HomeMy WebLinkAbout07-6835IN THE COURT OF COMMON PLEASE OF
CUMBERLAND COUNTY, PENNSYLVANIA
D & J EASTERN ENTERPRISES, INC
Plaintiff
vs.
No. 07- ~8~ Civil Term
GIANT FOOD STORES, INC.
Defendants
CIVIL ACTION
NOTICE OF APPLICATION FOR PRELIMINARY OR SPECIAL INJUNCTION
TO: GIANT FOOD STORES, INC.
1149 HARRISBURG PIKE
CARLISLE, PA 17013-0249
RHONDA M. WEAVER, ESQUIRE
MCNEES WALLACE & NURICK
100 PINE STREET
HARRISBURG, PA 17108
You will please take notice that on the 13~' day of November, 2007 at the
courthouse in Carlisle, County of Cumberland, Commonwealth of Pennsylvania,
Plaintiff will move the Court for a preliminary injunction which would restrain you from
closing any of Plaintiff's existing operations in any of your Giant Food Stores on the
ground that you are violating the terms of their agreement to remain and peaceably
operate its business.
This motion will be made on this notice and on the pleadings, papers, records, and
files in this action.
NOVEMBER 13, 2007
Supreme Court I.D. # 38444
1237 Holly Pike
Carlisle, PA 17013-4435
(717) 249-2448
IN THE COURT OF COMMON PLEASE OF
CUMBERLAND COUNTY, PENNSYLVANIA
D & J EASTERN ENTERPRISES, INC
Plaintiff
vs.
No. 07- ~$~.S Civil Term
GIANT FOOD STORES, INC. :CIVIL ACTION
Defendants
IMPORTANT NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty days (20) days after this complaint
and notice are served, by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the claims set forth against
you. You are warned that if you fail to do so the case may proceed without you by the
court without further notice for any money claimed in the complaint or for any other
claim or relief requested by the plaintiff. You may lose money or property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
IN THE COURT OF COMMON PLEASE OF
CUMBERLAND COUNTY, PENNSYLVANIA
D & J EASTERN ENTERPRISES, INC.
Plaintiff :
vs. No. 07- ~$~' Civil Term
GIANT FOOD STORES, INC. :CIVIL ACTION
Defendants
COMPLAINT FOR SPECIAL RELIEF -INJUNCTION AND PRELIMINARY
INJUCTION
AND NOW, this 13~' day of November 2007, comes Plaintiff, by and through his
attorney, Joseph D. Buckley, and complains of Defendants as follows:
1. Plaintiff, D & J. Eastern Enterprises, Inc., is a Pennsylvania corporation with
offices located at 1219 Redwood Hills Circle, Carlisle, Cumberland County,
PA.
2. Plaintiff is the owner of the trade-name and trademark "Dorothy's Chinese
Kitchen" and operates Chinese restaurants under this registered fictitious
name.
3. Defendant, Giant Food Stores, Inc., is a Delaware corporation with its
principal office located at 1149 Harrisburg Pike, Carlisle, Cumberland
County, PA (hereinafter called "Giant").
4. Plaintiff owns and operates some of its many restaurants within individual
Giant Food Stores throughout Pennsylvania including Giant Food Stores in
Carlisle, Hershey, State College, Gettysburg, West Lawn, Indiana,
Phoenixville, Middletown, Harrisburg, Mechanicsburg, New Cumberland and
Dillsburg.
5. Plaintiff has operated Dorothy's Chinese Kitchen restaurants within individual
Giant stores pursuant to individual agreements.
6. Each said individual agreement is a standard agreement developed by Giant
and utilized for all the various locations, each generally only differing in the
date of the individual agreement and the location of the Giant store in which
the restaurant shall be located, as well as the restaurant's location with each
individual store.
7. Each agreement utilizes the identical language for the term of the agreement,
that being:
" 2. TERM. This Agreement shall commence on the Commencement Date,
as defined below, and shall terminate three (3) years from the Commencement
date, unless earlier terminated or extended as provided hereunder (the "Initial
Term"). The Commencement Date shall be
Either
party to this License Agreement shall have the right to terminate the License
Agreement after the first year of the Initial Term upon good cause shown,
provided that the terminating party gives the other written notice of its concern
and thirty (30) days to remedy the same. If the concern is not remedied within the
thirty (30) day period, the terminating party shall give sixty (60) day notice to the
other."
8. Each agreement utilizes the identical language for the renewals of the
agreement, that being:
" 3. RENEWALS. This Agreement may be renewed at Licensees
[Plaintiff s) option for one (1) additional term of two (2) years. This Agreement
shall automatically renew for an additional term unless Licensee
notifies Giant [Defendant) in writing of its election not to renew at least One
hundred and eighty (180) days prior to the expiration of the Initial Term. The
renewal will be on the same terms and conditions as set forth
herein." (emphasis added).
9. The Commencement Date for the some Agreements between the parties were
as follows:
Store Location Commencement Date
Carlisle 04/20/1996 (copy not attached and in
possession of Defendant)
State College 11/20/1998 (copy attached as Exhibit "A")
New Cumberland 06/28/2000 (copy attached as Exhibit "B")
Lower Paxton Twp. 01/17/1995 (copy attached as Exhibit "C")
Gettysburg 11/20/1998 (copy attached as Exhibit "D")
10. Each agreement utilizes the identical language for any future changes to the
agreement, that being:
" 29. ENTIRE AGREEMENT. ... No amendment or modification to this
Agreement shall be binding unless such amendment or modification is in writing
and signed by both parties."
11. Plaintiff is required by the agreement to pay a minimum rent to Giant or a
percentage of its gross profits which ever is greater.
12. Plaintiff s operation within a given Giant store is basically the same: Plaintiff
through its employees prepare various Chinese style dishes for customers who
select from apre-made hot food display case or a made-to-order menuand
may choose either take out or may eat-in (if an eat-in area is provided in the
store). All employees, food products, containers, utensils, menus, price lists
and supplies are provided solely by Plaintiff. Food is prepared and stored
using equipment some of which is owned by Giant and some owned by
Plaintiff. When customers order food a payment bar code is generated and
placed on the container of food. Customers are given the food and pay either
at the Plaintiff's location or at the front registers in Giant's store using cash
registers and bar code readers supplied by Giant. Each sale is registered into
an account designated for Plaintiff. Giant holds the funds in its accounts and
within two weeks pays Plaintiff the gross receipts less, sales tax collected and
the percentage fee set forth in the agreement.
13. From the time of Plaintiffs and Defendant's first agreement in January of
1995 and all following agreement until sometime in 2005 as more fully set
forth below, at the end of the three year initial term, Plaintiff was informed by
Defendant that the agreements automatically renewed for an additional two
year or three year period.
14. At the end of the second period of any existing agreement, Plaintiff was
informed by Defendant that the agreement automatically renewed for an
additional three (3) year period.
15. During any and all renewal periods Plaintiff and Defendant operated under the
terms and conditions of the extended and renewed agreement and neither ever
questioned multiple automatic extensions.
16. In or around 2005, Giant hired a new manager to for its in-store operations
conducted by non-Giant employees which included all of Plaintiff's in-store
restaurants.
17. Thereafter based on certain actions, statements and/or requests of the new
manager concerning Plaintiff, relations between Plaintiff and Giant
dramatically changed.
18. Giant, through its new manager also desired to make changes in its
Agreements with Plaintiff including Plaintiff's percentage payments, but
never so informed Plaintiff of this desire.
19. None of the agreements between Plaintiff and Defendant then in existence
have ever been amended by agreement of the parties, signed by both parties.
20. Following an exchange between the said new manager and officers of
Plaintiff in which Giant's new manager asked that Plaintiff consider its
current position with Giant and determine Plaintiffs desire to continue with
the relationship, on June 30, 2005, Giant, through its said manager, sent a
letter to Plaintiff concerning, inter alia, Plaintiff restaurant in Giant's Carlisle
store. The letter stated, in part:
"This notice is to serve as a Letter of Understanding by and between Giant
Food Stores, LLC (Giant) and D & J Eastern Enterprises that your license
Agreement to operate a Chinese Kitchen within Giant Store # 112 located at 255
S. Garden Street, Carlisle, PA, expired on Apri120, 2004. It is Giant's intention to
permit you to continue operating under the terms and conditions of your original
License Agreement referenced above on a month to month basis This month to
month operation will continue until both parties agree to execute a new License
Agreement or a 30 day Notification to Quit is provided in writing by either of the
mentioned parties to the address listed in the Agreement."
The letter is signed by the Franchise Development Manager and requests Plaintiff
to sign as received and agreed to this day of , 2005 (Copy attached as
Exhibit E)
21. Included with the Exhibit E were also similar letters for the Harrisburg,
Gettysburg, Phoenixville and State College Giant stores in which Plaintiff was
operating its restaurants. (Said letters are attached respectively as Exhibits F,
G, HandI)
22. Plaintiff refused to agree with the proposed changes to its agreements with
Giant, did not execute the proposed amendment to its agreements and did not
return the amendments to Giant.
23. On July 25, 2005 Plaintiff, through its attorney, responded to Giant's letters
proposing amendments to the parties various agreements which stated in part
"my records and the terms of the agreement in our files seem to differ from
those in your files." (Copy of letter attached as Exhibit J)
24. Giant's letter of June 30, 2005claims that the agreement for Plaintiff's Carlisle
operation expired on April 20, 2004 when in reality it was automatically
renewed on Apri120, 2005 for an additional three year period.
25. The said Carlisle agreement was entered into on April 20, 1996 and
automatically renewed by its terms and the parties conduct in April 1999 for
an additional term of three (3) years, then automatically renewed by its terms
and the parties conduct in Apri12002 for an additional term of three (3) years,
then automatically renewed by its terms and the parties conduct in Apri12005
for an additional term of three (3) years, expiring in Apri12008.
26. Giant's letter to Plaintiff in June 2005 has no effect to that agreement because
it had automatically renewed by its terms and any attempt by Giant to attempt
to change the effect of the automatic renewal AFTER its operation by law is
of no force or effect.
27. It is believed that Giant, then realized the weakness of its position and
attempted to have Plaintiff sign an amendment changing the terms of the
existing agreement which it refused to do.
28. Over the course of the next many months through June of 2007, Plaintiff and
Defendant attempted to negotiate a new all inclusive master agreement for all
of its then existing operations.
29. In June or July of 2007 the parties not being able to reach new terms for the
master agreement or any future agreements began discussions on severing
their relationship.
30. The parties attempted to negotiate an amicable agreement on a closure
schedule for all of Plaintiff s restaurants within Giant stores.
31. However, it is believed that prior to reaching an agreement Giant had begun
entering into new agreements with third parties and, as a result, began
demanding unilateral changes to Plaintiff s proposed closure schedules.
32. When the parties could not agree, Plaintiff requested the various locations
close in accordance with the terms of the individual agreements or in the
alternative requested Giant seek a Court determination of the individual
agreement termination dates.
33. Giant refused stating it would not recognize any agreement even though it had
been operating under the agreements and the agreement's automatic renewals
for a period in excess of 12 years.
34. The agreements clearly have an automatic renewal and both parties continued
operating under the agreement and the automatic renewals, including multiple
automatic renewals.
35. No one party to a long standing, automatically renewable agreement may
unilaterally determine a termination to the detriment of the other party.
