Exhibit 10.1
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. SUCH PORTIONS ARE DESIGNATED "[***]."
MASTER IN-STORE LICENSE
THIS IN-STORE LICENSE is dated as of the 25/th/ day of June, 2001, by and
between MEIJER STORES LIMITED PARTNERSHIP, a Michigan limited partnership, of
2929 Walker Avenue, N.W., Grand Rapids, Michigan 49544, hereinafter referred to
as "Meijer," and PCA INTERNATIONAL, INC., a North Carolina corporation, of 815
Matthews-Mint Hill Road, Matthews, North Carolina 28105, hereinafter referred to
as "Licensee."
On June 25, 2001 Meijer and Licensee entered into separate license agreements
with respect to Licensed Premises in Meijer Stores #183, 204, and 206 (the
"Original License Agreements"). Meijer and Licensee desire to enter into license
agreements for licensed premises in Meijer Stores #138, 139, 146, and 176.
Meijer and Licensee desire to enter into a Master In-Store License agreement for
all of the premises listed above, Meijer and Licensee agree that simultaneously
with entering into this Master In-Store License agreement the Original License
Agreements shall be terminated.
WITNESSETH:
ARTICLE 1. PREMISES
Section 1.1 Entire Premises and Licensed Premises. In consideration of the
mutual covenants and agreements herein contained, Meijer gives and grants to
Licensee the privilege of operating a portrait studio in the Meijer Store(s)
described on Exhibit A attached hereto and incorporated by reference herein.
Each Meijer Store designated on Exhibit A shall hereinafter be referred to as an
"Entire Premises." Licensee's business in each Entire Premises shall be located
in the area designated by Meijer within the Entire Premises and outlined in red
on Exhibit A attached hereto and incorporated by reference herein. Each such
area shall be hereinafter referred to as a "Licensed Premises." Each Licensed
Premises shall consist of approximately the number of square feet designated for
such Licensed Premises on Exhibit A.
ARTICLE 2. TERM
Section 2.1 Term of License. The term of this License shall commence on the
earlier of (i) the Commencement Date listed for each Licensed Premises on
Exhibit B and (ii) the date Licensee opens for business on each Licensed
Premises, and shall terminate on the last day of the third license year, as
defined in Section 2.2 (License Year).
Section 2.2 License Year. The term "license year" shall mean a period of twelve
(12) consecutive months commencing on August 1 and terminating on July 31. The
first license year shall begin on August 1, 2001. Subsequent license years shall
run consecutively, each beginning on the first day of August succeeding the
completion of the previous license year.
Section 2.3 Termination. Either party may terminate this License with respect
to all or any Licensed Premises at any time by no less than ninety (90) days'
prior written notice thereof to the other party. In the event that Meijer
terminates this License without cause prior to the end of the third license
year, Meijer agrees to reimburse Licensee for an amount equal to the unamortized
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
reasonable, actual, out-of-pocket costs of the improvements made to the Licensed
Space by Licensee, in accordance with the terms of this License Agreement which
are not removable by Licensee and would have no value to Licensee in the event
of a termination of the License (i.e. walls, carpet, HVAC, electrical),
multiplied by a fraction, the numerator of which equals one thousand ninety five
(1,095) less the number of days remaining before the end of the Third License
Year and the denominator of which equals one thousand ninety five (1,095).
Provided, however, Licensee shall only be entitled to such a reimbursement if
within sixty (60) days after the completion of such improvements, Licensee
provides Meijer with documentation of its reasonable, actual, out-of-pocket
costs for the improvements.
ARTICLE 3. LICENSE FEE
Section 3.1 Payment. All fees and other payments required to be made by
Licensee to Meijer pursuant to this License shall be paid and made to Meijer
Stores Limited Partnership, Attention: Cash Office, 2929 Walker Avenue, N.W.,
Grand Rapids, Michigan 49544, until Licensee is otherwise notified in writing by
Meijer at least ten (10) days prior to the payment date on which the change is
to be effective.
Section 3.2 Basic License Fee. Licensee shall pay, as a basic license fee for
each Licensed Premises, the sum set forth on Exhibit C attached hereto and
incorporated by reference herein. These basic license fees shall be paid in
advance on or before the tenth (10/th/) day of each month of the license term,
and Licensee shall pay the basic license fee pro rata for that part, if any, of
the term preceding the first license year.
Section 3.3 Percentage License Fee. In addition to the basic license fee,
Licensee agrees to pay to Meijer, in the manner and upon the conditions and at
the times hereinafter set forth, and as a percentage license fee, a sum equal to
[***] of gross receipts (defined below) of each Licensed Premises during each
license year (and the portion of the term preceding the first license year)
during the term of this License greater than the Percentage License Fee
Threshold (defined below). For each full license year during the term of this
License, the "Percentage License Fee Threshold" for each License Premises shall
equal the sum specified in Exhibit C. For each license year during the term of
this License less than a full license year (and for the period during the term
of this License preceding the first license year), the Percentage License Fee
Threshold for each Licensed Premises shall equal the product of the Percentage
License Fee Threshold multiplied by a fraction, the numerator of which equals
the aggregate number of days during the term of this License in such time period
and the denominator of which equals three hundred sixty-five (365). Licensee
shall pay Meijer monthly estimates of percentage license fees for each Licensed
Premises by a bank certified check on or before the fifteenth (15/th/) day
following the end of each of Licensee's fiscal months (Licensee's fiscal year is
divided into four quarters comprised of 3 "months" of five, four and four weeks)
during the term of this License. Monthly estimates of Licensee's percentage
license fee shall be determined by multiplying (a) gross receipts of each
Licensed Premises for such month subtracting the product of the Percentage
License Fee Threshold divided by twelve (12) by (b) [***]. On or before the
thirtieth (30) day
- -----------------
[***] Redacted pursuant to a request for confidential treatment.
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-2-
following each license year during the term of this License, Meijer and Licensee
shall reconcile the amount of estimated percentage license fees paid by Licensee
for each Licensed Premises to the amount of percentage license fees actually due
and owing under the terms of this License for each Licensed Premises for the
time period in question. The time period preceding the first license year shall
be reconciled separately (as described above) at the same time the first license
year is reconciled. In the event Licensee is deemed to owe a greater amount than
paid for a Licensed Premises, Licensee shall within thirty (30) days after such
reconciliation pay Meijer the additional fees owning. In the event Licensee is
deemed to have paid too much in estimated percentage license fees for a Licensed
Premises, Licensee shall receive a credit for such overpayment of percentage
license fees against fees next due and owing under the terms of this License or
in the event the term of this License has terminated, Meijer shall, provided
that Licensee is not otherwise in default under the terms of this License,
promptly reimburse Licensee the amount of such overpayment.
