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Exhibit 10.49
LICENSE AGREEMENT
GIFT CENTERS AND KEY DEPARTMENTS
FINITE 195-015, 195-080 AND 195-086
THIS LICENSE AGREEMENT (hereinafter referred to as "Agreement") is made
and entered into as of the 16th day of March, 1995, by SEARS, XXXXXXX AND CO., a
New York corporation ("Sears") and XXXX GIFT CENTERS, INC., a Delaware
corporation ("Licensee").
Sears and Licensee hereby agree as follows:
LICENSE
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1. Licensee is in the business described in this paragraph, and has
expertise in that business and has a marketing plan for that business. Sears
hereby grants Licensee the non-exclusive privilege of conducting and operating,
and Licensee shall conduct and operate, pursuant to the terms, provisions and
conditions contained in this Agreement, a licensed business for gift centers
and/or key departments (hereinafter referred to as "Licensed Business"), at the
Sears locations designated in Location Riders attached hereto and hereafter made
a part of this Agreement ("Designated Sears Store(s)"). Sears will not during
the Term, license any additional parties within the same Designated Sears
Store(s) to sell key duplication, gift engraving or gift personalization
services; however, nothing herein shall prohibit Sears from continuing any
existing relationships with other licensees.
TERM
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2. The term ("Term") of this Agreement shall be for a two (2) year
period beginning on January 1, 1995 and ending at the close of business on
December 31, 1996 unless sooner terminated under any of the provisions of this
Agreement.
REPRESENTATION TO LICENSEE
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3. Sears makes no promises or representations whatsoever as to the
potential amount of business Licensee can expect at any time during operation of
the Licensed Business. Licensee is solely responsible for any expenses it incurs
related to this Agreement, including, but not limited to, any increase in the
number of Licensee's employees or any expenditures for additional facilities or
equipment.
AUTHORIZED SALES
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4. (a) Licensee shall use the Licensed Business area only for the
purpose authorized in this Agreement, and will offer for sale only those
services and merchandise expressly authorized by this Agreement as listed on
Exhibit A attached hereto and hereafter made a part of this Agreement.
**** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF
THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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(b) Licensee shall maintain a stock of good quality
merchandise as necessary to assure efficient operation of the Licensed Business.
Merchandise offered for sale by Licensee in the Licensed Business shall at all
times be subject to Sears approval.
SEARS COMMISSION
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5. (a) Licensee shall during the first year of the Term pay to Sears a
commission ("Sears Commission") which shall be a sum equal to **** percent
(****%) of Net Sales. In addition to such commission, an annual incentive
payment is due either party per the terms of Exhibit B attached hereto and
hereafter made a part of this Agreement during the first year of the Term.
(b) The Sears Commission during the second year of the Term shall
be an amount calculated according to the terms of Exhibit C attached hereto
and hereafter made a part of this Agreement. The Sears Commission due during
the second year of the Term shall be deducted at the rate of **** percent
(****%) of Net Sales. The Sears Commission paid shall be reviewed at the end of
each Sears fiscal quarter to determine the actual amount due in accordance with
Exhibit C. Any adjustments due either party shall be paid per the terms of
Exhibit C.
(c) If Sears reduces the amount of space for the Licensed Business
in a Designated Sears Store(s) and Licensee is forced to discontinue the sale
of greeting cards due to such reduction of space, then Licensee shall pay to
Sears a commission which shall be a sum equal to **** percent (****%) of Net
Sales of greeting card liquidation sales at such locations. Licensee shall
provide Sears with a monthly accounting of such sales for the purpose of
determining Sears Commission.
(d) "Net Sales" means Gross Sales from operation of the Licensed
Business, less sales taxes, returns and allowances.
(e) "Gross Sales" means all of Licensee's direct or indirect sales
of services and merchandise from the Licensed Business, including, but not
limited to, sales arising out of referrals, contacts, or recommendations
obtained through the operation of the Licensed Business.
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**** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF
THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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USE OF SEARS NAME
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6. (a) Licensee shall operate the Licensed Business under the
name Sears Gift Center or Sears Key Shop. Licensee shall use the name of Sears
only in connection with the operation of the Licensed Business and only in a
manner described herein or upon prior written approval by Sears. Licensee shall
not begin any business activity under this Agreement without Sears prior written
approval of any and all names that Licensee intends to use in conjunction with
the Licensed Business.
(b) Licensee shall only use the name of Sears, or any Sears
trademark, service xxxx or trade name ("Xxxxx Xxxx(s)"), when communicating with
customers or potential customers of the Licensed Business. Licensee shall not
use Sears Marks either orally or in writing when communicating with persons or
entities other than customers or potential customers of the Licensed Business,
including, but not limited to, use of any letterhead, checks, business cards, or
contracts. All communications with persons or entities other than customers or
potential customers of the Licensed Business shall be done solely in Licensee's
own name.
(c) Licensee shall not question, contest or challenge, either
during or after the Term of this Agreement, Sears ownership of the Sears Marks,
or Sears ownership in any mailing lists, credit files or other factual
information compiled by Sears and made available for use by Licensee ("Sears
Information"). Licensee will claim no right, title or interest in any Xxxxx Xxxx
or Sears Information, except the right to use the same pursuant to the terms and
conditions of this Agreement, and will not register or attempt to register any
Xxxxx Xxxx.
(d) Licensee recognizes and acknowledges that the use of any
Xxxxx Xxxx or Sears Information shall not confer upon Licensee any proprietary
rights to any Xxxxx Xxxx or Sears Information. Upon expiration or termination of
this Agreement, Licensee shall immediately stop using all Sears Marks and Sears
Information, and will execute all documents Sears request in order to confirm
Sears ownership, or to transfer to Sears any rights Licensee may have acquired
from Sears in any Xxxxx Xxxx or Sears Information.
(e) Nothing in this Agreement shall be construed to bar Sears,
after expiration or termination of this Agreement, from protecting its right to
the exclusive ownership of Sears Information or Sears Marks against infringement
or appropriation by any party or parties, including Licensee.
(f) Sears may register in its own name any and all of the
trademarks, service marks or trade names used in operation of the Licensed
Business, and Licensee's use of such names and marks shall inure to the benefit
of Sears for such purposes as well as for all other purposes and such marks
shall be included in the
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term "Sears Marks". Licensee shall cooperate in any such registration or
application for registration by Sears.
(g) Licensee acknowledges that Sears Marks and Sears
Information possess a special, unique and extraordinary character which makes it
difficult to assess the monetary damage Sears would sustain in the event of
unauthorized use. Irreparable injury would be caused to Sears by such
unauthorized use, and Licensee agrees that in the event of breach of this
Paragraph 6 by Licensee there would be no adequate remedy at law and preliminary
or permanent injunctive relief would be appropriate.
(h) If Licensee learns of any manufacture or sale by any third
party of products and/or services similar to those offered by Licensee that
would be confusingly similar in the minds of the public to those sold by
Licensee and which bear or are promoted in association with Sears Marks or any
names, symbols, emblems, or designs or colors which would be confusingly similar
in the minds of the public to Sears Marks, Licensee will promptly notify Sears.
Sears may, at its sole expense, take such action as it determines, in its sole
discretion, is appropriate. Licensee will cooperate and assist in such protest
or legal action at Sears expense. If demanded by Sears, Licensee shall join in
such protest or legal action at Sears expense. Licensee shall not undertake any
protest or legal action on its own behalf without first securing Sears written
permission to do so. If Sears permits Licensee to undertake such protest or
legal action, such protest or legal action shall be at Licensee's sole expense.
Sears shall cooperate and assist Licensee at Licensee's expense. For the
purposes of this paragraph, expenses shall include reasonable attorneys' fees.
All recovery in the form of legal damages or settlement shall belong to the
party bearing the expense of such protest or legal action.
(i) Licensee shall not file suit using Sears name or undertake
any legal proceeding against any customer without Sears prior written approval.
(j) The provisions of this Paragraph 6 shall survive the
expiration or termination of this Agreement.
ADVERTISING
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7. Licensee shall advertise and actively promote the Licensed Business.
Licensee shall at all times adhere to Sears Licensed Business Marketing Manual
as provided to Licensee and updated from time to time ("Marketing Manual").
Prior to use in connection with the Licensed Business, Licensee shall submit to
Sears Marketing Manager, Licensed Businesses, or his designee, (i) all signs and
advertising copy (including, but not limited to, sales brochures, telemarketing
scripts, newspaper advertisements, radio and television commercials), (ii) all
sales promotional plans and devices, and (iii) all customer contract forms,
guarantee certificates and other forms and materials.
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Licensee will not use any such advertising material or sales promotional plan or
device without Sears prior written approval. Sears has the right, in its sole
discretion, to disapprove or require modification of any or all such advertising
forms and other materials.
PUBLICITY
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8. Licensee will not issue any publicity or press release regarding its
contractual relations with Sears or regarding the Licensed Business, and will
refrain from making any reference to this Agreement or to Sears in any
prospectus, annual report or other filing required by Federal or state law, or
in the solicitation of business, without obtaining Sears prior written approval
of such action. Licensee shall at all times adhere to Sears written policies
regarding interaction with the media as contained in the Marketing Manual.
RELATIONSHIP
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9. Licensee is an independent contractor. Nothing contained in or done
pursuant to this Agreement shall be construed as creating a partnership, agency
or joint venture; and neither party shall become bound by any representation,
act or omission of the other party.
PRICES
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10. Sears has no right or power to establish or control the prices at
which Licensee offers service and/or merchandise in the Licensed Business. Such
right and power is retained by Licensee, however, Licensee will participate in
Sears national store-wide sales and/or merchandise price off events. Licensee
shall not charge customers for estimates or proposals.
