MERCHANDISING LICENSE AGREEMENT
Date: as of June 2, 1999
Property: World Championship Wrestling
License No.: D993287
WCW LICENSEE
WORLD CHAMPIONSHIP WRESTLING, INC. TRIMFAST GROUP, INC.
Xxx XXX Xxxxxx 000 Xxxxx Xxxxxxx Xxxxxx Blvd., #000
x0xx Xxxxx, Xxxxx Xxxxx Xxxxx, XX 00000
Xxxxxxx, Xxxxxxx 00000-0000
Contact: Xxxxxxx X. Xxxxx
Tel: 8l3-275-0050
Fax: 000-000-0000
This Agreement is made as of the date specified above between WCW on
behalf of itself and its parent, subsidiaries and affiliates (the foregoing
collectively, "Related Entities") and Licensee, whereby WCW grants Licensee a
license to utilize certain names, likenesses, characters, trademarks and/or
copyrights in connection with the manufacture, distribution, advertising,
promotion and sale of certain articles of merchandise on the following terms and
conditions:
1. Licensed Elements: See Schedule "1" attached below.
2. Authorized Articles: Trimfast Energy Bars (WCW Bars) in 3 flavors:
chocolate, chocolate chip; chocolate peanut butter;
and Passion fruit
Licensee is limited to the foregoing Authorized Articles as
currently manufactured by Licensee with the ingredients set
out in Exhibit A*. Licensee has provided WCW with a complete
list of its entire current product line. Licensee shall from
time to time provide WCW with an updated list of its current
product line. In the event WCW objects to any products being
produced or sold by Licensee, Licensee shall discontinue
production and sale of such products within sixty (60) days of
notice by WCW or WCW may terminate this Licensee agreement
immediately without recourse.
*(Exhibit A)
Ingredients: High fructose, corn syrup, chocolate coating
(contains turbinado sugar, fractionated vegetable oils,
non-fat dry mild, cocoa, soy lecithin, and salt), cocoa
powder, chocolate chips, calcium, etc.
3. Licensed Territory: U.S., its territories and possessions & U.S. Military
Installations
The Authorized Articles may only be distributed in the Licensed Territory.
Licensee shall impose the obligation on its customers to sell the
Authorized Articles only within the Licensed Territory and shall not
knowingly sell Authorized Articles to persons or entities whom Licensee
knows, or reasonably should know, intend to resell or
7. Advance/Guarantee: Advance: $50,000 (already received)
Balance of
Guarantee: $500,000
Total of Guarantee: $550,000 (includes advance)
The non-refundable Advance of $50,000 is payable in full concurrently with
WCW's receipt of copies of this Agreement (without amendments or
modifications) signed by Licensee, which in any event will be not later
than the date fourteen (14) days after Licensee receives copies of this
Agreement for signature.
The balance of the Guarantee is payable in installments as follows:
$100,000 due no later than 12/31/99
$100,000 due no later than 6/30/00
$100,000 due no later than 9/30/00
$100,000 due no later than 12/31/00
$100,000 due no later than 6/30/01
(All references to "Dollar(s)" and/or "$" anywhere in this Agreement will
refer to United States Dollars.)
8. Marketing Date: Marketing of each of the Authorized Articles will begin no
later than October 1, 1999.
9. Shipping Date: Shipment to retailers of each of the Authorized Articles
will begin no later than November 1, 1999.
10. Authorized Channels of Distribution: Mass Markets, Chain Stores, Specialty
Stores
The Authorized Articles may only be distributed through the Authorized
Channels of Distribution within the Licensed Territory. Licensee shall
impose the obligation on its customers to sell the Authorized Articles
only through the Authorized Channels of Distribution and shall not
knowingly sell Authorized Articles to persons or entities whom Licensee
knows, or reasonably should know, intend to resell or are likely to resell
the Authorized Articles outside of the Authorized Channels of
Distribution. Authorized Articles may not be sold within 500 feet of any
WCW event.
The Authorized Articles may only be distributed through the Authorized
Channels of Distribution within the Licensed Territory. In the event the
Authorized Articles are permitted for distribution to retail outlets
located at or within 500 feet of a WCW event venue, Licensee shall impose
the obligation on the retail outlets not to sell any of the Authorized
Articles on the day of any WCW sponsored events at such venue. Licensee
shall impose the obligation on its customers to sell the Authorized
Articles only through the Authorized Channels of Distribution and shall
not knowingly sell Authorized Articles to persons or entities whom
Licensee knows, or reasonably should know, intend to resell or are likely
to resell the Authorized Articles outside of the Authorized Channels of
Distribution.
11. Sell-off Period: 90 days
12. Form of Copyright and Trademark Notice: Each Authorized Article shall bear
copyright and trademark notices in the following form (or in such other
form as WCW may hereafter designate, for prospective implementation, by
notice to Licensee):
Trademark: WCW(tm) and NWO(c) are trademarks of World Championship
Wrestling, Inc.
All characters depicted, are trademarks of or used under
License to World Championship Wrestling Inc.
13. Notices: Payments and statements to WCW shall be made or given to agent,
Leisure Concepts Inc. (WCW's Agent) at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000 attn: Accounting Department. All other notices to WCW shall
be sent to WCW at the Atlanta address specified on the first page of this
Agreement, with a copy to the same address, Attention: Legal Department.
14. Standard Terms: The attached "Exhibit `A' (Standard Terms and Conditions)
are incorporated by this reference into the terms of this Merchandising
License Agreement (collectively referred to herein as "Agreement"). If any
provision set forth above in this Agreement conflicts (or is construed to
conflict) with any provision of the Standard Terms and Conditions, the
provisions hereinabove set forth will control.
15. Credit Terms: Execution of this Agreement by WCW is contingent upon WCW's
satisfaction with Licensee's financial ability to fulfill the Guarantee
stated herein. To this end, Licensee agrees to furnish any financial
information requested by WCW to confirm Licensee's credit status. If
deemed necessary by WCW, Licensee shall furnish a first priority lien and
security interest, a letter of credit, or any other such acceptable form
of security to cover the Guarantee. Licensee agrees to comply with WCW's
request(s) pursuant to this Paragraph before and during the entire term of
this Agreement.
