(PAGE NUMBERS REFER TO PAPER DOCUMENT ONLY)
EXHIBIT 10.54 - SIXTH AMENDMENT TO LICENSE AGREEMENT
SIXTH AMENDMENT TO LICENSE AGREEMENT
Finite #195-020
Vendor #▇▇▇-▇▇▇-▇▇▇
THIS SIXTH AMENDMENT TO LICENSE AGREEMENT ("SIXTH
AMENDMENT") is made as of ____________________, 2002 by and
between SEARS ▇▇▇▇▇▇▇ AND CO., a New York corporation ("SEARS"),
and CONSUMER PROGRAMS INCORPORATED, a Missouri corporation ("LICENSEE").
REFERENCE is made to the License Agreement 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 On Premises locations.
WHEREAS, Licensee desires to operate a mobile photography
business in child care centers in the United States that will
not use Sears Tradenames or Marks in its name (the "CHILDCARE BUSINESS")
and that will not be considered a Competitive
Business as defined in the License Agreement; and
WHEREAS, Licensee and Sears agree to exclude the Childcare
Business from the provisions of SECTION 5.18 of the License Agreement;
NOW, THEREFORE, Sears and Licensee agree as follows:
1. SECTION 5.18 as set forth in the Second Amendment to License
Agreement, dated as of November 10, 1999, and the Fifth
Amendment to License Agreement of even date, shall be amended by
inserting the following paragraph before the final paragraph:
Licensee's ownership and operation of the Childcare Business
shall not be deemed a Competitive Business and shall not
violate the provisions of this Section 5.18; provided that
the Childcare Business shall be distinguished from
Licensee's operations in the Designated Locations as set
forth herein. The Childcare Business shall (a) operate
under Licensee's own brand; (b) not be operated in
conjunction with any third party specialty store, department
store, discount store or other similar retail format; and
(c) the Childcare Business shall not use any of the
photographers or facilities from the Designated Locations.
2. The parties agree to amend SECTION 2.1 of the License Agreement
by inserting the following paragraph as the final paragraph of this S
ection as follows:
USE OF SEATS MARKS FOR CHILDCARE BUSINESS. Sears hereby
grants Licensee the limited right to use the name SEARS
PORTRAIT STUDIOS and the Sears Marks that do not include
the name "SEARS" or any derivation thereof that are used by
Licensee in the operation of Sears Portrait Studios in the
Childcare Business. Licensee may use the Licensed Business
Name or Marks only in communicating with customers and
prospective customers, including advertising to or
other communications with child care centers and parents or
guardians of children who attend any child care centers
served by Licensee ("CHILDCARE BUSINESS CUSTOMERS"). The
form and content of Licensee's use of the Licensed Business
Name and Marks in any such communications or advertising
shall be subject to the prior written approval of Sears.
Except as agreed for cross marketing purposes with Sears
Portrait Studio, Licensee shall have no right to use the
Licensed Business Name or Marks in the Child Care Business.
Any names and marks used by Licensee in the Childcare
Business (other than the Sears Marks) shall be the sole
property of Licensee and Sears shall claim no ownership
rights therein.
3. SECTOIN 4.1 of the License Agreement is hereby amended
to include the following as the final sentence of this Section:
Licensee shall pay Sears a commission on the Childcare
Business ("Sears Childcare Commission") as set forth on
EXHIBIT A-1, attached hereto and incorporated herein by
reference.
4. SECTION 8.2 of the License Agreement is amended by
adding the following as the final paragraph of this Section:
Sears shall, at Licensee's request, furnish a point of
sale terminal ("POS Terminal") for Licensee's use in the
Childcare Business. Such POS Terminals shall be comparable
to those used by Licensee in its On Premises Locations and
shall have the capability of processing a Sears Card (as
defined below) and any other credit cards Sears may accept
from time to time. Licensee shall immediately return such
POS Terminal to Sears upon demand and Sears shall have the
right to take possession of the POS Terminal at any time
without prior notice to Licensee.
5. The parties agree that SECTION 9.2 and SCHEDULE 9.2,
as amended, of the License Agreement shall specifically apply to
acceptance of Credit Cards through the Sears POS for the
Childcare Business.
6. SECTION 9.3 of the License Agreement is hereby amended
by inserting the following after the first sentence:
For the Childcare Business only, Licensee shall submit an
accounting at the end of each week of the Gross Sales, the
returns, allowances and customer adjustments made during
such week and all credit sales documents for transactions
completed that week to Sears at the location designated in
writing by Sears.
Except as expressly modified by this Sixth Amendment, all other
provisions of the License Agreement shall remain in full force
and effect. To the extent that the terms of this Sixth Amendment
are inconsistent with any of the terms of the License Agreement,
the terms of this Sixth Amendment shall supercede and govern.
IN WITNESS WHEREOF, Sears and Licensee have signed this
Sixth Amendment as of the date set forth above by their duly
authorized officers and agents.
SEARS, ▇▇▇▇▇▇▇ AND CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President of Sears,
▇▇▇▇▇▇▇ and Co.
----------------------------
CONSUMER PROGRAMS INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇▇
Its: Vice President,
Consumer Programs, Inc.
