(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT 10.56 - FOURTH AMENDMENT TO LICENSE AGREEMENT (OFF MALL)
FOURTH AMENDMENT TO LICENSE AGREEMENT
Finite #195-020
Vendor #000-000-000
THIS FOURTH AMENDMENT TO LICENSE AGREEMENT ("Fourth
Amendment") is made as of ____________________, 2002 by and
between SEARS XXXXXXX AND CO., a New York corporation ("Sears"),
and CONSUMER PROGRAMS INCORPORATED, a Missouri corporation
("Licensee").
REFERENCE is made to the License Agreement (Off Mall) made
and entered into as of January 1, 1999 as previously amended
(the "License Agreement") by and between Sears and Licensee for
the sale of products and services (the "Licensed Business") at
Off Premises locations.
WHEREAS, the parties agree to amend Section 8.2, Section 9.1
and Section 9.2 of the License Agreement, and
WHEREAS, the parties desire to amend Exhibit C to the
License Agreement to revise the schedule of commissions payable
at Off Premise locations;
NOW, THEREFORE, Sears and Licensee agree as follows:
1. SECTION 8.2 of the License Agreement is hereby deleted
in its entirety and replaced with the following:
Sears shall, at Licensee's request, provide access to
Sears' point of sale system (the "Sears System") for
Licensee's use in the Designated Locations. With such
access, Licensee shall have functionality comparable to
that available to Licensee in its On Premises Sears
Portrait Studios and shall have the ability to process
a Sears Card (as defined in subsection 9.2) and any
other credit cards Sears may accept from time to time.
Licensee shall immediately surrender access to the Sears
System to Sears upon demand from Sears.
2. SECTION 9.1 of the License Agreement is hereby deleted
in its entirety and replaced with the following:
Licensee shall make certain that all checks received from
sales made through the Designated Locations are processed
and approved through the Sears System in accordance with
the Sears policies in effect from time to time. Sears
shall guarantee the acceptance of all checks that are
processed and approved through the Sears System.
Licensee shall reimburse Sears for the face value of
any check accepted by Licensee which is not processed
and approved through the Sears System and is not paid
upon presentment ("Dishonored Check"). Dishonored
Checks shall not be returned to
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Licensee and Licensee shall not be permitted to collect
or initiate collections on such Dishonored Checks or
to recover any merchandise purchased with a Dishonored
Check. Sears is entitled to any Sears commission which
may be lost as a result of Licensee's failure to properly
process and receive approval for checks. A check on
which a Licensed Business Customer stops payment due to
a customer satisfaction issue shall not be deemed a
Dishonored Check for purposes of this Section 9.1,
and Licensee shall reimburse Sears for the face amount
of such checks, but Licensee shall resolve the customer
satisfaction issues in accordance with Section 5.3 above,
and Licensee may collect any amounts due from customer
through any method of payment otherwise authorized under
this Agreement.
3. SECTION 9.2 of the License Agreement is hereby deleted
in its entirety and replaced by the following:
Subject to the terms and conditions outlined in Schedule
9.2 (the "Credit Card Conditions") Licensee shall accept
the SearsCard(R), Sears Premiere Card(R), Sears Charge
Plus (SM), and, unless covered by a separate merchant
agreement, the Sears MasterCard(R), the Preferred
MasterCard(R) by Sears and The Great Indoors(R) Gold
MasterCard(R) (each a "Sears Card") issued by Sears
National Bank for payment for goods and services sold by
Licensee under this Agreement. Licensee shall also
accept such other credit cards as Sears may designate
from time to time ("Third Party Credit Cards") subject
to the terms and conditions outlined in Schedule 9.2
unless covered by a separate merchant agreement. The
Sears Card and the Third Party Credit Cards are referred
to collectively herein as the "Credit Cards". Licensee
shall accept the Credit Cards at all Licensed Business
locations in the United States for the purchase of
Authorized Services, provided that the Credit Card
transactions resulting from the acceptance of each
Credit Card shall be in United States dollars. All
Credit Card transactions shall be submitted to Sears for
settlement with the issuing bank ("Issuer"). Each Issuer
shall process such transactions as if Sears had engaged
in such transactions itself. Subject to all of the terms
and conditions of this Agreement, Sears shall pay
Licensee all sums due Licensee on each sale of Authorized
Services to a Cardholder that is charged to a Credit Card
account ("Credit Card Sale"). Payment or settlement by
the Issuer with Sears for each Credit Card Sale shall be
deemed to be settlement by the Issuer with Licensee, and
the Issuer shall have no further obligation to Licensee,
whose sole recourse shall be to Sears. All losses
sustained by Sears as a result of a non-payment on a
Credit Card account shall be borne by Sears, provided
Licensee is not responsible for the non-payment and has
complied with the Credit Card Conditions. Except for the
non-payment of a Credit Card account, Sears shall have no
liability whatsoever to Licensee for Sears' failure to
properly accept or reject a customer's charge.
Licensee may not distribute or solicit any customer
applications or referral for any Third Party Credit Cards
in or through the Licensed Business. Other than Credit
Cards, Licensee shall not accept payment from customers
under any other credit or financing plan without the
prior consent of the Licensing Manager.
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4. EXHIBIT C to the License Agreement shall be deleted in its
entirety and replaced by the following:
SEARS COMMISSION
1. For all Designated Locations operated by Licensee as of
October 15, 2002, Licensee shall pay to Sears a commission
("Sears Commission") which shall be a sum equal to seven
and one half percent (7 1/2 %) on Net Sales made through
December 31, 2004 and five percent (5%) on Net Sales made
from January 1, 2005 until the earlier of (i) expiration
of the Term or (ii) termination of the License Agreement.
2. For each Designated Location opened by Licensee after
October 15, 2002, Licensee shall pay a Sears Commission
which shall be a sum equal to one percent (1%) of Net Sales
made in the first year of operations of such Designated
Locations, three and one half percent (3 1/2%) of Net Sales
made in the second year of operations and five percent (5%)
in the third and all subsequent years of operation until
the earlier of (i) expiration of the Term or (ii)
termination of the License Agreement.
3. Notwithstanding the provisions of paragraphs 1 and 2 of
this Exhibit C, for any period of time during the Term of
this Agreement in which Licensee operates less than 40
Designated Locations, the Sears Commission shall be seven
and one-half percent (7 1/2%) of Net Sales on all Designated
Locations operating under this License Agreement.
5. Except as expressly modified by this Fourth Amendment,
all other provisions of the License Agreement shall remain in
full force and effect. To the extent that the terms of this
Fourth Amendment are inconsistent with any of the terms of the
License Agreement, the terms of this Fourth Amendment shall
supercede and govern.
IN WITNESS WHEREOF, Sears and Licensee have signed this
Fourth Amendment as of the date set forth above by their duly
authorized officers and agents.
SEARS, XXXXXXX AND CO.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Its: Vice President of Sears,
Xxxxxxx and Co.
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CONSUMER PROGRAMS INCORPORATED
By: /s/ Xxxx Xxxxxx
----------------------------
Xxxx Xxxxxx
Its: Vice President,
Consumer Programs, Inc.
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