16. Special Terms: If Authorized Articles are not marketed within 90 days of
the Shipping Date, WCW may remove the rights of those items.
If the forgoing proposal meets with the approval of Licensee, please sign
and return this proposal to WCW. Upon execution by WCW, this document will
be a binding agreement between Licensee and WCW as of the date first above
written.
WORLD CHAMPIONSHIP WRESTLING, INC. TRIMFAST GROUP, INC.
("WCW" ) ("Licensee")
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
------------------------- --------------------
Title: Director of Licensing Title: C.E.O.
---------------------- ------------------
SCHEDULE "1"
1. "Licensed Elements" means only the names and static visual likenesses of
the following specific fictional characters, only as depicted in the
entertainment properties defined below as the "Program(s)" (excluding
dialogue, storylines and plot elements from the Pictures, except as
specifically agreed in writing and in advance by WCW). It is specifically
understood and agreed that the character names, likenesses and other
elements referred to above (including, if applicable, the names of actors,
voice-over artists, and/or other elements listed in this Schedule "1") are
included within the definition of "Licensed Elements" (i) only to the
extent of WCW's ownership or control thereof, and (ii) only as
specifically depicted in and as part of the Program(s). Licensee
understands and acknowledges that nothing herein grants Licensee the right
to use sound bites, voices, music, or other audio effects from the
Program(s). If Licensee wishes to use any such elements, Licensee must
separately' procure the necessary rights, and any rights, clearance or
related fees arising from same shall be at Licensee's sole expense. WCW
reserves the right to amend the list of Licensed Elements from time to
time to keep the list current with WCW licensing rights.
PROGRAM(S) LICENSED ELEMENTS
WORLD CHAMPIONSHIP WRESTLING
All WCW & NWO Logos
All WCW & NWO Slogans
Xxxxx, Xxxxx
Xxxxx, Xxxxx
Xxxxxxxx, Xxx
Xxxxxxxxx, Xxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxxx, Xxxxx
Xxxx
Xxxxxxx, Xxxxxx
Barbarian
Xxxxxx, Xxxxx
Xxx Xxx Xxxxxxx
Xxxxxxxx, Xxxx
Blaze, Xxxxx
Blitzkrieg
Xxxxx, Xxx
Chastity
Ciclope
Xxxxxx
Xxxxxx, Xxxxx
Xxxxxx, JJ
Disciple
Disco Inferno
Disorderly Conduct (Xxx)
Disorderly Conduct (Xxxx)
DJ Ran (DJ)
Xxxxxx, Jr., Xxxxx
Xxxxx, Xxxxx
Xx Xxxxx
Xxxxxxxxx, Xxxx
Xxxxxxx, Xxxx
Xxxxxx, Xxxx
Xxxxxxx
Xxxxx, Xxxxxx
Xxxxxxxx, Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx
Xxxxxxxx, Xxxxx Jr.
Xxxxxxxx, Xxxxx
Xxxxxxx Xxx Xxxxxx
Xxxx, Xxxxx
Xxx
Xxxx, Xxxxx
Xxxxxx, Xxxx
Xxxxxxx, Xxxx
Xxxxxx Xxxx - Xxxxxx T
Xxxxxx Xxxx - Stevie Xxx
Xxxx, Xxxx "The Hitman"
Xxxx, Xxxxx
Xxxxx, Xxxxx
Xxxxxx, Xxxxx (Announcer)
Xxxxxx, Xxxx
High Voltage -Rage
High Voltage - Kaos
Xxxxx, Hollywood
Xxxxxx
Xxxxxxxx, Xxxxx
Xxxxxx, Xxxxx (Announcer)
Ice Train
Jakes
Xxxxxxx, Xxxx (NWO Referee)
Kanyon
Xxx
Xxxxxx, Xxx
Xxxxxx, Xxxxx
Knobs
Xxxxxx
Xxxxxxxx, Xxxx
Xxxx, Xxxxx
Xx Xxxxx
XxXxx, Xxxx
Xxx Xxxxx
Lizmark, Jr.
Lodi
Xxxxxx
Xxxxxxx, Xxxx
Xxxxxx X
Xxxx
Xxxxxx, Xxxxxx
Xxxxxxxx, Xxxxx
Xxxxx, Xxxxxxx
Xxxxxx, Xxxx
Nitro Girls -- Fyre
Nitro Girls -- AC Jazz
Nitro Girls -- Storm
Xxxxxx, Xxxxxxxx - Trainee
Xxxxxx, Xxxxx
NWO Sting
Xxxxxxxx, Mean Gene (Announcer)
Onoo, Xxxxx
Xxxx, Xxxxxxx Dallas
Xxxxxxx, Xxxx (Referee)
Xxxxx, Xxxxx
Xxxxx, Xxxxx
Xxxxxx Xxxxxx
Psychosis
Public Enemy (Xxxxx Xxxx)
Public Enemy (Xxxxxx Xxxxxx)
Putski, Xxxxx
Xxxxxxxx, Xxxx (Announcer)
Raven
Regal, Xxxxxx
Xxxxx, Xxx
Xxxxx, Xxxxxx
Saturn
Savage, Xxxxx
Xxxxxxxxx, Xxxx (Announcer)
Sick Boy
Silver King
Smiley, Xxxxxx
Xxxxxxx, Xxxx
Xxxxxxx, Xxxxx
Sting
Xxxxxxxx, Xxxxx
Swinger, Xxxxxx
Xxxxx
Xxxxx, Xxxxx
Xxxxx, Xxxx (Announcer)
Xxxxxxx, Xxxx
Xxxxxx Xxxxxx
Xxx Xxxxxx
Vicious, Xxx
Xxxxxxx XX
Xxxxxxx V
Xxxxxxx
Xxxxxx, Xxxxx
Wallstreet, Xxxxxxx
Xxxxx, Xxxx
Xxxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxxxxx. Xxxxx
Wrath
Xxxxxx, Xxxx
Xxxxxxxxx, Xxxxx
EXHIBIT "A"
MERCHANDISING LICENSE AGREEMENT
STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions shall be deemed fully incorporated in
the License Agreement ("Underlying Agreement") to which this Exhibit "A" is
attached, and these Standard Terms and Conditions and the Underlying Agreement
shall hereinafter be collectively referred to as the "Agreement." All terms
shall, unless expressly provided to the contrary herein, have the same
respective meanings as set forth in the Underlying Agreement. Unless expressly
provided to the contrary herein, to the extent that any provision of these
Standard Terms and Conditions conflicts with any provision of the Underlying
Agreement, the Underlying Agreement shall control.