ASSOCIATE DISCOUNT
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11. Sales made under this Agreement shall be offered for sale by
Licensee to the employees of Sears at the same discount which Sears allows its
own employees on purchases of similar merchandise. Licensee's employees who are
exclusively employed to service the Licensed Business shall be entitled to
receive the same discount on purchases made from Sears.
BONUS CLUB
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12. Licensee shall accept Sears Card Bonus Club Bonus Certificates.
Sears shall reimburse Licensee for such bonus certificates provided Licensee has
followed prescribed procedures.
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LICENSEE'S OBLIGATIONS
----------------------
13. (a) Licensee will not make purchases or incur any obligation
or expense of any kind in the name of Sears. Prior to any purchases involving
the Licensed Business, Licensee shall inform its vendors that Sears is not
responsible for any obligations incurred by Licensee.
(b) Licensee shall promptly pay all its obligations, including
those for labor and material, and will not allow any liens to attach to any
Sears or customer's property as a result of Licensee's failure to pay such sums.
LICENSEE'S EMPLOYEES
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14. (a) Licensee shall employ all management and other personnel
necessary for the efficient operation of the Licensed Business. The Licensed
Business shall be operated solely by Licensee's employees, and not by
independent contractors, sub-contractors, sub-licensees or by any other such
arrangement.
(b) Licensee has no authority to employ persons on behalf of
Sears and no employees of Licensee shall be deemed to be employees or agents of
Sears. Licensee has sole and exclusive control over its labor and employee
relations policies, and its policies relating to wages, hours, working
conditions, or conditions of its employees. Licensee has the sole and exclusive
right to hire, transfer, suspend, lay off, recall, promote, assign, discipline,
adjust grievances and discharge its employees, provided, however, that Sears may
request at any time that Licensee transfer from the Licensed Business any
employee who is objectionable to Sears because of risk of harm to the health,
safety and/or security of Sears customers, employees or merchandise and/or whose
manner impairs Sears customer relations. If Sears objects to any of Licensee's
employees, and Licensee determines not to remove such employee and the
conditions which caused Sears to object continue, Sears may terminate any
affected location by giving thirty (30) days notice to Licensee, provided
however if Licensee removes such employee within said thirty (30) day period
such notice of termination shall be vitiated.
(c) Licensee shall pay in a timely manner and is solely
responsible for so paying, for all salaries and other compensation of its
employees and will make all necessary salary deductions and withholdings from
its employees' salaries and other compensation. Licensee is solely responsible
for so paying any and all contributions, taxes and assessments and all other
requirements of the Federal Social Security, Federal and state unemployment
compensation and Federal, state and local withholding of income tax laws on all
salary and other compensation of its employees.
(d) Licensee will comply with any other contract and all
Federal, state and local laws, ordinances, rules and
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regulations regarding its employees, including, but not limited to, Federal or
state laws or regulations regarding minimum compensation, overtime and equal
opportunities for employment. Without limiting the foregoing, Licensee will
comply with the terms of the Federal Civil Rights Acts, Age Discrimination in
Employment Act, Occupational Safety and Health Act, the Federal Fair Labor
Standards Act, and the Americans with Disabilities Act, whether or not Licensee
may otherwise be exempt from such acts because of its size or the nature of its
business or for any other reason whatsoever.
LICENSED BUSINESS AREA
----------------------
15. (a) The defined area of space provided by Sears for the
operation of the Licensed Business ("Block Plan") will be submitted for each
Designated Sears Store by Sears to Licensee. Licensee shall be solely
responsible for providing final plans for the Licensed Business area subject to
Sears written approval. All costs and expenses related to such plans, including,
but not limited to, blueprints, etc., shall be borne by Licensee. The expense of
preparing the initial space assigned to any Licensed Business location shall be
divided between the parties as described on Exhibit D attached hereto and
hereafter made a part of this Agreement. Licensee shall be primarily responsible
for any preparations necessary for the operation of the Licensed Business. Any
improvements and installations made by Sears shall be made to Sears
specifications for its own departments selling comparable merchandise. All
improvements or installations which vary from Sears specifications shall be at
Licensee's sole expense.
(b) All leasehold improvements to the Licensed Business area
shall become the property of Sears at the expiration or termination of this
Agreement. At the expiration or termination of this Agreement, or if Licensee
vacates or abandons the Licensed Business, Licensee shall convey to Sears,
without charge, good title to such improvements free from any and all liens,
charges, encumbrances and rights of third parties, by means of a Quit Claim Deed
and any other documents required by Sears.
(c) If the Licensed Business is not fully operational within
thirty (30) days after Sears has made the Licensed Business area ready for
Licensee as a result of delay by Licensee, Sears may, at Sears sole option,
terminate this Agreement with respect to such location and have no further
obligation to Licensee; provided, however, that if the Licensed Business is not
fully operational due to a delay beyond the reasonable control of Licensee,
Licensee shall so inform Sears of such circumstances and an extension of time
shall be negotiated between the parties, not to exceed an additional sixty (60)
days. If Sears terminates this Agreement pursuant to this Paragraph 15(c),
Licensee shall reimburse Sears, within ten (10) days after receipt of an
invoice, for Sears cost of constructing the
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Licensed Business area and of putting such space back to its condition
immediately prior to the commencement of such construction.
(d) Licensee agrees to operate the Licensed Business
location(s) during the hours set forth in Paragraph 21. If Licensee fails to
operate the location(s) during such hours for the first twelve (12) months after
the Licensed Business commences operations, Sears may, at Sears sole option,
terminate this Agreement with respect to such location, and Licensee shall
reimburse Sears for Sears expense to construct the Licensed Business area at the
rate of one twelfth (1/12) of such expense for each month or part of month the
location(s) is not operated during such hours during the first twelve (12)
months plus the cost of putting such space back to its condition immediately
prior to being used for the Licensed Business. Licensee shall reimburse Sears
within ten (10) days after receipt of an invoice for such costs and Sears shall
have the right to retain the amount of such costs from the sales receipts held
by Sears as described in Paragraph 28.
(e) Entirely at its own expense, Licensee shall install
furniture, fixtures and equipment as necessary for the efficient operation of
the Licensed Business ("Licensee's Equipment"). Licensee's Equipment, and its
size, design and location, shall at all times be subject to Sears approval.
CONDITION OF LICENSED BUSINESS AREA
-----------------------------------
16. (a) Licensee shall, at its expense, keep the Licensed Business
area in a thoroughly clean and neat condition and shall maintain Licensee's
Equipment in good order and repair. Sears shall provide routine janitorial
service in the Licensed Business area, consistent with the janitorial services
regularly performed in the Designated Sears Store.
(b) Licensee shall maintain merchandise presentation standards
consistent with Sears own standards. Licensee shall remodel the Licensed
Business area per the terms of Exhibit D and the expense of such remodel shall
be divided between the parties as described on Exhibit D.
CHANGES OF LOCATION
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17. Sears shall have the right, in its sole discretion, to change the
location, dimensions and amount of area of the Licensed Business from time to
time during the Term of this Agreement in accordance with Sears judgment as to
what arrangements will be most satisfactory for the general good of the
Designated Sears Store(s). In the event Sears decides to change the location of
the Licensed Business, Sears will at its expense move Licensee's Equipment to
the new location and the expense for preparing the new space for occupancy by
Licensee shall be allocated between the parties as described on Exhibit D.
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If a change in location is requested or initiated by Licensee, then Licensee
shall bear all expense involved in moving Licensee's Equipment and the expense
for preparing the new space for occupancy by Licensee shall be allocated between
the parties as described on Exhibit D.
UTILITIES
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18. Sears shall furnish, at reasonable hours, and except as otherwise
provided, without expense to Licensee, light and electric power for the
operation of the Licensed Business, except when prevented by strikes, accidents,
breakdowns, improvements and repairs to the heating, lighting and electric power
systems or other causes beyond the control of Sears. Sears shall not be liable
for any injury or damage whatsoever which may arise by reason of Sears failure
to furnish such heat, light and electric power, regardless of the cause of such
failure. All claims for such injury or damage are expressly waived by Licensee.
TELEPHONE
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19. (a) If requested by Licensee, Sears will arrange for telephone
service for the Licensed Business for local telephone service, and Licensee
shall pay the entire cost of the installation of the telephone equipment
necessary to provide such service. Licensee shall also pay the entire cost of
the telephone service furnished to the Licensed Business, including for stores
with a switchboard, a proportional share of the switchboard expense. Such
charges shall be consistent with Sears charges to its own merchandising
departments for similar service. Stores without switchboards shall be based
solely on the cost to Sears of telephone service. Licensee shall arrange with
the appropriate telephone company for direct billing to Licensee of all long
distance calls.
(b) All telephone numbers used in connection with the Licensed
Business shall be separate from phone numbers used by Licensee in its other
business operations and such numbers shall be deemed to be the property of
Sears. Upon expiration or termination of this Agreement, Licensee shall
immediately cease to use such numbers and shall transfer such numbers to Sears
or to any party Sears designates, and Licensee shall immediately notify the
telephone company of any such transfer.
(c) All white and yellow page telephone listings for the
Licensed Business shall be approved by Sears prior to placement; provided,
however, approval is not required for listings consisting only of Licensee's
name and address. Sears may, at its sole option, require that any telephone
number listed in any telephone directory using Sears name be billed through a
Sears store or office.