36. Defendant's unilateral determination of termination dates do not comply with
the individual agreement's terms or the course of conduct established by the
parties.
37. By letter dated November 7, 2007, Giant, through counsel, notified Plaintiff it
would unilaterally and systematically close Plaintiffs operations and bar
Plaintiffs employees from its stores in accordance with a schedule it had
selected without regard to the terms of the agreements. (Copy attached as
Exhibit K)
38. On November 9, 2007, Plaintiff, through counsel, again vehemently denied
Giant's right to unilaterally misinterpret and unilaterally close Plaintiffls
operation and requested Giant to seek a determination of the Court because of
the irreparable harm to Plaintiff. (see a-mail attached as Exhibit L)
39. On November 12, 2007, Giant through counsel notified Plaintiff that it would
proceed with its unilateral closure as set forth in its November 7, 2007 letter.
(See a-mail attached as Exhibit M)
40. On November 12, 2007, at 9:45 AM, Plaintiff s employees attempted to enter
Giant's store in Dillsburg, York County and were told by Giant employees or
agents that they were not permitted in the store and when they returned to
remove their personal items and food, they were again barred.
41. Giant has informed Plaintiff it plans to unilaterally close Plaintiff's Carlisle
store operation on November 13, 2007 and deny Plaintiff's employees access
to their location in Giant's Carlisle store. Plaintiff's employees are scheduled
to arrive at 10:00 AM to begin for the lunch hour service.
42. Giant has informed Plaintiff it will systematically follow the closure of
Plaintiff s Carlisle operation by closing Plaintiff's Gettysburg store operation
on November 14, 2007 and other operations to follow immediately thereafter
and to do so with first gaining Court approval.
43. If Giant is permitted to continue to unilaterally close Plaintiffls operations in
Carlisle, Gettysburg, State College or any other location, Plaintiff, its good
name, standing and reputation, and its numerous employees shall be
irrepazably harmed.
44. Plaintiff has conducted its existing operations at Giant stores in a professional
business like manner throughout the past many yeazs and continued to do so
during the past several months irrespective of its disagreements with Giant
and permitting the continuation of Plaintiff's operations at Giant's various
stores will not be detrimental to Giant.
45. Plaintiff is likely to prevail on the merits of this matter.
46. Plaintiff has no adequate remedy at law.
47. Based on Defendant's unilateral and unsupported actions Plaintiff is entitled
to costs of this action including reasonable attorney fees.
WHEREFORE, Plaintiff requests this Honorable Court enter an Order enjoining
Defendant from terminating any agreement except by the express terms of the agreements
between the parties. Plaintiff further prays this Honorable Court enter a Preliminary
Order enjoining any closures of Plaintiff s operations pursuant to the agreements pending
further determination by the Court. Finally Plaintiff prays this Court award it costs of
this action including reasonable attorney fees any other amounts the Court deems fair and
~ ust.
submitted
%'`~L~t~.~let 13, zeta }
3b,~~ph D. Budl~ley, Esquire(,
Attorney for the Plaintiff
Supreme Court I.D. # 38444
1237 Holly Pike
Carlisle, PA 17013-4435
(717) 249-2448
VERIFICATION
I, Dorothy Fang, President of Plaintiff, D & J Eastern Enterprises, Inc., hereby
verify that I have read the foregoing Complaint and the statements made therein are true
and correct to the best of my knowledge and belief.
I understand that statements made herein are subject to the penalties of Title 18
Section 4909 relating to unsworn falsifications to authorities.
,~
Date: November 13, 2007 ~~'L ~
Dorothy Fang, resident
D & J Eastern Enterprises, c.
EXHIBIT
«A~~
S~ati-~ ~~~~~~p~
~f
TABLE OF CONTENTS
1. DEFINITIONS ........................................................... 1
2. TERM .................................................................. 1
3. RENEWALS .............................................................. 2
4. SECURITY DEPOSIT ...................................................... 2
5. PAYMENTS .............................................................. 2
6. USE AND OCCUPANCY ..................................................... 3
7. LICENSEE'S EMPLOYEES .................................................. 4
8. IMPROVEMENTS, ADDITIONS AND SIGNS ..................................... 5
9. APPROVALS ............................................................. 5
10. UTILITIES, MAINTENANCE AND REPAIR ..................................... 5
11. ADVERTISING, PROMOTION AND RELATED ACTIVITIES ......................... 6
12. INSURANCE ............................................................. 7
13. TAXES ............................ ................................... 6
14. COMPLIANCE WITH LAWS .................................................. 8
15. DEFAULT BY LICENSEE ................................................... 8
16. DEFAULT BY GIANT ...................................................... 9
17. POSSESSION UPON TERMINATION ........................................... 9
18. DAMAGES TO PREMISES ................................................... 9
19. CONDEMNATION .......................................................... 10
20. PEACEFUL POSSESSION ................................................... 10
21. ASSIGNMENT BY LICENSEE ................................................ 10
22. REMODELING OR VACATION OF STORE ....................................... 10
23. SECURITY .............................................................. 11
24. CONFIDENTIALITY ....................................................... 11
25. CAPTIONS .............................................................. 11
26. SEVERABILITY .......................................................... 12
27. GOVERNING LAW ......................................................... 12
28. BINDING EFFECT ........................................................ 12
29. NOTICES ............................................................... 12
30. ENTIRE AGREEMENT ...................................................... 13
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, is made as of this 20th day of November, 1998, by
and between GIANT FOOD STORES, INC., a Delaware corporation with its principal
office at 1149 Harrisburg Pike, PO Box 249, Carlisle, Pennsylvania 17013
("Giant"), and D & J EASTERN ENTERPRISES, INC., a Pennsylvania corporation
("Licensee").
W I T N E S S E T H:
In consideration of the mutual promises and subject to the terms and
conditions set forth herein, Giant hereby grants to Licensee the right to
maintain and operate a Chinese Food Section, as defined below, in the Giant
store identified below in accordance with the provisions hereinafter set forth.
1. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
following meanings:
(a) "Chinese Food Section" shall mean Premises, together with
Improvements, as defined in Section 8 hereof from which Licensee shall conduct
the business of preparing and selling Chinese foods.
(b) "Minimum Rent" shall mean Three Hundred Dollars ($300.00) per
biweekly period which shall be applied to, and not in addition to, the
percentage rent set forth in Exhibit B hereto.
(c) "Premises" shall mean the area within the Store to be occupied by
the Chinese Food Section as more specifically designated on Exhibit A hereto.
(d) "Store" shall mean the Giant store known as Store #~„~ located in
State College (College Township), Centre County, Pennsylvania, within which the
license under this Agreement is granted.
2. TERM
This Agreement shall commence on the Commencement Date, as defined below,
and shall terminate three (3) years from the Commencement Date, unless earlier
terminated or extended as provided hereunder (the "Initial Term"). The
Commencement Date shall be the date Licensee opens for business within the
premises. Either party to this License Agreement shall have the right to
terminate the License Agreement after the first year of the Initial Term upon
good cause shown, provided that the terminating party gives the other written
notice of its concern and thirty (30) days to remedy the same. If the concern
is not remedied within the thirty (30) day period, the terminating party shall
give sixty (60) days notice to the other.
3. RENEWALS.
This Agreement may be renewed at Licensee's option for one (1) additional
term of two (2) years. This Agreement shall automatically renew for an
additional term unless Licensee notifies Giant in writing of its election not
to renew at least one hundred eighty (180) days prior to the expiration of the
Initial Term. The renewal will be on the same terms and conditions as set
forth herein.
4. SECURITY DEPOSIT.
Upon execution of this Agreement, Licensee shall pay Giant the sum of Two
Thousand Dollars ($2,000.00) as a license security deposit (the "Security
Deposit") which shall remain on deposit with Giant in a non-interest bearing
account for a period not to exceed thirty (30) days beyond the expiration or
termination of this Agreement. It is expressly understood and agreed that the
Security Deposit shall be held as security for performance by Licensee of the
terms, covenants and conditions of this Agreement and that the Security Deposit
is not to be deemed as a licensee fee payment or other payment by the Licensee
to be credited to the last installment of the license fees or otherwise. The
Security Deposit may be used by Giant to pay any indebtedness due from Licensee
whether arising from debt, fees, damages or otherwise. Upon notice by Giant
that any portion of the Security Deposit has been used by Giant to pay any
obligation of Licensee under the terms hereof, Licensee shall have ten (10)
days following written notice from Giant to pay the amount necessary to restore
the Security Deposit with Giant. Giant may use any portion of the Security
Deposit to correct any damage to or about the Store caused by or related to the
use of the Chinese Food Section which is caused by the negligence of Licensee,
its employees or agents, whether such damage occurs before or after any
proceedings or actions brought by Giant and for any costs and expenses incurred
by Giant in enforcing Licensee's performance under this Agreement, including
without limitation Giant's reasonable attorney's fees. If Giant consents to
the assignment by Licensee of this Agreement, the Security Deposit shall be
assigned simultaneously with the Agreement and shall become the property of the
assignee of Licensee.
5. PAYMENTS.
On or before the Commencement Date, Licensee shall pay to Giant an
initial license payment of Zero Dollars ($0.00) for the right to commence
operation of the Chinese Food Section.
In addition, Licensee shall pay to Giant for use of the Premises the fees
set forth on Exhibit B hereto. The obligation to pay Licensee's fees hereunder
shall commence on the Commencement Date. The annual license fees shall be
payable in biweekly installments, commencing at the end of the first full two
week period after the Commencement Date. Each biweekly payment of the Minimum
Rent shall be due within seven (7) days of the end of each biweekly period.
The biweekly periods shall coincide with Giant's fiscal accounting periods,
which currently end at the close of business Saturdays. The first and last
biweekly payments in each year of the term of this Agreement shall include pro
rata adjustments for any partial biweekly period. Notwithstanding the
- 2 -
foregoing, the procedure for the remittance of license fees shall be
substantially the same as that described in Exhibit B-1 hereto.
Giant shall provide a cash register for the Chinese Food Section which
will record sales directly into the Store's sales accounting system. A report
showing Licensee's sales shall be forwarded to Licensee at the end of each
quarter of each year during which this License is in effect. Licensee shall
have thirty (30) days from the date of such notice to pay the balance of the
percentage rent due as set forth in Exhibit B. Notices shall be given in
accordance with Section 29 of this Agreement.
In the event that at the end of the first year of the Initial Term,
Licensee's biweekly gross sales (excluding sales tax) average for the first
year less than Five Thousand Dollars ($5,000.00) per biweekly period, either
party may terminate this Agreement upon thirty (30) days written notice to the
other.
6. USE AND OCCUPANCY.
(a) Licensee shall have the exclusive right to use and occupy the
Promises for the operation of a Chinese Food Section. Giant shall have no
ownership or other right, title or interest in Licensee's business or in the
receipts, profits or losses thereof, and Giant shall not be deemed to be a
joint venturer with or a principal or agent of Licensee. Licensee shall have
no right or power to incur any commitments or obligations which shall be
binding on Giant.
(b) Each party shall conduct its business at the Store in a clean and
lawful manner. Each party agrees that it shall not block or restrict the
aisles or passageways of the other party, nor shall either party interfere with
the other party's business.
(c) The Chinese Food Section shall be open for business with adequate
personnel provided by Licensee for a minimum of seventy (70) hours a week
allocated over the week as follows: Monday through Saturday from 11:00 am. to
9:00 p.m., and on Sundays from 1I:00 a.m. to 9:00 p.m., except for any of those
hours which the Store is closed. Any changes in the hours of operation of the
Chinese Food Section shall be approved by Giant.