A-l LICENSE
WCW hereby grants to Licensee, and Licensee hereby accepts, a license to
utilize the Licensed Elements upon or in connection with the Authorized
Articles, for the purpose of the manufacture, distribution, advertising,
promotion and sale of the Authorized Articles in the Licensed Territory during
the License Period, upon and subject to all of the terms and conditions of this
Agreement. Any and all rights not expressly granted to Licensee hereunder are
expressly reserved by WCW and may be exercised and exploited freely by WCW at
any time, and Licensee covenants and agrees that it shall not exercise, or
authorize or permit others to exercise, any rights with respect to the Licensed
Elements other than the limited and specific rights licensed hereunder. It is
understood that the license granted hereunder relates to the sale of Authorized
Articles and does not grant Licensee any rights with respect to the use of the
Licensed Elements in connection with premium promotions or other giveaways.
A-2 PAYMENT AND ACCOUNTINGS
(a) Royalty. Licensee shall pay to WCW's Agent a royalty as specified in
the Underlying Agreement with respect to all Net Sales of Authorized Articles.
"Net Sales" shall mean gross sales by Licensee or any of its affiliated,
associated or subsidiary companies, without any deductions whatsoever
(including, without limitation, freight, taxes, uncollectible accounts,
manufacturing, distribution, advertising, marketing or promotion costs with the
exception of trade quantity discounts only), except for actual returns. Credit
against sales shall be allowed only for actual returns and shall not be allowed
on the basis of an accrual or reserve system. Net Sales for each Authorized
Article shall be computed on no less than Licensee's regular, full,
"top-of-the-line" gross wholesale invoice price calculated at source in the
Licensed Territory, based upon the usual billing price for items sold in the
normal course of business ("Royalty Base Price"). The foregoing royalty shall be
payable on all Authorized Articles distributed by Licensee, including Authorized
Articles not billed, except for a reasonable number of samples which may be
given away to the trade in the normal course of business.
(b) Advance and Guarantee. Licensee shall pay to WCW's Agent the Advance
and Guarantee in accordance with the payment schedule specified in the
Underlying Agreement. The Advance and installments of the balance of the
Guarantee constitute a non-refundable advance against royalties to be earned as
provided above. The total Guarantee shall be deemed accrued to WCW's account as
of the date of this Agreement.
(c) Monthly Statements. Not later than thirty (30) days after the initial
shipment of the Authorized Articles and promptly on the 15th day of every month
thereafter during the License Period, Licensee shall furnish to WCW's Agent
complete and accurate statements (certified to be accurate by Licensee) showing
the product and style number, description, unit sales, Royalty Base Price, gross
sales and Net Sales of each and every Authorized Article covered by this
Agreement. All statements shall be prepared by Licensee utilizing the form
attached as Exhibit "B" hereto and incorporated by reference, as said form may
be revised from time to time by WCW. Royalty reports shall be prepared
separately for each country within the Licensed Territory, and shall include a
product sales breakdown by style number, which indicates clearly which of the
Licensed Elements were utilized in connection with each Authorized Article,
including a breakdown for each Licensed Element, by character. Reporting will be
completed in such a manner, and in sufficient detail, to enable WCW to separate
royalties by the respective elements used; including, without limitation, the
contract number present in the upper left-hand corner of the first page of this
contract.
(d) Royalty Payments. Royalty payments due hereunder shall be paid not
later than thirty (30) days after the end of each calendar month and such
payments shall accompany the statements required above. Licensee shall also
include the contract number, present in the upper left-hand corner of the first
page of this contract, on the face of the royalty check. If the License Period
is extended beyond the term specified in Paragraph 4 of the Underlying
Agreement, royalty payments which exceed the total Guarantee shall not be
credited toward any similar guarantee which is payable with respect to the
extension period. All payments shall be in U.S. funds. Licensee shall pay, and
hold WCW forever harmless from, all taxes, customs, duties, levies, imposts or
any other charges now or hereafter imposed or based upon the manufacture,
delivery, license, sale, possession or use hereunder to or by Licensee of the
Authorized Articles or the Licensed Elements (including but not limited to
sales, use, inventory, income and value added taxes on sales of Authorized
Articles), which charges shall not be deducted from WCW's royalties. All monies
payable to or received by Licensee from the exploitation of the rights granted
herein shall be held by Licensee in
A-3 BOOKS AND RECORDS
Licensee shall keep accurate books of account and records in a form
meeting the generally accepted standards of the profession of certified public
accountants covering all transactions relating to the license hereby granted,
and WCW and its authorized representatives shall have the right at all
reasonable business hours, and upon reasonable notice, to examine and audit said
books of account and records and all other documents and materials in the
possession or under the control of Licensee with respect to the subject matter
and terms of this Agreement, and shall have free and full access thereto for
said purposes and for the purpose of taking extracts therefrom. Upon demand of
WCW, but not more than twice per calendar year. Licensee shall at its own
expense furnish to WCW a detailed statement prepared by an independent certified
public accountant, or certified to be accurate by a duly authorized official of
Licensee, showing the product and style number, description, Net Sales, itemized
deductions from Net Sales and Royalty Base Price of the Authorized Articles
distributed and/or sold by Licensee to the date of WCW's demand. If an audit
reveals that Licensee has misrepresented or underreported any item bearing upon
the royalties or other compensation due or payable to WCW, then, in addition to
recomputing and making immediate payment of the sums due based on the true items
together with interest thereon at the rate at which WCW is entitled to borrow
from its principal lending institution (after giving effect to compensating
balance requirements and any commitment fees), Licensee shall pay costs and
expenses incurred by WCW for the audit and checking and attorney's fees incurred
by WCW in connection therewith or in connection with enforcing the collection
thereof if the difference between the actual sums due hereunder is in excess of
three percent (3%) of the sums previously paid. All books of account and records
shall be kept available for at least three (3) years after the termination of
this license in Licensee's principle place of business.