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STANDARDS
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20. (a) Licensee shall provide Sears with copies of its written
procedures and policies establishing minimum standards of quality and/or
performance. Licensee shall immediately advise Sears of any changes in its
standards. Without limiting Paragraph 24, Licensee shall observe no less than
such minimum standards of quality and/or performance. Sears may visit Licensee's
offices, work sites and/or other place of business at any reasonable time for
the purpose of verifying Licensee's compliance with its standards of quality
and/or performance.
(b) Licensee shall conduct its operations in an honest,
courteous and efficient manner and shall present a neat, business like
appearance, including adherence by Licensees' employees to a reasonable dress
code. Licensee shall abide by reasonable safety and security rules and
regulations of Sears in effect from time to time.
(c) Licensee shall also conduct its operations in an honest
and ethical manner at all times. In dealing with Sears associates and Sears
customers, Licensee shall adhere to ethical standards no less than those
described in the "A Guide To Business Conduct For Sears Licensed Business
Associates" as provided to Licensee and updated from time to time.
HOURS
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21. The Licensed Business shall be kept open for business and operated
during the same business hours that the Designated Sears Store is open for
business, except to the extent prevented by circumstances beyond the control of
Sears or Licensee.
ACCESS TO LICENSED BUSINESS AREA
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22. Licensee shall have access to the Licensed Business area at all
times that the Designated Sears Store is open to customers for business and at
all other times as the appropriate Store General Manager approves. Sears shall
be furnished with keys to the Licensed Business area and shall have access to
the Licensed Business area at all times.
PHYSICAL INVENTORY
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23. Sears may, solely at Sears discretion, not open any Designated
Sears Store at any time to take a physical inventory of Sears property. Licensee
waives any claim it may have against Sears for damages resulting from such
closing.
CUSTOMER ADJUSTMENT
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24. (a) All of the work and services performed by Licensee in
connection with the Licensed Business shall be of a high standard of
workmanship, and all of the merchandise sold in the
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Licensed Business shall be of high quality. Licensee shall at all times maintain
a general policy of "Satisfaction Guaranteed" to customers and shall adjust all
complaints of and controversies with customers arising out of the operation of
the Licensed Business. In any case in which an adjustment is unsatisfactory to
the customer, Sears shall have the right, at Licensee's expense, to make such
further adjustment as Sears deems necessary under the circumstances, and any
adjustment made by Sears shall be conclusive and binding upon Licensee. Sears
may deduct the amounts of any such adjustments from the sales receipts held by
Sears as described in Paragraph 28.
(b) Licensee shall maintain files pertaining to customer
complaints and their adjustment and make such files available to Sears.
CASH REGISTER
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25. (a) At its expense, Sears shall furnish a cash register for
use in the Licensed Business. Such cash register shall be of a size and design
satisfactory to Sears, and shall at all times be and remain the property of
Sears. Such cash register shall be comparable to those used by Sears in its own
merchandise departments, and shall have the capability of processing SearsCharge
and any other credit cards Sears may accept from time to time. Licensee shall
immediately return such cash register to Sears upon demand. Sears shall have the
right to take possession of the cash register at any time without giving prior
notice to Licensee.
(b) Licensee agrees to accept and process SearsCharge payments
from customers at the cash register. Licensee, when not servicing another
customer (including production work on pending customer orders), also agrees to
ring Sears merchandise transactions when requested by a customer; provided,
however, that if the number of Sears customer transactions is exceeding five
percent (5%) of any Licensed Business location's total transactions, then Sears
field management and Licensee's field management shall work together to review
and adjust, if appropriate, the requirements of this Paragraph 25 (b) as it
applies to the Licensed Business location in question.
CHECKS
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26. (a) All checks or money orders which Licensee accepts from
customers shall be made payable to Sears or Sears, Xxxxxxx and Co.. Licensee
shall make certain that all checks are filled out correctly, having the
customer's signature, date, and the correct amount (in both locations), and be
verified in accordance with Sears policies in effect from time to time. Checks
which are deficient in any of the above areas may be charged back to Licensee,
and Licensee shall reimburse Sears for any of Sears Commission lost as a result
of Licensee's failure to obtain a properly filled out and verified check.
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(b) Sears shall not be entitled to Sears Commission for those
checks that have all of the above information but which are not paid upon
presentment. Any and all losses which may be sustained by reason of nonpayment
of any checks upon presentment shall be borne by Licensee, and Sears shall have
no liability with respect to such checks, provided that Sears will make whatever
effort it deems reasonable to collect all such checks prior to charging back
such checks to Licensee.
CREDIT SALES
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27. (a) With the approval of the Credit Central designated by
Sears, sales may be made by Licensee on such of Sears regularly established
credit plans as may be first approved by such Credit Central. The approval of
such Credit Central is required for each individual credit sale, and approval
shall be granted in the sole discretion of the Credit Central. No part of the
finance charge which may be earned by Sears in connection with any credit sale
shall be payable to or credited in any way to Licensee. All losses sustained by
Sears as a result of non-payment of a Sears credit account shall be borne by
Sears, provided that Licensee has complied with Sears credit policies and
procedures. Except for non-payment of a Sears credit account, Sears shall have
no liability whatsoever to Licensee for Sears failure to properly accept or
reject a customer's charge.
(b) Licensee agrees to accept those third party credit cards
which Sears approves from time to time. Sears will notify Licensee of all
approved third party credit cards.
(c) Licensee will comply with all provisions of Federal and
state laws governing credit sales, and their solicitation, including but not
limited to provisions dealing with disclosures to customers and finance charges.
Licensee shall not modify, in any way, the terms and conditions of Sears credit
plans.
SALES RECEIPTS
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28. At the close of each business day, Licensee shall submit an
accounting of the Gross Sales and the returns, allowances and customer
adjustments made during such day by Licensee to the head cashier of the Sears
unit designated by Sears, together with the gross amount, in cash, of all cash
sales, and all credit sales documents for transactions completed that day. An
account shall be kept by both Licensee and Sears. Sears may retain out of such
receipts the proper amount of the Sears Commission payable under this Agreement
together with any other sums due Sears from Licensee. The remaining balance
shall be payable to Licensee at the regular settlement set forth in Paragraph
29.
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SETTLEMENT
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29. (a) A settlement between the parties shall be made at the end
of each Sears fiscal month for all cash and credit transactions of Licensee
during such period, in accordance with Sears customary accounting procedures.
Advances against the settlement shall be made in accordance with Sears customary
accounting procedures. Such advances shall be deducted and reconciled in the
next regular settlement. Such settlement will be done through the Sears
Accounting Center designated by Sears.
(b) Licensee shall reimburse Sears at each settlement for all
invoiced expenses, including any advertising expense, incurred by Sears at
Licensee's request, outstanding at the time of such settlement. If Sears is not
reimbursed at such settlement, then Sears shall have the right, but not the
obligation, to retain out of Licensee's sales receipts the amount of such
expenses with interest, if any, due Sears.
AUDIT
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30. Licensee shall keep and maintain books and records which accurately
reflect the sales made by Licensee under this Agreement and the expenses which
Licensee incurs in performing under this Agreement. Sears shall have the right
at any reasonable time to review and audit the books and records of Licensee
regarding this Agreement. Such books and records shall be kept and maintained
according to generally accepted accounting principles.
REPORTS
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31. (a) If requested by Sears, Licensee shall provide to Sears
reports of sales and income in the manner and form prescribed by Sears, together
with any other information Sears may require for its records or auditing
purposes.
(b) Licensee shall submit the Annual Report on Form 10-K of
Xxxx National Corp., its parent corporation, to Sears within ninety (90) days
after the close of Licensee's fiscal year.
LIENS
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32. Licensee shall not allow any liens, claims or encumbrances to
attach to Sears premises. In the event any lien, claim or encumbrance attaches
to any of Sears premises, Licensee shall immediately take all necessary action
to cause such lien, claim or encumbrance to be released, or Sears, at its
option, may take such action and charge Licensee or withhold from sales receipts
all expenses, including attorneys' fees, incurred by Sears in removing such
liens.
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MUTUAL WAIVER
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33. Licensee and Sears waive any and all claims that either may have
against the other, their respective agents, officers, and employees for any loss
or damage that may occur to any property whatsoever of the other in or about the
Licensed Business area or the Designated Sears Store, because of the actual or
alleged negligence, act or omission of any owner, tenant, licensee or occupant
of the premises at which the Licensed Business may be located; or because of any
damage caused by any casualty from any cause whatsoever, including, but not
limited to, fire, water, snow, steam, gas or odors in or from such store or
store premises, or because of the leaking of any plumbing, or because of any
accident or event which may occur in such store or upon store premises; or
because of the actual or alleged acts or omissions of any janitors or other
persons in or about such store or store premises or from any other such cause
whatsoever.
In addition, all property insurance policies of the type
described in Paragraph 35 (a) (4) carried by either party covering the Licensed
Business area or the Designated Sears Store, including, but not limited to,
contents and fire insurance, shall expressly waive any right on the part of the
insurer against the other party for damage to or destruction of the Licensed
Business area, the Designated Sears Store, or other property resulting from the
acts, omissions or negligence of the other party.
