FIRST AMENDMENT TO LICENSE AGREEMENT
This First Amendment to License Agreement ("Amendment") is entered into as
of this 10th day of February, 2000, by and between Today's Man, Inc. a
Pennsylvania corporation ("Today's Man") and Xxxxx Shoe, Inc., a Delaware
corporation ("Xxxxx").
R E C I T A L S:
WHEREAS, Today's Man and Shoe Corporation of America, Inc. ("SCOA"), are
parties to a License Agreement dated July 20, 1995 (the "License Agreement")
pursuant to which Today's Man granted SCOA the license to operate shoe
departments in certain of Today's Man stores; and
WHEREAS, pursuant to a voluntary petition filed with the U.S. Bankruptcy
Court, Southern District of Ohio (Eastern Division) ("Bankruptcy Court") on June
14, 1999, SCOA and certain affiliates sought protection under Chapter 11 of
Title 11, United States Code (the "Bankruptcy Code"); and
WHEREAS, pursuant to a certain Asset Purchase Agreement, dated as of
February __, 2000 ("Acquisition Agreement"), by and between SCOA, et al.,
debtors and debtors in possession, as sellers (collectively, "Sellers"), and X.
Xxxxx, Inc., individually and/or through one or more "Permitted Designees" (as
such term is defined in the Acquisition Agreement) (hereinafter, "Purchaser"),
Xxxxx Shoe, Inc. ("Xxxxx"), an affiliate of Purchaser and a Permitted Designee
thereof under the terms of the Acquisition Agreement, has agreed to acquire
substantially all of the assets and business interests of the Sellers
(collectively, the "Acquired Assets"), subject to the terms and conditions
contained in the Acquisition Agreement; and
WHEREAS, subject to the terms and conditions contained in the Acquisition
Agreement, included among the Acquired Assets to be acquired by Purchaser at a
closing under the Acquisition Agreement is the License Agreement; and
WHEREAS, it is a condition to Purchaser's obligation to close and
consummate that transactions contemplated in the Acquisition Agreement that
Today's Man and Xxxxx, as a Permitted Designee of Purchaser, enter into, execute
and deliver the within amendment, inter alia, amending and modifying the terms
and provisions of the License Agreement, with such amendments and modifications
becoming effective as of the occurrence of a closing under the Acquisition
Agreement and as otherwise provided herein; and
WHEREAS, pursuant to a motion dated February __, 2000 ("Sale
Motion"), Sellers have sought the issuance and entry of an order of the
Bankruptcy Court, inter alia, approving the Acquisition Agreement and the
transactions contemplated thereby; and
WHEREAS, Xxxxx and Today's Man desire to amend and modify the terms and
provisions of the License Agreement upon the terms and conditions contained
herein.
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NOW, THEREFORE, premised upon the terms and provisions stated herein, the
parties hereto desiring to be bound hereby, do hereby covenant and agree as
follows:
1. The License Agreement shall be amended as follows:
(a) Section 1.1 License is hereby deleted in its entirety and the
following is hereby substituted in lieu thereof:
"1.1 License. Licensor hereby grants to Licensee represented by
the exclusive right and privilege described herein for the term herein
specified, to operate Shoe Departments for the retail sale of Footwear
in Licensor's Stores as follows: (a) all stores currently operated by
Licensor under the name "Today's Man" as listed on the attached
"Exhibit A" ("Existing Stores") and (b) all stores hereafter opened by
Licensor (or any division, subsidiary, parent or any other affiliated
entity) operated under the Today's Man name which are hereafter added
to Exhibit "A." The stores added to Exhibit "A" pursuant to the
preceding clause (b) are hereinafter referred to individually as an
"Additional Store" and collectively the "Additional Stores" and shall
be included within the definition of "Store" and "Stores"
respectively. Licensor may elect to remove any individual Store on
Exhibit "A" upon at least 180 days prior written notice in the case of
any Store in which Licensor will permanently cease the conduct of
business in which event this Agreement will terminate with respect to
such Store at the end of such 180 day period. It is the intent of both
parties that Licensee shall operate Shoe Departments during the term
of this License Agreement in all of Licensor's Today's Man stores,
provided that such stores operate in a manner consistent with the
Existing Stores. This License Agreement shall apply to all stores
identified in this Section 1.1 without the need for amendment or
future agreement. The parties shall from time to time amend Exhibit
"A" to reflect Additional Stores, and it is agreed that such
amendments shall be solely for convenience of reference and
confirmation of the rights and obligations of the parties hereto. The
absence of such a written amendment shall in no way alter or negate
the applicability of this License Agreement to such Additional Stores.