A-4 EXCLUSIVITY
(a)(i) If, and only if, the Underlying Agreement specifies that Licensee's
license hereunder is exclusive, WCW shall not, except as otherwise provided
herein, grant any other licenses effective during the License Period for the use
of the Licensed Elements in connection with the manufacture, distribution and
sale, in the Licensed Territory, of the Authorized Articles as expressly
described in the Underlying Agreement. Notwithstanding the foregoing, nothing in
this Agreement shall be construed to prevent WCW from granting any licenses for
the use of the Licensed Elements other than as provided herein, or from
utilizing the Licensed Elements in any manner whatsoever other than as provided
herein, regardless of the extent to which such use or utilization may be
competitive with the license granted hereunder.
(ii) Licensee shall not during the License Period enter into or renew any
license agreements for the manufacture, distribution and/or sale of any of the
Authorized Articles and or manufacture, distribute or sell any of the Authorized
Articles for or in conjunction with or containing the elements of any other
professional wrestlers or professional wrestling organizations, and will not in
any event during the License Period directly or indirectly manufacture,
distribute or sell any Authorized Articles for or in conjunction with the World
Wrestlinig Federation (WWF).
(iii) If the Underlying Agreement specifies that Licensee's license
hereunder is non-exclusive, then WCW shall be free to utilize, or to grant any
licenses to third parties to utilize, the Licensed Elements in any manner for
any purposes whatsoever.
(b) In all cases, WCW expressly reserves all rights whatsoever relating to
the promotion, sale and other exploitation of Authorized Articles at (i) the MGM
Grand Hotel/Casino complex in Las Vegas, Nevada, and (ii) concert halls, arena
shows, circuses, stadiums, theaters, theme parks and all other public
performance venues at which television programs or motion pictures containing
elements included in the Licensed Elements or derivative works (e.g.. concerts,
musicals and other stage plays, motion picture sequels, audio-visual
performances, etc.) based thereon are exhibited or performed, and (iii) retail
outlets or any other facilities owned, operated or controlled by WCW (or its
parent, subsidiaries or affiliates), and (iv) catalogs or similar direct mail
sales publications featuring WCW products published by WCW (or its parent,
subsidiaries, or affiliates). The foregoing venues, retail outlets, other
facilities, and catalogs are collectively referred to herein as "WCW Venues".
Licensee acknowledges that WCW Venues are expressly excluded from the Licensed
Territory and that Licensee has not been granted any rights with respect to the
exploitation of Authorized Articles at WCW Venues, it being understood that WCW
may itself exercise such rights or grant others licenses for the manufacture and
distribution of Authorized Articles for sale or other exploitation at WCW
Venues.
(c) WCW reserves the right to permit distribution of stock on hand or in
process as of termination or expiration of prior licenses, even if the exercise
of said rights may conflict with those rights granted Licensee hereunder.
A-5 QUALITY OF MERCHANDISE
(a) The Authorized Articles shall be of high standard and of such style,
appearance and quality as to be adequate and suited to their exploitation to the
best advantage and to the protection and enhancement of the Licensed Elements
and the good will pertaining thereto. The Authorized Articles shall be
manufactured, sold, distributed, promoted and advertised in accordance with all
applicable governmental, regulatory, professional and industry-wide codes,
statutes, rules and regulations.
(b) Licensee shall submit to WCW and WCW shall have absolute approval of
the Authorized Articles, and the cartons, containers, and advertising,
promotional, packaging and wrapping materials bearing any Licensed Elements
("Collateral Materials") at all stages of the development and application
thereof. Licensee may not manufacture, use, sell, advertise, promote, or
distribute any Authorized Articles or Collateral Materials until and unless
Licensee has received WCW's prior written approval. Any and all items submitted
by Licensee to WCW
(d) At the time of first distribution of each Authorized Article, Licensee
shall submit to WCW twelve (12) samples of each such item to WCW and a royalty
shall not be payable on such samples. Upon WCW's annual written request
thereafter, Licensee shall furnish without cost to WCW twelve (12) additional
random samples of each Authorized Article being distributed by Licensee
hereunder, together with any cartons, containers and packing and wrapping
material used in connection with such distribution for quality control by WCW.
It being agreed that WCW shall have the right, if quality problems are
encountered as a result of the examination of samples, to take such additional
samples as frequently as WCW in its sole discretion deems desirable in an effort
to assure that proper quality control has been established. Moreover, WCW shall
have the right to have its representatives visit the plant or plants where the
Authorized Articles are produced and where the Collateral Materials and the like
are printed or produced in order to determine whether or not proper quality
controls are being exercised.
(e) In the event Licensee is not the manufacturer of the Authorized
Articles, Licensee shall, subject to WCW's prior written consent, be entitled to
engage a third party manufacturer to make and produce the Authorized Articles
exclusively for Licensee, provided that Licensee will obtain from such
manufacturer and deliver to WCW a duly executed letter in the form contained in
Exhibit "C" hereto. The use by Licensee of any such manufacturer shall not
affect Licensee's obligations hereunder and Licensee shall be responsible for
ensuring that such manufacturer complies with the provisions of this Agreement.
A-6 LABELING
(a) As a condition to WCW's authorization of the public distribution of
items bearing reproductions of the Licensed Elements, including, without
limitation, Authorized Articles sold under this license and advertising,
promotional and display material therefor, all such items shall bear copyright
and trademark notices as set forth in Paragraph 11 of the Underlying Agreement
as well as any other legal notices which WCW may from time to time reasonably
direct.
