(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT 10.51
THIRD AMENDMENT AGREEMENT
Finite #195-020
Vendor #000-000-000
THIS THIRD AMENDMENT AGREEMENT is made and entered into
on June 5, 2002, by and between SEARS, XXXXXXX AND CO., a
New York corporation (hereinafter called "Sears"), and
CONSUMER PROGRAMS INCORPORATED, a Missouri corporation
(hereinafter referred to as "Licensee").
REFERENCE is made to the License Agreement (On Premise)
made and entered into as of January 1, 1999 ("License
Agreement") by and between Sears and Licensee for the sale
of products and services ("Licensed Business") at certain
retail stores of Sears.
WHEREAS, the parties desire to amend the License
Agreement to change most locations from using Licensee's POS
system to using a point of sale system provided by Sears;
NOW, THEREFORE, Sears and Licensee agree as follows:
1. For the Designated Sears Store locations that do
not convert from Licensee's POS to the Sears POS Terminal,
the original provisions of Section 8.2 continue in force and
effect. Upon the completion of the transition from
Licensee's POS to the Sears POS Terminal at each Designated
Sears Store mutually agreed upon between the parties,
Section 8.2 of the License Agreement is hereby deleted in
its entirety and replaced with the following:
8.2 POS Terminal.
At its expense, Sears shall furnish a point of
sale terminal ("POS Terminal") for use in the Licensed
Business. Such POS Terminal shall be of a size and
design satisfactory to Sears, in its sole discretion,
and shall at all times be and remain the property of
Sears. Such POS Terminal shall be comparable to those
used by Sears in its own merchandise departments and
shall have the capability of processing a Sears Card
(as defined in Section 9.2) and any other credit cards
Sears may accept from time to time. Licensee shall
immediately return such POS Terminal to Sears upon
demand. Sears shall have the right to take possession
of the POS Terminal at any time without giving prior
notice to Licensee.
2. For the Designated Sears Store locations that do
not convert from Licensee's POS to the Sears POS Terminal,
the original provisions of Section 8.3 continue in force and
effect. Upon the completion of the transition from
Licensee's POS to the Sears POS Terminal at each Designated
Sears Store mutually agreed upon between the parties,
Section 8.3 of the License Agreement is hereby deleted in
its entirety and replaced with the following:
8.3 Sears Card.
Licensee agrees to accept and process Sears Card
payments from customers at the POS Terminal, and upon
written approval from Sears Licensing
1
Manager, Licensee will be authorized to open Sears Card
instant credit accounts ("Rapid Credit") for customers.
3. For the Designated Sears Store locations that do
not convert from Licensee's POS to the Sears POS Terminal,
the original provisions of Section 9.1 continue in force and
effect. Upon the completion of the transition from
Licensee's POS to the Sears POS Terminal at each Designated
Sears Store mutually agreed upon between the parties,
Section 9.1 of the License Agreement is hereby deleted in
its entirety and replaced with the following:
9.1 Checks.
All checks that 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 and are processed and approved
through the POS Terminal in accordance with Sears
policies and procedures in effect from time to time.
Sears shall guarantee the acceptance of all checks that
are processed and approved through the POS Terminal.
Licensee shall reimburse Sears for the face value any
check accepted by Licensee which is not processed and
approved through the POS Terminal and is not paid upon
presentment ("Dishonored Check"). Dishonored Checks
shall not be returned to Licensee, and Licensee shall
not be permitted to collect or initiate collection
proceedings on such Dishonored Checks or to recover any
merchandise purchased with a Dishonored Check. Sears
is entitled to any Sears Fee 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, and
Licensee shall reimburse Sears for the face amount of
such checks, but Licensee shall resolve the customer
satisfaction issues in accordance with Section 5.9
above, and Licensee may collect any amounts due from
the customer through any method of payment otherwise
authorized under this Agreement.