The term "gross receipts" as used herein shall mean receipts from gross sales of
all business conducted upon or from each Licensed Premises by Licensee and all
others, and whether such sales be evidenced by check, credit, charge account,
exchange, or otherwise, and shall include, but not be limited to, the amounts
received from the sale of goods, wares, and merchandise and for services
performed on or at each Licensed Premises, together with the amount received or
collected on all orders taken at each Licensed Premises, whether such orders be
filled from that Licensed Premises or elsewhere, all sales to employees of
Licensee, all deposits not refunded to purchasers, receipts for sales through
any vending machine or other coin operated device, sales on layaways, and sales
of gift certificates. Gross receipts shall not include sales or merchandise for
which cash has been refunded, or allowances made on merchandise claimed to be
defective or unsatisfactory, bad check and bad charges, provided they shall have
been included in gross sales; and there shall be deducted from gross sales the
sales price of merchandise returned by customers for exchange, provided that the
sales price of merchandise delivered to the customer in exchange shall be
included in gross sales. Gross receipts shall not include the amount of any
sales, use, or gross receipts tax imposed by any federal, state, municipal, or
governmental authority directly on sales and collected from customers, provided
that the amount thereof is added to the selling price or absorbed therein, and
paid by the Licensee to such governmental authority. No franchise or capital
stock tax and no income or similar tax based upon income or profits as such
shall be deducted from gross receipts in any event whatever. Each charge or sale
upon installment or credit shall be treated as a sale for the full price in the
month during which such charge or sale shall be made, irrespective of the time
when Licensee shall receive payment (whether full or partial) therefor.
Licensee agrees to prepare and keep at each Licensed Premises, adequate records
which shall show inventories and receipts of merchandise at that Licensed
Premises, and daily receipts from all sales and other transactions on or from
that Licensed Premises by Licensee and any other persons conducting any business
upon or from that Licensed Premises. Licensee further agrees to keep at its
office in Matthews, North Carolina the gross income, sales, and occupation tax
returns with respect to Licensee's operation at each Licensed Premises during
the term of this License and all pertinent original sales records which would
normally be examined by an independent accountant pursuant to accepted auditing
standards in performing an audit of Licensee's sales. Upon thirty (30) days
prior written request from Meijer, Licensee shall provide
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-3-
at Licensee's expense, all of Licensee's records for each Licensed Premises for
examination by Meijer and Meijer's authorized representative.
Licensee agrees to maintain a continuous running cash register record of the
total cumulative gross receipts from all business conducted upon or from each
Licensed Premises by Licensee and all others during the term of this License at
its office in Matthews, North Carolina. Licensee shall keep at each Licensed
Premises all records/reports produced by such cash register. Licensee
acknowledges and agrees that upon thirty (30) days prior written request from
Meijer, Licensee shall provide at Licensee's expense, such cash register and the
records/reports produced by such cash register at each Licensed Premises for
review by Meijer and Meijer's authorized representative.
Licensee shall submit to Meijer on or before the fifteenth (15th) day following
each calendar month during the term hereof (including the fifteenth (15th) day
of the month following the end of the term), a written statement signed by
Licensee, and certified by Licensee to be true and correct showing in reasonably
accurate detail, the amount of gross receipts for each Licensed Premises for the
preceding month. Licensee shall also submit to Meijer on or before the thirtieth
(30th) day following the end of each license year a written statement signed by
Licensee, and certified to be true and correct showing in reasonably accurate
detail satisfactory in scope to Meijer the amount of gross receipts for each
Licensed Premises during the preceding license year, which certification shall
be one which is satisfactory to Meijer in scope and substance. In addition, if
requested by Meijer, Licensee shall, at its sole cost and expense, after each
license year provide the written statement referenced above that is additionally
duly certified by independent certified public accountants of recognized
standing, for up to twenty five percent (25%) of all the Licensed Premises. The
statements referred to herein shall be in such form and style and contain such
details and breakdown as Meijer may reasonably request. All information with
regard to sales shall be treated as confidential and shall not be divulged by
Meijer or Meijer's accountants to anyone without Licensee's prior written
consent.
The acceptance by Meijer of payments of percentage license fees shall be without
prejudice to Meijer's right to an examination of the Licensee's books and
records of its gross receipts and inventories of merchandise. At its option and
expense, Meijer may cause, at any reasonable time, a complete audit to be made
of Licensee's entire business affairs and records relating to any Licensed
Premises for the period covered by any statement issued by the Licensee as above
set forth. If such audit shall disclose a liability for percentage license fees
for a Licensed Premises to the extent of five percent (5%) or more in excess of
the percentage license fees theretofore computed and paid by Licensee for such
period for such Licensed Premises, Licensee shall promptly pay to Meijer the
cost of said audit in addition to the deficiency, which deficiency shall be
payable in any event, and, in addition, Meijer at Meijer's option, may terminate
this License upon ten (10) days' notice to Licensee of Meijer's election to do
so.
ARTICLE 4. MAINTENANCE, REPAIRS, AND UTILITIES
Section 4.1 Meijer's Obligations. Meijer shall furnish, without cost to
Licensee at each Licensed Premises, electricity, air conditioning, and heat as a
part of Meijer's heating and cooling of such Entire Premises and not from
separate heating or cooling units. Except as provided in
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-4-
Section 4.2 (Licensee's Obligations), Meijer shall also (i) make all necessary
repairs to each Entire Premises (excluding each Licensed Premises), including
but not limited to the roof and exterior walls and (ii) maintain the parking lot
adjacent to each Entire Premises. Notwithstanding the foregoing, Meijer assumes
no responsibility or liability for damage or losses due to interruption of any
of the aforesaid services agreed to be furnished by Meijer or for damage to
Licensee's property caused by the breaking, bursting, stoppage, leaking, or
overflowing of any pipes, toilets, or roof or from any failure of or defect in
any electric line, circuit, or facility.
Section 4.2 Licensee's Obligations. Licensee shall maintain and keep each
Licensed Premises clean, shall keep all rubbish in proper containers out of view
of customers and shall dispose of all rubbish as Meijer may direct. All general
maintenance and cleaning (including but not limited to the replacement of light
bulbs) of each Licensed Premises shall be the responsibility of Licensee.
Subject to the provisions of Section 6.1 (Mutual Release), Licensee shall be
responsible for the cost of all repairs made necessary by the negligence or
intentional acts of Licensee and Licensee's agents, employees, and contractors.
Section 4.3 Telephones. Licensee may install and shall maintain at its own
expense such telephone(s) in each Licensed Premises as it may require for
incoming and outgoing calls. In the event Licensee has a Meijer intercom phone,
Licensee shall not use this phone for advertising purposes without the consent
of the Meijer store director with respect to both the timing and content of the
particular advertisement, which consent may be granted or denied in the sole
discretion of the Meijer store director. Licensee shall pay all fees for all
telephone/communications services utilized by Licensee in its operations at each
Licensed Premises.
ARTICLE 5. USE
Section 5.1 Use. Licensee shall use each Licensed Premises for the sole purpose
of operating a portrait studio and selling portrait related products with the
exception of frames, photo albums and film. Notwithstanding the foregoing, the
sale of key chain frames shall be a permitted use. Licensee shall not sell any
other goods or render any other services whatsoever in or from any Licensed
Premises without Meijer's prior written approval. Notwithstanding anything
contained in this License to the contrary, Licensee shall not engage in, or
permit its agents, employees, contractors, subcontractors, or invitees to engage
in, any activity in violation of any policy of insurance which may at any time
be in force with respect to any Licensed Premises, Entire Premises, and/or
Common Facilities.
