AMENDED AND RESTATED LICENSOR AGREEMENT May 8, 2008
Exhibit
10.9
AMENDED
AND RESTATED LICENSOR AGREEMENT
May
8,
2008
Wachovia
Bank, National Association
Xxx
Xxxxx
Xxxxx Xxxxxx
Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000
Ladies
and Gentlemen:
Latitude
Licensing Corp. (together with its successors and assigns, “Licensor”)
is the
owner of certain trademarks and/or other intellectual property described on
Schedule
A
hereto
(collectively, with any other trademarks and intellectual property subject
to
the License Agreements, as defined below, the “Licensed
Intellectual Property”).
Licensor has granted to I.C. Xxxxxx & Company L.P. (together with their
successors and assigns, collectively, “Licensee”)
a
license to use the Licensed Intellectual Property as set forth in the Trademark
License and Technical Assistance Agreement, dated January 15, 1998, between
Licensor and Licensee, as amended, and the Trademark License and Technical
Assistance Agreement for Women’s Collections, dated March 4, 1998, between
Licensor and Licensee, as amended (each individually, a “License
Agreement”
and
collectively, the “License
Agreements”).
This
letter agreement amends and restates that certain Licensor Agreement dated
as of
December 30, 2004 among Licensor, Licensee and Lender.
Licensor
understands that Licensee has entered into financing arrangements with Wachovia
Bank, National Association (together with its successors and assigns,
“Lender”)
as
evidenced by that certain Loan and Security Agreement dated as December 30,
2004
(as has been and may hereafter be amended, modified, replaced or restated from
time to time, the “Loan
Agreement”)
pursuant to which Lender may make loans and advances from time to time and
provide other financial accommodations to the Licensee secured by substantially
all of the assets and properties of Licensee, including, among other things,
the
inventory and other goods of Licensee which may bear or use the Licensed
Intellectual Property. All
capitalized terms used herein, without further definition, shall have the
respective meaning set forth in the Loan Agreement.
Licensor
and Licensee agree in favor of Lender as follows:
1. The
License Agreements are in full force and effect, no default exists thereunder
and Licensee is the licensee thereunder with the right to use the Licensed
Intellectual Property as provided therein.
2. Licensor
hereby grants to Lender a non-exclusive license to use the Licensed Intellectual
Property to the extent Lender deems it necessary or desirable in connection
with
the exercise of its rights and remedies, for the purpose of selling or otherwise
disposing of, or dealing with, any of the inventory and other goods of Licensee
in which Lender has a security interest bearing or using any of the Licensed
Intellectual Property. Lender will pay to Licensor a royalty with respect to
any
sales by Lender of such assets and properties bearing or using the Licensed
Intellectual Property based on the percentage and on the terms set forth in
the
License Agreements as in effect on the date hereof. The use by Lender of the
Licensed Intellectual Property shall not constitute an assumption by Lender
of
any obligations of Licensee to Licensor or to any other person and in no event
shall Lender be liable for any such obligations of Licensee to Licensor or
to
any other person or entity (whether for past due royalties or otherwise).
Licensor does not and shall not have any security interest or other interest
in
any assets and properties of Licensee.
Wachovia
Bank, National Association
May
8,
2008
Page
2
3. In
the
event of a default by Licensee under a License Agreement, Licensor will notify
Lender in writing of such default. Lender shall have the right and opportunity,
but not the obligation, to cure such default within thirty (30) days after
the
receipt of such notice thereof from Licensor. During such thirty (30) day period
Licensor shall not terminate such License Agreement. Any payment made or act
done by Lender to cure such default shall not constitute an assumption of such
License Agreement or of any obligations thereunder. Notwithstanding anything
to
the contrary contained in the License Agreements or otherwise, no termination
of
a License Agreement will affect the rights of Lender to continue to use the
Licensed Intellectual Property for the uses permitted hereunder.
4. Lender
hereby agrees that, notwithstanding anything to the contrary contained herein,
commencing on March 31, 2009 Licensee may make, and Licensor may receive and
retain from Licensee, on a monthly basis Deferred Royalty Payments in accordance
with the terms of the License Agreement in an aggregate sum not to exceed
$1,500,000 (plus applicable interest not to exceed 10% per annum); provided that,
(a) any
monthly payment cannot exceed $375,000 per month and (b) as of the date of
any
such payment and after giving effect thereto, (i) no Default or Event of
Default, under the Loan Agreement, shall exist or have occurred and be
continuing, (ii) Licensee maintains a pro forma Fixed Charge Coverage Ratio
(as
defined in Section 7.1 of the Loan Agreement) of not less than 1.20 to 1.00
for
the twelve (12) month period ending on the proposed date of such payment after
giving effect to such payment and (iii) Licensee has Excess Availability of
at
least $2,500,000. If Licensor receives any payment in contravention of the
terms
of this Section 4, Licensor shall receive and hold the same in trust, as
trustee, for the benefit of Lender, segregated from other funds and property
of
Licensor and shall forthwith deliver the same to Lender (together with any
endorsement or assignment of Licensor where necessary), for application to
any
of the Obligations. In the event of the failure of Licensor to make any such
endorsement or assignment to Lender, Lender, or any of its officers or
employees, are hereby irrevocably authorized on behalf of Licensor to make
the
same.
5. Lender
is
relying upon this letter agreement in providing financing to Licensee, and
this
letter agreement will be binding upon the Licensor and its successors and
assigns and inure to the benefit of Lender and its successors and assigns (and
including any lender or lenders that refinance the obligations of Licensee
to
Lender). This letter agreement cannot be changed, modified or terminated orally
or by course of conduct, but only by a written agreement signed by Lender and
Licensor.
6. The
validity, interpretation and enforcement of this letter agreement and any
dispute arising out of the relationship between the parties hereto in connection
with this letter agreement, whether in contract, tort, equity or otherwise,
shall be governed by the internal laws of the Commonwealth of Pennsylvania,
but
excluding any principles of conflicts of law or other rule of law that would
cause the application of the law of any jurisdiction other than the laws of
the
Commonwealth of Pennsylvania.
Wachovia
Bank, National Association
May
8,
2008
Page
3
6. This
letter agreement may be executed in any number of counterparts, but all of
such
counterparts shall together constitute but one and the same agreement. In making
proof of this letter agreement, it shall not be necessary to produce or account
for more than one counterpart thereof signed by each of the parties hereto.
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Very
truly yours,
LATITUDE
LICENSING CORP.
|
|||
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By:
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/s/ Xxxxx X. Xxxxxx | ||
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Name:
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Xxxxx X. Xxxxxx | ||
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Title:
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Secretary | ||
ACKNOWLEDGED
AND AGREED:
WACHOVIA
BANK, NATIONAL ASSOCIATION
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By:
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/s/ Xxxxxxxx Xxxxxxxxxx | |
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Name:
|
Xxxxxxxx Xxxxxxxxxx | |
|
Title:
|
Director |
I.C.
XXXXXX & COMPANY L.P.
By:
I.C.
Xxxxxx & Company, Inc., general partner
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By:
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/s/ Xxxxxx X. Xxxx | |
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Name:
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Xxxxxx X. Xxxx | |
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Title:
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Chief Executive Officer |
SCHEDULE
A
LICENSED
INTELLECTUAL PROPERTY
All
trademarks now or hereafter (the “Marks”)
covered by the License Agreements