(d) Licensee shall be permitted to purchase its ingredients, produce
and other items necessary for the operation of the Chinese Food Section from
any suppliers and shall not be obligated to purchase same from or through
Giant.
(e) Licensee shall promptly pay and discharge all bona fide expenses
and obligations which it incurs in connection with the operation of the Chinese
Food Section, including but not limited to the purchase of all materials and
supplies, the compensation of its employees, applicable taxes, permit fees
payable to public authorities, license fees incurred under this Agreement and
all other expenses in the operation of the Chinese Food Section.
- 3 -
(f) Licensee shall be solely responsible for all costs related to the
installation, maintenance and use of all telephone lines and equipment which
Licensee elects to install in the Chinese Food Section.
(g) Licensee shall not offer for sale any products or merchandise (for
example, grocery items such as canned and packaged foods) which conflict with
Giant's normal grocery business operation.
(h) All deliveries to Licensee shall be made to receiving facilities
designated by Giant. No deliveries shall be made to the front entrances of the
Store. Normal hours for delivery will be between 8:00 a.m. and 4:00 p.m. It
is expected that in those few instances where a delivery truck should arrive
prior to 8:00 a.m. or after 4:00 p.m., due to an unusual situation, Giant will
use its best effort to accept the delivery.
7. LICENSEE'S EMPLOYEES.
(a) Licensee shall comply with and abide by, and cause its employees to
comply with and abide by, all reasonable rules and regulations adopted by Giant
regarding conduct at the Store, provided such rules and regulations and any
amendments thereto are made available at least seven (7) days in advance to
Licensee's employees and do not unreasonably impair Chinese Food Section opera-
tions. All persons employed by Licensee in or about, or in connection with,
the operation of the Chinese Food Section shall be Licensee's employees for all
purposes under this Agreement. Giant agrees to cooperate with Licensee in
providing access to the Premises at reasonable times while the Store is open
for business, but only as absolutely necessary during periods of time when the
Store is not open for business. Licensee shall not be entitled to have a key
to the Store.
(b) Licensee shall, at its own cost and expense, maintain worker's
compensation coverage, unemployment compensation coverage and any other
insurance which may be required by law with respect to Licensee's employees.
Licensee shall provide certificates of insurance or other evidence that
insurance is in place to protect the interests of Giant.
(c) Licensee's employees, while working at the Chinese Food Section,
shall be entitled to use the toilet facilities and break-room in the Store
provided by Giant for the convenience of Giant employees.
(d) Licensee shall furnish to Giant the motor vehicle license numbers
of its employees working at the Chinese Food Section and shall require them to
park their automobiles only in locations designated by Giant.
- 4 -
8. IMPROVEMENTS, ADDITIONS AND SIGNS
(a) Giant, at its sole cost and expense, shall furnish all fixtures,
plumbing and electrical installations, and equipment as specifically described
on Exhibit C hereto necessary for the Chinese Food Section operations (the
"Improvements") and shall pay any and all costs of modification of the Store
for the installation of the Improvements. The Improvements which Giant
installs in the Chinese Food Section shall remain the property of Giant.
Licensee shall not make any modification to said Improvements either initially
or at any other time during the term of this Agreement, without Giant's prior
written approval.
(b) Licensee shall provide all other types of kitchen equipment, small
appliances, tools and utensils, including but not limited to woks, knives,
cutting boards, etc., which Licensee needs to conduct its business in the
Chinese Food Section.
(c) Giant shall permit Licensee to place interior signs only
identifying its operations in the vicinity of the Chinese Food Section, such
signs being of such design and dimensions and at such locations as Giant shall
determine are reasonable.
9. APPROVALS.
Giant agrees to promptly obtain any necessary waivers or consents from
its landlord with respect to provisions in its lease regarding exclusive uses,
subletting, alterations to the Store, or other matters, that would prevent
Licensee from operating a Chinese Food Section as contemplated by this
Agreement.
10. UTILITIES, MAINTENANCE AND REPAIR
(a) Licensee shall, at its sole cost and expense, maintain the Premises
as follows:
(i) Licensee shall keep and maintain the Chinese Food Section in
a clean, safe, orderly and attractive manner consistent with the design and
appearance of the Store, including the Improvements and all other equipment
installed therein and used in connection therewith.
(ii) Licensee shall be responsible for the repair and maintenance
of the equipment constituting the Improvements as set forth on Exhibit C
hereto. Licensee shall be permitted to select contractors at its discretion to
do the repairs and maintenance, provided however that all contractors shall be
reputable and skilled in the type of repair work to be done at the Premises.
Giant will assign any assignable warranties which it may have on new equipment
which is part of the Improvements to Licensee during the term of this
Agreement, so long as the manufacturer will allow the same without cost to
Licensee. To the extent that the manufacturer will not allow the warranty to
be assigned without cost to Licensee, Giant will agree to have the repairs
performed during the initial warranty period at no expense to Licensee. After
the warranty period, Licensee will assume the day to day maintenance and repair
of the equipment.
- 5 -
(iii) Licensee and its employees shall at all times strictly comply
with all applicable governmental regulations for businesses of this type,
including but not limited to, those promulgated by any state or local health
department having jurisdiction.
(iv) Giant shall provide all necessary janitorial services for the
Chinese Food Section, however Licensee shall be responsible for routine daily
cleaning of the kitchen and serving areas.
(b) Giant shall, at its sole cost and expense, provide the following
maintenance and services:
(i) Giant shall furnish all lighting, air conditioning, heating
and other utilities for the Store, including the Premises, with the exception
of gas service to the Premises, which shall be separately metered and shall be
paid by Licensee. If for any reason, not the fault of Giant, such utilities
are suspended or discontinued, Giant shall not be liable to Licensee for any
interruption of its operations by reason of such suspension or discontinuance,
but Licensee shall be entitled to a proportionate abatement of the fees if the
utilities are suspended or discontinued for more than forty-eight (48) hours;
and
(ii) Giant shall keep and maintain the Store and toilet facilities
in good order and repair, including, without limitation, plumbing and
electrical equipment, heating, air conditioning, doors, windows and all
structural portions of the Store. Giant shall not be responsible for any
additional equipment that may be required and installed or maintained on the
Premises by Licensee.
Notwithstanding anything to
provision in this Agreement
Giant's lease for the Store
shall have discharged its of
good faith efforts to cause
the lease.
the contrary contained in this Agreement, if any
imposes an obligation upon Giant which under
is the responsibility of Giant's landlord, Giant
oligation under this Agreement if it uses diligent,
the landlord to perform its responsibilities under
11. ADVERTISING, PROMOTION AND RELATED ACTIVITIES
(a) Each party agrees to cooperate with and promote the goodwill and
business of the other party at the Store.
(b) Any solicitation by Licensee of Giant's customers shall be done in
a professional and courteous manner and in accordance with written practices
and policies established by Licensee and approved by Giant, which approval will
not be unreasonably withheld.
(c) Both Giant and Licensee may, at their expense, advertise the
existence and location of the Chinese Food Section in such media and in such
manner as each deems appropriate. However, the prior approval of each party
shall be obtained with regard to any advertisement that is to be transmitted by
or appear in any electronic or print medium that refers to both parties, and
- 6 -
the cost of any such joint advertising shall be shared as agreed to prior to
such advertising being undertaken.
(d) Subject to Giant's prior approval, which will not be unreasonably
withheld, Licensee may sell, or offer as promotional products outside the
Chinese Food Section within the Store itself; provided, however, such products
are those typically offered at the Chinese Food Section and do not compete with
the products offered by Giant.
(e) Licensee shall have access to the intercommunications system
("Intercom") within the Store. The use of the Intercom shall be coordinated
between the Store manager and the Chinese Food Section manager, and shall be
further subject to Licensee obtaining the prior consent of the Store manager,
which consent will not be unreasonably withheld. It is the parties' intention
that the joint use of the Intercom shall benefit both parties for the purpose
of paging and announcing various specials being promoted by either party within
the Store.
12. INSURANCE.
(a) Licensee shall carry its own personal property and betterments
insurance and shall also keep in force during the term of this Agreement
general liability insurance with respect to its Chinese Food Section operations
naming Giant as an additional insured under such policies. The liability
limits of such policy shall not be less than One Million Dollars
($1,000,000.00) per occurrence for bodily injury and with a minimum of Three
Hundred Thousand Dollars ($300,000.00) for property damage. Within ten (10)
days of Giant's written request, Licensee shall furnish Giant with such
certificates of insurance evidencing compliance with this section. The
insurance coverages required hereunder and in Paragraph 7(b) hereof shall not
be terminated without thirty (30) days notice in writing to Giant. Failure to
provide and maintain insurance by Licensee as set forth in this License
Agreement shall be deemed a default hereof.
(b) If requested, Licensee shall name Giant's landlord as an additional
insured on Licensee's casualty and liability insurance policies with respect to
the Store.
(c) Licensee shall, at its own cost and expense, comply with all
regulations or orders of any insurance company or companies providing insurance
with respect to the Store related to the Chinese Food Section operations in the
Store.
(d) Licensee agrees to release, waive and discharge Giant, and any of
its agents, affiliates, officers, shareholders and employees, and covenants not
to sue each of them, from all liability to Licensee for all loss or damages, or
any claim or demands therefor, on account of injury (including death) to the
person or property of Licensee, including loss of consortium, unless caused in
whole or in part by the negligence, recklessness or willful misconduct of
Giant.
(e) Licensee agrees to indemnify and hold harmless Giant from and
against any and all losses, liabilities, claims, demands, actions, costs,
- 7 -
expenses, and damages, including reasonable attorney's fees, brought against
Giant for any injury (including death) to any person or property, including
loss of consortium, caused in whole or in part by reason of Licensee's acts,
neglect, or omissions, whether active or passive, sole or concurrent, or
whether negligent, reckless, or pursuant to strict liability or otherwise, in
any way connected to the presence of Licensee, Licensee's employees or any
agent or contractor of Licensee, on any premises owned, leased or rented by
Giant. In the event that any legal proceeding is brought against Giant,
Licensee further agrees to pay Giant any and all expenses and costs, including
reasonable attorney's fees, associated with enforcing this provision of the
Agreement.
13. TAXES.
Licensee shall pay all taxes, other than real estate taxes, assessed by
any taxing authority because of its operations at the Chinese Food Section. In
the event any unapportioned tax assessed against Giant includes Licensee's
property, other than real estate taxes, Licensee shall pay such portion of the
tax as the value of such Licensee property that was included in Giant's
assessment at the time of the assessment bears to the total value of the
property assessed in the Store.
14. COMPLIANCE WITH LAWS.
Licensee shall at all times during the term of this Agreement fully
comply with any and all federal, state, local, municipal or administrative
laws, rules, regulations and orders applicable to Licensee or the conduct or
operation of Licensee's business including, but not limited to, those relating
to the Immigration and Nationality Act, 8 U.S.C. 1101, et seq., as amended from
time to time (the "Immigration Act"), and those relating to health, safety and
environmental matters. Licensee shall at such times as Giant shall request
certify to Giant in writing that it is in full compliance with the Immigration
Act's employment authorization verification requirements. As requested by
Giant, Licensee shall provide Giant with evidence that Licensee has duly
completed all forms and procedures in connection with such requirements.