Section 5.2 Common Facilities. Licensee, its employees and invitees, shall have
the nonexclusive rights to use the driveways, sidewalks, service areas, and
parking facilities appurtenant to each Entire Premises as they may exist from
time to time ("Common Facilities"), and shall have the non-exclusive right of
ingress and egress from and to the Licensed Premises by means of the respective
Entire Premises only during such hours as such Entire Premises is open for
business to the public.
Section 5.3 Business Hours. Licensee agrees to be open each Licensed Premises
for business a minimum of 10:00 a.m. to 7:00 p.m., Monday through Friday.
Licensee understands that each
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-5-
Entire Premises is closed during only the following holiday: Christmas Day.
Licensee agrees to be open during its regular business hours on all other
holidays and other business days (such as the day after Thanksgiving), except
that (i) Licensee may close at 7:00 p.m. on Christmas Eve and New Year's Eve and
all day on Thanksgiving, New Year's Day, July 4th, Memorial Day, and Labor Day;
and (ii) Licensee shall not be required to be open on Sundays.
Section 5.4 Compliance with Laws. Licensee shall, at its expense, comply with
all governmental statutes, laws, rules, orders, regulations, and ordinances
affecting each Licensed Premises or Licensee's use thereof, including, but not
limited to, The Americans With Disabilities Act of 1990 (42 U.S.C. (S)12101 et.
seq) and regulations and guidelines promulgated thereunder, as all of the same
may be amended and supplemented from time to time. Licensee shall, at its
expense, obtain and maintain during the term of this License any necessary
business and/or professional licenses, registrations, and permits required for
the operation of Licensee's business within each Licensed Premises. Breach of
this Section 5.4 (Compliance with Laws) shall give Meijer the right to terminate
this License forthwith upon twenty-four (24) hours' advance notice to Licensee,
Section 2.3 (Termination) herein notwithstanding. Licensee shall, within three
(3) days after receipt of any written correspondence regarding any Licensed
Premises or Licensee's use thereof (including, but not limited to, any written
review or inspection report) from any lawful governmental authority, provide a
copy of such correspondence, including all enclosures and attachments, to
Meijer. Meijer acknowledges and agrees that Meijer is responsible to keep each
Entire Premises, except each Licensed Premises which is Licensee's
responsibility, in compliance with The Americans With Disabilities Act. If
Meijer fails to bring any Entire Premises, excluding each Licensed Premises, in
compliance with The Americans With Disabilities Act for more than ninety (90)
days after Meijer has received written notification of a violation, Licensee may
as its sole remedy terminate this License upon written notice to Meijer.
Section 5.5 Fixtures. Licensee shall, at its own cost and expense, construct,
furnish and install in each Licensed Premises all improvements, trade fixtures,
equipment, and furnishings necessary for its operations, including, without
limitation, paneling, wallpaper, counters, cupboards, partitions, decorating,
special lighting, business shop front, signage, and all plumbing and utility
lines and/or connections. All improvements, trade fixtures, equipment, and
furnishings must be approved by Meijer in advance of the time that such items
are installed. In the event Meijer does not approve of any such item, it shall
not be installed or placed in that Licensed Premises. All movable trade
fixtures, equipment, and all other similar items owned by Licensee and installed
or placed in each Licensed Premises shall remain the property of Licensee, and
Licensee shall have the right to remove said property at any time during the
term of this License; provided that Licensee promptly repairs all damage caused
by such removal.
Section 5.6 Remodeling and Redecorating. Any remodeling or redecorating of any
Licensed Premises shall be at Licensee's expense; provided, however, prior
approval must be given in writing by Meijer. If Meijer does not approve of any
proposed remodeling or redecorating, it shall not be performed. (See Section 9.2
(Right to Relocate)).
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-6-
Section 5.7 Work Requirements.
(a) All work performed on or at any Licensed Premises, including
the work described in Sections 5.5 (Fixtures) and 5.6 (Remodeling or
Redecorating), shall be in accordance with the following requirements.
Licensee may perform work on or at any Licensed Premises only through
licensed contractors and subcontractors approved by Meijer in writing.
Licensee shall in all cases promptly pay all costs and expenses
associated with work performed on or at any Licensed Premises.
Licensee shall be solely responsible for and have control over the
means, methods, techniques, sequences, and procedures and for
coordinating all portions of such work in any Licensed Premises.
Licensee shall obtain all required governmental permits and
authorizations for such work, and Licensee shall cause all work to be
completed in a good and workmanlike manner, free from defective
materials and in compliance with all building, zoning, and other laws,
ordinances, and governmental regulations and requirements.
(b) Notwithstanding the foregoing, Licensee may not perform or
arrange to have performed work on (i) the HVAC system serving any
Entire Premises, (ii) the fire sprinkler system serving any Entire
Premises, or (iii) the electrical system between the fuse box and any
Licensed Premises. In the event that Licensee wishes to perform or
arrange to have performed work on the above-described areas, Licensee
shall request in writing that Meijer perform or arrange to have
performed such work. Licensee shall specify in detail all requested
work. All such work is subject to Meijer's prior approval, which may
be withheld in its sole discretion. If Meijer approves such request,
Meijer shall perform the requested work or arrange to have such work
performed and Licensee shall reimburse Meijer for all costs and
expenses incurred by Meijer in performing or arranging to have
performed such work. If requested by Meijer, Licensee shall deposit
with Meijer a sum equal to the sum of the costs and expenses Meijer
would incur in performing or arranging to have performed such work as
estimated by Meijer in its reasonable discretion.
Section 5.8 Signing and Graphics. All signing identification for each Licensed
Premises and the placement thereof shall be entirely subject to and conditioned
upon Meijer's prior approval. All costs related to signage for each Licensed
Premises shall be paid by Licensee. Licensee shall obtain any necessary permits
from governmental authorities for the erection and maintenance of its signs.
Section 5.9 Advertising. Licensee shall not use or permit the use of the word
"Meijer" or Meijer's logo in the advertisement of its business in any Licensed
Premises, in the telephone book or in any other manner whatsoever, without first
obtaining Meijer's written permission. In the event Meijer does any advertising
for Licensee, Licensee shall pay the cost of such advertising; provided,
however, that the parties shall approve in advance the cost and nature of any
such advertising.
Section 5.10 Liens. Licensee shall keep each Licensed Premises free from any
mechanics' or materialmen's liens or claims thereof for any labor or material
furnished to Licensee in connection with any Licensed Premises, except that
Licensee shall have the right to contest the
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-7-
validity or amount of any such lien, provided that Licensee shall either (i)
first post any bond or make any deposits required by Meijer or the terms of any
trust, deed, mortgage, or similar instrument affecting such Licensed Premises to
assure the discharge of such lien or claim thereof; or (ii) furnish such
security as may be required, to and for the benefit of Meijer, or any title
insurance and trust company designated by Meijer, to permit a report of title to
be issued relating to such Licensed Premises without showing thereon the
existence of such lien.