(b) In the event that any Authorized Article is marketed in a carton,
container and/or packing or wrapping material employing the Licensed Elements,
such notice shall also appear upon the said carton, container and or packing or
wrapping material. Each and every tag, label, imprint or other device containing
any such notice and all advertising, promotional or display material bearing the
Licensed Elements shall be submitted by Licensee to WCW for its written approval
prior to use by Licensee in accordance with Paragraph A-5 above. Any such
approval by WCW shall not constitute waiver of WCW's rights or Licensee's duties
under any provision of this Agreement.
A-7 TECHNICAL AND PROMOTIONAL MATERIAL
WCW reserves the right to require Licensee to pay for film footage or
other technical materials which Licensee may requests for which WCW from time to
time might charge. All technical materials involving the Licensed Elements or
any reproduction thereof, notwithstanding their invention, creation or use by
Licensee, shall be and remain the property of WCW, and WCW shall be entitled to
use same and to license the use of same by others provided such use does not
conflict with the terms of this Agreement. "Technical materials" shall mean all
artwork and designs, pictures. separations, textual material, screens, films,
proofs and any and all materials used in the creation, production and/or
reproduction of the Authorized Articles.
A-8 DISTRIBUTION
(a) Commencing not later than the Marketing Date specified in the
Underlying Agreement, and thereafter during the License Period (including any
extensions thereof), Licensee shall diligently and continuously manufacture,
sell, distribute and promote Authorized Articles in interstate commerce
throughout the Licensed Territory and Licensee shall make and maintain adequate
arrangements for the distribution of the Authorized Articles. Licensee's failure
(except as otherwise provided herein) to commence in good faith to manufacture
and distribute in substantial commercial quantities any of the Authorized
Articles on or before the Marketing Date and to continue during the License
Period diligently and continuously to manufacture, sell, distribute and promote
each such Authorized Article throughout the Licensed Territory will result in
immediate damage to WCW. In such a case, in addition to all other remedies
available to it hereunder, WCW may remove from this Agreement any Licensed
Elements listed in the Underlying Agreement or any article or class or category
of articles included within the definition of Authorized Articles which is not
so diligently and continuously used by Licensee for a period of three (3)
consecutive months, by giving thirty (30) days' written notice to Licensee.
(b) Unless expressly provided herein otherwise, Licensee shall not,
without the express prior written consent of WCW, permit the distribution or
other marketing of any Authorized Articles on an F.O.B. or L.C. basis (as those
terms are commonly understood in the international merchandising business). All
Authorized Articles distributed or marketed (as subject to WCW's prior written
approval) on an F.O.B. or L.C. basis will be subject to a Royalty Rate in the
amount of one and one-half (1 1/2%) percent over the Royalty Rate indicated in
the Underlying Agreement.
(c) Licensee shall sell to WCW such quantities of the Authorized Articles
as WCW shall request at as low rate and on as favorable terms as Licensee sells
similar quantities of the Authorized Articles to the general trade.
(b) WCW shall have the right, but shall not be under any obligation, to
use the Licensed Elements and/or the name of Licensee so as to give the Licensed
Elements, Licensee, WCW and/or WCW's television programs and/or motion pictures
full and favorable prominence and publicity. WCW shall not be under any
obligation whatsoever to broadcast or exhibit, or to continue broadcasting or
exhibiting, any television program or motion picture or use the Licensed
Elements or any person, character, symbol, design or likeness or visual
representation thereof in any medium, nor shall WCW be restricted in any way
whatsoever from producing and distributing derivative works which contain or are
derived from the Licensed Elements or any element or component part thereof.
A-10 WARRANTIES AND REPRESENTATIONS
(a) By WCW. WCW has the right and power to enter into and perform this
Agreement, and has taken all steps necessary and appropriate to authorize the
execution and performance hereof. WCW owns or controls all rights necessary to
grant Licensee the rights granted to it hereunder.
(b) By Licensee. Licensee has the right and power to enter into and
perform this Agreement, and has taken all steps necessary and appropriate to
authorize the execution and performance hereof. Licensee will not act in any
manner that is inconsistent with the provisions hereof.
A-11 INDEMNIFICATION AND INSURANCE
Subject to the full performance by Licensee of all of its obligations
hereunder, WCW hereby indemnifies Licensee and undertakes to defend Licensee
against and hold Licensee harmless from all claims, suits, liabilities, losses,
damages, penalties, costs and expenses (including reasonable attorneys fees,
which may be suffered by or obtained against Licensee arising solely out of the
use by Licensee of the Licensed Elements in strict accordance with this
Agreement. Licensee hereby indemnifies WCW and undertakes to defend WCW against
and hold WCW harmless from any and all claims, suits, liabilities, losses,
damages, penalties, costs and expenses (including reasonable attorneys fees,
which may include, without limitation, an allocation for in-house counsel) of
any nature which may be suffered by or obtained against WCW arising from (i) any
allegedly unauthorized use of any patent, design, xxxx, process, idea, method or
device by Licensee (none of the same being included in the Licensed Elements) in
connection with the Authorized Articles or any other alleged action or omission
by Licensee constituting a breach by Licensee of any term or provision of, or
representation, warranty, covenant or agreement made by Licensee under, this
Agreement, and (ii) alleged defects in the Authorized Articles, any alleged
inadequacy or failure to perform any agreement or render any service, or
personal damages or injury resulting from the use of the Authorized Articles.
