Exhibit 10.123
AMENDMENT NO. 7
TO TRADEMARK LICENSE AND TECHNICAL ASSISTANCE AGREEMENT
This Amendment no. 7, dated December 16, 2004, is to the Trademark
License and Technical Assistance Agreement dated the 1st day of November 1997
(the "Agreement"), by and between Latitude Licensing Corp. ("Licensor") and I.C.
Xxxxxx & Company L.P. ("Licensee" who together with Licensor, are hereinafter
referred to as the "Parties"). Capitalized terms used herein have the meaning
ascribed to them in the Agreement unless otherwise indicated.
WHEREAS, pursuant to conversations that Licensee's management had with
Licensor's management regarding the deferral of a portion of the Minimum
Royalties payable under the Agreement in Calendar Year 2004 (the "2004 Minimum
Royalties") in order to enable the Licensee to finance the lease and build-out
of Licensee's new office and showroom in New York City, Licensee, commencing in
March, 2004, has paid monthly Minimum Royalties to Licensor which, if continued
through the end of 2004, would amount in the aggregate, to $2,250,000, and not
$3,000,000, as required by the Agreement: and
WHEREAS, the Parties desire to make provision for Licensee's payment of
the unpaid portion of those Minimum Royalties, and to amend the Agreement to the
extent set forth herein,
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties agree to amend the
Agreement as follows:
1. Section 5 - Royalties
Section 5.5 of the Agreement is hereby amended by adding the following
to the end thereof:
"Anything elsewhere contained in this Section 5.5 to the contrary
notwithstanding:
(a) the 2004 Minimum Royalties shall be paid, as follows:
(i) the sum of $2,250,000 shall be paid in ten installments,
each in the amount of $225,000, on the first day of each month commencing
in March 2004 and continuing to and including December 2004; and
(ii) subject to the provisions of Section 5.5(c) hereof, the
sum of $750,000 shall be paid in equal installments on the first day of
each month during the 18 month period commencing in July 2005;
(b) subject to the provisions of Section 5.5(c) hereof, the aggregate
amount of the actual Royalties in excess of the 2004 Minimum Royalties
shall be paid in equal installments on the first day of each month during
the 18 month period commencing in July 2005; and
(c) if, at any time prior to the date when Licensee's obligations under
Sections 5.5(a)(ii) and (b) hereof shall be paid in full, the Licensee
shall be entitled, pursuant to the provisions of the agreement that shall
be in effect between Licensee and the provider of its revolving credit
facility during calendar years 2005 and 2006, to pay any Quarterly Payment
Amount (as such term is defined in the amended and restated subordinated
secured promissory note dated May 21, 2002 made by Licensee and delivered
to Textile Investment International S.A. (the "Note")):
(i) Licensee, in lieu of paying such Quarterly Payment Amount
under the Note, shall pay to Licensor all of such amount, or any portion of
such amount that shall not be paid to Licensor pursuant to Amendment no. 9
of even date herewith to the Trademark License and Technical Assistance
Agreement for Women's Collections dated March 4, 1998 between Licensor and
Licensee;
(ii) each such amount so paid shall be credited against and
reduce the aggregate unpaid amount of Licensee's obligations under Sections
5.5(a)(ii) and (b) hereof; and
(iii) any amount paid or payable by Licensee pursuant to the
provisions of this Section 5.5 (c) shall be in addition to, and not in
substitution of, Licensee's obligations pursuant to Sections 5.5(a)(ii) and
(b) hereof."
2. Effective Date
This Amendment no. 7 shall be effective as of the date first written
above.
3. No Defaults; Full Force and Effect
The parties hereby confirm to one another that neither party is in
default to the other in the performance of any of the obligations owed by either
of them to the other. The Agreement, as amended by this Amendment no. 7, shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties, by their duly authorized
representatives, have executed this Amendment no. 7 as of the date first above
written.
LATITUDE LICENSING CORP. I.C. XXXXXX & COMPANY L.P.
By: I.C. Xxxxxx & Company, Inc., its
General Partner
By:
----------------------------
Name:
----------------------------
Title: By:
---------------------------- -----------------------------------------
Xxxxx X. Xxxxx, Chief Executive Officer
Consent
Textile Investment International S.A. ("Textile") hereby agrees that
(i) any part or all of any Quarterly Payment Amount (as such term is defined in
the Note referred to in Section 5.5(c) of the foregoing amendment) that shall
become due, and that Licensee shall be permitted to pay to Textile, pursuant to
the provisions of said Note, may be paid to the Licensor pursuant to Section
5.5(c) of the foregoing amendment; (ii) the failure to make any such payment to
Textile shall not constitute a default under said Note; and (iii) the amount of
such payment shall become a Subsequent Deferred Quarterly Payment (as such term
is defined in said Note) to be paid by the Licensee in accordance with the
provisions of paragraph 2(d)(iii) of said Note.
Dated December 16, 2004
TEXTILE INVESTMENT INTERNATIONAL S.A.,
a Luxembourg corporation
By:
------------------------------------
Xxxx Xxxxx, Managing Director
By:
------------------------------------
Xxx Xxxxxx, Managing Director