15. DEFAULT BY LICENSEE.
(a) If Licensee shall fail to make the payments required hereunder when
the same are due, and the same shall not be paid within ten (10) days after
written notice to Licensee, or if Licensee breaches any other covenant of this
Agreement and fails to remedy same within thirty (30) days after written notice
of such breach, Giant may, at its option, declare this Agreement terminated
without prejudice to any additional remedy which may be available to Giant.
{b) Anything in this Agreement to the contrary notwithstanding, in the
event that Licensee shall become insolvent, bankrupt or make any assignment for
the benefit of creditors, or if its interest hereunder shall be levied upon or
sold under execution or other legal process, or in the event Licensee is closed
for more than a fourteen (14) day period, without prejudice to any additional
remedy which may be available to Giant, Giant may declare this Agreement
terminated.
- 8 -
(c) Licensee shall indemnify and hold Giant harmless against all
claims, damages and expenses, including legal costs and attorneys' fees,
incurred or suffered by Giant as a result of any default by Licensee in the
performance of its obligations under this Agreement.
16. DEFAULT BY GIANT.
(a) Subject. to the last sentence of Paragraph 10 above, if Giant
breaches any covenant in this Agreement and fails to remedy same within thirty
(30) days after written notice of such breach, or if the same is not reasonably
capable of being cured within thirty (30) days, and Giant fails to commence to
remedy same within thirty (30) days and diligently prosecute the remedying of
the breach, Licensee may, at its option, declare this Agreement terminated
without prejudice to any additional remedy which may be available to Licensee.
(b) Giant shall indemnify and hold Licensee harmless against all
claims, damages and expenses, including legal costs and attorneys' fees,
incurred or suffered by Licensee as a result of any default by Giant in the
performance of its obligations under this Agreement.
17. POSSESSION UPON TERMINATION.
Within thirty (30) days after the expiration or any other termination of
this Agreement, Licensee shall surrender peaceful possession of the Premises
and shall, at its expense, remove all improvements, furnishings and equipment
placed on the Premises by or through Licensee and restore the Premises to as
good a condition as it received same, loss or damage by fire, catastrophe or
act of God and ordinary wear and tear from reasonable use alone excepted. If
at the expiration or other termination of this Agreement, Licensee does not
promptly remove its equipment and other property from the Store within fifteen
(15) days, the same shall be deemed abandoned and may be disposed of by Giant
without liability to the Licensee.
18. DAMAGES TO PREMISES.
If by fire or other casualty, the Premises or the Store is destroyed or
damaged to the extent that Licensee is deprived of occupancy or use of the
same, and if such damage or destruction can be repaired within one hundred
eighty (180) days from the date of such damage or destruction, Giant shall
proceed with due diligence to restore the Premises and the Store to
substantially the same condition as existed before such damage or destruction,
or if Giant's landlord is responsible for such restoration, Giant shall use its
best efforts to assure that landlord satisfies the terms of this paragraph.
The license fees and other charges payable by Licensee hereunder with regard to
the Premises shall be abated to the extent that Licensee is unable to occupy
and use the Premises. In the event such damage or destruction cannot be
repaired within one eighty (180) days, Licensee may, at its option, terminate
this Agreement by giving ten (10) days' written notice to Giant, whereupon
Giant shall have no further liability or obligations to Licensee, and Licensee
shall have no further liability or obligations to Giant, other than those
imposed prior to the event. In the event this Agreement is not terminated
pursuant to this Section, Giant and Licensee at their expense shall be solely
responsible for repairing, restoring and refixturing the Chinese Food Section
- 9 -
with due diligence as required under the original construction, fixturing and
outfitting of the Chinese Food Section.
19. CONDEMNATION.
If the Premises are taken or condemned by any competent authority so as
to prevent Licensee from conducting its operations in substantially the same
manner as theretofore conducted, this Agreement will terminate upon ten (10)
days' notice from Licensee. If the Store is so taken or condemned such that
Giant, at its option, elects to terminate its lease, Giant shall notify
Licensee and this Agreement shall terminate effective as of the termination
date of the lease. All awards made by reason of condemnation shall be made to
Giant, and Licensee hereby irrevocably assigns to Giant all its rights, title
and interest in and to any such award.
20. PEACEFUL POSSESSION.
Giant warrants that for so long as Licensee performs its obligations
under this Agreement, Licensee shall have quiet and peaceful possession of the
Premises during the term of this Agreement free from interruption of Giant or
any other person claiming under or through Giant.
21. ASSIGNMEIJT BY LICENSEE.
Licensee shall have no right to assign its rights and obligations
hereunder to any other person or entity without the express written consent of
Giant, which consent may be withheld in its sole discretion. Any persons ar
entities to which Giant consents shall be deemed "Permitted Successors and
Assigns°.
22. REMODELING OR VACATION OF STORE.
(a) Licensee acknowledges that Giant may find it desirable to remodel
or enlarge the Store to accommodate changes in retailing pattern or for any
other purpose. In such an event, Giant agrees to discuss with Licensee its
plans to determine if the Chinese Food Section at the Store can be moved to
another location within the Store mutually satisfactory to Giant and Licensee
and agrees to give Licensee ten (10} days written notice before any relocation
is commenced. In the event that the relocation necessitates the closing of the
Chinese Food Section for a period of more than seven (7) consecutive days,
Licensee shall not be obligated to pay the pro rata portion of the Minimum Rent
attributable to the period that Licensee was unable to operate the Chinese Food
Section because of such relocation. The term of this License Agreement shall
be extended proportionately for a period equal to the number of days Minimum
Rent was abated, and all other term provisions of this Licensee Agreement shall
be in effect during such extension period. If Licensee is not satisfied with
the move proposed by Giant, Licensee's sole and exclusive remedy shall be to
terminate this Agreement as of the date Giant begins its remodeling or
enlargement. If, pursuant to this Section, this Agreement is terminated,
Licensee shall deliver up the Fremises in accordance with Section 16 of this
Agreement or if Licensee relocates to a different location in the Store, Giant
shall pay to relocate the Improvements and equipment in the Chinese Food
Section to another location in the Store.
- 10 -
(b) In the event Giant decides to cease operating and vacate the Store,
except as provided in subsection (c) below, Giant will give Licensee notice of
such decision at least ninety (90) days prior to the day the Store will cease
operating. If the Store is to be relocated in another building, Licensee shall
have the option of terminating this Agreement or relocating its Chinese Food
Section in the new store under the same terms and conditions as provided under
this Agreement at the time of such relocation. If the Store is not relocated,
this Agreement will terminate as of the day Giant ceases its operations in the
Store.
(c} (i) In the event Giant sells, leases, subleases, assigns or
otherwise transfers its interest in the Store to an entity ("Transferee"} other
than Giant or other than a subsidiary or partnership of which Giant is a
majority owner, Giant shall have the unilateral right to terminate this
Agreement if such Transferee refuses to accept an assignment of Giant's
interest in this Agreement at no cost to Giant. Giant shall make a good faith
effort to persuade such Transferee to accept such an assignment.
(ii) Upon notice by Giant of termination pursuant to the foregoing
subsection (c)(i), Licensee shall vacate the Premises in accordance with
Section 17 of this Agreement, except that the Premises shall be vacated within
thirty (30) days of receipt of such notice unless a longer period is required
by federal or state law.
23. SECURITY.
(a) It shall be Licensee's obligation to provide security for the
Chinese Food Section. Giant shall not be responsible for safeguarding any of
Licensee's property or that of any of its employees.
(b) Licensee hereby releases Giant from any claims, loss or damage that
Licensee might sustain by virtue of a theft or attempted theft from the Chinese
Food Section except for those caused by Giant's gross negligence, recklessness
or willful misconduct.
24. CONFIDENTIALITY.
Each party acknowledges that in connection with this Agreement or in the
performance hereof, it may come into possession or knowledge of material and
information which is proprietary to the other party. Each party, therefore,
agrees to hold such material and information in strictest confidence, not to
make use thereof except in the performance of this Agreement, and not to
release or disclose it to any other party with the exception of parent
companies, subsidiaries and affiliates of the parties.
25. CAPTIONS.
The captions of the several sections of this Agreement are not part of
the context hereof and shall be ignored in construing this Agreement. They are
intended only as aids in locating various provisions hereof.
- 11 -
26. SEVERABILITY.
Each provision contained in the Agreement shall be independent and
severable from all other provisions contained herein, and the invalidity of any
such provision shall in no way affect the enforceability of the other
provisions.
27. GOVERNING LAW.
The parties agree that all questions of interpretation and enforcement
arising from or related in any way to this Agreement shall be governed and
controlled by the laws of and shall be enforced in the courts of the State or
Commonwealth in which the Store is located.
28. BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the benefit of
Giant and its successors and assigns and of Licensee and its Permitted
Successors and Assigns.
29. NOTICES.
(a) All notices required or permitted hereunder shall be in writing and
signed by the party or a duly authorized representatives of the party making
the same. All notices shall be deemed effective when delivered personally; or
when sent by a recognized overnight delivery service, such as Federal Express,
requiring a receipt upon delivery; or following deposit in the United States
mail, registered or certified, return receipt requested, postage or overnight
delivery charge prepaid, addressed as follows:
(i) If to Giant, then to:
Giant Food Stores, Inc.
1149 Harrisburg Pike
PO Box 249
Carlisle, Pennsylvania. 17013
Attention: Real Estate Department
(ii) If to Licensee, then to:
D ~ J Eastern Enterprises, Inc.
1219 Redwood Hills Circle
Carlisle, Pennsylvania 17013
Attention: Dorothy L. F. Fang, President
(b) The names and addresses for the purpose of this section may be
changed by giving notice of such change in the manner herein provided for
giving notice. Unless and until such notice is actually received, the last
name and address stated by notice or provided herein, if no such written notice
of change has been received, shall be deemed to continue in effect for all
purposes hereunder.
- 12 -
30. ENTIRE AGREEMENT.
The parties agree that this Agreement and any exhibits attached hereto
set forth all the promises, agreements and understandings between them with
respect to Licensee's right and license to operate and maintain a Chinese Food
Section at the Store. This Agreement is a license and not a lease, and no
leasehold interest or tenancy is created hereby. There are no promises,
agreements, understandings, representations or warranties, express or implied,
with respect to the suitability of the Premises for Licensee's purposes, or
with respect to any other matter, either oral or written, all of which are
merged herein, between the parties other than as set forth herein. No
amendment or modification to this Agreement shall be binding unless such
amendment or modification is in writing and signed by both parties.
IN WITNESS
have caused this
at the beginning
counterparts.
WHEREOF, with intent to be legally bound hereby, the parties
Agreement to be duly executed as of the date first set forth
of this Agreement. This Agreement may be signed in
C3o~l~ca~. ~{`~,~,a
G T FOOD STORES, INC.:
By
Richard E. Welsh
Director of Real Estate
LICENSEE:
D & J EASTERN ENTERPRISES, INC.
By i
Dorothy L. ang, President
- 13 -
EXHIBIT A
[Attach a floor plan of
the Store showing the
location of the Premises
Pursuant to Paragraph 1(c).]
