EXHIBIT 10.11
AMENDMENT
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Reference is made to the Retail Product License Agreement between Collectible
Concepts Group ("LICENSEE") and NBA Properties, Inc. ("NBAP") dated March 4,
2005 (the "Agreement") Capitalized terms not defined herein shall have the
meanings ascribed to such terms in the Agreement.
A. LICENSEE and NBAP hereby agree to amend the Agreement as follows:
1. The Licensed Product description contained in Paragraph A of the
Agreement shall be amended to also authorize LICENSEE to manufacture,
distribute, advertise, promote and sell the following team-identified
("Additional Licensed Products")
o Foldsigns (R): 19"X13" folding plastic sign
16" diameter folding plastic sign
26"X7" wave folding plastic sign
o Fan bracelets
o Window scrolls with metal tension rods
o Door scrolls with metal tension rods
In addition, LICENSEE shall be authorized to manufacture, distribute, advertise,
promote and sell growth charts and fan bracelets featuring the Licensed Marks In
combination with the names, nicknames, photographs, portraits, likenesses,
signatures or other identifiable features ("Attributes") of current NBA players
(on a group basis and to the extent NBAP can convey such rights in accordance
with the Group License Agreement between NBAP and the National Basketball
Players Association ("NBPA") (or its successor) ("Player Attributes")) in
accordance with the terms of the Agreement (the "Licensed Attributes ). Such
Licensed Products are hereinafter referred to as the "Piayer4dentified
Products". LICENSEE must develop, manufacture and offer for sale no less than a
total of thirty (30) different players from thirty (30) different Member Teams
in the Player-Identified Product line, The Additional Licensed Products and
Player4dentified Licensed Products shall be manufactured, distributed,
advertised, promoted and sold under the "Collectible Concepts Group" label.
2. With respect to Paragraph D of the Agreement, the royalty rate
applicable to the sale of Player4dentified Products shall be sixteen
percent (16%)
3. Paragraph E of the Agreement shall be deleted in its entirety and
replaced with the following
"E. MINIMUM GUARANTEES: During the Term, LICENSEE guarantees that its
aggregate royalty payments to NBAP under this Agreement shall not
be less than thirty4lve thousand dollars ($35,000)"
4. Paragraph 8 of the Agreement shall be deleted in its entirety and
replaced with the following:
"8. INDEMNIFICATJONS; INSURANCE
(a) LICENSEE shall be solely responsible for, and shall defend, hold
harmless and indemnify NBAP, NBA Media Ventures, LLC, the NBA, its
Member Teams and the NBPA and their respective affiliates, owners,
directors, governors, officers, employees and agents (collectively
"NBA Parties") against, any claims, demands, disputes (including
disputes arising out of or in connection with the Agreement and
between the parties hereto), causes of action or damages, including
attorneys' fees (collectively, "Claims"), arising out of an
allegation relating to or referring to: (i) any act or omission of
LICENSEE, any Third Party Contributor (as defined in Paragraph 11(b)
below) or any other entity acting on LICENSEE's behalf (whether or
not approved by NBAP pursuant to this Agreement), (ii) any breach of
this Agreement by LICENSEE, any Third Party Contributor, any
Conventional Retailer, any Permitted Internet Retailer or any other
entity acting on LICENSEE's behalf (whether or not approved by NBAP
pursuant to this Agreement), (iii) the manufacture, distribution,
advertisement, promotion, sale, possession or use of any Licensed
Product (including, but not limited to, claims relating to (w) any
defect (whether obvious or hidden and whether or not present in any
sample approved by NBAP) in a Licensed Product or in any packaging
or other materials (including advertising materials), (x) any
alleged injuries to persons or property, (y) any infringement of any
rights of any other person or entity or (z) the alleged failure by
LICENSEE to comply with applicable laws, regulations, standards or
the terms of the NBAP Code of Conduct, as amended from time to time
by NBAP (the "Code of Conduct"), attached hereto as Exhibit A) or
(iv) any claim that any Licensed Product or element thereof (other
than a Licensed Xxxx that has been approved for use by NEAP)
violates or infringes upon the trademark, copyright or other
intellectual property rights (including trade dress and rights of
publicity and privacy) of a third party, provided LICENSEE is given
prompt written notice of and shall have the option to undertake and
conduct the defense of any such Claim. In any instance to which the
foregoing indemnities pertain, NBAP shall cooperate with and assist
LICENSEE in connection with any such defense. LICENSEE shall
reimburse NBAP for all reasonable out-of-pocket costs actually
incurred by NBAP in connection with such cooperation and assistance.
In any instance to which such indemnities pertain, LICENSEE shall
keep NBAP fully advised of all developments pertaining to such Claim
and shall not enter into a settlement of such Claim or admit
liability or fault without NBAP's prior written approval. LICENSEE
shall obtain and maintain Commercial General Liability insurance,
including product liability insurance with vendor's endorsement,
Contractual Liability and Personal and Advertising Injury Liability
in a amount no less than five million ($5,000,000) per occurrence
and five million ($5,000,000) aggregate combined single limit for
bodily injury and property damage. The NBA Parties shall be included
as additional insureds. Such insurance shall be carried by an
insurer with a rating by AM. Best & Co. of A-7 or other rating
satisfactory to NBAP. This coverage shall specify that coverage is
primary to all valid and collectible insurance held by the
additional insureds and shall be extended to include (i) a waiver of
subrogation in favor of the NBA Parties, (ii) a breach of
warranty/policy conditions clause, (iii) a severability clause and
(iv) a waiver of premium clause. Such insurance policy shall also
provide that NBAP receive written notice within thirty (30) days
prior to the effective date of the cancellation, non-renewal or any
material change in coverage. In the event that LICENSEE has failed
to deliver to NBAP a certificate of such insurance evidencing
satisfactory coverage prior to NBAP's execution of this Agreement
(or fails to maintain such insurance in accordance with this
Paragraph), NBAP shall have the right to withdraw its consent to use
any or all of the Licensed Marks and/or terminate this Agreement at
any time Such insurance obligations shall not limit LICENSEE's
indemnity obligations, except to the extent that LICENSEE's
insurance company actually pays NBAP amounts which LICENSEE would
otherwise be obligated to pay NBAP.