Licensee shall obtain, at its own expense, a comprehensive general liability
insurance policy for the entire License Period (including any extensions
thereof) including coverage for contractual liability (applying to the terms and
conditions of this Agreement), product liability, personal injury liability and
advertiser's liability, and including a vendor's liability endorsement in favor
of WCW. Said policy shall be written by a recognized insurance company which has
qualified to do business in the State of California, the State of New York and
the State of Georgia, or which has an A. M. Best Company rating of "B" or better
in the latest edition of Best's Insurance Guide and Key Ratings, and shall
provide for minimum combined single limit of liability coverage of not less than
$1,000,000 for each occurrence. As proof of such insurance, fully paid
certificates of insurance naming WCW as an insured party, will be submitted by
Licensee for WCW's prior approval before any Authorized Articles are
distributed, advertised or sold, and at the latest within thirty (30) days after
the commencement of the License Period: World Championship Wrestling, Inc., Xxx
XXX Xxxxxx, Xxx 000000, Xxxxxxx, XX 00000-0000, Attn: Director of Risk
Management. Any proposed change in such certificates of insurance shall be
submitted to WCW for its prior approval, and Licensee shall furnish WCW with a
copy of the then prevailing certificate of insurance. For purposes of Licensee's
indemnity and insurance policy coverage under this Paragraph, WCW shall also
include the officers, directors, shareholders, agents and employees of WCW and
its Related Entities, as well as any person(s) the use of whose name or likeness
may be licensed hereunder.
A-12 PROTECTION OF WCW'S RIGHTS
(a) Licensee acknowledges that WCW owns or controls the copyrighted works
which underlie this license and Licensee shall not during the term hereof or
thereafter attack the rights of WCW in the Licensed Elements or any trademarks
based thereon, regardless of the basis of such attack and regardless of whether
the same relates to title or validity. Licensee shall at no time use or
authorize the use of any trademark, trade name or other designation identical
with or confusingly or colorably similar to the Licensed Elements.
(b) Licensee shall cooperate fully and in good faith with WCW for the
purpose of securing and preserving rights of WCW (or any grantor of WCW) in and
to the Licensed Elements. WCW may commence or prosecute any claims or suits in
its own name or in the name of Licensee or join Licensee as a party thereto.
Licensee shall immediately notify WCW in writing of any infringements or
imitations by others of the Licensed Elements on articles similar to those
covered by this Agreement, and WCW shall have the sole right to determine
whether or not any action shall be taken on account of any such infringements or
imitations. Licensee shall not institute any suit or take any actions on account
of any such infringements or imitations without first obtaining the written
consent of WCW so to do.
(c) Licensee shall utilize all necessary and adequate security measures to
prevent the loss, theft, destruction or unauthorized exploitation of the
technical materials and/or Licensed Elements delivered to Licensee, and Licensee
shall immediately report to WCW any such loss, theft,
Agreement. If any materials bearing the Licensed Elements (or any element or
component part thereof) utilized by Licensee hereunder on or in connection with
the Authorized Articles were not created or owned by WCW, it is an essential
condition of this Agreement that Licensee shall do all that is necessary to
ensure that such materials achieve copyright protection and that valid title to
such copyright is, at the earliest possible moment, transferred to WCW. To this
end, Licensee shall, among other things, enter into a contract with anyone not
directly in its employ who creates such materials bearing the Licensed Elements,
or any element or component part thereof, which states that such materials are
created as works made for hire, as such term is defined in the U.S. Copyright
Act, 17 U.S.C. ss. 101 et seq. or otherwise contractually bind such person to
execute all such documents as may be necessary to transfer valid title in the
copyright in such materials to WCW and shall arrange for the execution of such
documents and their transmittal to WCW at the earliest possible moment.
(e) No later than thirty (30) days following the date of the first
interstate shipment by Licensee of each Authorized Article, Licensee shall
provide WCW, free of cost, with sufficient evidence of the date of first
shipment of the Authorized Article in interstate commerce and a description of
the use of the Licensed Elements in relation to the Authorized Article along
with identical samples of each such Authorized Article including packaging. Such
evidence and sample shall be sent to WCW at its address at World Championship
Wrestling. Inc., c/o Legal Department - Domestic Trademarks, Xxx XXX Xxxxxx,
Xxxxxxx, Xxxxxxx 00000.
(f) Licensee shall fully cooperate with WCW in undertaking the
registration of any copyright, trademark, service xxxx or other intellectual
property registration or filing with respect to the Licensed Elements and/or
Authorized Articles as requested by WCW in writing, and all such registrations
shall be in WCW's name (or such other name as WCW designates). Such registration
shall be handled by attorneys selected or approved by WCW. In the event of any
registration relating to the Licensed Elements by Licensee in its own name or
that of any third party, such registration shall be (i) deemed to be for WCW's
benefit and (ii) held in trust for WCW by Licensee, and (iii) Licensee shall
bear all costs, expenses, damages and loss occasioned by such unauthorized
registration and/or WCW's correction of same.
(g) Licensee shall execute and deliver to WCW, in such form as WCW shall
reasonably request, any and all documents which may be necessary or desirable to
assist WCW in recording Licensee as a registered user of the Licensed Elements
(as trademark and/or servicemark) in the Licensed Territory, if appropriate.
Upon or after the expiration or termination of this Agreement. Licensee shall
execute and deliver to WCW, in such form as WCW shall reasonably request, any
and all documents which may be necessary or desirable to cancel the recordation
of Licensee as a registered user of the Licensed Elements in the Licensed
Territory provided, however, that if WCW elects first to complete the
recordation of Licensee as a registered user, Licensee shall also provide any
and all documents which may be necessary or desirable to achieve this purpose.
(h) Licensee shall not commingle on Authorized Articles manufactured
hereunder (or in the advertising and promotion thereof) names, characters and/or
likenesses from any individual motion picture or other television program which
are included in the Licensed Elements with those associated with any other
motion picture or television program (whether or not containing elements
included in the Licensed Elements) without WCW's prior written consent.
(i) WCW may, in its absolute discretion, withdraw any element of the
Licensed Elements, or any component part thereof, from the terms of this
Agreement if WCW determines that the exploitation thereof hereunder would or
might violate or infringe or reasonably tend to violate or infringe the
copyright, trademark or other rights of third parties, or subject WCW to any
liability, or violate any law, court order, government regulation or other
ruling of any governmental agency, or if, on account of the expiration or sooner
termination of an agreement between WCW and a third party from whom WCW has
obtained certain underlying rights relating to the exploitation of the Licensed
Elements hereunder or otherwise, WCW shall no longer have the right to act in
the capacity herein contemplated on behalf of any third party or parties, or if
WCW determines that it cannot adequately protect its rights in the Licensed
Elements under the copyright, trademark or other laws of the Licensed Territory;
provided, however, that in the event of any such withdrawal, WCW shall reimburse
Licensee its actual, out-of-pocket cost of any Authorized Articles (bearing such
withdrawn Licensed Element) which were produced, but not sold, prior to
Licensee's receipt of notice of such withdrawal. Any such withdrawal shall not
constitute grounds for termination of this Agreement unless all elements and
component parts of the Licensed Elements are simultaneously withdrawn by WCW.