Section 5.11 "Meijer" Trademark and Other Intellectual Property. Each Licensed
Premises is located in a business location owned or operated by Meijer. Licensee
acknowledges that "Meijer(R)" is a trademark owned exclusively by Meijer, Inc.
Licensee acknowledges and agrees that it has no right to use the "Meijer"
trademark, or any other trademark owned by Meijer, Inc. (collectively, the
"Mark") without the specific written permission of Meijer, Inc. Licensee
acknowledges and agrees that all other intellectual property associated with
each Entire Premises, including without limitation, all patents, design patents,
copyrights, trade dress and trade secrets (collectively, the "Other Intellectual
Property,") are the property of Meijer, Inc., and shall not be used by Licensee.
Nothing in this License or arising out of any dealings of the parties gives
Licensee any right, title, or interest whatsoever in or to the Mark or the Other
Intellectual Property. Licensee further acknowledges the validity of, and the
goodwill associated with, the Mark. Licensee will not, either during or after
the term of this License, contest Meijer, Inc.'s, title or right in and to the
Mark or the Other Intellectual Property. All use by Licensee of the Mark shall
inure to Meijer, Inc.'s exclusive benefit. The quality of the services offered
by Licensee in association with the Mark shall be in accordance with the highest
standards in the industry. Where Licensee is permitted to use the Mark to
advertise Licensee's business pursuant to Section 5.9 (Advertising), the
following notice, or another notice approved by Meijer, Inc., shall appear:
"Meijer(R)" is a registered trademark and service mark of Meijer, Inc.
If necessary to properly reflect the legal status of the Mark, Meijer, Inc., may
change the wording of this notice by providing written notice to Licensee. Upon
request, Meijer, Inc., shall have the right to approve any and all uses of the
Mark, including advertising copy. Licensee shall use the Mark in the form, if
any, approved by Meijer, Inc., such as stylized lettering or logos. Licensee
shall not attempt to register the Mark or any other trademark that is likely to
be confused with the Mark. Licensee acknowledges that all decisions concerning
the registration and legal protection of the Mark will be made by Meijer, Inc.,
in its sole discretion. Licensee acknowledges that a breach of any of its
covenants, agreements or undertakings related to the Mark or the Other
Intellectual Property will cause immediate, irreparable damage to Meijer, Inc.,
that cannot be readily remedied or ascertained by damages in any action at law.
Accordingly, Licensee acknowledges and agrees that if a breach occurs that is
related to the Mark or the Other Intellectual Property, Meijer, Inc., will be
entitled to equitable remedies, including, without limitation, injunctions and
attorney fees.
ARTICLE 6. RESTORATION
Section 6.1 Mutual Release. Meijer hereby releases and discharges Licensee,
its agents and employees, of and from liability to Meijer and to anyone claiming
by, through, or under Meijer
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-8-
by subrogation or otherwise on account of any damage to or destruction of any
Entire Premises and any other property of Meijer located in any Entire Premises
caused by or arising out of any fire or other insured peril, however caused.
Licensee hereby releases and discharges Meijer, its parent, subsidiary, and
affiliated entities (including, without limitation, Meijer, Inc., and Meijer
Distribution, Inc., and their respective officers, directors, shareholders,
partners, agents, and employees and any other persons, firms, or corporations
having an interest in any Licensed Premises, of and from liability to Licensee
and to anyone claiming by, through, or under Licensee by subrogation or
otherwise on account of any of the following caused by or arising out of any
fire or other insurable peril, however caused: (i) damage to or destruction of
any property of Licensee, (ii) damage to or destruction of any improvements,
merchandise, inventory, contents, furniture, fixtures, equipment and other
property located in any Licensed Premises, Entire Premises, or Common Facilities
and (iii) loss or damage resulting from the interruption of Licensee's business
operations in any Licensed Premises.
Section 6.2 Restoration. If any Licensed Premises is damaged or destroyed, in
whole or in part, by fire or other peril so as to deprive Licensee of occupancy
or use of the same or if any Entire Premises or Common Facilities are damaged or
destroyed to the extent that they cannot be repaired or are not repaired within
thirty (30) days, Meijer may either (i) terminate this License upon written
notice to Licensee or (ii) proceed with due diligence to so restore and repair
such Licensed Premises, Entire Premises, and/or Common Facilities. The Licensee
shall be solely responsible for replacing, restoring, or repairing the fixtures,
merchandise, and other property of Licensee and any property located in any
Licensed Premises. In the event any such damage or destruction to any Licensed
Premises or any Entire Premises is not repaired within such thirty (30) day
period, Licensee shall have the right to terminate this License by providing
Meijer with ten (10) days' prior written notice of such termination given within
ten (10) days after the expiration of the above-referenced 30-day period. If
such damage renders any Licensed Premises untenantable (which results in the
suspension of operations in the affected Licensed Premises), the basic license
fee payable by Licensee with respect to such Licensed Premises hereunder shall
abate until Licensee is able to fully occupy and use the affected Licensed
Premises. Meijer shall have no duty or obligation to restore any improvements or
fixtures to any Licensed Premises made or installed by or for Licensee.
ARTICLE 7. EMINENT DOMAIN
Section 7.1 Total. If any entire Licensed Premises is taken under the power of
eminent domain, this License shall terminate on the date Licensee is deprived of
possession pursuant to such taking.
Section 7.2 Partial. If under the power of eminent domain any part of any
Licensed Premises or any substantial part of any Entire Premises or Common
Facilities are taken by one or more takings, then in any such event Meijer or
Licensee may terminate this License by giving to the other no less than thirty
(30) days' written notice thereof at any time after the date of such taking and
before the expiration of ninety (90) days from the date Licensee or Meijer is
deprived of possession or use of such portion of such Licensed Premises, Entire
Premises, or Common Facilities pursuant to such taking.
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-9-
Section 7.3 Restoration. If any part of any Licensed Premises or any
substantial part of any Entire Premises or Common Facilities are taken by any
public authority and neither party elects to terminate this License, Licensee
shall continue in possession of the remainder of the affected Licensed Premises,
and Meijer, at its own cost and expense, shall make all repairs and alterations
to such Entire Premises (including the respective Licensed Premises) and/or
Common Facilities necessary to constitute the remaining premises as a complete
architectural unit.
Section 7.4 License Fee Abatement. In the event of any partial taking of any
Licensed Premises, the basic license fee payable by Licensee hereunder for such
Licensed Premises shall be reduced from and after the date Licensee is deprived
of possession of such portion of such Licensed Premises in proportion to the
square footage of the Licensed Premises so taken.
Section 7.5 Award. The entire compensation awarded in or by reason of any such
taking shall belong to Meijer without any reduction therefrom for any present or
future interest of Licensee, and Licensee hereby assigns to Meijer all of
Licensee's right, title, and interest in and to any and all such compensation.
