CAPITAL BDC, INC. | |||
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By:
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| Name: | |||
| Title: | |||
ACKNOWLEDGED
AND AGREED TO
AS OF
_______________________, 2010
| GC ADVISORS LLC | |||
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| By: | |||
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Name:
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Title:
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