A-13 DEFAULT
The following shall be events of default hereunder: if Licensee (i)
becomes the subject of any bankruptcy proceeding, becomes insolvent, makes an
assignment for the benefit of its creditors, or a receiver, liquidator or
trustee is appointed for its affairs, (ii) breaches any other agreement with
WCW, (iii) fails to make payment of royalties, Guarantee(s) and or any other
sums payable to WCW pursuant to this Agreement when due or fails to perform any
of its other material obligations hereunder or otherwise breaches any
representation, warranty, covenant or agreement referred to or contained in this
Agreement, and does not fully cure such failure or breach within ten (10)
business days after receipt of written notice thereof from WCW, in the case of
failure to make payments, or within fifteen (15) business days in the case of
other failure or breach, (iv) discontinues its business or loses any license or
authorization required to permit Licensee to perform fully its obligations
hereunder pursuant to an action of any duly constituted governmental, judicial
or legislative authority. Upon any default, WCW may, in addition and without
prejudice to any other rights it may have, terminate this Agreement, in which
event the entire unpaid balance of all royalties and Guarantees accrued to WCW's
account hereunder shall immediately become due and payable. In the event this
Agreement is so terminated, Licensee, its receivers, representatives, trustees,
agents, administrators, successors, and or assigns shall not have the right to
sell, exploit or in any way deal with or in any Authorized Articles or any
carton, container, packing or wrapping material, advertising, promotional or
display materials pertaining thereto, except with and under the special consent
and instructions of WCW in writing, which they shall be obligated to
A-15 EFFECT OF TERMINATION OR EXPIRATION
Upon and after the expiration or sooner termination of this license, (a) all
rights licensed to Licensee hereunder shall forthwith revert to WCW, (b) if the
Underlying Agreement specifies that the license granted hereunder is an
exclusive license, WCW shall be free to license others to use the Licensed
Elements in connection with the manufacture, sale, distribution and promotion of
the Authorized Articles in the Licensed Territory (it being acknowledged that
WCW has the full and complete right so to do during the License Period if the
license granted hereunder is a non-exclusive license), and (c) Licensee shall
refrain from further use of the Licensed Elements or any further reference,
direct or indirect, thereto or to anything deemed by WCW to be similar to the
Licensed Elements, in connection with the manufacture, sale, distribution or
promotion of Licensee's products, except as permitted in Paragraph A-17 below.
It shall not be a violation of any right of Licensee if WCW should at any time
during the License Period enter into negotiations with another to license use of
the Licensed Elements in respect of the Authorized Articles within the Licensed
Territory provided that, in the event that the license granted to Licensee
hereunder is an exclusive license, it is contemplated that such prospective
license shall commence after termination of this Agreement. In the event of any
termination hereunder, no monies or other consideration which WCW may receive in
respect of any licenses of the Licensed Elements within or outside the Licensed
Territory shall be deemed in mitigation of, or be otherwise offset, credited or
applied against, any sums payable to WCW pursuant to this Agreement.
A-16 FINAL STATEMENT
Ninety (90) days before the expiration of the License Period, and, in the event
of its sooner termination, ten (10) business days after receipt of notice of
termination, a statement showing the number and description of Authorized
Articles which are or will be fully manufactured, packaged and ready for
distribution as of the expiration or termination of the Agreement shall be
furnished by Licensee to WCW. WCW shall have the right to take a physical
inventory to ascertain or verify such inventory and statement. Refusal by
Licensee to submit to such physical inventory by WCW and/or failure by Licensee
to render the final statement as and when required by this provision, shall
result in a forfeiture by Licensee of Licensee's right to dispose of its
inventory (as provided by the next paragraph hereof), WCW retaining all other
legal and equitable rights may have in the circumstances.
A-17 DISPOSAL OF INVENTORY
(a) Licensee shall not at any time manufacture Authorized Articles in excess of
those reasonably anticipated to meet normal customer requirements. Provided that
Licensee is in compliance with the foregoing, after termination or expiration of
the license under the provisions hereof, Licensee, except as otherwise provided
in this Agreement, may distribute and sell Authorized Articles which are fully
manufactured, packaged and ready for immediate distribution at the time notice
of termination is received or upon the expiration date, whatever the case may
be, during the sell off period indicated in the Underlying Agreement, on a non
exclusive basis, provided Guarantee and royalty payments are up-to-date for the
current period and payments and statements are made and furnished for that
period in accordance with Paragraph A-2 above. As of the commencement of such
sell-off period, Licensee may no longer manufacture or promote any Authorized
Articles. Licensee shall not be authorized to sell and distribute such excess
inventory to the extent that it exceeds ten percent (10%) of the total number of
Authorized Articles sold during the License Period, without WCW's prior written
consent. Upon the conclusion of the sell-off period, Licensee shall cease all
sale and distribution of Authorized Articles, and any Authorized Articles which
have not been sold as of the expiration of the sell-off period shall, at WCW's
election, be delivered to WCW or destroyed. Notwithstanding anything to the
contrary herein, Licensee shall not manufacture, sell or dispose of any
Authorized Articles after any expiration or termination of this license based on
the failure of Licensee to affix notice of copyright, trademark or servicemark
registration or any other notice to the Authorized Articles, canons, containers
or packing or wrapping material or advertising, promotional or display material
or because of the departure by Licensee from the quality and style approved by
WCW pursuant to Paragraph A-5 above. All applicable royalties shall be paid on
Authorized Articles sold during the sell-off period within fifteen (15) days
following the expiration of said sell-off period.