EXHIBIT B-1
Annual License Fees
GRO5S SALES BIWEEKLY
(EXCLUDING SALES TAX)
SUBJECT TO LICENSE FEES
BIWEEKLY LICENSE FEES
BASED ON PERCENTAGE OF
GROSS SALES
From $1 to $11,540 6$
On sales from $11,541 to $16,540 8$
On sales over $16,590 10~
Note:
By way of example, on gross sales of $19,000, the license fees
would be calculated as follows:
On sales of the first $11,540 @ 6$ $ 692.40
On sales from $11,541 to $16,540 @ 8$ $ 400.00
On sales over $16,540 @ 10~ $ 246.00
TOTRL LICENSE FEES $1,338.40
EXHIBIT C
CHINESE KITCHEN
Giant Supplied Items
telephone
scanning equipment - register, etc.
menu board
hood, with ansil system
hot food case
receiving desk
sales counter
sink
SP1500 scale
Hobart SM20 scale
stand-at tables (for customers to eat at)
S/S work tables
Lyons cash drawers
pans for hot food case
number system
towel and soap dispenser
wok
one small fryer
salimander broiler
rice cooker and rice warmer
two 6' sandwich units
stand/table for rice cooker and warmer
soup kettles
All fixtures identified on legend portion of Exhibit A
for Oriental Kitchen
EXHIBIT C
CHINESE KITCHEN
Giant Supplied Items
EXHIBIT
«B~~
,~~kJ ~~i. n !~ P r'~1.~ .IPr
~~~, # 2s ~
James G. Alexander
Senior Real Estate Representative
Direct Dial (717) 245-7448
Facsimile (717) 240-7595
June 29, 2000
G
Giant Food Stores, Inc.
P.O. Box 249
1149 Harrisburg Pike
C:.irlisle, Pennsylvania
17013-0249
An Ahold USA Company
i.~rant Food Stores, Inc.
Operators of
giant Food Stores,
Martin's Food Markers &
Edwards Super Food Stores
Dorothy Fang
D&J Eastern Enterprises, Ina
1219 Redwood Hills Circle
Carlisle, PA 17013
RE: License Agreement
Giant Food Store #56
New Cumberland, PA
Dear Dorothy:
~i~-~ s-~
~u~ C~.,~,G,
Enclosed please find three (3) original License Agreements signed by Giant Food
.Stores and two- (2) copies of plans for the above-referenced location. Please sign
and return. one original License Agreement to my attention as soon as possible.
Please .call me if you have any questions.
Sincerely,
James G. Alexander
JGA/bem
Enclosures
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, is made as of
between GIANT FOOD STORES, INC., a Delaware
office at 1149 Harrisburg Pike, PO Box 249,
("Giant"), and D & J EASTERN ENTERPRISES, I
("Licensee").
this 28th day of June 2000, by and
corporation with its principal
Carlisle, Pennsylvania 17013
NC., a Pennsylvania corporation
W I T N E S S E T H:
In consideration of the mutual promises and subject to the terms and
conditions set forth herein, Giant hereby grants to Licensee the right to
maintain and operate a Chinese Food Section, as defined below, in the Giant
store identified below in accordance with the provisions hereinafter set forth.
1. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
following meanings:
(a) "Chinese Food Section" shall mean Premises, together with
Improvements, as defined in Section 8 hereof from which Licensee shall conduct
the business of preparing and selling Chinese foods.
(b) "Minimum Rent" shall mean Three Hundred Dollars ($300.00) per
biweekly period which shall be applied to, and not in addition to, the
percentage rent set forth in Exhibit B hereto.
(c) "Premises" shall mean the area within the Store to be occupied by
the Chinese Food Section as more specifically designated on Exhibit A hereto.
(d) "Store" shall mean the Giant store known as Store #a5.6 lpcated at
130 Old York Road, New Cumberland, York County, Pennsylvania, within which the
license under this Agreement is granted.
2. TERM
This Agreement shall commence on the Commencement Date, as defined below,
and shall terminate three (3) years from the Commencement Date, unless earlier
terminated or extended as provided hereunder (the "Initial Term"). The
Commencement Date shall be the date Licensee opens for business within the
premises. Either party to this License Agreement shall have the right to
terminate the License Agreement after the first year of the Initial Term upon
good cause shown, provided that the terminating party gives the other written
notice of its concern and thirty (30) days to remedy the same. If the concern
is not remedied within the thirty (30) day period, the terminating party shall
give sixty (60) days notice to the other.
3. RENEWALS.
This Agreement may be renewed at Licensee's option for one (1) additional
term of two (2) years. This Agreement shall automatically renew for an
additional term unless Licensee notifies Giant in writing of its election not
to renew at least one hundred eighty (180) days prior to the expiration of the
Initial Term. The renewal will be on the same terms and conditions as set
forth herein.
4. SECURITY DEPOSIT.
Upon execution of this Agreement, Licensee shall pay Giant the sum of Two
Thousand Dollars {$2,000.00) as a license security deposit (the "Security
Deposit") which shall remain on deposit with Giant in a non-interest bearing
account for a period not to exceed thirty (30) days beyond the expiration or
termination of this Agreement. It is expressly understood and agreed that the
Security Deposit shall be held as security for performance by Licensee of the
terms, covenants and conditions of this Agreement and that the Security Deposit
is not to be deemed as a licensee fee payment or other payment by the Licensee
to be credited to the last installment of the license fees or otherwise. The
Security Deposit may be used by Giant to pay any indebtedness due from Licensee
whether arising from debt, fees, damages or otherwise. Upon notice by Giant
that any portion of the Security Deposit has been used by Giant to pay any
obligation of Licensee under the terms hereof, Licensee shall have ten (10)
days following written notice from Giant to pay the amount necessary to restore
the Security Deposit with Giant. Giant may use any portion of the Security
Deposit to correct any damage to or about the Store caused by or related to the
use of the Chinese Food Section which is caused by the negligence of Licensee,
its employees or agents, whether such damage occurs before or after any
proceedings or actions brought by Giant and for any costs and expenses incurred
by Giant in enforcing Licensee's performance under this Agreement, including
without limitation Giant's reasonable attorney's fees. If Giant consents to
the assignment by Licensee of this Agreement, the Security Deposit shall be
assigned simultaneously with the Agreement and shall become the property of the
assignee of Licensee.
5. PAYMENTS.
On or before the Commencement Date, Licensee shall pay to Giant an
initial license payment of Five Thousand Dollars ($5,0000.00) for the right to
commence operation of the Chinese Food Section.
In addition, Licensee shall pay to Giant for use of the Premises the fees
set forth on Exhibit B hereto. The obligation to pay Licensee's fees hereunder
shall commence on the Commencement Date. The annual license fees shall be
payable in biweekly installments, commencing at the end of the first full two
week period after the Commencement Date. Each biweekly payment of the Minimum
Rent shall be due within seven (7) days of the end of each biweekly period.
The biweekly periods shall coincide with Giant's fiscal accounting periods,
which currently end at the close of business Saturdays. The first and last
biweekly payments in each year of the term of this Agreement shall include pro
rata adjustments for any partial biweekly period. Notwithstanding the
- 2 -
foregoing, the procedure for the remittance of license fees shall be
substantially the same as that described in Exhibit B--1 hereto.
Giant shall provide a cash register for the Chinese Food Section which
will record sales directly into the Store's sales accounting system. A report
showing Licensee's sales shall be forwarded to Licensee at the end of each
quarter of each year during which this License is in effect. Licensee shall
have thirty (30) days from the date of such notice to pay the balance of the
percentage rent due as set forth in Exhibit B. Notices shall be given in
accordance with Section 29 of this Agreement.
In the event that at the end of the first year of the Initial Term,
Licensee's biweekly gross sales (excluding sales tax) average for the first
year less than Five Thousand Dollars ($5,000.00) per biweekly period, either
party may terminate this Agreement upon thirty (30) days written notice to the
other.
6. USE AND OCCUPANCY.
(a) Licensee shall have the exclusive right to use and occupy the
Premises for the operation of a Chinese Food Section. Giant shall have no
ownership or other right, title or interest in Licensee's business or in the
receipts, profits or losses thereof, and Giant shall not be deemed to be a
joint venturer with or a principal or agent of Licensee. Licensee shall have
no right or power to incur any commitments or obligations which shall be
binding on Giant.
(b) Each party shall conduct its business at the Store in a clean and
lawful manner. Each party agrees that it shall not block or restrict the
aisles or passageways of the other party, nor shall either party interfere with
the other party's business.
(c) The Chinese Food Section shall be open for business with adequate
personnel provided by Licensee for a minimum of seventy (70) hours a week
allocated over the week as follows: Monday through Saturday from 11:00 am. to
9:00 p.m., and on Sundays from 11:00 a.m. to 9:00 p.m., except for any of those
hours which the Store is closed. Any changes in the hours of operation of the
Chinese Food Section shall be approved by Giant.
(d) Licensee shall be permitted to purchase its ingredients, produce
and other items necessary for the operation of the Chinese Food Section from
any suppliers and shall not be obligated to purchase same from or through
Giant.
(e) Licensee shall promptly pay and discharge all bona fide expenses
and obligations which it incurs in connection with the operation of the Chinese
Food Section, including but not limited to the purchase of all materials and
supplies, the compensation of its employees, applicable taxes, permit fees
payable to public authorities, license fees incurred under this Agreement and
all other expenses in the operation of the Chinese Food Section.
- 3 -
(f) Licensee shall be solely responsible for all costs related to the
installation, maintenance and use of all telephone lines and equipment which
Licensee elects to install in the Chinese Foad Section.
(g) Licensee shall not offer for sale any products or merchandise (for
example, grocery items such as canned and packaged foods) which conflict with
Giant's normal grocery business operation.
(h) All deliveries to Licensee shall be made to receiving facilities
designated by Giant. No deliveries shall be made to the front entrances of the
Store. Normal hours for delivery will be between 8:00 a.m. and 4:00 p.m. It
is expected that in those few instances where a delivery truck should arrive
prior to 8:00 a.m. or after 4:00 p.m., due to an unusual situation, Giant will
use its best effort to accept the delivery.
7. LICENSEE'S EMPLOYEES.
(a) Licensee shall comply with and abide by, and cause its employees to
comply with and abide by, all reasonable rules and regulations adopted by Giant
regarding conduct at the Store, provided such rules and regulations and any
amendments thereto are made available at least seven (7) days in advance to
Licensee's employees and do not unreasonably impair Chinese Food Section opera-
tions. All persons employed by Licensee in or about, or in connection with,
the operation of the Chinese Food Section shall be Licensee's employees for all
purposes under this Agreement. Giant agrees to cooperate with Licensee in
providing access to the Premises at reasonable times while the Store is open
for business, but only as absolutely necessary during periods of. time when the
Store is not open for business. Licensee shall not be entitled to have a key
to the Store.
(b) Licensee shall, at its own cost and expense, maintain worker's
compensation coverage, unemployment compensation coverage and any other
insurance which may be required by law with respect to Licensee's employees.
Licensee shall provide certificates of insurance or other evidence that
insurance is in place to protect the interests of Giant.
(c) Licensee's employees, while working at the Chinese Food Section,
shall be entitled to use the toilet facilities and break-room in the Store
provided by Giant for the convenience of Giant employees.
(d) Licensee shall furnish to Giant the motor vehicle license numbers
of its employees working at the Chinese Food Section and shall require them to
park their automobiles only in locations designated by Giant.
