EXHIBIT 10.27
FIRST AMENDMENT TO LICENSE AGREEMENT
THIS FIRST AMENDMENT TO LICENSE AGREEMENT ("Amendment") is made and
entered into effective as of the 1st day of October, 2001, by and between
RAMPAGE LICENSING, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY ("Licensor") and
XXXXXXXXX XXXXX MERCHANDISING, INC., A CALIFORNIA CORPORATION ("Licensee").
RECITALS
A. On or about September 30, 1997, Licensor's predecessor-in-interest and
Licensee's predecessor-in-interest entered into a certain License Agreement (the
"Agreement"), pursuant to which Licensor granted to Licensee the exclusive right
to use the trademark "RAMPAGE(R)" on the terms and subject to the conditions set
forth therein.
B. The parties desire to amend the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, the parties agree as follows:
1. The Expiration Date is hereby amended to be December 31, 2012, subject
to renewal or earlier termination as provided in the Agreement.
2. Sections 11(b)(c) and (d) of the Agreement are hereby deleted and
replaced with the following Section 11(b):
"(b) Licensee shall have six (6) consecutive options to renew
the Term of this Agreement (each, an "Option"), on the same terms
and conditions (excluding the renewal provisions) for periods of
five (5) years each (each, an "Option Period") provided that (i)
Licensee shall give notice to Licensor if its exercise of each
Option not later than one (1) year prior to the end of the Term (or
any Option Period, as applicable), (ii) Licensee shall not be in
default under this Agreement (beyond any applicable notice and cure
period) on the date that the Option is exercised, and (iii) the
Total Net Revenues for the Contract Year immediately preceding the
Option Period are not less than One Hundred Fifty Million Dollars
($150,000,000)."
3. The Royalty Schedule (Schedule A to the Agreement) is hereby amended to
provide that the Royalty Payments due for the remainder of the Term, including
any Option Periods, shall be as follows:
Royalty Schedule
Total Net Revenues Percentage
------------------ ----------
$0-$150,000,000 1%
$150,000,001-$250,000,000 .75%
Over $250,000,000 .50%
Royalty Payments shall be paid based on the percentages set forth above
and the applicable level of Total Net Revenues each Contract Year.
4. The term "Contract Year" shall mean each consecutive twelve (12) month
period commencing on January 1 and ending on December 31, except that the
Contract Year which would have ended on September 30, 2002 (prior to the
effectiveness of this Amendment) shall be deemed extended through December 31,
2002. Royalty Payments for the period from October 1, 2002-December 31, 2002
shall be paid at the applicable percentage set forth in Paragraph 3 above,
cumulating the Total Net Revenues for such period with the Total Net Revenues
for the period October 1, 2001-September 30, 2002.
5. Notwithstanding anything to the contrary set forth in the Agreement,
Licensee shall have the right to terminate this Agreement upon the occurrence of
any of the following events:
(a) Licensor liquidates, dissolves or ceases to conduct business;
(b) The filing of a voluntary petition under the Federal Bankruptcy
Act by Licensor, or the filing by Licensor of a similar proceeding under state
law (including an assignment for the benefit of creditors), or the filing of an
involuntary petition against Licensor under the Federal Bankruptcy Act which is
not dismissed within sixty (60) days; and
(c) A receiver or trustee is appointed for Licensor, which is not
removed within sixty (60) days.
6. Licensor acknowledges that its actions and omissions can have
substantial impact on the value of the Xxxx, and therefore on the business and
profits of Licensee. Licensor further acknowledges that the value of the Xxxx
depends in part upon its ability to maintain consistency in the style,
appearance and quality of merchandise manufactured by it and by its other
licensees, and maintaining those standards of style, appearance and quality
which are in effect as of the date of this Amendment.