Licensee shall, however, have the right to claim and recover from the condemning
authority, but not Meijer, such compensation as may be separately recoverable by
Licensee in its own right on account of the cost of moving its business,
equipment, signage, and fixtures, interruption of business and other damages
available under applicable law.
Section 7.6 Settlement. For the purpose of this Article 7 (Eminent Domain), a
taking under the power of eminent domain shall include conveyances or
dedications made in settlement of or in lieu of condemnation proceedings.
ARTICLE 8. INDEMNITIES AND INSURANCE
Section 8.1 Licensee's Indemnity. Subject to the provisions of Section 6.1
(Mutual Release), Licensee shall defend, indemnify, and save harmless Meijer,
its parent, subsidiary, and affiliated entities (including, without limitation,
Meijer, Inc., and Meijer Distribution, Inc., and their respective officers,
directors, shareholders, partners, agents, and employees and any other persons,
firms, or corporations having any interest in any Licensed Premises against any
liability or claim thereof (including but not limited to reasonable actual
attorney fees and costs) whether for injury to persons, including death, or
damage to property (i) occurring on or arising out of the use of any Licensed
Premises during the term of this License; (ii) arising out of any default by
Licensee under this License; (iii) arising out of any act or omission to act by
Licensee, its agents, employees, or contractors at any time including, without
limitation, any such act or omission in any Entire Premises or Common
Facilities; or (iv) arising in connection with the operation of the business
conducted from any Licensed Premises. The foregoing indemnity from Licensee
shall include claims alleging or involving joint or comparative negligence, but
shall not extend to liability directly resulting only from the sole negligence
of Meijer, its parent, subsidiary, and affiliated entities and their respective
officers, directors, shareholders, partners, agents, and employees. To the
fullest extent permitted by law, Licensee expressly waives any and all immunity
and/or damage limitation provisions available to Licensee under any workers' or
workmen's compensation acts, disability benefit acts or other employee benefit
acts to the extent such acts would otherwise limit the amount recoverable by
Meijer, its parent, subsidiary, and affiliated entities (including, without
limitation, Meijer, Inc., and Meijer Distribution, Inc., and
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-10-
their respective officers, directors, shareholders, partners, agents, and
employees, pursuant to the indemnification provisions contained in this Section
8.1 (Licensee's Indemnity).
Section 8.2 Meijer's Indemnity. Subject to the provisions of Section 6.1
(Mutual Release), Meijer covenants to defend, indemnify, and save harmless
Licensee from and against all claims brought by third parties and all costs
(including, but not limited to, reasonable actual attorney fees), expenses, and
liabilities incurred in connection with such claims, including any action or
proceeding brought thereon, arising solely from and as a direct result of the
negligent or willful act or omission of Meijer or its agents or employees acting
in the scope of their agency or employment and which is related to Meijer's
operations in any Entire Premises.
Section 8.3 Insurance. At all times during the term of this License and at all
times during which Licensee occupies any Licensed Premises, Licensee shall
purchase and maintain the following minimum insurance coverages:
(a) Workers' Compensation, disability benefit or similar employee
benefit act coverage with statutory limits and employer's liability
with limits not less than Five Hundred Thousand Dollars ($500,000).
(b) Commercial General Liability including Coverage A. Bodily
Injury and Property Damage Liability and Coverage B. Personal and
Advertising Injury Liability, and contractual liability, in an amount
not less than One Million Dollars ($1,000,000) per occurrence. Such
policy shall be an "occurrence" policy, not a "claims-made" policy.
Such insurance, including any deductible or self-insured retention,
shall by its terms be primary with respect to any insurance carried by
Meijer or its parent, subsidiary, or affiliated entities.
(c) Commercial Comprehensive Automobile Liability coverage, which
includes contractual liability coverage and coverage for all owned,
hired and non-owned vehicles.
(d) All-Risk Contents/Personal Property Insurance on
improvements, merchandise, inventory, contents, furniture, fixtures,
equipment and other property located in each Licensed Premises,
protecting Licensee from damage or other loss caused by fire or other
insurable peril, including, but not limited to, vandalism and
malicious mischief, perils covered by extended coverage, theft,
sprinkler leakage (if applicable), water damage (however caused),
explosion, malfunction or failure of heating and cooling or similar
apparatus, and other similar risks, in amounts to cover one hundred
percent (100%) of the replacement cost of such property.
(e) Business Interruption Insurance with respect to Licensee's
business operations in each Licensed Premises in amounts and coverages
sufficient to insure Licensee against any loss Licensee may suffer as
a result of Licensee's inability to use any Licensed Premises during
the term of this License.
By Subsections 8.3(d) and 8.3(e), Meijer and Licensee intend that the risks of
loss or damage as described therein be borne by the responsible insurance
carriers to the extent above provided,
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-11-
and Licensee agrees to look solely to, and to seek recovery only from, such
respective insurance carriers in the event of a loss of a type described in such
Subsections to the extent that such coverage is agreed to be provided
thereunder. For this purpose, any applicable deductible amount shall be treated
as though it were recoverable under such policies. With respect to the insurance
policy specified in Subsection 8.3(b), Meijer, Inc., Meijer Distribution, Inc.,
Meijer Stores Limited Partnership, and their parent, subsidiary and affiliated
entities shall be named as additional insureds on ISO form CG 2026 or comparable
form, all at no cost to Meijer. Certificates of Insurance evidencing all
insurance required under Subsections 8.3(a), 8.3(b), 8.3(c), 8.3(d), and 8.3(e),
acceptable to Meijer, including any required additional insured endorsement,
shall be promptly sent to the Meijer Risk Management Department, P.O. Box 3280,
Grand Rapids, Michigan 49501-3280. All insurance policies required under
Subsections 8.3(a), 8.3(b), 8.3(c), 8.3(d), and 8.3(e) shall contain a provision
that the coverages afforded thereunder shall not be modified, cancelled or
allowed to expire until at least ten (10) days' prior written notice has been
given to the Meijer Risk Management Department. All required insurance shall be
underwritten by an insurance carrier acceptable to Meijer and with an AM Best
rating of not less than A-. Upon the request of Meijer, Licensee shall deliver
copies of policies evidencing the insurance coverages required by this License
to the Meijer Risk Management Department. Compliance by Licensee with the
requirements in this Section 8.3 (Insurance) as to carrying insurance and
furnishing proof thereof to Meijer shall not relieve Licensee of its indemnity
obligations under Section 8.1 (Licensee's Indemnity). Indemnity obligations in
this License shall not be negated or reduced by virtue of any insurance
carrier's (i) denial of insurance coverage for the occurrence or event which is
the subject matter of the claim, or (ii) refusal to defend any named insured.
Failure to comply with all insurance requirements shall be deemed a material
breach of this License.
ARTICLE 9. TITLE AND POSSESSION
Section 9.1 Quiet Enjoyment. Licensee, upon paying all fees required under
this License and performing the covenants and agreements of this License, shall
quietly have, hold, and enjoy each Licensed Premises and all rights granted
Licensee in this License during the term hereof. This Section 9.1 (Quiet
Enjoyment) is subject to Meijer's rights specified in Section 9.2 (Right to
Relocate).