- 4 -
8. IMPROVEMENTS, ADDITIONS AND SIGNS
(a) Giant, at its sole cost and expense, shall furnish all fixtures,
plumbing and electrical installations, and equipment as specifically described
on Exhibit C hereto necessary for the Chinese Food Section operations (the
"Improvements") and shall pay any and all costs of modification of the Store
for the installation of the Improvements. The Improvements which Giant
installs in the Chinese Food Section shall remain the property of Giant.
Licensee shall not make any modification to said Improvements either initially
or at any other time during the term of this Agreement, without Giant's prior
written approval.
(b) Licensee shall provide all other types of kitchen equipment, small
appliances, tools and utensils, including but not limited to woks, knives,
cutting boards, etc., which Licensee needs to conduct its business in the
Chinese Food Section.
(c) Giant shall permit Licensee to place interior signs only
identifying its operations in the vicinity of the Chinese Food Section, such
signs being of such design and dimensions and at such locations as Giant shall
determine are reasonable.
9. APPROVALS.
Giant agrees to promptly obtain any necessary waivers or consents from
its landlord with respect to provisions in its lease regarding exclusive uses,
subletting, alterations to the Store, or other matters, that would prevent
Licensee from operating a Chinese Food Section as contemplated by this
Agreement.
10. UTILITIES, MAINTENANCE AND REPAIR
(a) Licensee shall, at its sole cost and expense, maintain the Premises
as follows:
(i) Licensee shall keep and maintain the Chinese Food Section in
a clean, safe, orderly and attractive manner consistent with the design and
appearance of the Store, including the Improvements and all other equipment
installed therein and used in connection therewith.
(ii} Licensee shall be responsible for the repair and maintenance
of the equipment constituting the Improvements as set forth on Exhibit C
hereto. Licensee shall be permitted to select contractors at its discretion to
do the repairs and maintenance, provided however that all contractors shall be
reputable and skilled in the type of repair work to be done at the Premises.
Giant will assign any assignable warranties which it may have on new equipment
which is part of the Improvements to Licensee during the term of this
Agreement, so long as the manufacturer will allow the same without cost to
Licensee. To the extent that the manufacturer will not allow the warranty to
be assigned without cost to Licensee, Giant will agree to have the repairs
performed during the initial warranty period at no expense to Licensee. After
the warranty period, Licensee will assume the day to day maintenance and repair
of the equipment.
- 5 -
(iii) Licensee and its employees shall at all times strictly comply
with all applicable governmental regulations for businesses of this type,
including but not limited to, those promulgated by any state or local health
department having jurisdiction.
(iv) Giant shall provide all necessary janitorial services for the
Chinese Food Section, however Licensee shall be responsible for routine daily
cleaning of the kitchen and serving areas.
(b) Giant shall, at its sole cost and expense, provide the following
maintenance and services:
(i) Giant shall furnish all lighting, air conditioning, heating
and other utilities for the Store, including the Premises, with the exception
of gas service to the Premises, which shall be separately metered and shall be
paid by Licensee. If for any reason, not the fault of Giant, such utilities
are suspended or discontinued, Giant shall not be liable to Licensee for any
interruption of its operations by reason of such suspension or discontinuance,
but Licensee shall be entitled to a proportionate abatement of the fees if the
utilities are suspended or discontinued for more than forty-eight (48) hours;
and
(ii) Giant shall keep and maintain the Store and toilet facilities
in good order and repair, including, without limitation, plumbing and
electrical equipment, heating, air conditioning, doors, windows and all
structural portions of the Store. Giant shall not be responsible for any
additional equipment that may be required and installed or maintained on the
Premises by Licensee.
Notwithstanding anything to
provision in this Agreement
Giant's lease for the Store
shall have discharged its o]
good faith efforts to cause
the lease.
the contrary contained in this Agreement, if any
imposes an obligation upon Giant which under
is the responsibility of Giant's landlord, Giant
ligation under this Agreement if it uses diligent,
the landlord to perform its responsibilities under
11. ADVERTISING, PROMOTION AND RELATED ACTIVITIES
(a) Each party agrees to cooperate with and promote the goodwill and
business of the other party at the Store.
(b) Any solicitation by Licensee of Giant's customers shall be done in
a professional and courteous manner and in accordance with written practices
and policies established by Licensee and approved by Giant, which approval will
not be unreasonably withheld.
(c) Both Giant and Licensee may, at their expense, advertise the
existence and location of the Chinese Food Section in such media and in such
manner as each deems appropriate. However, the prior approval of each party
shall be obtained with regard to any advertisement that is to be transmitted by
or appear in any electronic or print medium that refers to both parties, and
- 6 -
the cost of any such joint advertising shall be shared as agreed to prior to
such advertising being undertaken.
(d) Subject to Giant's prior approval, which will not be unreasonably
withheld, Licensee may sell, or offer as promotional products outside the
Chinese Food Section within the Store itself; provided, however, such products
are those typically offered at the Chinese Food Section and do not compete with
the products offered by Giant.
(e) Licensee shall have access to the intercommunications system
("Intercom") within the Store. The use of the Intercom shall be coordinated
between the Store manager and the Chinese Food Section manager, and shall be
further subject to Licensee obtaining the prior consent of the Store manager,
which consent will not be unreasonably withheld. It is the parties' intention
that the joint use of the Intercom shall benefit both parties for the purpose
of paging and announcing various specials being promoted by either party within
the Store.
12. INSURANCE.
(a) Licensee shall carry its own personal property and betterments
insurance and shall also keep in force during the term of this Agreement
general liability insurance with respect to its Chinese Food Section operations
naming Giant as an additional insured under such policies. The liability
limits of such policy shall not be less than One Million Dollars
($1,000,000.00) per occurrence for bodily injury and with a minimum of Three
Hundred Thousand Dollars ($300,000.00) for property damage. Within ten (10)
days of Giant's written request, Licensee shall furnish Giant with such
certificates of insurance evidencing compliance with this section. The
insurance coverages required hereunder and in Paragraph 7(b) hereof shall not
be terminated without thirty (30) days notice in writing to Giant. Failure to
provide and maintain insurance by Licensee as set forth in this License
Agreement shall be deemed a default hereof.
(b) If requested, Licensee shall name Giant's landlord as an additional
insured on Licensee's casualty and liability insurance policies with respect. to
the Store.
(c) Licensee shall, at its own cost and expense, comply with all
regulations or orders of any insurance company or companies providing insurance
with respect to the Store related to the Chinese Food Section operations in the
Store.
(d) Licensee agrees to release, waive and discharge Giant, and any of
its agents, affiliates, officers, shareholders and employees, and covenants not
to sue each of them, from all liability to Licensee for all loss or damages, or
any claim or demands therefor, on account of injury (including death} to the
person or property of Licensee, including loss of consortium, unless caused in
whole or in part by the negligence, recklessness or willful misconduct of
Giant.
(e} Licensee agrees to indemnify and hold harmless Giant from and
against any and all losses, liabilities, claims, demands, actions, costs,
- 7 -
expenses, and damages, including reasonable attorney's fees, brought against
Giant for any injury (including death) to any person or property, including
loss of consortium, caused in whole or in part by reason of Licensee's acts,
neglect, or omissions, whether active or passive, sole or concurrent, or
whether negligent, reckless, or pursuant to strict liability or otherwise, in
any way connected to the presence of Licensee, Licensee's employees or any
agent or contractor of Licensee, on any premises owned, leased or rented by
Giant. In the event that any legal proceeding is brought against Giant,
Licensee further agrees to pay Giant any and all expenses and costs, including
reasonable attorney s fees, associated with enforcing this provision of the
Agreement.
13. TAXES.
Licensee shall pay all taxes, other than real estate taxes, assessed by
any taxing authority because of its operations at the Chinese Food Section. In
the event any unapportioned tax assessed against Giant includes Licensee's
property, other than real estate taxes, Licensee shall pay such portion of the
tax as the value of such Licensee property that was included in Giant's
assessment at the time of the assessment bears to the total value of the
property assessed in the Store.
14. COMPLIANCE WITH LAWS.
Licensee shall at all times during the term of this Agreement fully
comply with any and all federal, state, local, municipal or administrative
laws, rules, regulations and orders applicable to Licensee or the conduct or
operation of Licensee's business including, but not limited to, those relating
to the Immigration and Nationality Act, 8 U.S.C. 1101, et seq., as amended from
time to time (the "Immigration Act"), and those relating to health, safety and
environmental matters. Licensee shall at such times as Giant shall request
certify to Giant in writing that it is in full compliance with the Immigration
Act's employment authorization verification requirements. As requested by
Giant, Licensee shall provide Giant with evidence that Licensee has duly
completed all forms and procedures in connection with such requirements.
15. DEFAULT BY LICENSEE.
(a) If Licensee shall fail to make the payments required hereunder when
the same are due, and the same shall not be paid within ten (10) days after
written notice to Licensee, or if Licensee breaches any other covenant of this
Agreement and fails to remedy same within thirty (30) days after written notice
of such breach, Giant may, at its option, declare this Agreement terminated
without prejudice to any additional remedy which may be available to Giant.
(b) Anything in this Agreement to the contrary notwithstanding, in the
event that Licensee shall become insolvent, bankrupt or make any assignment for
the benefit of creditors, or if its interest hereunder shall be levied ugon or
sold under execution or other legal process, or in the event Licensee is closed
for more than a fourteen (14) day period, without prejudice to any additional
remedy which may be available to Giant, Giant may declare this Agreement
terminated. .
- 8 -
(c) Licensee shall indemnify and hold Giant harmless against all
claims, damages and expenses, including legal costs and attorneys' fees,
incurred or suffered by Giant as a result of any default by Licensee in the
performance of its obligations under this Agreement.
16. DEFAULT BY GIANT.
(a) Subject to the last sentence of Paragraph 10 above, if Giant
breaches any covenant in this Agreement and fails to remedy same within thirty
(30) days after written notice of such breach, or if the same is not reasonably
capable of being cured within thirty (30) days, and Giant fails to commence to
remedy same within thirty (30) days and diligently prosecute the remedying of
the breach, Licensee may, at its option, declare this Agreement terminated
without prejudice to any additional remedy which may be available to Licensee.
(b) Giant shall indemnify and hold Licensee harmless against all
claims, damages and expenses, including legal costs and attorneys' fees,
incurred or suffered by Licensee as a result of any default by Giant in the
performance of its obligations under this Agreement.
17. POSSESSION UPON TERMINATION.
Within thirty (30) days after the expiration or any other termination of
this Agreement, Licensee shall surrender peaceful possession of the Premises
and shall, at its expense, remove all improvements, furnishings and equipment
placed on the Premises by or through Licensee and restore the Premises to as
good a condition as it received same, loss or damage by fire, catastrophe or
act of God and ordinary wear and tear from reasonable use alone excepted. If
at the expiration or other termination of this Agreement, Licensee does not
promptly remove its equipment and other property from the Store within fifteen
(15) days, the same shall be deemed abandoned and may be disposed of by Giant
without liability to the Licensee.
18. DAMAGES TO PREMISES.
If by fire or other casualty, the Premises or the Store is destroyed or
damaged to the extent that Licensee is deprived of occupancy or use of the
same, and if such damage or destruction can be repaired within one hundred
eighty (180) days from the date of such damage or destruction, Giant shall
proceed with due diligence to restore the Premises and the Store to
substantially the same condition as existed before such damage or destruction,
or if Giant's landlord is responsible for such restoration, Giant shall use its
best efforts to assure that landlord satisfies the terms of this paragraph.