(b) NBAP shall be solely responsible for, and shall defend, hold
harmless and indemnify LICENSEE, its directors, officers, employees
and agents against any Claims arising out of an allegation relating
to or referring to: (i) a claim that the use of the Licensed Marks
as specifically approved by NBAP in accordance with the terms of
this Agreement violates or infringes upon the trademark, copyright
or other intellectual property rights (including trade dress) of a
third party in or to the Licensed Marks or (ii) a claim that the use
of the Licensed Attributes on Licensed Products, or in advertising
or promotional materials, as specifically approved by NBAP, violates
of infringes upon the right of privacy or right of publicity of any
NBA player or (iii) and breach of the Agreement by NBAP, provided
NBAP is given prompt written notice of and shall have the option to
undertake and conduct the defense of any such Claim. In any instance
to which the forgoing indemnities pertain, LICENSEE shall cooperate
with and assist NBAP in connection with any such defense. NBAP shall
reimburse LICENSEE for all reasonable out-of-pocket expenses
actually incurred by LICENSEE in connection with such cooperation
and assistance. In any instance to which such indemnities pertain,
NBAP shall not enter into a settlement of such Claim or admit
liability or fault without LICENSEE's prior written approval.
(c) In consideration of the rights granted under this Agreement, except
with respect to Claims for which NBAP indemnifies LICENSEE pursuant
to Paragraph 8(b), LICENSEE hereby releases the NBA Parties from any
Claims that, now or in the future, arise out of or in any manner
relate to the manufactures, distribution, advertising, promotion of
sale of the Licensed Products."
5. Paragraph 15 of the NBAP Standard Terms and Conditions
attached to the Agreement is amended to read in its entirety
as follows:
"15. EQUITABLE RELIEF
LICENSEE acknowledges that NBAP is entering into this Agreement not
only in consideration of the royalties or other financial
consideration to be paid, but also for the promotional value and
intrinsic benefit resulting from the manufacture, advertisement,
distribution, sale and promotion of the Licensed Products by
LICENSEE in the Territory. LICENSEE acknowledges that the Licensed
Marks and Licensed Attributes possess a special, unique and
extraordinary character which makes difficult the assessment of the
monetary damage which NBAP would sustain as a result of the
unauthorized use thereof LICENSEE further acknowledges that: (i) its
failure to manufacture, advertise, distribute, sell and promote the
Licensed Products in accordance with this Agreement, and (ii) the
unauthorized or unapproved use of the Licensed Marks or Licensed
Attributes, will, in either case, cause immediate and irreparable
damage to NBAP for which NBAP would not have an adequate remedy at
law. Therefore, LICENSEE agrees that, in the event of a breach of
the Agreement by LICENSEE, in addition to such other legal and
equitable rights and remedies as shall be available to NBAP, NBAP
shall be entitled to injunctive and other equitable relief, without
the necessity of proving damages of furnishing a bond or other
security."
6. Paragraph 19 of the NBAP Standard Terms and Conditions attached to
the Agreement is amended to read in its entirety as follows:
"19. USE OF PLAYERS
(a) LICENSEE acknowledges that this Agreement does not grant to LICENSEE
any licenses or rights with respect to the use Player Attributes
except on Player-Identified Products as expressly provided herein
and in advertising and promotional materials relating to License
Products, in either case, as specifically approved by NBAP. The
license granted under this Agreement does not include, and shall not
be used to imply, a testimonial or endorsement of any Licensed
Products by any NBA Player. LICENSEE shall not use Player Attributes
in any manner that may imply such a testimonial r endorsement
without first obtaining written authorization from the subject
player(s). LICENSEE shall not enter into any Agreement with any NBA
Player of any other person which would require that Player or other
person to wear or use any products other than a Licensed Product at
any NBA game (either courtside or in any locker room) or at
practice.
(b) In the event any current NBA player retires, becomes inactive or
enters into an exclusive license agreement that conflicts with the
rights granted hereunder, upon receipt of written notice from NBAP
that such a player has become inactive or entered into a conflicting
exclusive license agreement, LICENSEE shall cease and/or cause to
cease the use of such player's Licensed Attributes in the
manufacture, distribution, advertisement, promotion and sale of any
conflicting Licensed Product within seventy (70) days of receipt of
NBAP's notice."
B. 1. Except as modified above, (i) the rights extended under this Agreement
shall be exercised consistent with the terms and conditions of the
Agreement and (ii) the terms and conditions of , and LICENSEE's
outstanding obligations to NBAP under, the Agreement shall in all other
respects remain in full force and effect. Nothing herein shall constitute
an actual or implied commitment by NBAP to extend the term of the
Agreement or renew the Agreement upon its expiration.
2. This Amendment shall not be effective until signed on behalf of NBAP by
its Senior Vice President, Global Merchandising Group.
AGREED TO AND ACCEPTED: AGREED TO AND ACCEPTED:
COLLECTIBLE CONCEPTS GROUP NBA PROPERTIES, INC.
By: /s/ XXXX X. XXXXXXXXX By: /s/ XXXXXXXXX XXXXXXX
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Title: President Xxxxxxxxx XxXxxxx
Senior Vice President,
Global Merchandising Group
Dated: 9/9/05