(b) Licensee acknowledges that its failure to cease the manufacture, sale,
distribution or promotion of the Authorized Articles or any class or category
thereof after the termination or expiration of this Agreement (or any applicable
sell-off period) will result in immediate and irremediable damage to WCW and to
the rights of any subsequent licensee. Licensee acknowledges and admits that
there is no adequate remedy at law for such failure to cease manufacture, sale,
distribution or promotion, and Licensee agrees that in the event of such
failure, WCW shall be entitled to equitable relief by way of temporary and
permanent injunctions and such other and further relief as any court with
jurisdiction may deem just and proper, other provisions to the contrary
elsewhere herein notwithstanding.
A-18 ASSIGNMENT
WCW reserves the right to assign this Agreement to any third party and to
hypothecate or pledge this Agreement as collateral for any purpose. In the event
of any such assignment, Licensee shall pay the royalties and Guarantees due
hereunder as directed by WCW. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of WCW. The license herein
granted is personal to Licensee and this Agreement may not be assigned,
transferred, sublicensed, pledged, mortgaged or otherwise encumbered, in whole
or in part, by Licensee either voluntarily or by operation of law or as part of
a merger, consolidation or otherwise without WCW's prior written consent, which
shall not be unreasonably withheld
have been sent by facsimile transmission or personally delivered to the
recipient. The date of said facsimile transmission or personal delivery, or the
date which is three (3) business days following the date of said mailing, shall
be deemed to be the date of the giving of such notice, except statements and
payments to WCW hereunder and notice of change of address, which shall be deemed
effective only upon actual receipt thereof.
A-20 FURTHER DOCUMENTS
Licensee shall execute, verify, acknowledge, deliver and file any formal
assignments, recordations and any and all other documents which WCW may prepare
and reasonably call for to give effect to any of the provisions of this
Agreement. If Licensee fails so to do within ten (10) days after WCW requests
such execution, verification. acknowledgment, delivery or filing, Licensee
hereby irrevocably appoints WCW its attorney-in-fact (which appointment shall be
deemed a power coupled with an interest), with full powers of substitution and
delegation, to execute, verify, acknowledge and deliver any such assignments,
recordations and/or such other documents.
A-21 MISCELLANEOUS PROVISIONS
In the event any provision of this Agreement shall be found to be contrary
to any law or regulation of any federal, state or municipal administrative
agency or body, the other provisions of this Agreement shall not be affected
thereby but shall notwithstanding continue in full force and effect. If any
legal action or other proceeding is brought for the enforcement of this
Agreement or as a result of a breach, default or misrepresentation in connection
with any of the provisions of this Agreement, the successful or prevailing party
shall be entitled to recover reasonable attorneys' fees and other costs incurred
in such action or proceeding, in addition to any other relief to which such
party may be entitled. No waiver by either party hereto of any breach or default
by the other party shall be construed to be a waiver of any other breach or
default by such other party. Resort to any remedies referred to herein shall not
be construed as a waiver of any other rights and remedies to which either party
is entitled under this Agreement or otherwise, nor shall an election to
terminate be deemed an election of remedies or a waiver of any claim for damages
or otherwise. This Agreement may not be altered or modified except in writing
signed by the party to be charged with such alteration or modification. This
Agreement constitutes the entire understanding between the parties with respect
to the subject matter hereof and all prior understandings, whether oral or
written, have been merged herein. Irrespective of the place of execution or
performance, this Agreement shall be governed, construed and enforced in
accordance with the laws of the State of Georgia applicable to agreements
entered into and to be wholly performed therein, and Licensee hereby consents to
the exclusive jurisdiction of the courts of the State of Georgia and United
States courts located in the State of Georgia in connection with any suit,
action or proceeding brought by Licensee arising out of or related in any manner
to this Agreement. Licensee agrees that the service of process by mail shall be
effective service of same and that such service shall have the same effect as
personal service within the State of Georgia and result in jurisdiction over
Licensee in the appropriate forum in the State of Georgia. Nothing herein
contained shall constitute a partnership between, or joint venture by, the
parties hereto or constitute either party the employee or agent of the other,
and Licensee shall have no right or power to obligate or bind WCW in any manner
whatsoever. This Agreement is not for the benefit of any third party and shall
not be deemed to give any right or remedy to any third party whether referred to
herein or not. Paragraph headings as used in this Agreement are for convenience
only and are not a part hereof, and shall not be used in any manner to interpret
or otherwise modify any provision of this Agreement. As used herein, the word
"person" means any individual, firm, partnership, association, corporation or
other entity.
END OF STANDARD TERMS AND CONDITIONS
EXHIBIT "C"
Attn: Licensing Manager
World Championship Wrestling. Inc.
Xxx XXX Xxxxxx, Xxx 000000
Xxxxxxx, XX 00000
Re: Trimfast Group, Inc.
Dear Sirs,
This letter will serve as notice to you that pursuant to Paragraph A-5(a) of the
Merchandising Licensee Agreement (the "Agreement") dated May 6, 1999 between
World Championship Wrestling, Inc. ("WCW") and the Licensee (as defined
therein), we have been engaged as the manufacturer for the manufacture of the
Articles as defined in the Agreement. We hereby acknowledge that we have
received and read copy of Exhibit "A" to that License Agreement containing the
Standard Terms and Conditions and understand the terms and conditions set forth
in the said Agreement and hereby agree to be bound by those provisions of the
said Agreement which are applicable to us as manufactures of the Articles,
including but not limited to your right, pursuant to Paragraphs A-3 and A-5 of
the Agreement, to examine our books of account and records and manufacturing
facility with respect to the manufacture of the Articles.
We further agree that we will abide by all relevant instructions from WCW and/or
Licensee with respect to the inclusion of markings and notices on the Authorized
Articles and the packaging and wrapping materials or cartons or containers
therefor.
We understand that our engagement as the manufacture for the Authorized Articles
is subject to your written approval. We request, therefore, that you sign the
space below, thereby showing your acceptance of our engagement as aforesaid.
For and on behalf of:
/s/ [ILLEGIBLE]
-------------------
Agreed and accepted