The license fees and other charges payable by Licensee hereunder with regard to
the Premises shall be abated to the extent that Licensee is unable to occupy
and use the Premises. In the event such damage or destruction cannot be
repaired within one eighty (180) days, Licensee may, at its option, terminate
this Agreement by giving ten (10) days' written notice to Giant, whereupon
Giant shall have no further liability or obligations to Licensee, and Licensee
shall have no further liability or obligations to Giant, other than those
imposed prior to the event. In the event this Agreement is not terminated
pursuant to this Section, Giant and Licensee at their expense shall be solely
responsible for repairing, restoring and refixturing the Chinese Food Section
- 9 -
with due diligence as required under the original construction, fixturing and
outfitting of the Chinese Food Section.
19. CONDEMNATION.
If the Premises are taken or condemned by any competent authority so as
to prevent Licensee from conducting its operations in substantially the same
manner as theretofore conducted, this Agreement will terminate upon ten (10)
days' notice from Licensee. If the Store is so taken or condemned such that
Giant, at its option, elects to terminate its lease, Giant shall notify
Licensee and this Agreement shall terminate effective as of the termination
date of the lease. All awards made by reason of condemnation shall be made to
Giant, and Licensee hereby irrevocably assigns to Giant all its rights, title
and interest in and to any such award.
20. PEACEFUL POSSESSION.
Giant warrants that for so long as Licensee performs its obligations
under this Agreement, Licensee shall have quiet and peaceful possession of the
Premises during the term of this Agreement free from interruption of Giant or
any other person claiming under or through Giant.
21, ASSIGNMENT BY LICENSEE.
Licensee shall have no right to assign its rights and obligations
hereunder to any other person or entity without the express written consent of
Giant, which consent may be withheld in its sole discretion. Any persons or
entities to which Giant consents shall be deemed "Permitted Successors and
Assigns".
22. REMODELING OR VACATION OF STORE.
(a) Licensee acknowledges that Giant may find it desirable to remodel
or enlarge the Store to accommodate changes in retailing pattern or for any
other purpose. In such an event, Giant agrees to discuss with Licensee its
plans to determine if the Chinese Food Section at the Store can be moved to
another location within the Store mutually satisfactory to Giant and Licensee
and agrees to give Licensee ten (10) days written notice before any relocation
is commenced. In the event that the relocation necessitates the closing of the
Chinese Food Section for a period of more than seven (7) consecutive days,
Licensee shall not be obligated to pay the pro rata portion of the Minimum Rent
attributable to the period that Licensee was unable to operate the Chinese Food
Section because of such relocation. The term of this License Agreement shall
be extended proportionately for a period equal to the number of days Minimum
Rent was abated, and all other term provisions of this Licensee Agreement shall
be in effect during such extension period. If Licensee is not satisfied with
the move proposed by Giant, Licensee's sole and exclusive remedy shall be to
terminate this Agreement as of the date Giant begins its remodeling or
enlargement. If, pursuant to this Section, this Agreement is terminated,
Licensee shall deliver up the Premises in accordance with Section 16 of this
Agreement or if Licensee relocates to a different location in the Store, Giant
shall pay to relocate the Improvements and equipment in the Chinese Food
Section to another location in the Store.
- 10 -
(b) In the event Giant decides to cease operating and vacate the Store,
except as provided in subsection (c) below, Giant will give Licensee notice of
such decision at least ninety (90) days prior to the day the Store will cease
operating. If the Store is to be relocated in another building, Licensee shall
have the option of terminating this Agreement or relocating its Chinese Food
Section in the new store under the same terms and conditions as provided under
this Agreement at the time of such relocation. If the Store is not relocated,
this Agreement will terminate as of the day Giant ceases its operations in the
Store.
(c) (i} In the event Giant sells, leases, subleases, assigns or
otherwise transfers its interest in the Store to an entity ("Transferee") other
than Giant or other than a subsidiary or partnership of which Giant is a
majority owner, Giant shall have the unilateral right to terminate this
Agreement if such Transferee refuses to accept an assignment of Giant's
interest in this Agreement at no cost to Giant. Giant shall make a good faith
effort to persuade such Transferee to accept such an assignment.
(ii) Upon notice by Giant of termination pursuant to the foregoing
subsection (c}(i), Licensee shall vacate the Premises in accordance with
Section 17 of this Agreement, except that the Premises shall be vacated within
thirty (30) days of receipt of such notice unless a longer period is required
by federal or state law.
23. SECURITY.
(a) It shall be Licensee's obligation to provide security for the
Chinese Food Section. Giant shall not be responsible for safeguarding any of
Licensee's property or that of any of its employees.
(b) Licensee hereby releases Giant from any claims, loss or damage that
Licensee might sustain by virtue of a theft or attempted theft from the Chinese
Food Section except for those caused by Giant's gross negligence, recklessness
or willful misconduct.
24. CONFIDENTIALITY.
Each party acknowledges that in connection with this Agreement or in the
performance hereof, it may come into possession or knowledge of material and
information which is proprietary to the other party. Each party, therefore,
agrees to hold such material and information in strictest confidence, not to
make use thereof except in the performance of this Agreement, and not to
release or disclose it to any other party with the exception of parent
companies, subsidiaries and affiliates of the parties.
25. CAPTIONS.
The captions of the several sections of this Agreement are not part of
the context hereof and shall be ignored in construing this Agreement. They are
intended only as aids in locating various provisions hereof.
- 11 -
26. SEVERABILITY.
Each provision contained in the Agreement shall be independent and
severable from all other provisions contained herein, and the invalidity of any
such provision shall in no way affect the enforceability of the other
provisions.
27. GOVERNING LAW.
The parties agree that all questions of interpretation and enforcement
arising from or related in any way to this Agreement shall be governed and
controlled by the laws of and shall be enforced in the courts of the State or
Commonwealth in which the Store is located.
28. BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the benefit of
Giant and its successors and assigns and of Licensee and its Permitted
Successors and Assigns.
29. NOTICES.
(a) All notices required or permitted hereunder shall be in writing and
signed by the party or a duly authorized representatives of the party making
the same. All notices shall be deemed effective when delivered personally; or
when sent by a recognized overnight delivery service, such as Federal Express,
requiring a receipt upon delivery; or following deposit in the United States
mail, registered or certified, return receipt requested, postage or overnight
delivery charge prepaid, addressed as follows:
(i) If to Giant, then to:
Giant Food Stores, Inc.
1149 Harrisburg Pike
PO Box 249
Carlisle, Pennsylvania 17013
Attention: Real Estate. Department
(ii) If to Licensee, then to:
D & J Eastern Enterprises, Inc.
1219 Redwood Hills Circle
Carlisle, Pennsylvania 17013
Attention: Dorothy L. F. Fang, President
(b) The names and addresses for the purpose of this section may be
changed by giving notice of such change in the manner herein provided for
giving notice. Unless and until such notice is actually received, the last
name and address stated by notice or provided herein, if no such written notice
of change has been received, shall be deemed to continue in effect for all
purposes hereunder.
- 12 -
30. ENTIRE AGREEMENT.
The parties agree that this Agreement and any exhibits attached hereto
set forth all the promises, agreements and understandings between them with
respect to Licensee's right and license to operate and maintain a Chinese Food
Section at the Store. This Agreement is a license and not a lease, and no
leasehold interest or tenancy is created hereby. There are no promises,
agreements, understandings, representations or warranties, express or implied,
with respect to the suitability of the Premises for Licensee's purposes, or
with respect to any other matter, either oral or written, all of which are
merged herein, between the parties other than as set forth herein. No
amendment or modification to this Agreement shall be binding unless such
amendment or modification is in writing and signed by both parties.
IN WITNESS WHEREOF, with intent to be legally bound hereby, the parties
have caused this Agreement to be duly executed as of the date first set forth
at the beginning of this Agreement. This Agreement may be signed in
counterparts.
~~-tSS
~:
G.
GIANT FOOD TORES, INC.:
By
Ger E. Adams
Vi President, Real Estate
ATTEST:
~~~~'
ohn L. S Fang, S cretary
LICENSEE:
D & J EASTERN ENTERPRISES, INC.
By ~ '
Dorothy L. Fang, Pr dent
- 13 -
EXHIBIT A
[Attach a floor plan of
the Store showing the
location of the Premises
Pursuant to Paragraph 1(c).]
EXHIBIT B-1
Annual License Fees
GROSS SALES BIWEEKLY
(EXCLUDING SALES TAX)
SUBJECT TO LICENSE FEES
BIWEEKLY LICENSE FEES
BASED ON PERCENTAGE OF
GROSS SALES
From $1 to $11,540 6$
On sales from $11,541 to $16,540 8$
On sales over $16,540 10~
Note:
By way of example, on gross sales of $19,000, the license fees
would be calculated as follows:
On sales of the first $11,540 @ 6$ $ 692.40
On sales from $11,541 to $16,540 @ 8$ $ 400.00
On sales over $16,540 @ 10$ $ 246.00
TOTAL LICENSE FEE5 $1,338.40
EXHI$IT C
CHINESE KITCHEN
Giant Supplied Items
telephone
scanning equipment - register, etc.
menu board
hood, with ansil system
hot food case
receiving desk
sales counter
sink
SP1500 scale
Hobart SM20 scale
stand-at tables {for customers to eat at)
S/S work tables
Lyons cash drawers
pans for hot food case
number system
towel and soap dispenser
wok
one small fryer
salimander broiler
rice cooker and rice warmer
two 6' sandwich units
stand/table for rice cooker and warmer
soup kettles
All fixtures identified on legend portion of Exhibit A
for Oriental Kitchen
EXHIBIT C
CHINESE KITCHEN
Giant Supplied Items
TABLE OF CONTENTS
1. DEFINITIONS ........................................................... 1
2. TERM .................................................................. 1
3. RENEWALS .............................................................. 2
4. SECURITY DEPOSIT ...................................................... 2
5. PAYMENTS .............................................................. 2
6. USE AND OCCUPANCY ..................................................... 3
7. LICENSEE'S EMPLOYEES .................................................. 4
8. IMPROVEMENTS, ADDITIONS AND SIGNS ..................................... 5
9. APPROVALS ............................................................. 5
10. UTILITIES, MAINTENANCE AND REPAIR ..................................... 5
11. ADVERTISING, PROMOTION AND RELATED ACTIVITIES ......................... 6
12. INSURANCE ............................................................. 7
13. TAXES ...................................... ......................... 8
14. COMPLIANCE WITH LAWS .................................................. 8
15. DEFAULT BY LICENSEE ................................................... 8
16. DEFAULT BY GIANT ...................................................... 9
17. POSSESSION UPON TERMINATION ........................................... 9
18. DAMAGES TO PREMISES ................................................... 9
19. CONDEMNATION .......................................................... 10
20. PEACEFUL POSSESSION ................................................... 10
21. ASSIGNMENT BY LICENSEE ................................................ 10
22. REMODELING OR VACATION OF STORE ....................................... 10
23. SECURITY .............................................................. 11
24. CONFIDENTIALITY ....................................................... 11
25. CAPTIONS .............................................................. 11
26. SEVERABILITY .......................................................... 12
27. GOVERNING LAW ......................................................... 12
EXHIBIT
«C~~
' ,. ~ qtr ,.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, is made as of this ~~ ~~ day of
~ 199,~r, by and between GIANT FOOD STORES, INC., a
Delaware. orporation with its principal office at 1149 Harrisburg
Pike, P. O. Box 249, Carlisle, Pennsylvania 17013 ("Giant"), and
D & J Eastern Enterprises, Inc., a Pennsylvania corporation
("Licensee")
W I T N E S S E T H:
In consideration of the mutual promises and subject to the
terms and conditions set forth herein, Giant hereby grants to
Licensee the right to maintain and operate a Chinese Food section,
as defined below, in the Giant store identified below in
accordance with the provisions hereinafter set forth.
