(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT 10.55 - THIRD AMENDMENT TO LICENSE AGREEMENT (OFF MALL)
THIRD AMENDMENT TO LICENSE AGREEMENT
Finite #195-020
Vendor #000-000-000
THIS THIRD AMENDMENT TO LICENSE AGREEMENT ("Third 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, Licensee desires to open certain portrait
photography studios that will not use Sears Tradenames or Marks
(the "CPI STUDIOS") and that will not be considered a Competitive
Business as defined in the License Agreement; and
WHEREAS, Licensee and Sears agree to exclude the CPI Studios
from the provisions of SECTIONS 5.11 and 14.5 of the License Agreement;
NOW, THEREFORE, Sears and Licensee agree as follows:
1. SECTION 5.11 as set forth in the Second Amendment to License
Agreement, dated as of November 10, 1999, shall be amended by inserting
the following paragraph before the final paragraph:
Licensee's ownership and operation of the CPI studios
shall not be deemed a Competitive Business and shall not violate
the provisions of this Section 5.11, provided that the CPI
Studios shall be distinguished from Licensee's operation of
the Designated Locations as set forth herein. The CPI
Studios shall: (a) operate under CPI's own brand; (b) not
be located in or operate in conjunction with any third party
specialty store, department store, discount store or other
similar retail format; (c) offer (i) portrait photography
services and products in an environment of customization;
(ii) high level skills and service; (iii) extended session
times; and (iv) alternative photography venues; (d) be
targeted to (i) compete with independent professional
photographers and (ii) attract high income families, with
emphasis on graduating seniors, pets, weddings and customers
outside the preschool segment; (d) generally shall offer
more customized, higher priced products and services to
attract a different segment of customers than is currently
served by Licensee in the Designated Locations; and (e) the
CPI Studios shall not share the same photographers or
facilities as any Designated Location.
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In addition, Licensee agrees to open no more than 10
locations(in addition to the three Mainstreet Studios
operated by Licensee) during the Term unless otherwise
agreed by the parties. Upon the opening of the 10th CPI
Studio, the parties shall meet to discuss the impact of
the CPI Studios upon the Licensed Business. In the event
that Sears determines that the CPI Studios have a
detrimental impact upon the Licensed Business, the
parties shall have ninety (90) days to amend the Agreement.
In the event that agreement cannot be reached, Licensee
shall not open any additional CPI Studios during the
remainder of the Term.
2. SECTION 14.5 as set forth in the Second Amendment to the
License Agreement shall be amended by adding the following at
the end of the section:
Licensee's ownership and operation of CPI Studios shall not
be deemed a Competitive Business and shall not violate the
provisions of this Section 14.5.
Except as expressly modified by this Third Amendment, all
other provisions of the License Agreement shall remain in full
force and effect. To the extent that the terms of this Third A
mendment are inconsistent with any of the terms of the License
Agreement, the terms of this Third Amendment shall supercede
and govern.
IN WITNESS WHEREOF, Sears and Licensee have signed this
Third Amendment as of the date set forth above by their duly
authorized officers and agents.
SEARS, XXXXXXX AND CO.
By: /s/ Xxxx Xxxxxx
-----------------------------
Xxxx Xxxxxx
Its: Vice President of Sears,
Xxxxxxx and Co.
----------------------------
CONSUMER PROGRAMS INCORPORATED
By: /s/ Xxxx Xxxxxx
----------------------------
Xxxx Xxxxxx
Its: Vice President,
Consumer Programs, Inc.
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