INDEMNITY BY LICENSEE
---------------------
34. Licensee covenants that it will protect, defend, hold harmless and
indemnify Sears, its directors, officers, employees and/or agents, from and
against any and all expenses, claims, actions, liabilities, penalties,
attorneys' fees, damages and losses of any kind whatever (including, without
limitation of the foregoing, death of or injury to persons and damage to
property), actually or allegedly resulting from or connected with the operation
of the Licensed Business (including, without limitation of the foregoing, goods
sold, work done, services rendered, or products utilized in the Licensed
Business, lack of repair in or about the area occupied by the Licensed Business,
operation of or defects in any machinery, motor vehicles, or equipment used in
connection with the Licensed Business, or located in or about the Licensed
Business area; or arising out of any actual or alleged infringement of any
patent or claim of patent, copyright or non-Sears trademark, service xxxx, or
trade name); or from the omission or commission of any act, lawful or unlawful
by Licensee or its agents or employees, whether or not such act is within the
scope of the employment of such agents or employees. This indemnity shall not
apply to the extent any injury or damage is caused by Sears negligence.
Licensee's indemnity shall survive the expiration or termination of this
Agreement.
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INSURANCE
---------
35. (a) Licensee shall, at its sole expense, obtain and maintain
during the Term of this Agreement the following policies of insurance from
companies having a rating of at least A-VII or better in the current BEST'S
INSURANCE REPORTS published by A.M. Best Company and adequate to fully protect
Sears as well as Licensee from and against all expenses, claims, actions,
liabilities and losses related to the subjects covered by the policies of
insurance below:
(1) Worker's Compensation insurance covering all
costs, benefits and liabilities under Workers Compensation and similar laws
which may accrue in favor of any person employed by Licensee for all states in
which Licensee operates, and Employer's Liability insurance with limits of
liability of at least $100,000 per accident or disease and $500,000 aggregate by
disease. Such insurance shall contain a waiver of subrogation in favor of Sears.
Limits of liability requirements for Employer's Liability may be satisfied by a
combination of Employer's Liability and Umbrella Excess Liability policies.
(2) Commercial General Liability insurance, including
but not limited to, premises/operations liability, contractual liability,
personal and advertising injury liability, and products and completed operations
liability, with limits of at least $500,000 for bodily injury and property
damage combined. Sears shall be named as an additional insured. Limits of
liability requirements may be satisfied by a combination of Commercial General
Liability and Umbrella Excess Liability policies.
(3) Automobile Liability insurance, for owned,
non-owned and hired automobiles used in connection with the Licensed Business,
with limits of at least $500,000 for bodily injury and property damage combined.
If no vehicles are owned or leased by Licensee, The Commercial General Liability
insurance shall be extended to provide insurance for non-owned and hired
automobiles. Limits of liability requirements may be satisfied by a combination
of Automobile Liability and Umbrella Excess Liability policies.
(4) "All Risk" Property insurance upon all buildings,
building improvements and supplies on the premises, including those perils
generally covered on a "Cause of Loss - Special Form", including fire, extended
coverage, windstorm, vandalism, malicious mischief, sprinkler leakage, water
damage, accidental collapse, flood, and earthquake, in an amount equal to at
least 90% of the full replacement cost, with a coverage extension for increased
cost of construction, including a waiver of subrogation in favor of Sears.
15
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(5) Bailee's insurance for customer property in the
care, custody or control of Licensee, in an amount equal to the maximum value,
at any one time, of such property.
(b) Licensee's policies of insurance shall expressly provide
that they shall not be subject to material change or cancellation without at
least thirty (30) days' prior written notice to Sears.
(c) Licensee shall furnish Sears with certificates of
insurance or, at Sears request, Sears may review, at Licensee's home office,
copies of policies, prior to execution of this Agreement and each policy renewal
during the Term of this Agreement. If Licensee does not provide Sears with such
certificates of insurance or, if such policies do not afford the coverage
provided for herein, Sears will so advise Licensee, and if Licensee does not
furnish evidence of acceptable coverage within fifteen (15) days, Sears shall
have the right to immediately terminate this Agreement upon written notice to
Licensee.
(d) If Licensee's policies of insurance expire or are canceled
during the Term of this Agreement or are materially modified, Licensee shall
promptly notify Sears of such expiration, cancellation or material modification.
If such policies of insurance are materially modified such that, in Sears
opinion, such policies do not afford adequate protection to Sears, Sears will so
advise Licensee. If Licensee does not furnish evidence of acceptable replacement
coverage within fifteen (15) days after the expiration or cancellation of
coverage or the notification from Sears that modified policies are not
sufficient, Sears shall have the right, at its option, to immediately terminate
this Agreement upon written notice to Licensee.
(e) Any approval by Sears of any of Licensee's insurance
policies or shall not relieve Licensee of any responsibility under this
Agreement, including liability for claims in excess of described limits.
(f) Licensee retains the right to self-insure certain types of
insurance coverage required by Paragraph 35 (a) (4) and (5) of this Agreement
and subject to approval of Sears, the insurance coverage required by (1) through
(3) of Paragraph 35 (a).
MUTUAL RIGHT OF TERMINATION
---------------------------
36. Either party may terminate this Agreement, or any location, without
cause, without penalty, and without liability for any damages as a result of
such termination, at any time hereafter by giving the other party at least sixty
(60) days' prior written notice. The notice shall specify the termination date.
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SUB-LICENSE OR ASSIGNMENT BY LICENSEE
-------------------------------------
37. Notwithstanding any other provision contained in this Agreement,
this Agreement is not transferable by Licensee in whole or in part without Sears
prior written consent and Licensee shall not sub-license the license granted
herein to any person or entity. Any transfer or attempt to transfer by Licensee
whether expressly or by operation of law, and without Sears prior written
consent, shall, at the option of Sears, without notice, immediately terminate
this Agreement. The sale of Licensee's business or any other transaction
(including sales of stock) which shifts the rights or liabilities of Licensee to
another controlling interest shall be such a transfer.
RIGHT TO TERMINATION ON DEFAULT BY LICENSEE
-------------------------------------------
38. If a petition is filed either by or against Licensee in any
bankruptcy or insolvency proceeding, or if any property of Licensee passes into
the hands of any receiver, assignee, officer of the law or creditor, or if
Licensee vacates, abandons, or ceases to operate under this Agreement, or fails
to secure and maintain appropriate insurance coverage as set forth in Paragraph
35, or if Licensee fails to comply with any material provision or condition of
this Agreement, then Sears may give notice of its intention to terminate this
Agreement, and this Agreement will automatically terminate, without penalty and
without liability for any damages as a result of such termination, if Licensee
fails to cure the default(s) causing such right to terminate within five (5)
business days of such notice of termination.
RIGHT TO TERMINATION ON CLOSING OF STORE
----------------------------------------
39. Sears may, solely at Sears discretion, terminate this Agreement
with respect to any affected Licensed Business location without notice, due to
the closing of the Designated Sears Store. Licensee shall not be entitled to any
notice of such store closing prior to a public announcement of such closing.
Licensee waives any claim it may have against Sears for damages, if any,
incurred as a result of such closing.
RIGHT OF TERMINATION AFTER FIRE
-------------------------------
40. If any Designated Sears Store is damaged by fire or any other
casualty so that the Licensed Business area becomes untenantable, this Agreement
may be terminated with respect to such Licensed Business location, without
penalty and without liability for any damages as a result of such termination,
effective as of the date of such casualty, by either party giving the other
party written notice of such termination within twenty (20) days after the
occurrence of such casualty. If such notice is not given, then this Agreement
shall not terminate, but shall remain in full force and effect and the parties
shall cooperate with each other so that Licensee may resume the conduct of
business as soon as possible.
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SUBJECT TO STORE LEASES
-----------------------
41. If any Designated Sears Store is leased to Sears or is the subject
of an easement agreement, this Agreement shall be subject to all of the terms,
agreements and conditions contained in such lease or easement agreement. In the
event of the termination of any such lease by expiration of time or otherwise,
this Agreement shall immediately terminate with respect to affected Licensed
Business locations.
FUTURE OBLIGATIONS
------------------
42. After the termination of this Agreement by expiration of time or
otherwise, Licensee shall have no right or interest in future contracts with
Sears relating to any operation similar to that under this Agreement, and Sears
may, without incurring any liability to Licensee:
(1) enter into an agreement for the operation of a
similar business with any person or organization Sears chooses, including, but
not limited to, Licensee or any of Licensee's counterparts,
(2) directly operate a similar business itself, or
(3) terminate the operation of the business.
GOODWILL
--------
43. Licensee acknowledges that the commission rate established by this
Agreement takes into consideration that all good will generated by the operation
of the Licensed Business inures completely to the benefit of Sears and that
Licensee has no right or interest in such good will. "Good Will" includes all
ownership rights in any information regarding the customers of the Licensed
Business.
CUSTOMER INFORMATION
--------------------
44. The Sears Information and any customer list developed by Licensee,
its employees or agents from the operation of, or from records generated as a
result of the operation of the Licensed Business (collectively, the "Customer
Information"), are deemed exclusively owned by Sears. Licensee shall not use,
permit use, disclose or permit disclosure of such Customer Information for any
purpose except the performance of this Agreement. Licensee shall at all times
maintain any such Customer Information, including lists, physically separate and
distinct from any customer information Licensee may maintain that is unrelated
to the Licensed Business. Licensee shall not reproduce, release or in any way
make available or furnish, either directly or indirectly, to any person, firm,
corporation, association or organization at any time, any such Customer
18
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Information which will or may be used to solicit sales or business from such
customers, including but not limited to the type of sales or business covered by
this License Agreement. Upon expiration or termination of this Agreement for any
reason, Licensee shall immediately deliver all copies of lists of customers and
copies of all other such Customer Information to Sears; and Licensee, its
officers, employees, successors and assigns, shall not use any such Customer
Information to solicit any of such customers. Licensee shall protect all such
Customer Information from destruction, loss or theft during the term of this
Agreement, and until all copies of customer lists and copies of all other
Customer Information are turned over to Sears. Licensee acknowledges that there
is no adequate remedy at law for violation by Licensee of this Paragraph 44 and,
in the event of breach of this Paragraph 44, preliminary or permanent injunctive
relief would be appropriate.