Section 9.2 Right to Relocate. Meijer reserves the right, to change the size
and/or location of any Licensed Premises within any Entire Premises to a
mutually agreeable size and/or location, and in the event of any such change,
Meijer shall be responsible for Licensee's reasonable, moving expenses and the
reasonable cost of constructing such new Licenses Premises. Licensee shall be
responsible for all other relocation costs, including without limitation the
following: Licensee's lost profits and sales, and lost income to Licensee's
employees or independent contractors. Meijer may not require Licensee to change
the size and/or location of Licensee's operation more than one time during any
two (2) year period, unless the cause for such change is beyond the control of
Meijer, as in the case of fire, riot, acts of God, demand of any governmental
authority, or because of the request of Licensee for such change. In the event
Licensee and Meijer are unable to mutually agree on a size and/or location as
contemplated above, either party may terminate this License with respect to such
Licensed Premises upon thirty (30) days written notice to the other party.
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-12-
Section 9.3 Assignment. This License shall not be assigned, transferred,
relinquished, or conveyed by Licensee nor shall Licensee sublet or assign any
Licensed Premises without the prior written consent of Meijer, which consent may
be withheld in Meijer's sole discretion. In case of any assignment permitted
hereunder, Licensee, as well as the assignee, shall be liable for the full
performance of all terms and conditions of this License. Meijer's consent to any
assignment of this License or transfer of any interest in any Licensed Premises
shall not be deemed a consent to any further assignment of this License or
transfer of any interest in any Licensed Premises.
Section 9.4 Subordination. Nothing herein shall empower Licensee to do any act
which can, may, or shall cloud or encumber Meijer's interest. Licensee's rights
are and shall always be subordinate to the lien of any trust, deed, mortgage, or
other encumbrance now or hereafter placed upon any Licensed Premises or any
underlying lease now or hereafter created and to all advances made or hereafter
to be made upon the security thereof, and Licensee shall execute such further
instruments evidencing the subordination of this License to the lien or liens of
any such trust, deed, mortgage, or other encumbrance, or to any such underlying
lease, as shall be requested by Meijer. Licensee hereby irrevocably appoints
Meijer as attorney-in-fact for Licensee with full authority to execute and
deliver in the name of Licensee any such instrument or instruments.
Section 9.5 Surrender of Licensed Premises. Upon the termination of this
License, Licensee shall surrender each affected Licensed Premises to Meijer in a
broom-clean condition. Licensee shall promptly repair, at its sole cost and to
Meijer's reasonable satisfaction, all damage done to such Licensed Premises
during the course of Licensee's possession thereof, other than damage resulting
from normal wear and tear. If this License shall have been terminated by Meijer,
Meijer may at any time thereafter resume possession of any affected Licensed
Premises by any lawful means and remove Licensee or other occupants and their
effects. Upon the termination of this License, Licensee shall have no right,
title, or interest in or to any affected Licensed Premises; rather, any affected
Licensed Premises, including all modifications or improvements thereof, shall be
the sole property of Meijer, without charge, free and clear of any interest
whatsoever of Licensee. On or before the last day of the term, Licensee shall
remove all trade fixtures, machinery, equipment, and other items and/or
improvements as directed by Meijer from each Licensed Premises and promptly
repair any damage occasioned by any such removal. Property not so removed may be
removed by Meijer, its authorized agents, or independent contractors, and
Licensee shall promptly pay all costs of such removal upon receipt of notice
thereof. Upon removal of such property by Meijer, its authorized agents or
independent contractors, Licensee shall be deemed to have abandoned said
property, and title thereto shall immediately vest in Meijer. If any affected
Licensed Premises is not surrendered at such time, the Licensee shall indemnify
Meijer against loss or liability resulting from delay by Licensee in so
surrendering such Licensed Premises including, without limitation, any claims
made by any succeeding licensee founded on such delay. Licensee shall surrender
all keys for any affected Licensed Premises to Meijer at the place then fixed
for payment of license fees. Licensee's obligation to observe or perform the
provisions of this Section 9.5 (Surrender of Licensed Premises) shall survive
the termination of this License. If Licensee retains possession of the Licensed
Premises or any part thereof after the termination of the term by lapse of time
or otherwise, such holding over shall not operate to extend the term or renew
this License, except
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-13-
that at the election of Meijer, such holding over shall renew the term for the
period of one (1) month at a rate double the basic monthly license fee in
addition to all other charges due hereunder. Meijer's acceptance of any fees
after holding over shall not renew this License and the provisions of this
License do not waive Meijer's rights of re-entry or any other right hereunder.
Section 9.6 Right of Entry. Meijer, its agents and employees shall have the
right to enter each Licensed Premises at all reasonable times and for such
reasonable time as may be required to inspect the same, to show them to
prospective purchasers or licensees, to make such repairs, alterations,
improvements, or additions as Meijer shall deem necessary or desirable, and to
enforce or carry out any provision of this License. Such activities shall not
constitute an eviction of Licensee in whole or in part and the license fee(s)
reserved shall in no wise abate while such activities take place. Nothing herein
contained, however, shall be deemed or construed to impose upon Meijer any
obligation, responsibility, or liability whatsoever, for the care, maintenance,
or repair of any Licensed Premises or any part thereof, except as otherwise
herein specifically provided.
ARTICLE 10. MISCELLANEOUS
Section 10.1 Miscellaneous Covenants of Licensee. Licensee covenants and
agrees:
(a) Licensee shall, during the business hours specified in
Section 5.3 (Business Hours), maintain adequate personnel for the
efficient rendering of services to Licensee's customers. Meijer
understands that Licensee intends, for most times, to have only one
person staffing each Licensed Premises and that such person will be
away from the studio for breaks and lunch. Also, Meijer understands
that customer demand for Licensee's service will sometimes exceed
Licensee's ability to timely serve all customers.
(b) Licensee shall comply in all respects with the lawful
requirements, orders, statutes, ordinances, rules, directives, and
regulations of all lawful government authority; with rules,
regulations, business principles, and practices adopted by Meijer for
the conduct of each Entire Premises and the Common Facilities; and
with the established requirement that all employees and persons
working at the Entire Premises park in the employees' parking area.
(c) Licensee shall provide its own security for each Licensed
Premises, including, but not limited to, the locking of each Licensed
Premises when Licensee is not open for business. Meijer shall not be
responsible for any losses which Licensee or its invitees may suffer
including, but not limited to, thefts, robberies, or other crimes on
or about each Licensed Premises, unless due to the sole negligence of
Meijer or its agents or employees.
(d) Licensee shall pay, before delinquency, all sales, personal
property, special assessment, income (including, any privilege or
excise tax based on gross revenue), and all other taxes levied on
Licensee's business or personal property. Licensee shall have no
obligation for any real estate taxes levied on any Licensed Premises,
except as otherwise specifically provided herein or if such taxes are
specifically levied in lieu of
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-14-
any tax that Licensee is required to pay pursuant to this License.