4. For the Designated Sears Store locations that do
not convert from Licensee's POS to the Sears POS Terminal,
the original provisions of Section 9.2 continue in force and
effect. Upon the completion of the transition from
Licensee's POS to the Sears POS Terminal at each Designated
Sears Store mutually agreed upon between the parties,
Section 9.2 of the License Agreement is hereby deleted in
its entirety and replaced with the following:
9.2 Credit Sales.
Subject to the terms and conditions outlined in
Schedule 9.2 (the "Credit Card Conditions"), Licensee
shall accept the SearsCardr, Sears Premier Cardr,
SearsCharge PlusSM, and, unless covered by a separate
merchant agreement, the Sears MasterCardr, the
Preferred MasterCardr by Sears and The Great Indoorsr
Gold MasterCardr (each a "Sears Card") issued by Sears
National Bank for payment for goods and services
authorized to be sold by Licensee under this Agreement
("Authorized Services"). 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
2
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 not attempt to suppress
or discourage use of any Credit Card by any person
whose name is on the Credit Card or any other
authorized user of such Credit Card (collectively, the
"Cardholder"). 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 acceptance
of each Credit Card must 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,
including Sears rights under Section 9.8, Sears shall
pay all sums due Licensee on each sale of Authorized
Services made by Licensee to a Cardholder that is
charged to a Credit Card account (a "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 with respect to
Licensee, whose sole recourse shall be to Sears. All
losses sustained by Sears as a result of nonpayment on
a Credit Card account shall be borne by Sears, provided
that Licensee is not responsible for the non-payment
and has complied with the Credit Card Conditions.
Except for 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 referrals 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 written consent of the
Licensing Manager.
5. For the Designated Sears Store locations that do
not convert from Licensee's POS to the Sears POS Terminal,
the original provisions of Section 9.3 continue in force and
effect. Upon the completion of the transition from
Licensee's POS to the Sears POS Terminal at each Designated
Sears Store mutually agreed upon between the parties,
Section 9.3 of the License Agreement is hereby deleted in
its entirety and replaced with the following:
9.3 Sales Receipts.
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 Designated Sears
Store office, together with the gross amount, in cash,
of all cash sales, and all credit sales documents for
transactions completed that day. Sears may retain out
of such receipts the proper amount of the Sears Fees
payable under this Agreement together with any other
sums due Sears from Licensee. Any remaining balance
shall be payable to Licensee at the regular settlement
described in Section 9.4.
6. For the Designated Sears Store locations that do
not convert from Licensee's POS to the Sears POS Terminal,
the original provisions of Section 9.4 continue in force and
effect. Upon the completion of the transition from
Licensee's POS to the Sears POS Terminal at each
3
Designated Sears Store mutually agreed upon between the
parties, Section 9.4 of the License Agreement is hereby
deleted in its entirety and replaced with the following:
9.4 Settlement.
A settlement between the parties shall be made at
the end of each Sears fiscal month for all Licensed
Business transactions 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.
Licensee shall reimburse Sears at each settlement
for any outstanding sums and all invoiced expenses,
including any advertising expense, that were incurred
by Sears at Licensee's request, and are outstanding at
the time of such settlement. Sears shall have the
right to retain out of Licensee's sales receipts the
amount of such sums and expenses with interest, if any,
due Sears. Interest shall be at the rate of prime (as
published in the Wall Street Journal at the time of the
settlement) plus two percent (2%)
7. Upon the completion of the transition from
Licensee's POS to the Sears POS Terminal at each Designated
Sears Store mutually agreed upon between the parties,
Schedule 9.2 attached hereto and incorporated herein shall
be applicable.
Except as expressly modified by this Amendment, all
other provisions of the License Agreement shall remain in
full force and effect. To the extent that the terms of this
Amendment are inconsistent with any of the terms of the
License Agreement, the terms of this Amendment shall
supersede and govern.
IN WITNESS WHEREOF, Sears and Licensee have signed this
Amendment as of the date set forth above by their duly
authorized officers or agents.
SEARS, XXXXXXX AND CO.
By: /s/ Xxxx X. Xxxxxx
---------------------------
Xxxx X. Xxxxxx
Vice President and General
Manager Licensed Businesses
CONSUMER PROGRAMS CORPORATED
By: /s/ Xxxx Xxxxxx
---------------------------
Xxxx Xxxxxx
Vice President
4