SEARS OPTION TO PURCHASE LICENSEE'S EQUIPMENT
---------------------------------------------
45. In the event of the termination of this Agreement by expiration of
time or otherwise, Sears shall have the right, but not the obligation, to
purchase from Licensee, and Licensee shall convey and sell to Sears, such items
of Licensee's Equipment as Sears may designate in a written notice given to
Licensee at least twenty (20) days prior to the effective date of such
termination. Sears shall pay Licensee the fair market value of such items as of
the effective date of such termination. In the event that Licensee and Sears are
unable to agree upon such fair market value, at Sears option, such value shall
be ascertained by an independent appraiser mutually acceptable to Licensee and
Sears. Any fee of such appraiser shall be borne equally by Licensee and Sears.
At any time, Sears may waive its right to purchase and have no obligation to
Licensee.
ACTIONS UPON TERMINATION OR EXPIRATION
--------------------------------------
46. Upon the termination of this Agreement by expiration of time or
otherwise, Licensee shall, at its expense, immediately remove all of Licensee's
Equipment (except such of Licensee's Equipment as may be purchased by Sears as
provided in Paragraph 45) from Sears premises and shall, without delay and at
Licensee's expense, repair any damage to Sears premises caused by such removal.
SURVIVAL OF OBLIGATIONS
-----------------------
47. No termination of this Agreement, by expiration of time or
otherwise, shall relieve the parties of liability for obligations arising out of
the operation of the Licensed Business before termination.
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LICENSES, LAWS, ORDINANCES
--------------------------
48. Licensee shall, at its expense, obtain all permits and licenses
which may be required under any applicable Federal, state, or local law,
ordinance, rule or regulation by virtue of any act performed in connection with
the operation of the Licensed Business. Licensee shall comply fully with all
applicable Federal, state and local laws, ordinances, rules and regulations,
including, but not limited to, all rules and regulations of the Federal Trade
Commission.
FEES, TAXES
-----------
49. Licensee shall, at its expense, pay and discharge all license fees,
business, use, sales, gross receipts, income, property or other applicable taxes
or assessments which may be charged or levied by reason of any act performed in
connection with the operation of the Licensed Business, excluding, however, all
taxes and assessments applicable to Sears income from Sears Commission or
applicable to Sears property.
REMEDIES CUMULATIVE
-------------------
50. The remedies provided in this Agreement are cumulative, and shall
not affect in any manner any other remedies that either party may have for any
default or breach by the other party. The exercise of any right or remedy shall
not constitute a waiver of any other right or remedy under this Agreement or
provided by law or equity. No waiver of any such right or remedy shall be
implied from failure to enforce any such right or remedy other than that to
which the waiver is applicable, and only for that occurrence.
ASSIGNS
-------
51. The provisions of this Agreement shall be binding upon Licensee and
upon Licensee's successors and assigns and shall be binding upon and inure to
the benefit of Sears, its successors and assigns.
ASSIGNMENT BY SEARS
-------------------
52. Sears may assign this Agreement to any successor or affiliate of
Sears or any assignee which may result from any merger, consolidation or
reorganization, or to another company which acquires all or substantially all of
the business or assets of Sears, without the consent of Licensee.
CONFIDENTIALITY
---------------
53. (a) Information furnished by Sears to Licensee or which becomes
known to Licensee through Licensees operation of the Licensed Business or
Licensees relationship with Sears is confidential and proprietary to Sears
(collectively, the
20
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"Confidential Information"). All such Confidential Information shall be held in
utmost confidence by Licensee. All Confidential Information, including, but not
limited to, information regarding Sears stores, and any other information not
specifically designated by Sears for release to the public that may come into
the possession of Licensee during the Term of this Agreement shall be delivered
to Sears upon request by Sears to Licensee without making or retaining copies or
portions of the Confidential Information.
(b) The terms and content of this Agreement, including but not
limited to, exhibits attached hereto, and any other agreements entered into
pursuant to this Agreement shall at all times remain confidential between Sears
and Licensee and shall not be revealed to any third party without the prior
written consent of the other party except as required under law or regulation or
is permitted by this Agreement.
(c) The provisions of this Paragraph 53 shall survive the
expiration or termination of this Agreement.
NOTICES
-------
54. All notices provided for or which may be given in connection with
this Agreement shall be in writing and given by personal delivery or certified
or registered mail with postage prepaid and return receipt requested or its
equivalent, such as private express courier. Notices given by Licensee to Sears
shall be addressed to:
SEARS, XXXXXXX AND CO.
Attention: Vice President and General Manager,
Licensed Businesses,
Department 725 E3-359B
0000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx 00000
Notices given by Sears to Licensee shall be addressed to:
XXXX GIFT CENTERS, INC.
Attention: President
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxxx 00000
(000) 000-0000
Notices if so sent by mail shall be deemed to have been given when deposited in
the mail or with the private courier.
SEVERABILITY
------------
55. If any provision in this Agreement is held to be invalid, illegal
or unenforceable by a court of competent jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, and this
21
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Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been included.
GOVERNING LAWS
--------------
56. This Agreement shall be interpreted and governed by the internal
substantive laws of the State of Illinois.
ENTIRE AGREEMENT
----------------
57. This Agreement sets forth the entire agreement and understanding
between the parties with respect to the Licensed Business. This Agreement shall
not be supplemented, modified or amended except by a written instrument signed
by duly authorized representatives of Licensee and Sears, and no person has or
shall have the authority to supplement, modify or amend this Agreement in any
other manner.
PARAGRAPH TITLES
----------------
58. The paragraph titles in this Agreement are for the mere convenience
of the parties, and shall not be considered in any construction or
interpretation of this Agreement.
AGREEMENT SUPERSEDED
--------------------
59. This Agreement supersedes the License Agreements made and entered
into as of January 15, 1989 and January 1, 1990, by and between Sears and XXXX
KEY CORPORATION ("Superseded Agreements").
Such Superseded Agreements shall be deemed terminated as of
the close of business on December 31, 1994, provided however, that Licensee
shall be responsible for any and all obligations of the Licensee under the
Superseded Agreements arising out of the operation of the Licensed Business
prior to the termination of the Superseded Agreements.
22
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused
this Agreement to be executed on their behalf by duly authorized officers or
representatives.
SEARS, XXXXXXX AND CO.
By: /s/ Xxxxxxx Xxx
------------------------------------------
Vice President and General Manager,
Licensed Businesses
XXXX GIFT CENTERS, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
President
23
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EXHIBIT A
---------
AUTHORIZED MERCHANDISE AND/OR SERVICES
The following items, merchandise lines and/or services are authorized for sale
by Licensee in the Licensed Business.
1.
24
25
EXHIBIT B
---------
1995 ANNUAL INCENTIVE SCHEDULE
Total Annual Net Sales (000) Annual Incentive (000)
---------------------------- ----------------------
**** ****
**** ****
**** ****
**** ****
**** ****
**** ****
**** ****
**** ****
**** ****
**** ****
Incentive amounts for annual Net Sales less than **** are due to Sears by
Licensee. Incentive amounts for annual Net Sales more than **** are due to
Licensee by Sears. Incentive payments for annual sales between plateaus will be
calculated by interpolating the difference between the corresponding incentive
amounts. If annual Net Sales exceed ****, the incentive amount will be
**** percent ****%) of Sears Commission in excess of ****. Incentive amounts
due either party are payable by January 31, 1996.
**** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF
THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
25
26
EXHIBIT C
---------
COMMISSION SCHEDULE
The following Commission Rates shall be applicable to the portion of Net Sales
within the described Sales Range:
Sales Range Commission Rate
----------- ---------------
**** ****%
**** ****%
**** ****%
**** ****%
**** ****%
**** ****%
Commission rates shall be calculated per department. Sears Commissions shall be
deducted at the rate of **** percent ****%) of Net Sales and will be adjusted
at the end of each Sears fiscal quarter per the above schedule. Sears Commission
adjustments due either party will be made on the next regularly scheduled
settlement.
**** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF
THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
26
27
EXHIBIT D
---------
NEW DEPARTMENT
--------------
Sears will be responsible for the following in the
construction of a new department:
1. Perimeter walls, painted standard Sears colors.
2. Ceiling containing standard Sears fluorescent lighting.
3. Standard electrical outlets within the department.
4. Floor covered with Sears standard carpet/tile.
Licensee will be responsible for all furniture, fixtures, equipment,
displays, cabinets, counters, plumbing (if requested), shelving, sinks, and
other such items. Licensee will also be responsible for any non-standard walls,
wall coverings, ceilings, lighting and electrical within the department.
RELOCATED DEPARTMENT
--------------------
If a department is required to relocate by Sears or if Licensee requests
(and Sears agrees) that the department be relocated, the financial
responsibilities for the relocation will be the same as for a New Department
with the following exceptions.
1. Sears will absorb **** percent (****%) of the un-depreciated
cost of furniture and fixtures that cannot be used in the new
location. A five year straight line method of depreciation will
be used to determine the un-depreciated cost.
REMODELED DEPARTMENT
--------------------
Licensee shall at its sole expense remodel the department at the same
time Sears remodels the Designated Sears Store.
**** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF
THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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28
LOCATION RIDER APPROVAL
GIFT CENTERS AND KEY DEPARTMENTS
FINITE #195015 & 195086 & 195115 & 195215
THIS LOCATION APPROVAL RIDER is made and entered into as of December 19,
1996, by and between SEARS, XXXXXXX AND CO., a New York corporation,
(hereinafter called "Sears") and XXXX GIFT CENTERS, INC. (hereinafter called
"Licensee").