In each Existing Store the Shoe Department shall consist of the
selling, storage and one half of the contiguous aisle space ("Space")
as presently allocated to the Shoe Departments, as set forth on
Exhibit "A". The Space allocated to the Shoe Department in Additional
Stores shall be approximately 2,000 square feet. In all cases, the
Shoe Department shall be contiguous to softlines at the store. The
location of the Shoe Departments may, upon sixty (60) days written
notice to Licensee be relocated by Licensor, at Licensor's full
expense, provided, however, that such relocation is a comparable space
in the Store at least equal to the space provided for herein."
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(b) Section 2 Term is hereby deleted in its entirety and the following
is hereby substituted in lieu thereof:
"Section 2. TERM.
The initial term of this License Agreement shall commence on
September 1, 1995, and shall expire, unless earlier terminated as
hereinafter provided, on January 31, 2006 (the " Initial Term"). Each
fiscal year of Licensor commencing on February 2 and ending on the
Saturday closest to January 31 of each year thereafter shall
constitute and be referred to herein as an "Annual Period"."
(c) Section 3.2 Handling of Cash and Payment shall be amended by
deleting the words eighty percent (80%) in (ii) of the second
paragraph thereof and inserting the words "ninety percent (90%)" in
lieu thereof.
(d) Section 8.1 Staffing of Shoe Departments shall be amended by
deleting the second sentence thereof in its entirety.
(e) Section 25.4 Early Termination is hereby deleted in its entirety
and all references thereto elsewhere in the Agreement are of no
further force or effect.
(f) A new Section 25.4 shall be added as follows:
"25.4 Obligations Upon Store Closing. If Licensor closes a Store,
or elects to completely liquidate its business and assets and
closes all Stores and conducts a store liquidation or going out
of business sale (either on its own or through an independent
professional liquidator, hereinafter "Store Liquidation"), the
Licensee Fee shall be reduced to eight percent (8%) of Net Sales
during the period of such Store Liquidation."
(g) Section 25.5.1 Obligation to Purchase Fixtures shall be amended by
replacing the reference to Section 1.1(y) with "Section 1.1".
(h) Section 25.5.2 Option to Purchase Fixtures shall be amended by
deleting the parenthetical in (b) thereof.
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(i) As of the Effective Date (as hereinafter defined), notices to
Licensee shall be addressed as follows:
Xxxxx Shoe, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
President, JBI Footwear
With a copy to: General Counsel
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
2. Effectiveness of Amendment. This Amendment shall be deemed automatically
effective on the date of occurrence of a Closing (as such term is defined
in the Acquisition Agreement) under the Acquisition Agreement (the
"Effective Date"); provided, however, in the event a Closing does not occur
under the Acquisition Agreement, then in such event this Amendment shall be
void ab initio and of no further force and effect.
3. Agreement In Full Force and Effect. Except as otherwise modified hereby,
the Agreement, and all of the terms and provisions thereof, shall remain in
full force and effect.
4. Counterparts. This Amendment may be executed in one or more counterparts
which taken together shall constitute one and the same agreement.
5. Binding Effect; Successors and Assigns. This Amendment shall be binding
upon the successors and assigns of each of the parties hereto.
6. Governing Law. This Amendment shall be governed by and interpreted in
accordance with the laws of the State of Pennsylvania.
7. Modification. This Amendment may only be modified by an agreement in
writing executed by each of the parties hereto.
IN WITNESS WHEROF, the parties have executed this Amendment as of the date
first written above.
XXXXX SHOE, INC. TODAY'S MAN, INC.
As Licensee As Licensor
/s/Xxxx X. Xxxxxxxxx /s/Xxxxx X. Xxxxxxx
----------------------------------- ----------------------------------
By: Xxxx X. Xxxxxxxxx, President By: Xxxxx X. Xxxxxxx, EVP & CFO
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