Licensee shall also pay any license or other fee incident to its
operations at each Licensed Premises.
(e) Licensee shall at all times treat its customers in a fair,
courteous, and respectful manner.
(f) Licensee shall establish charges for its goods and/or
services which are competitive with similar business operations in the
same marketing area.
(g) Licensee shall not permit its employees to smoke in any
Licensed Premises but only in areas designated by Meijer, if any, in
each Entire Premises.
(h) None of the employees of Licensee shall be considered
employees of Meijer, and Licensee is solely responsible for the
supervision, management, payment of all salaries, compensation,
withholding taxes, unemployment insurance premiums, health and welfare
benefits or similar charges associated with the employment of
Licensee's employees.
(i) During the term of this License, Licensee may, from time to
time, become aware of or exposed to confidential information relative
to Meijer customer counts, marketing plans, financial information, or
other sensitive data. Licensee agrees, on behalf of itself, its agents
and employees, that any such information must be treated strictly
confidential and shall not be disclosed in any fashion to any third
parties.
(j) Licensee shall keep each Licensed Premises illuminated in a
manner approved by Meijer twenty-four (24) hours per day, seven (7)
days a week (except for times during which each Entire Premises is
closed).
Section 10.2 Credit Sales. Licensee may provide credit to its customers through
use of Master Charge, American Express, Visa, and Discover. Licensee shall
comply with all policies and requirements relating to credit sales established
by the agencies extending the credit.
Section 10.3 Satisfaction of Customer Complaints. Meijer has an established
policy which permits customers to freely return merchandise or obtain a full or
partial refund of money paid for services rendered which are, for any reason,
not satisfactory to the customer. This policy is directed at trying to satisfy
all reasonable customer complaints. Licensee covenants and agrees to follow this
refund policy and to adopt other policies established by Meijer to handle
customer complaints on a reasonable basis.
Section 10.4 Force Majeure. The time within which any of the parties hereto
shall be required to perform any act or acts under this License shall be
extended to the extent that the performance of such act or acts shall be delayed
by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot,
war, labor disputes, delays or restrictions by governmental bodies, inability to
obtain or use necessary materials, or any cause beyond the reasonable control of
such party; provided, however, that the party entitled to such extension
hereunder shall give prompt notice to the other party of the occurrence causing
such delay. The provisions of this Section 10.4 (Force
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-15-
Majeure) shall not operate to excuse Licensee from prompt payment of any fees or
any other payments required by the terms of this License.
Section 10.5 Acceptance of Licensed Premises.
(a) Licensee accepts each Licensed Premises in its "as is"
condition, with all faults, on the date of commencement of the term.
Licensee further acknowledges that Meijer has made absolutely no
warranties or representations regarding the condition of any Licensed
Premises or its suitability for Licensee's intended use.
(b) If Meijer is unable to give possession of any Licensed
Premises on the Commencement Date specified for such Licensed Premises
on Exhibit C by reason of the holding over of any Licensee or
occupant, or because construction, repairs or improvements are not
completed, the license fee with respect to such Licensed Premises
shall abate for the period that possession by Licensee is delayed. If
such delay shall continue for more than forty-five (45) days, the
Licensee may, within ten (10) days after the expiration of said
forty-five (45) day period, give Meijer a notice of election to
terminate this License. Unless possession of such Licensed Premises
shall sooner be made available to Licensee, this License shall
terminate on the tenth day after the giving of said notice. Meijer
shall have no obligation to Licensee for failure to give possession
except as provided in this Section 10.5 (Acceptance of Licensed
Premises).
Section 10.6 Accord and Satisfaction. Payments by Licensee hereunder shall be
deemed to be payments for the earliest license fee due and owing under the terms
of this License. No endorsement or statement on any check or any letter
accompanying any check or payment of license fees shall be deemed an accord and
satisfaction, and Meijer may accept such check or payment without prejudice to
Meijer's right to recover the balance of such license fees or pursue any other
remedy in this License provided.
ARTICLE 11. DEFAULT
Section 11.1 Default. In the event that (i) Licensee defaults in its obligation
to pay any license fees or any other amounts required under this License and
such default continues uncured for five (5) days after the receipt of written
notice from Meijer of such default, (ii) Licensee defaults in the performance of
any other covenant (i.e., non-monetary covenants) on its part to be performed
under this License and such default continues uncured for ten (10) days after
the receipt of written notice from Meijer of such default, (iii) any Licensed
Premises is not continuously and uninterruptedly, except for breaks and lunch as
stated in Section 10.1(a) above, open for business in accordance with the hours
specified in Section 5.3 (Business Hours), (iv) Licensee shall become bankrupt
or insolvent or file any debtor proceedings or take or have taken against
Licensee in any court pursuant to any statute either of the United States or of
any state a petition in bankruptcy or insolvency or for reorganization or for
the appointment of a receiver or trustee of all or a portion of Licensee's
property or if Licensee makes an assignment for the benefit of creditors or
petitions for or enters into such an arrangement, or (v) Licensee shall abandon
any Licensed Premises, Meijer, in addition to other rights or remedies Meijer
may have, shall have the right to terminate this License with respect to all or
any Licensed Premises and shall have the immediate right of re-entry and may
remove all persons and property from any
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-16-
affected Licensed Premises and such property may be removed and stored in a
public warehouse or elsewhere at the cost of and for the account of Licensee,
all without service of notice or resort to legal process and without being
deemed guilty of trespass or becoming liable for any loss or damage which may be
occasioned thereby.
Section 11.2 Remedies Upon Default. Licensee and Meijer shall have, in addition
to any right or rights of termination provided hereunder, the right, upon
material default or material violation of any of the provisions hereof, to seek
specific performance of this License, or to seek any other remedy in law or
equity.
Section 11.3 Legal Expense. In case suit shall be brought for recovery of
possession of the Licensed Premises, for the recovery of any fees or other
amounts due under the provisions of this License, or because of the breach of
any other covenant herein contained on the part of Licensee to be kept or
performed and a breach shall be established, Licensee shall pay to Meijer all
expenses incurred therefor, including reasonable attorney fees. In case suit
shall be brought because of the breach of any covenant herein contained on the
part of Meijer to be kept or performed and a breach shall be established, Meijer
shall pay to Licensee all expenses incurred therefor, including reasonable
attorney fees.
Section 11.4 Remedies Cumulative. All rights and remedies provided for herein
or otherwise existing at law or in equity are cumulative, and the exercise of
one or more rights or remedies by either party shall not preclude or waive its
right to the exercise of any or all of the others.
Section 11.5 Late Payment Fee. In addition to any other rights it may have,
Meijer may charge and Licensee shall pay a late fee on any license fee or other
payment due hereunder if not paid when due. Such late fee shall be one percent
(1%) of the amount past due for any period less than fifteen (15) days. Licensee
shall also pay, on any such payment which is fifteen (15) days or more past due,
interest at a rate equal to the lesser of (a) one and one-half percent (1 1/2%)
per month or part thereof and (b) the highest rate of interest allowed by
applicable law.