Reference is made to the License Agreement, entered into on the 16th day
of March, 1995, ("License Agreement") by and between Sears and Licensee wherein
Sears licenses Licensee to have the privilege of conducting and operating, and
Licensee agrees to operate, pursuant to the terms, provisions and conditions
contained in the License Agreement, a licensed business for gift centers and/or
key departments (hereinafter referred to as "Licensed Business"), at locations
in those Sears stores designated by Location Riders.
Sears and Licensee hereby agree that the following concession
location(s) are approved:
REGION DIST. STORE LOCATION
------ ----- ----- --------
See Attached List
The License Agreement, as so amended, is hereby ratified and confirmed
including any mutual rights of termination.
IN WITNESS WHEREOF, Sears and Licensee have signed this Location
Approval Rider as of the above date by their duly authorized officers or agents.
SEARS, XXXXXXX AND CO.
By
--------------------------------
Vice President & General Manager
Licensed Businesses
XXXX GIFT CENTERS, INC.
By /s/ Xxxxxxx Xxxxxx
--------------------------------
President
Xxxxxxx Xxxxxx
29
XXXX GIFT LOCATIONS
REGION DIST STORE LOCATION STATE
------ ---- ----- -------- -----
SW 241 1158 HONOLULU HI
NW 243 1009 SEATTLE WA
NW 243 1059 SEATTLE/AURORA WA
NW 243 1069 REDMOND WA
NW 243 0000 XXXXXXX XXX XX
NW 243 1109 LYNNWOOD WA
NW 243 1129 TACOMA WA
NW 243 1139 TUKWILA WA
NW 243 2309 SILVERDALE WA
NW 244 1079 PORTLAND OR
SW 245 1208 FRESNO CA
SW 245 1228 SACRAMENTO/ARDEN CA
SW 245 1288 STOCKTON CA
SW 245 1318 BAKERSFIELD CA
SW 245 1408 SACRAMENTO CA
SW 245 1538 CITRUS HEIGHTS CA
SW 245 1618 MODESTO CA
SW 245 1978 RENO NV
SW 245 2138 SANTA BARBARA CA
SW 246 1019 PLEASANTON CA
SW 246 1039 OAKLAND CA
SW 246 1199 SAN MATEO CA
SW 246 1238 MOUNTAIN VIEW CA
SW 246 1248 HAYWARD CA
SW 246 1368 CONCORD CA
SW 246 1468 CUPERTINO CA
SW 246 1478 SAN BRUNO CA
SW 246 1488 XXXXXXXXX/SAN JOSE CA
SW 246 1658 SANTA ROSA CA
SW 246 1688 SALINAS CA
SW 246 0000 XXX XXXX XX
XX 000 0000 XXXXX XXXX XX
SW 247 1298 RIVERSIDE CA
SW 247 1328 LAS VEGAS NV
SW 247 1358 CHULA XXXXX XX
XX 000 0000 XXX XXXXXXXXXX XX
SW 247 1438 EL CAJON CA
SW 247 1648 NORTH SAN DIEGO CA
SW 247 1668 LAS VEGAS XXXXXXX NV
SW 247 1678 CARLSBAD CA
2
30
SW 247 1758 ESCONDIDO CA
SW 247 1868 MORENO VALLEY CA
SW 248 1008 LOS ANGELES/XXXXX CA
SW 248 1018 XXXXXXX/LOS ANGELES CA
SW 248 1048 PASADENA CA
SW 248 1068 PALMDALE CA
SW 248 1088 GLENDALE CA
SW 248 1168 LOS ANGELES VALLEY CA
SW 248 1178 SANTA MONICA CA
SW 248 1179 CANOGA PARK CA
SW 248 1189 WEST COVINA CA
SW 248 1209 LONG BEACH CA
SW 248 1268 BUENA PARK CA
SW 248 1278 TORRANCE CA
SW 248 1309 DOWNEY CA
SW 248 1378 ORANGE CA
SW 248 1388 COSTA MESA CA
SW 248 1448 OXNARD CA
SW 248 1508 XXXXXXXXXX XX
XX 000 0000 XXXXXXXX XX
SW 248 1548 LAGUNA HILLS CA
SW 248 1568 CARSON CA
SW 248 1598 CITY OF INDUSTRY CA
SW 248 1608 WESTMINSTER CA
SW 248 1638 BREA CA
SW 248 1748 MONTCLAIR CA
SW 248 1838 BURBANK CA
SW 248 2318 THOUSAND OAKS CA
NW 249 1029 SPOKANE WA
NW 249 1118 SALT LAKE CITY UT
NW 249 1558 MURRAY UT
NW 249 1718 OGDEN UT
NW 250 1031 XXXXXX/XXXXXX XXXXX XX
XX 000 0000 XXXXXX/XXXXXXXX XX
XX 250 1141 XXXXXX XX
XX 000 0000 XXXXXXXX XXXXXXX XX
XX 250 1271 XXXXXX/XXXXXXXXX XX
XX 000 0000 XXXX XXXX XX
SW 251 1287 XXXXXXXXXXX XX
XX 000 0000 XX XXXX XX
SW 251 1338 TUCSON AZ
SW 251 1458 SCOTTSDALE AZ
SW 251 1588 PHOENIX AZ
SW 251 1628 MESA AZ
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31
NW 252 1032 XXXXXXXX XXXXXX XX
XX 000 0000 XXX XXXXXX XX
XX 252 1052 SAINT XXXX MN
NW 252 1112 MINNETONKA MN
NW 252 1122 MAPLEWOOD MN
NW 252 1132 BURNSVILLE MN
NW 252 1142 EDEN PRAIRIE MN
NW 252 1722 BLOOMINGTON MN
NW 252 2082 FARGO ND
NW 252 2500 DULUTH MN
CN 253 1012 DES MOINES IA
CN 253 1041 OMAHA NE
XX 000 0000 XXXXXXXX IA
CN 253 2191 LINCOLN NE
CN 253 2212 CEDAR RAPIDS IA
CN 254 1101 OVERLAND PARK KS
CN 254 1161 WICHITA KS
CN 254 2131 SALINA KS
SC 255 1211 OKLAHOMA CITY OK
SC 255 1247 LUBBOCK TX
SC 255 1261 MIDWEST CITY OK
SC 255 0000 XXXXXXX XXXXX XX
SC 256 1097 SAN ANTONIO TX
SC 256 1137 AUSTIN/XXXXXXX TX
SC 256 0000 XXX XXXXXXX/XXXXXXX XXXX XX
SC 256 1217 CORPUS CHRISTI TX
SC 256 0000 XXX XXXXXXX/XXXXXX XXXX XX
SC 256 1307 ABILENE TX
SC 256 0000 XXXXXX/XXXXXX XXXXX XX
SC 256 1397 ODESSA TX
SC 256 0000 XXX XXXXXXX/XXXXXXX XXXX XX
SC 256 2507 McALLEN TX
SC 257 0000 XXXXXX/XXXXXX XXXX XX
SC 257 1076 LEWISVILLE TX
SC 257 0000 XXXXXXXXXX XX
XX 257 1117 FORT WORTH TX
SC 257 1177 ARLINGTON TX
SC 257 1187 MESQUITE TX
SC 257 1207 RICHARDSON TX
SC 257 1227 DALLAS/REDBIRD TX
SC 257 1267 FORT WORTH TX
SC 257 1297 HURST TX
SC 257 1337 PLANO TX
SC 257 2147 IRVING TX
4
32
SC 258 1017 HOUSTON TX
SC 258 1067 HOUSTON/MEMORIAL TX
SC 258 1107 PASADENA TX
SC 258 1127 HOUSTON/SHEPHERD TX
SC 258 1197 HOUSTON/WESTWOOD TX
SC 258 1237 HOUSTON/GREENSPOINT TX
SC 258 1257 HOUSTON/BAYBROOK TX
SC 258 1327 BAYTOWN TX
SC 258 1377 HOUSTON/WILLOWBROOK TX
SC 258 1407 BEAUMONT TX
SC 258 1417 HOUSTON/DEERBROOK TX
SC 258 1457 HOUSTON/WOODLANDS TX
CN 259 1062 BROOKFIELD WI
CN 259 1082 GREENDALE WI
CN 259 0000 XXXXXXXXX/XXXXX XXXXX XX
CN 259 2990 ROCKFORD/CHERRYVALE IL
CN 260 0000 XXXXXXX/00XX XXXXXX XX
CN 260 0000 XXXXXXX/XXXXXXX XXXXXX XX
CN 260 1090 CHICAGO/HARLEM IL
CN 260 1290 NILES/GOLF MILL IL
CN 260 1300 OAKBROOK IL
CN 260 1380 CHICAGO/IRVING PARK IL
CN 260 1510 CALUMET CITY IL
CN 260 1570 SCHAUMBURG IL
CN 260 1620 VERNON HILLS IL
CN 260 1650 MERRILLVILLE IN
CN 260 1660 AURORA/FOX VALLEY IL
CN 260 1740 JOLIET IL
CN 260 1750 ORLAND PARK IL
CN 260 1820 WEST DUNDEE IL
CN 260 0000 XXXXXXX XXXXX XX
CN 260 1921 MATTESON IL
CN 261 1182 ST. XXXXXX MO
CN 261 1270 SAINT LOUIS/CRESTWOOD MO
CN 261 0000 XXXXXXXXXX/XXXXXXXXXX XX IN
CN 261 1500 SAINT XXX MO
CN 261 1630 FLORISSANT MO
CN 261 1640 FAIRVIEW HEIGHTS IL
CN 261 1690 CHESTERFIELD MO
CN 261 1780 SPRINGFIELD IL
SC 262 1016 LITTLE ROCK AR
SC 262 0000 XXXXXXX/XXXXXXX XXXXXXX XX
SC 262 1186 MEMPHIS/POPLAR TN
