E-Commerce Agreement [Amendment No. 3] - GSI Commerce Solutions Inc., Bluelight.com LLC and Kmart Corp.
THIRD AMENDMENT TO E-COMMERCE AGREEMENT
This Third Amendment to the E-Commerce Agreement dated as of August 10,
2001, by and between GSI Commerce Solutions, Inc. ("GSI"), Bluelight.com, LLC
(the "Company") and Kmart Corporation ("Kmart") as amended by that certain
Amendment dated December 14, 2001 and by that certain Amendment dated August 9,
2002 (collectively, "the Agreement") is made as of January 14, 2003. All
capitalized terms not specifically defined herein shall have the meaning
ascribed to them pursuant to the Agreement.
RECITALS
WHEREAS, GSI, the Company and Kmart entered into the Agreement pursuant to
which GSI operates the Company Site; and
WHEREAS, on January 22, 2002, Kmart and the Company and certain of their
affiliates filed for bankruptcy protection in the United States Bankruptcy Court
for the Northern District of Illinois Case No. 02-02474 (jointly administered).
WHEREAS, GSI, the Company and Kmart desire to enter into this Third
Amendment to the Agreement in order to clarify certain rights and obligations
among them; and
NOW, THEREFORE, intending to be legally bound, and in consideration of the
mutual obligations contained herein and in the Agreement, the Parties agree as
follows:
1. Section 7.3 (ii) as amended by the Second Amendment is hereby deleted
from the Agreement and replaced with the following revised Section 7.3 (ii):
"(ii) [*]"
2. This Third Amendment is not intended, nor shall be construed, as an
assumption of the Agreement, it being the intention of the parties that this
Third Amendment merely modify the Agreement and not create a new postpetition
contract. Kmart and the Company reserve all rights to assume or reject the
Agreement, as
<PAGE>
modified by this Third Amendment. GSI reserves all rights under the Agreement as
modified by this Third Amendment and applicable law.
4. This Third Amendment may be executed on a facsimile copy and such
facsimile shall be considered an original document when executed by the parties.
5. Except as specifically amended herein, the Agreement shall remain in
full force and effect in accordance with its terms.
IN WITNESS WHEREOF, intending to be legally bound, each of the parties have
caused their duly authorized representatives to enter into this Third Agreement
on the date first written above.
GSI Commerce Solutions, Inc. Bluelight.com, LLC
By: /s/ Arthur H. Miller By: /s/ Charles Thompson
------------------------------------- -------------------------------
Name: Arthur H. Miller Name: Charles Thompson
Title: Exec. V.P. Title: Divisional V.P.
Kmart Corporation
By: /s/ Michelle H. Gluck
------------------------------------
Name: Michelle H. Gluck
Title: Vice President - Associate G.C.