It is therefore agreed that notwithstanding anything in the Agreement to
the contrary, Licensor agrees during the Term to maintain the consistency of
style, appearance and quality of merchandise manufactured by it and by its other
licensees, and to maintain those standards of style, appearance and quality
which are in effect as of the date of this Amendment, and to otherwise refrain
from taking or failing to take any action which results in a material, adverse
impact on the value of the Xxxx. If Licensor breaches the foregoing covenant and
as a result Licensee is materially and adversely affected thereby, or is
reasonably likely to be materially and adversely affected thereby, Licensee
shall give notice to Licensor identifying the act or omission which Licensee
claims to constitute a breach. Licensor shall have sixty (60) days after receipt
of such notice within which to cure such breach. If Licensor fails or refuses to
cure the breach within the time specified above, Licensee may, as its sole
remedy, terminate this Agreement, provided that notice of termination is given
within fifteen (15) days after the expiration of the sixty (60) day cure period.
If Licensor disputes that a breach has occurred or that Licensee has been
or is reasonably likely to be materially and adversely affected thereby,
Licensor shall give notice of such dispute to Licensee within ten (10) business
days after receipt of Licensee's notice of breach. The parties shall then
endeavor to resolve the dispute in good faith. If the dispute cannot be resolved
within twenty (20) business days after Licensor's notice of dispute, then the
dispute shall be resolved by arbitration in accordance with Section 13 of the
Agreement. In resolving the dispute, the arbitrator shall consider all relevant
evidence, including evidence as to any reduction (or lack of reduction) in
Licensee's Net Sales subsequent to the alleged breach, the impact (or lack of
impact) of the alleged breach on the business and profits of other licensees of
the Xxxx and general economic conditions.
7. Section 12(c) of the Agreement is hereby amended to read as follows:
"Licensee acknowledges that its actions and omissions can have substantial
impact on the value of the Xxxx, and therefore on the business and profits of
Licensor. Licensee further acknowledges that the value of the Xxxx depends in
part upon its ability to maintain consistency in the style, appearance and
quality of the retail stores which it operates, and maintaining those standards
of style, appearance and quality of such retail stores which are in effect as of
the date of this Amendment.
It is therefore agreed that notwithstanding anything in the Agreement to
the contrary, Licensee agrees during the Term to maintain the consistency of
style, appearance and quality of the retail stores which it operates, and to
maintain those standards of style, appearance and quality of such retail stores
which are in effect as of the date of this Amendment, and to refrain from taking
or failing to taking any action which results in a material, adverse impact on
the value of the Xxxx. If Licensee breaches the foregoing covenant and as a
result Licensor is materially and adversely affected thereby, or is reasonably
likely to be materially and adversely affected thereby, Licensor shall give
notice to Licensee identifying the act or omission which Licensor claims to
constitute a breach. Licensee shall have sixty (60) days after receipt of such
notice within which to cure such breach. If Licensee fails or refuses to cure
the breach within the time specified above, Licensor may, as its sole remedy,
terminate this Agreement, provided that notice of termination is given within
fifteen (15) days after the expiration of the sixty (60) day cure period.
If Licensee disputes that a breach has occurred or that Licensor has been
or is reasonably likely to be materially and adversely affected thereby,
Licensee shall give notice of such dispute to Licensor within ten (10) business
days after receipt of Licensor's notice of breach. The parties shall then
endeavor to resolve the dispute in good faith. If the dispute cannot be resolved
within twenty (20) business days after Licensee's notice of dispute, then the
dispute shall be resolved by arbitration in accordance with Section 13 of the
Agreement. In resolving the dispute, the arbitrator shall consider all relevant
evidence, including evidence as to any reduction (or lack of reduction) in
Licensor's revenues derived from the Agreement subsequent to the alleged breach,
and general economic conditions."
8. During each Contract Year, Licensee shall pay to Licensor guaranteed
minimum royalty payments ("GMR's") as follows:
Contract Year GMR
------------- ---
2002-2012 $ 750,000
2013-2017 (option period) $ 1,000,000
2018-2022 (option period) $ 1,250,000
2023-2027 (option period) $ 1,500,000
2028-2032 (option period) $ 1,500,000
2033-2037 (option period) $ 1,500,000
2038-2042 (option period) $ 1,500,000
The GMR shall be payable in arrears in equal installments, concurrently
with the reconciliation of the Royalty Payments due and payable pursuant to
Section 4(a) of the Agreement. To the extent that the cumulative Royalty
Payments made (including the GMR and the Royalties paid pursuant to Section
4(a)) equal or exceed the cumulative GMR then due, the GMR payments shall be
reduced accordingly. However, there shall be no "carryover" of Royalties from
Contract Year to Contract Year, and the obligation to pay the regularly
scheduled GMR payments shall resume as of the first day of each Contract Year.