SC 262 0000 XXXXX XXXXXX XXXX XX
5
33
SC 262 1316 NASHVILLE/HICKORY HOLLOW TN
SC 262 1386 NASHVILLE TN
SC 262 0000 XXXXXXX/XXXXXXX XXXXX XX
SC 263 0000 XXXXX XXXXX XX
XX 263 1106 JACKSON MS
SC 263 0000 XXX XXXXXXX/XXXXXXXXX XX
XX 263 1286 GRETNA/OAKWOOD LA
SC 263 1306 HATTISBURG MS
SC 263 0000 XXXXXXXXX XX
XX 264 1140 GRAND RAPIDS MI
NC 264 1170 LANSING MI
NC 264 1590 SAGINAW MI
NC 264 1800 MISHAWAKA/UNIVERSITY PARK IN
NC 264 1830 FORT XXXXX/GLENBROOK MI
NC 265 1100 FLINT MI
NC 265 1180 PONTIAC MI
NC 265 1220 TOLEDO OH
NC 265 0000 XXXXXXX XXXX XX
NC 265 1450 ROSEVILLE MI
NC 265 1460 LIVONIA MI
NC 265 1490 TROY MI
NC 265 1700 DEARBORN MI
NC 265 1720 STERLING HEIGHTS MI
NC 265 1760 NOVI MI
CN 266 1470 GREENWOOD IN
CN 266 1540 LAFAYETTE IN
SQUARE/INDIANAPOLIS
CN 266 1580 LEXINGTON KY
CN 266 1600 INDIANAPOLIS/CASTLETON IN
SQUARE
CN 266 1790 LOUISVILLE/OKOLONA KY
CN 266 1850 LOUISVILLE/OXMOOR KY
CN 266 1980 LAFAYETTE IN
CN 266 2160 CLARKSVILLE IN
CN 267 0000 XXXXXX XXXXX/XXXXXX XX
CN 267 1280 SPRINGDALE OH
CN 267 1370 COLUMBUS/EASTLAND OH
CN 267 1440 COLUMBUS/NORTHLAND OH
CN 267 0000 XXXXXX XXXX XX
CN 267 1610 CINCINNATI/NORTHGATE OH
CN 267 1730 FLORENCE KY
CN 267 1810 CINCINNATI/EASTGATE OH
SE 268 1115 XXXXXXXX XX. TN
MALLI CHATTANOOGA
6
34
SE 268 1185 ASHEVILLE NC
SE 268 1315 CHATTANOOGA/NORTHGATE TN
SE 268 1395 KNOXVILLE/WEST TOWN TN
SE 268 1675 KNOXVILLE/EAST TOWN TN
SE 268 1804 BARBOURSVILLE WV
SE 268 1954 CHARLESTON WV
XX 000 0000 XXXXXXX XXXX XX
XX 268 2825 KINGSPORT TN
SC 269 1096 PENSACOLA FL
SC 269 1126 MONTGOMERY AL
SE 269 1136 BIRMINGHAM AL
SC 269 1266 BIRMINGHAM EAST/CENTURY XX
XXXXX
XX 000 0000 XXXX XXXXXX XXXXX XX
XX 269 2166 HUNTSVILLE XX
XX 000 0000 XXXXXX XXXX XX
SE 270 1145 COLUMBUS GA
SE 270 1155 ATLANTA/XXXX/KENNESAW GA
SE 270 1275 ATLANTA/NORTHLAKE GA
SE 270 1385 ATLANTA/CUMBERLAND MALL GA
SE 270 1435 MACON GA
SE 270 1565 ATLANTA/SOUTHLAKE GA
SE 270 0000 XXXXXXX/XXXXXXXX XX GA
SE 270 1695 ALPHARETTA GA
NC 271 1051 STRONGSVILLE OH
NC 271 1310 ELYRIA OH
NC 271 1350 MENTOR OH
NC 271 1410 CANTON OH
NC 271 143? MIDDLEBURG HEIGHTS OH
NC 271 1474 YOUNGSTOWN OH
NC 271 1520 AKRON/CHAPEL HILL OH
NC 271 1530 RICHMOND HEIGHTS OH
NC 271 1670 ROLLING ACRES/AKRON OH
NC 271 1710 NORTH OLMSTED OH
NC 271 1770 NORTH XXXXXXX OH
NC 272 1504 WILLIAMSVILLE NY
NC 272 1694 ERIE PA
NC 272 1984 HAMBURG/BUFFALO NY
NC 272 2134 BUFFALO/XXXXXX NY
NC 272 2744 HORSEHEADS/ELMIRA NY
NC 273 0000 XXXX XXXX/XXXXXXXXXX XX
NC 273 1334 PITTSBURGH/SOUTH HILLS PA
NC 273 1344 PITTSBURGH/PENN CENTER PA
NC 273 1594 MONACA PA
7
35
NC 273 1714 GREENSBURG PA
NC 273 1824 WEST MIFFLIN PA
SE 274 1025 DANVILLE VA
SE 274 1245 CHARLOTTE/SOUTHPARK NC
SE 274 1335 GREENSBORO NC
SE 274 1375 WINSTON/SALEM NC
SE 274 1515 CHARLOTTE/EASTLAND NC
XX 000 0000 XXXXXXXXXXX SC
SE 274 1595 GREENVILLE SC
SE 274 1974 ROANOKE VA
SE 274 2105 BURLINGTON NC
SE 275 1035 AUGUSTA GA
SE 275 1066 JACKSONVILLE/AVENUES FL
SE 275 1305 SAVANNAH GA
SE 275 1325 CHARLESTON SC
HEIGHTS/NORTHWOODS
SE 275 1455 WILMINGTON NC
SE 275 1485 JACKSONVILLE/ORANGE PARK FL
SE 275 1525 COLUMBIA SC
SE 275 1585 TALLAHASSEE FL
SE 275 1635 JACKSONVILLE FL
SE 275 1665 GAINESVILLE FL
XX 000 0000 XXXXXX GA
SE 275 2855 CHARLESTON SC
XX 000 0000 XXXX XXXXX FL
SE 276 1006 OCALA FL
SE 276 1007 BRANDON FL
SE 276 1075 DAYTONA BEACH FL
SE 276 1175 MERRITT ISLAND FL
SE 276 1225 ORLANDO/COLONIAL FL
SE 276 1285 ORLANDO/SOUTH FL
SE 276 1295 SAINT PETERSBURG FL
SE 276 1355 ALTAMONTE SPRINGS FL
SE 276 1415 NORTH CLEARWATER FL
SE 276 0000 XXXXX/XXXXXXXXXX XXXX XX
SE 276 1495 FORT XXXXX FL
XX 000 0000 XXXXX XXX CENTER FL
SE 276 1625 SARASOTA FL
XX 000 0000 XXXXXXXX FL
SE 276 2885 PORT XXXXXX FL
SE 277 1055 CORAL SPRINGS FL
SE 277 1125 MIAMI/CORAL GABLES FL
SE 277 1195 FT. XXXXXXXXXX XX
XX 000 0000 XXXXXXX XXXXX XX
8
00
XX 000 0000 XXXXX/XXXXXXXX/XXXXXXX XX
SE 277 1365 MIAMI/XXXXXX RIDGE FL
SE 277 1535 PLANTATION FL
SE 277 1645 BOCA RATON FL
SE 277 1655 MIAMI/AVENTURA FL
XX 000 0000 XXXX XXXX XXXXX XX
XX 277 1715 MIAMI/INTERNATIONAL FL
SE 277 1765 PALM BEACH GARDENS FL
SE 277 1775 PEMBROKE PINES FL
NC 279 1154 ALLENTOWN/WHITEHALL PA
NC 279 1353 DEWITT/SYRACUSE NY
NC 279 1534 SCRANTON PA
NC 279 1623 SYRACUSE/CLAY NY
NC 279 1784 JOHNSON CITY NY
NC 279 2074 STROUDSBURG PA
NC 279 2473 AUBURN NY
NC 279 2603 NEW HARTFORD NY
NC 279 2644 MUNCY PA
NC 279 2683 WATERTOWN NY
NE 280 1013 GLEN BURNIE MD
NE 280 1224 HARRISBURG PA
NE 280 1634 BALTIMORE/WEST MD
NE 280 1644 LANCASTER PA
NE 280 1854 PARKVILLE MD
NE 280 1864 XXXX VALLEY/COCKEYSVILLE MD
NE 281 1074 WALDORF MD
NE 281 1284 ALEXANDRIA VA
NE 281 0000 XXXXX XXX/XXXXXX XXXXXXX XX
NE 281 1424 BETHESDA MD
NE 281 1604 LANDOVER MD
NE 281 1754 GAITHERSBURG MD
NE 281 1773 SALISBURY MD
NE 281 1814 FAIR OAKS/FAIRFAX VA
NE 281 1844 COLUMBIA MD
NE 281 2664 FREDERICK MD
XX 000 0000 XXXXXX NC
SE 282 1065 GLEN ALLEN VA
SE 282 1135 RICHMOND/CLOVER LEAF VA
SE 282 1265 VIRGINIA BEACH VA
SE 282 1274 RICHMOND VA
SE 282 1405 FAYETTEVILLE NC
SE 282 0000 XXXXXXXX/XXXXXXX XXXXXX XX
SE 282 1575 HAMPTON VA
SE 282 1615 CHESAPEAKE VA
9
37
SE 282 1805 RALEIGH NC
SE 282 2225 GOLDSBORO NC
SE 282 2635 ROCKYMOUNT NC
SE 282 2755 JACKSONVILLE NC
NC 283 1093 SPRINGFIELD MA
NC 283 0000 XXXXXX NY
NC 283 0000 XXXXXX XX
XX 283 0000 XXXXXXXXX XX
XX 000 0000 XXXXXXXXX XX
XX 283 0000 XXXXXXX XX
NC 283 0000 XXXXXXX XX
XX 000 0000 XXXXXXXXXXXX XX
XX 283 0000 XXXXXXXXXX XX
XX 000 0000 XXXXXXXXX/XXXXXXXXXX XX
XX 283 2353 KINGSTON NY
NE 284 1003 SALEM NH
NE 284 1313 NASHUA NH
NE 284 0000 XXXXX XXXXXXXX XX
NE 284 2443 MANCHESTER NH
NE 284 2583 BANGOR ME
NE 284 2663 PORTSMOUTH NH
NE 285 0000 XXXXX XXXXXXXXX XX
NE 285 1053 SAUGUS MA
NE 285 1083 WARWICK RI
NE 285 1123 DEDHAM MA
NE 285 1133 LEOMINSTER MA
NE 285 0000 XXXXXXXXXX XX
NE 285 1213 AUBURN MA
NE 285 1253 PEABODY MA
NE 285 1283 BRAINTREE MA
NE 285 1343 CAMBRIDGE MA
NE 285 1403 NATICK MA
NE 285 2233 BROCKTON MA
NE 286 1114 BROOKLYN NY
NE 286 1264 XXXXXXXXXX XX
XX 000 0000 XXX XXXXX XX
XX 286 1364 LAKE GROVE NY
