EXHIBIT 10.2
------------
PORTIONS OF HIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. SUCH PORTIONS ARE DESIGNATED "[***]."
FOURTH AMENDMENT TO MASTER IN-STORE_LICENSE
THIS FOURTH AMENDMENT TO MASTER IN-STORE LICENSE, is this 29th day of
June, 2004 by and between MEIJER, INC., a Michigan corporation of 0000 Xxxxxx
Xxx., X.X., Xxxxx Xxxxxx, Xxxxxxxx 00000 ("Meijer"), and PCA INTERNATIONAL,
INC., a North Carolina corporation, of 000 Xxxxxxxx-Xxxx Xxxx Xxxx, Xxxxxxxx,
Xxxxx Xxxxxxxx 00000 ("Licensee").
STATEMENT OF FACTS
On June 25, 2001, Meijer and Licensee entered into a Master In-Store
License (the "License") granting Licensee, under certain terms and conditions,
the privilege of operating a portrait studio at certain premises located within
twelve (12) Meijer stores. Pursuant to a First Amendment, November 8, 2001,
Meijer and Licensee further amended the License to add space in Meijer Store
#221 to the terms of the License. Pursuant to a Second Amendment, dated January
16, 2002, Meijer and Licensee have amended the License to change the square
footage and license fees at Meijer Store #221. Pursuant to a Third Amendment,
dated Xxxxx 00, 0000, Xxxxxx and Licensee agreed to amend the License to add
space in Meijer Store #171 to the terms of the License. Meijer and Licensee have
now agreed to further amend the License to (i) extend the term of the license,
(ii) modify the terms of Section 5.8 (Signing and Graphics) of the License,
(iii) update insurance language, (iv) replace Section 12.8 (Venue of Legal
Action) of the License, and (v) increase Basic License Fees.
AGREEMENT
IN CONSIDERATION of the aforementioned facts, the covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Meijer and Licensee agree as follows:
1. Effective as of the date first written above, Section 2.1 (Term) of the
License is amended to extend the term of the License for an additional four
years, expiring July 31, 2008.
2. Effective as of August 1, 2004, Section 5.8 (Signing and Graphics) is
amended to add the following: "In the event any Entire Premises is remodeled by
Meijer, Licensee will be required to have its signage re-approved for the
Licensed Premises in such Entire Premises, (pursuant this Section), and may be
required to replace the signage, at its expense, in an effort to be consistent
with the graphic program of the Entire Premise."
3. Effective August 1, 2004, Section 8.3 (Insurance) of the License is
deleted and replaced with the following:
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 coverage for its employees or
contractors with statutory limits; such policy shall include an
Alternate Employer Endorsement. Employers Liability with limits not
less than Five Hundred Thousand Dollars ($500,000).
(b) Commercial General Liability including premises/
operations, independent contractors, broad form property damage,
personal/ advertising injury, blanket contractual liability, fire and
explosion legal liability, explosion/collapse and underground hazard
coverage, and products/completed operations coverage 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. Meijer, Inc., Meijer
Distribution, Inc., Meijer Stores Limited Partnership, and their
parent, subsidiary and affiliated entities shall be named as additional
insureds on an endorsement acceptable to Meijer, all at no cost to
Meijer. The endorsements attached hereto as EXHIBIT D are acceptable to
Meijer. The additional insured endorsement shall extend coverage to the
contractual liability and completed operations coverage. A copy of the
additional insured endorsement is required.
(c) Automobile Liability coverage, which incltuies
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 an amount 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, 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
2
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. 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, X.X. Xxx 0000, Xxxxx Xxxxxx, Xxxxxxxx 00000-0000. All insurance
policies required under Subsections 8.3(a), 8.3(b), 8.3(c), 8.3(d), and 8.3(e)
shall afford primary coverage and contain a provision that coverages afforded
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 A.M. Best rating of not less than A-. Upon the
request of Meijer, Licensee shall deliver copiers 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.
4. Effective as of August 1, 2004, Section 12.8 (Venue of Legal Action) of
the License is deleted and replaced with the following:
SECTION 12.8. ARBITRATION.
