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Exhibit 10.2
THIRD AMENDMENT TO RECEIVING, WAREHOUSING AND PHYSICAL
DISTRIBUTION SERVICES AGREEMENT
This THIRD AMENDMENT (this "Third Amendment"), dated as of June
25,
2007, is to that certain RECEIVING, WAREHOUSING AND PHYSICAL
DISTRIBUTION
SERVICES AGREEMENT, dated as of July 8, 2004, as amended by
First Amendment To
Warehousing And Physical Distribution Services Agreement dated
as of July 19,
2004 and a letter agreement between FMI International, LLC and
Footstar
Corporation dated January 7, 2005 (collectively, the
"Agreement") by and between
Footstar Corporation, a corporation organized under the laws of
the State of
Texas, ("Customer"), and FMI International LLC, a limited
liability company
organized under the laws of the State of Delaware
("Supplier").
WITNESSETH:
WHEREAS, a dispute has arisen among the parties concerning
the
Agreement;
WHEREAS, the parties wish to resolve all disputes between the
parties
relating to the Agreement by amending certain of the terms of
the Agreement; and
WHEREAS, all capitalized terms not otherwise defined herein
shall have
such meaning as ascribed to them in the Agreement;
NOW THEREFORE, in consideration of the premises and mutual
covenants
contained herein, and for other good and valuable consideration
receipt of which
hereby is acknowledged, the parties hereto hereby agree as
follows:
1. Section 4.1(c). Section 4.1(c) hereby is amended as
follows:
(i) The word "Customer" on the sixteenth line of Section 4.1(c)
is hereby
changed to "Supplier";
(ii) The last sentence of Section 4.1(c) hereby is deleted in
its entirety
and the following sentence is inserted in its place:
"Notwithstanding
anything to the contrary in this Section 4.1(c) or anywhere else
in the
Agreement, during the period commencing January 1, 2007 and
ending December
31, 2008, Supplier shall not, and shall have no right to, move
the Customer
Parties' products and Services to a different facility."
2. Section 4.1(d). Section 4.1(d) hereby is amended by deleting
in their
entirety the third, fourth and fifth sentences of Section
4.1(d).
3. Section 4.1(e). Section 4.1 hereby is amended by adding
subsection (e)
as follows:
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"(e) Commencing on January 1, 2007 and ending on December 31,
2008
(the "07/08 Period"), Customer agrees that Supplier's fees
generated for the
Services provided hereunder to Customer (the "Revenue") shall be
at least
$17,750,000 (Seventeen Million Seven Hundred Fifty Thousand
Dollars) for the
07/08 Period (the "07/08 Minimum Revenue"). To the extent the
actual amount
incurred for Services for the 07/08 Period pursuant to this
Agreement is greater
than the 07/08 Minimum Revenue amounts paid by Customer, then
the difference
between such actual amount incurred and the 07/08 Minimum
Revenue amount (the
"07/08 Shortfall") shall be paid by Customer to Supplier by
January 31, 2009.
Subject to Customer's Special Termination Right set forth in
Section 13.5,
during each calendar year after the 07/08 Period, Customer
agrees to the MQC as
established in accordance with Section 10.4 (the "Annual MQC").
Supplier
acknowledges and agrees that (i) there is no minimum quantity
commitment for the
07/08 Period and (ii) Customer has no specified unit volume
requirement under
the Agreement. Supplier acknowledges and agrees that any
estimates of units
provided or to be provided by Customer for the 07/08 Period have
been provided
for planning purposes only and do not and shall not create any
minimum quantity
commitment whatsoever under the Agreement. The Annual MQC shall
be trued-up
quarterly within thirty (30) days after the end of each calendar
quarter to
determine the actual total units processed and/or received
against the Annual
MQC for such quarter. If there is any quarterly shortfall to the
Annual MQC,
Customer shall pay to Supplier an amount equal to such shortfall
from the Annual
MQC multiplied by the billable transaction rate for the type of
transaction
where such shortfall exists. If Customer has paid Supplier an
aggregate amount
in excess of the Annual MQC multiplied by the billable
transaction rate during
such calendar year, then at Customer's option, Supplier shall
(a) pay the amount
of such excess to Customer within thirty (30) days after the end
of such
calendar year or (b) apply as a credit against the first invoice
for Services in
the immediately following calendar year an amount equal to such
excess paid by
Customer (and to the extent that such excess exceeds the first
invoice, then the
following invoice(s) shall be credited until Customer has been
credited for the
entire amount of such excess)."
4. Section 4.1(f). Section 4.1 of the Agreement is hereby
amended by adding
subsection (f) as follows:
"Notwithstanding the foregoing to the contrary, on or before
October
15, 2008, Customer and Supplier shall compare the actual amount
incurred for
Services against the 07/08 Minimum Revenue payments using (i)(A)
the actual
amount incurred for Services from January 1, 2007 through
September 30, 2008
plus (B) the estimate of the amount to be incurred for Services
for
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