In the event of any termination of this Agreement as a result of a breach
by Licensee, Licensee shall be liable for all GMR's which were due and payable
as of the date of termination. In addition to the foregoing, Licensee shall be
liable for an amount equal to the lesser of (a) all GMR's which would be due and
payable for the remainder of the Term (excluding option periods, except to the
extent that an option has been exercised prior to the date of termination), and
(b) the Termination Fee (as defined herein). Such amount shall be due and
payable immediately upon demand by Licensor. Licensor and Licensee acknowledge
and agree that the actual damages to Licensor resulting from Licensee's breach
would be difficult and impractical to ascertain, and that the foregoing sum
constitutes a reasonable and good faith estimate thereof. The parties intend
that the foregoing sum shall constitute liquidated damages as set forth in
California Civil Code Section 1671.
Notwithstanding the foregoing, at any time during the Term (including
subsequent to a breach by Licensee but prior to any termination of this
Agreement that results from such breach) Licensee may, by notice to Licensor,
terminate this Agreement upon at least thirty (30) days' written notice,
provided that such notice is accompanied by the payment of a "Termination Fee".
The Termination Fee shall be an amount equal to the GMR that would be due and
payable for the twenty-four (24) months subsequent to the date of termination
set forth in the notice. In addition to the Termination Fee, Licensee shall
remain liable for all GMR's and other Royalties which accrue through the date of
termination. The parties specifically acknowledge and agree that the Termination
Fee is not a penalty but a reasonable, good faith estimate of the cost and
expense (including loss of Royalty revenue and the expense which will be
incurred in finding a replacement licensee) that Licensor would incur upon the
early termination of the Agreement.
9. The address for notices to Licensor (Section 19 of the Agreement) is
hereby amended to read as follows:
Rampage Licensing, LLC
0000 Xxxxxxx Xxxxxx
Xxxx xx Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
with copies to: Xxxxx X. Xxxxxx, Esq.
Jenkens & Xxxxxxxxx, LLP
00000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
10. The address for notices to Licensee (Section 19 of the Agreement) is
hereby amended to read as follows:
Xxxxxxxxx Xxxxx Merchandising, Inc.
0000 Xxxxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
with copies to: Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxx & Xxxxxxx
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
11. Capitalized terms used in this Amendment shall have the same meanings
as set forth in the Agreement.
12. In all other respects, the Agreement shall remain in full force and
effect as originally written.
13. On or about January 15, 1999, Licensor and Licensee executed a certain
"Consent to Assignments" pursuant to which it was agreed that the Agreement
would
not be amended, modified or altered in any way without the prior written consent
of Bankboston, N.A. Licensee represents that pursuant to a subsequent agreement
between Licensee and Bankboston, N.A., the foregoing provision is no longer
applicable and that the consent of Bankboston, N.A. is not required for Licensee
to enter into this Amendment, nor is any notice required to be given to
Bankboston, N.A. in connection therewith.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
"LICENSOR" "LICENSEE"
RAMPAGE LICENSING, LLC, A XXXXXXXXX XXXXX MERCHANDISING, INC.,
CALIFORNIA LIMITED LIABILITY COMPANY A CALIFORNIA CORPORATION
BY /s/XXXX X. XXXXXXX
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BY /s/XXXXX XXXXXX ITS CHIEF OPERATING OFFICER
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ITS
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The undersigned each hereby acknowledge that it has read and understands
the foregoing Amendment and approves of same.
XXXXXXXXX XXXXX, INC.,
A CALIFORNIA CORPORATION
BY /s/XXXXXX X. XXXXXX
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ITS EXECUTIVE VICE PRESIDENT
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