(a) Meijer and Licensee shall use commercially reasonable
efforts to settle any dispute or claim arising from or relating to this
License. To accomplish this, they shall negotiate with each other in
good faith prior to arbitrating any such claim or dispute (as provided
in this Section 12.8). If an agreement cannot be reached during such
negotiations, instead of suing in court, Meijer and Licensee agree to
arbitrate any all disputes and claims (including but not limited to
claims based on or arising from an alleged tort) arising out of or
relating to this License. During the period of any such settlement
discussions and arbitration proceedings, Licensee shall continue to pay
any license fees otherwise due hereunder.
(b) The parties agree to waive any and all claims against
the other party if arbitration is not sought with respect to such claim
or dispute within six months of the termination of this License.
Notwithstanding the foregoing, the parties' indemnity obligations under
this License shall survive the termination of this License.
(c) Any claim or dispute arising out of or relating to
this License, or the breach thereof, shall be settled by arbitration
administered by the
3
American Arbitration Association in accordance with its Commercial
Arbitration rules, except as varied herein, and judgment on the award
rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
(d) The dispute shall be heard and determined by one
arbitrator, except that if any party's claim exceeds $1 million,
exclusive of interest, the dispute shall be heard and determined by
three arbitrators, at least one of which shall be an attorney.
(e) The award of the arbitrator(s) shall be accompanied
by a reasoned opinion.
(f) Licensee and Meijer acknowledge that this License
evidences a transaction in interstate commerce and that the Federal
Arbitration Act and Federal Arbitration law shall govern the
interpretation and enforcement of, and proceedings pursuant to this
License.
(g) Unless Licensee and Meijer agree otherwise, the
location of any arbitration shall be in Kent County, Michigan.
(h) Licensee and Meijer agree that no arbitrator has the
authority to: (1) award relief in excess of what this agreement
provides; (2) award punitive damages or any other damages not measured
by the prevailing party's actual damages; or (3) order consolidation or
class arbitration.
(i) Each party shall bear its own costs, attorney fees
and other expenses. The parties shall bear an equal share of the
arbitrator(s)'s compensation and expenses and an equal share of the
administrative fees and costs of arbitration.
(j) The arbitrator(s) must give effect to the limitations
on either party's liability as set forth in this License, any
applicable tariff, law, or regulation.
(k) If for some reason this arbitration clause is at some
point deemed inapplicable or invalid, Meijer and Licensee agree to
waive, to the fullest extent allowed by law, any trial by jury, in such
case, a judge shall decide the subject dispute or claim.
(l) Licensee, Meijer and the arbitrator(s) shall not
disclose the existence, content, or results of any arbitration.
5. Effective August 1, 2004, EXHIBIT C of the License is modified to
increase the Basic License Fees as follows:
4
-----------------------------------------------------------------
MEIJER STORE ANNUAL LICENSEE MONTHLY
FEE INSTALLMENT
-----------------------------------------------------------------
#12 [***] [***]
-----------------------------------------------------------------
#25 [***] [***]
-----------------------------------------------------------------
#30 [***] [***]
-----------------------------------------------------------------
#34 [***] [***]
-----------------------------------------------------------------
#36 [***] [***]
-----------------------------------------------------------------
#55 [***] [***]
-----------------------------------------------------------------
#171 [***] [***]
-----------------------------------------------------------------
#179 [***] [***]
-----------------------------------------------------------------
#195 [***] [***]
-----------------------------------------------------------------
#196 [***] [***]
-----------------------------------------------------------------
#201 [***] [***]
-----------------------------------------------------------------
#203 [***] [***]
-----------------------------------------------------------------
#205 [***] [***]
-----------------------------------------------------------------
#221 [***] [***]
-----------------------------------------------------------------
6. In all other respects, the License is ratified and affirmed. As
amended, the License shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have signed his Fourth
Amendment to Master In-Store License by their duly-authorized corporate officer
as of the day and year first above written.
PCA INTERNATIONAL, INC. MEIJER, INC.
By /s/ Xxx Xxxxx By /s/ Xxxxxxx X. Xxxxxxx
------------------------------- ------------------------------------
Printed Name: Xxx Xxxxx Printed Name: Xxxxxxx X. Xxxxxxx
--------------------- --------------------------
Its: Vice President Its: Vice President - Real Estate
------------------------------ -----------------------------------
--------
[***] Redacted pursuant to a request for confidential treatment.
5