ARTICLE 12. GENERAL
Section 12.1 Notices. Any notice desired or required to be given to Meijer
under this License, except those insurance notices described below, shall be
sent postage prepaid, registered or certified mail, to the following address:
Meijer Stores Limited Partnership
Attention: Real Estate Department
4411 Plainfield Avenue, N.E.
Grand Rapids, Michigan 49525
Any notice or document desired or required to be given to Meijer under this
License concerning matters of insurance, including but not limited to
certificates of insurance and notices of policy modification, cancellation,
termination, or expiration, shall be sent postage prepaid, registered or
certified mail, return receipt requested, to the following address:
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-17-
Meijer Risk Management Department
P.O. Box 3280
Grand Rapids, Michigan 49501-3280
Any notice desired or required to be given to Licensee under this License shall
be sent postage prepaid, registered or certified mail, return receipt requested,
to the following address:
PCA International, Inc.
815 Matthews-Mint Hill Road
Matthews, North Carolina 28105
Attention: Barry Feld, CEO
Either party may, by written notice, designate a different address to which
notices may be sent and, by written notice, designate not more than one
additional party to whom copies of all notices must be sent.
Section 12.2 Nonwaiver. The failure of Meijer or Licensee to insist upon the
strict performance of any covenant of this License or to exercise any option or
right herein contained shall not be a waiver or relinquishment for the future of
such covenant, right, or option but the same shall remain in full force and
effect.
Section 12.3 No Offer. The submission of this License for examination does not
constitute an offer to enter into a License, and this License shall become
effective only upon execution and delivery hereof by Meijer and Licensee.
Section 12.4 Captions. The captions and headings herein are for convenience and
reference only and have no legal force or effect.
Section 12.5 Partial Invalidity. Should any section, subsection, or provision
of this License be declared to be invalid or unenforceable by a court of
competent jurisdiction, it shall not affect the validity or enforceability of
the License as a whole or any part thereof, other than the part so declared
invalid/unenforceable. The parties shall renegotiate, if possible, the
invalid/unenforceable section, subsection, or provision in a manner consistent
with the original intent.
Section 12.6 Applicable Law. This License shall be interpreted pursuant to the
laws of the state in which the Entire Premises is located.
Section 12.7 Interpretation. All provisions hereof are to be construed as
covenants and agreements as though the words importing such covenants and
agreements were used in each section hereof. The necessary grammatical changes
required to make the provisions of this License apply in the plural sense where
there is more than one licensor or licensee and to either corporations,
companies, associations, partnerships, or individuals, males or females, shall
in all instances be assumed as though in each case fully expressed.
Section 12.8 Venue of Legal Action. Any legal action between the parties (except
for eviction proceedings) related to this License shall be conducted in courts
seated in Kent County,
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-18-
Michigan. Each party consents to the jurisdiction of such courts, waives any
objection to venue, and waives trial by jury.
Section 12.9 No Partnership. Meijer shall not in any way or for any purpose
become or be deemed to become a partner of or joint venturer with Licensee in
the conduct of its business by virtue of Meijer's execution of this License or
its performance of the terms and provisions hereof.
Section 12.10 Complete Agreement-Amendments. This License contains the entire
agreement between the parties and any or all prior or contemporaneous oral or
written agreements made on behalf of either party shall be of no force and
effect. This License shall be amended only by a written instrument signed by
Meijer and Licensee.
Section 12.11 Exhibits. All exhibits referred to in and attached to this License
are hereby made a part of this License.
Section 12.12 Successors and Third Parties. This License shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
heirs, administrators, personal representatives, successors, and Meijer's
assigns or Licensee's assigns agreed to by Meijer pursuant to Section 9.3
(Assignment) herein. Except for Meijer's parent, subsidiary, and affiliated
entities (including, without limitation, Meijer, Inc., and Meijer Distribution,
Inc., and their respective officers, directors, shareholders, partners, agents,
and employees, Meijer and Licensee acknowledge and warrant and represent to each
other that there are no third party beneficiaries to this License.
Section 12.13 Obligations Survive. All obligations arising prior to the
termination of this License and all provisions of this License allocating
responsibility or liability between the parties, including without limitation
the indemnity provisions contained in Article 8 (Indemnities and Insurance),
shall survive the termination of this License. No obligation which survives the
term of this License shall give Licensee any possessory interest in the Licensed
Premises nor have the effect of extending the term of this License.
(The remainder of this page is intentionally blank)
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-19-
Section 12.14 Authority. Licensee represents and warrants that Licensee has the
capacity and authority to enter into this License. If Licensee is a corporation,
Licensee represents and warrants it is a duly organized and validly existing
corporation in good standing and that the person executing this License has the
requisite authority to bind the corporation to the terms of this License. If
Licensee is a partnership, Licensee represents and warrants that it is validly
existing and that the person executing this License has the requisite authority
to bind the partnership to the terms of this License.
IN WITNESS WHEREOF, the parties hereto have signed this In-Store License as of
the day and year first above written.
MEIJER STORES LIMITED PARTNERSHIP
By Meijer Group, Inc., General Partner
By /s/ Mike Kirsth
-------------------------------------
( )
Its VP-Real Estate
------------------------------------
PCA INTERNATIONAL, INC.
By /s/ Barry J. Feld
-------------------------------------
( )
Its CEO
------------------------------------
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-20-
EXHIBIT A
[Depiction of Licensed Premises outlined in red]
Meijer Licensed Premises
Store # Store Address Square Footage
- ------- ------------- --------------
138 10301 S.R. 37, Fort Wayne, Indiana 46835-9591 451
139 6260 W. McGalliard Road, Muncie, Indiana 47304-9413 457
146 2401 N. Prospect Ave., Champaign, Illinois 61821-1233 638
176 4200 Conestoga Drive, Springfield, Illinois 62707-7962 351
183 815 S. Randall Road, Elgin, Illinois 60120-3003 457
204 10509 Heartland Blvd., Camby, Indiana 46113-9123 443
206 400 S. Randall Road, Algonquin, Illinois 60102 457
[Depiction of each Licensed Premises outlined in red following]
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-21-
EXHIBIT B
---------
Meijer Commencement
Stores # Date
-------- ----
138 August 9, 2001
139 August 3, 2001
146 August 12, 2001
176 August 18, 2001
183 July 1, 2001
204 July 1, 2001
206 July 1, 2001
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-22-
EXHIBIT C
Meijer Annual License Monthly Percentage License
Store # Fee Installment Fee Threshold
------- --- ----------- -------------
138 [***] [***] [***]
139 [***] [***] [***]
146 [***] [***] [***]
176 [***] [***] [***]
183 [***] [***] [***]
204 [***] [***] [***]
206 [***] [***] [***]
- -----------------
[***] Redacted pursuant to a request for confidential treatment.
PCA International Master License
(138, 139, 146, 176, 183, 204, 206)
-23-