NE 286 1404 MASSAPEQUA NY
NE 286 0000 XXXXX XXXXXX XX
NE 286 0000 XXXX XXXXXXXXX XX
NE 286 1924 VALLEY STREAM NY
NE 286 0000 XXXXXXXX XXXXXXX XX
NE 286 0000 XXX XXXX XXXX XX
NE 287 1064 LANGHORNE/OXFORD VALLEY PA
10
38
NE 287 1084 PHILADELPHIA/COTTMAN XX
XXXXXX
XX 000 0000 XXXXX XXXXX XX
XX 287 1254 WILMINGTON/PRICES XXXXXX XX
XX 000 0000 XXXXXX XXXXX XX
XX 287 0000 XXXXXXXXX XXXXXXX XX
NE 287 1464 DEPTFORD NJ
NE 287 0000 XXXXXXX XX
XX 000 0000 XXXXXXXXXX XX
XX 287 0000 XXXX XXXXXXX/XXXXXXXX XX
NE 287 1654 MEDIA PA
NE 287 1734 XXXXXXXXXXXXX XX
XX 000 0000 XXXXX XXXXX XX
NE 287 0000 XXXXXXX XXXX XX
XX 287 1884 KING OF PRUSSIA PA
NE 287 2374 VINELAND NJ
NE 287 2484 POTTSTOWN PA
NE 288 0000 XXXXXX XXXX/XXXXXXX XX
NE 288 1094 HACKENSACK NJ
NE 288 1204 FREEHOLD NJ
NE 288 1294 WATCHUNG NJ
NE 288 0000 XXX XXXXXXXXX XX
XX 288 1323 MIDDLETOWN NY
NE 288 1414 NANUET NY
NE 288 1434 WAYNE NJ
NE 288 1574 MIDDLETOWN NJ
11
39
LOCATION RIDER APPROVAL
OUTSIDE KEY SHOPS
FINITE #195080
THIS LOCATION APPROVAL RIDER is made and entered into as of December 6,
1996, by and between SEARS, XXXXXXX AND CO., a New York corporation,
(hereinafter called "Sears") and XXXX GIFT CENTERS, INC. (hereinafter called
"Licensee").
Reference is made to the License Agreement, entered into on the 16th day
of March, 1995, ("License Agreement") by and between Sears and Licensee wherein
Sears licenses Licensee to have the privilege of conducting and operating, and
Licensee agrees to operate, pursuant to the terms, provisions and conditions
contained in the License Agreement, a licensed business for gift centers and/or
key departments (hereinafter referred to as "Licensed Business"), at locations
in those Sears stores designated by Location Riders.
Sears and Licensee hereby agree that the following concession
location(s) are approved:
REGION DIST. STORE LOCATION
------ ----- ----- --------
See Attached List
The License Agreement, as so amended, is hereby ratified and confirmed
including any mutual rights of termination.
IN WITNESS WHEREOF, Sears and Licensee have signed this Location
Approval Rider as of the above date by their duly authorized officers or agents.
SEARS, XXXXXXX AND CO.
By
----------------------------------
Vice President & General Manager
Licensed Businesses
XXXX GIFT CENTERS, INC.
By /s/ Xxxxxxx Xxxxxx
----------------------------------
President Xxxxxxx Xxxxxx
40
OUTSIDE KEY SHOP LOCATIONS
REGION DIST STORE LOCATION STATE
------ ---- ----- -------- -----
SC 262 1016 LITTLE ROCK AR
SC 255 1021 TULSA/YALE OK
NW 250 1031 DENVER/CHERRY CREEK CO
SC 257 0000 XXXXXX/XXXXXX XXXX XX
NW 243 1059 SEATTLE/AURORA WA
CN 259 1062 BROOKFIELD WI
SC 258 1067 HOUSTON/MEMORIAL TX
NW 250 1071 DENVER/WESTLAND/
XXXXXXXX XX
XX 000 0000 XXXXXXXXXX XX
XX 258 0000 XXXXXXXX XX
XX 000 0000 XXXXXXXX XXXXXXX XX
XX 249 1118 SALT LAKE CITY UT
SC 258 1127 HOUSTON/SHEPHERD TX
NC 264 1140 GRAND RAPIDS MI
NE 285 0000 XXXXXXXXXX XX
SC 256 0000 XXX XXXXXXX/
XXXXXXX XXXX XX
NC 264 1170 LANSING MI
NC 265 1220 TOLEDO OH
NE 280 1224 HARRISBURG PA
SE 282 1265 VIRGINIA BEACH VA
SW 248 1268 BUENA PARK CA
SW 251 1287 ALBUQUERQUE NM
NC 271 1310 ELYRIA OH
SW 245 1318 BAKERSFIELD CA
SW 247 1328 LAS VEGAS NV
SW 251 1338 TUCSON AZ
SW 246 1368 CONCORD CA
CN 267 1370 COLUMBUS/EASTLAND OH
SW 248 1378 ORANGE CA
CN 260 0000 XXXXXXX/XXXXXX XXXX XX
NE 281 1424 BETHESDA MD
NC 271 1430 MIDDLEBURG HEIGHTS OH
CN 267 1440 COLUMBUS/NORTHLAND OH
NC 265 1490 TROY MI
NC 271 1520 AKRON/CHAPEL HILL OH
NC 264 0000 XXXX XXXXX/XXXXXXXXX XX
NC 271 1474 YOUNGSTOWN OH
NW 249 2118 PROVO UT
NW 250 2281 PUEBLO CO
2
41
AGREEMENT TO AMEND EXTEND LICENSE AGREEMENT
Finite #195015 & 195086 & 195115 & 195215 & 195080
THIS AGREEMENT is made as of the January 9, 1997, by and
between SEARS, XXXXXXX AND CO., a New York corporation (herein called "Sears"),
and XXXX GIFTS CENTERS, INC., a Delaware corporation ("Licensee").
Reference is made to the License Agreement dated the 16th day
of March, 1995, by and between Sears and Licensee, wherein Sears licensed to
Licensee a certain area in the Sears retail stores designated in Location
Riders.
The License Agreement, as the same may heretofore have been
extended, amended, modified and/or supplemented, is referred to hereinafter as
the "License".
Whereas, the parties desire to extend the Term of the License and to amend the
License, Sears and Licensee agree as follows:
1. The Term of said License shall be and hereby is
extended until December 31, 1998.
2. The Sears commission for sales made under the
License between 12/29/96 through 12/27/97 ("Sears
1997 Fiscal Year") shall be per the terms of
Exhibit E attached hereto and hereafter made a
part of the License.
The License Agreement, as so amended, is hereby ratified and
confirmed, including any mutual rights of termination.
IN WITNESS WHEREOF, the parties have signed this Agreement to
Amend and Extend License Agreement as of the above date by their duly authorized
officer or agents.
SEARS, XXXXXXX AND CO.
By:
--------------------------------------
Vice President and General Manager
Licensed Businesses
XXXX GIFT CENTERS, INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
President
42
EXHIBIT E
---------
1997 COMMISSION SCHEDULE
The following Commission Rates shall be applicable to the portion of Net Sales
within the described Sales Range:
Sales Range Commission Rate
----------- ---------------
**** ****%
**** ****%
**** ****%
**** ****%
**** ****%
**** ****%
Commission rates shall be calculated per department. Sears Commissions shall be
deducted at the rate of **** percent (****%) of Net Sales and will be adjusted
at the end of each Sears fiscal quarter per the above schedule. Sears Commission
adjustments due either party will be made on the next regularly scheduled
settlement.
**** CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR THE REDACTED PORTIONS OF
THIS EXHIBIT, AND SUCH CONFIDENTIAL PORTIONS HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