1. DEFINITIONS.
For the purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Chinese Food Section" shall mean Premises, together
with Improvements, as defined in Section 8 hereof from which
Licensee shall conduct the business of preparing and selling
Chinese foods.
(b) "Minimum Rent" shall mean Three Hundred Sixty Dollars
($360.00) per biweekly period which shall be applied to, and not
in addition to, the percentage rent set forth in Exhibit B hereto.
(c} "Premises" shall mean the area within the Store to be
occupied by the Chinese Food Section as more specifically
designated on Exhibit A hereto. ,~~~ ~
(d) "Store" shall mean the Giant store known as Store #~~ ~~52~
located in Colonial Commons Shopping Center, Lower Paxton
Township, Dauphin County,, Pennsylvania, within which the license
under this Agreement is granted.
2. TERM.
This Agreement shall commence on the Commencement Date, as
defined below, and shall terminate three (3) years from the Com-
mencement Date, unless earlier terminated or extended as provided
hereunder (the "Initial Term"). The Commencement Date shall be
January 29, 1995. Either party to this License Agreement shall
have the right to terminate the License Agreement' after the first
year of the Initial Term upon good cause shown, provided that the
terminating party gives the other written notice of its concern
and thirty (30) days to remedy the same. If the concern is not
remedied within the thirty (30) day period, the terminating party
shall give sixty (60) days notice to the other.
3. RENEWALS.
This Agreement may be renewed at Licensee's option for one
(1) additional term of two (2) years. This Agreement shall
automatically renew for an additional term unless Licensee
notifies Giant in writing of its election not to renew at least
one hundred eighty (180} days prior to the expiration of the
Initial Term. The renewal will be on the same terms and condi-
tions as set forth herein.
4. SECURITY DEPOSIT.
Upon execution of this Agreement, Licensee shall pay Giant
the sum of Two Thousand Dollars ($2,000.00) as a license security
deposit (the "Security Deposit") which shall remain on deposit
with Giant in a non-interest bearing account for a period not to
exceed thirty (30) days beyond the expiration or termination of
this Agreement. It is expressly understood and agreed that the
Security Deposit shall be held as security for performance by
Licensee of .the terms, covenants and conditions of this Agreement
and that the Security Deposit is not to be deemed as a licensee
fee payment or other payment by the Licensee to be credited to the
last installment of the license fees or otherwise. The Security
Deposit may be used by Giant to pay any indebtedness due from
Licensee whether arising from debt, fees, damages or otherwise.
Upon notice by Giant that any portion of the Security Deposit has
been used by Giant to pay any obligation of Licensee under the
terms hereof, Licensee shall have ten (10) days following written
notice from Giant to pay the amount necessary to restore the
Security Deposit with Giant. Giant may use any portion of the
Security Deposit to correct any damage to or about the Store
caused by or related to the use of the Chinese Food Section which
is caused by the negligence of Licensee, its employees or agents,
whether such damage occurs before or after any proceedings or
actions brought by Giant and for any costs and expenses incurred
by Giant in enforcing Licensee's performance under this Agreement,.
including without limitation Giant's reasonable attorney's fees.
If Giant consents to the assignment by Licensee of this Agreement,
the Security Deposit shall be assigned simultaneously with the
Agreement and shall become the property of the assignee of
Licensee.
- 2 -
5. PAYMENTS.
Licensee shall pay to Giant an initial license payment of
Eight Thousand Dollars ($8,000.00) for the right to commence
operation of the Chinese Food Section.
In addition, Licensee shall pay to Giant for use of the
Premises the fees set forth on Exhibit B hereto. The obligation
to pay Licensee's fees hereunder shall commence on the
Commencement Date. The annual license fees shall be payable in
biweekly installments, commencing at the end of the first full two
week period after the Commencement Date. Each biweekly payment of
the Minimum Rent shall be due within seven (7) days of the end of
each biweekly period. The biweekly periods shall coincide with
Giant's fiscal accounting periods, which currently end at the
close of business Saturdays. The first and last biweekly payments
in each year of the term of this Agreement shall include prorata
adjustments for any partial biweekly period. Notwithstanding the
foregoing, the proceedure for the remittance of license fees shall
be substantially the same as that described in Exhibit B-2 hereto.
Giant shall grovide a cash register for the Chinese Food
Section which will record sales directly into the Store's sales
accounting system. A report showing Licensee's sales shall be
forwarded to Licensee at the end of each quarter of each year
during which this License is in effect. Licensee shall have
thirty (30) days from the date of such notice to pay the balance
of the percentage rent due as set forth in Exhibit B. Notices
shall be given in accordance with Section 29 of this Agreement.
In the event that at the end of the first year of the Initial
Term, Licensee's biweekly gross sales (excluding sales tax)
average for the first year less than Five Thousand Dollars
($5,000.00) per biweekly period, either party may terminate this
Agreement upon thirty (30} days written notice to the other.
6. USE AND OCCUPANCY.
(a) Licensee shall have the exclusive right to use and
occupy the Premises for the operation of a Chinese Food Section.
Giant shall have no ownership or other right, title or interest in
Licensee's business or in the receipts, profits or losses thereof,
and Giant shall not be deemed to be a joint venturer with or a
principal or agent of Licensee. Licensee shall have no right ar
power'to incur any commitments or obligations which shall be
binding on Giant.
- 3 -
a~
(b) Each party shall conduct its business at the Store in a
clean and lawful manner. Each party agrees that it shall not
block or restrict the aisles or passageways of the other party,
nor shall either party interfere with the other party's business.
(c) The Chinese Food Section shall be open for business with
adequate personnel provided by Licensee for a minimum of seventy-
two {72) hours a week allocated over the week as follows: Monday
through Saturday from 11:00 am. to 9:30 p.m., and on Sundays from
11:00 a.m. to 8:00 p.m. Any changes in the hours of operation of
the Chinese Food Section shall be approved by Giant.
(d) Licensee shall be permitted to purchase its ingredients,
produce and other items necessary for the operation of the Chinese
Food Section from any suppliers and shall not be obligated to
purchase same from or through Giant.
(e) Licensee shall promptly pay and discharge all bonafide
expenses and obligations which it incurs in connection with the
operation of the Chinese Food Section, including but not limited
to the purchase of all materials and supplies, the compensation of
its employees, applicable taxes, permit fees payable to public
authorities, license fees incurred under this Agreement and all
other expenses in the operation of the Chinese Food Section.
(f) Licensee shall be solely responsible for all costs
related to the installation, maintenance and use of all telephone
lines and equipment which Licensee elects to install in the
Chinese Food Section.
(g) Licensee shall not offer for sale any products or
merchandise (for example, grocery items such as canned and
packaged foods) which conflict with Giant's normal grocery
business operation.
(h) All deliveries to Licensee shall be made to receiving
facilities designated by Giant. No deliveries shall be made to
the front entrances of the Store.
7. LICENSEE'S EMPLOYEES.
(a) Licensee shall comply with and abide by, and cause its
employees to comply with and abide by, all reasonable rules and
regulations adopted by Giant regarding conduct at the Store,
provided such rules and regulations and any amendments thereto are
made available at least seven (7) days in advance to Licensee's
employees and do not unreasonably impair Chinese Food Section
operations. All persons employed by Licensee in or about, or in
- 4 -
connection with, the operation of the Chinese Food Section shall
be Licensee's employees for all purposes under this Agreement.
Giant agrees to cooperate with Licensee in providing access to the
Premises at reasonable times while the Store is open for business,
but only as absolutely necessary during periods of time when the
Store is not open for business. Licensee shall not be entitled to
have a key to the Store.
(b) Licensee shall, at its own cost and expense, maintain
worker's compensation coverage, unemployment compensation coverage
and any other insurance which may be required by law with respect
to Licensee's employees. Licensee shall provide certificates of
insurance or other evidence that insurance is in place to protect
the interests of Giant.
(c) Licensee's employees, while working at the Chinese Food
Section, shall be entitled to use the toilet facilities and break-
room in the Store provided by Giant for the convenience of Giant
employees.
(d) Licensee shall furnish to Giant the motor vehicle
license numbers of its employees working at the Chinese Food
Section and shall require them to park their automobiles only in
locations designated by Giant.
8. IMPROVEMENTS, ADDITIONS AND SIGNS.
(a) Giant, at its sole cost and expense, shall furnish all
fixtures, plumbing and electrical installations, and equipment as
specifically described on Exhibit C hereto necessary for the
Chinese Food Section operations (the "Improvements") and shall pay
any and all costs of modification of the Store for the
installation of the Improvements. The Improvements which Giant
installs in the Chinese Food Section shall remain the property of
Giant. Licensee shall not make any modification to said
Improvements either initially or at any other time during the term
of this Agreement, without Giant's prior written approval.
(b) Licensee shall provide all other types of kitchen
equipment, small appliances, tools and utensils, including but not
limited to woks, knives, cutting boards, etc., which Licensee
needs to conduct its business in the Chinese Food Section. Tf
Licensee desires to purchase the equipment currently being used at
the Premises from Giant, prior to the Commencement Date, Giant and
Licensee shall inventory the equipment and negotiate an amount for
the sale and purchase of same. Giant shall deliver a bill of sale
for the equipment to Licensee on or before the Commencement Date.
In the event that Giant and Licensee are unable to agree on the
- 5 -
sale price of the equipment, Giant shall remove same, and Licensee
will be responsible for obtaining its own equipment from other
sources.
(c) Giant shall permit Licensee to place interior signs only
identifying its operations in the vicinity of the Chinese Food
Section, such signs being of such design and dimensions and at
such locations as Giant shall determine are reasonable.
9. APPROVALS.
Giant agrees to promptly obtain any necessary waivers or
consents from its landlord with respect to provisions in its lease
regarding exclusive uses, subletting, alterations to the Store, or
other matters, that would prevent Licensee from operating a
Chinese Food Section as contemplated by this Agreement.
10. UTILITIES, MAINTENANCE AND REPAIR.
(a) Licensee shall, at its sole cost and expense, maintain
the Premises as follows:
(i) Licensee shall keep and maintain the Chinese
Food Section in a clean, safe, orderly and attractive
manner consistent with the design and appearance of the
Store, including the Improvements and all other equip-
ment installed therein and used in connection therewith;
(ii) Licensee and its employees shall at all times
strictly comply with all applicable governmental
regulations for businesses of this type, including but
not limited to, those promulgated by the Pennsylvania
Department of Health agency having jurisdiction; and
(iii) Giant shall provide all necessary janitorial
services for the Chinese Food Section, however Licensee
shall be responsible for routine daily cleaning of the
kitchen and serving areas.
(b) Giant shall, at its sole cost and expense, provide the
following maintenance and services:
(i) Giant shall furnish all lighting, air condi-
tioning, heating and other utilities for the Store,
including the Premises, with the exception of gas
service to the Premises, which shall be separately
metered and shall be paid by Licensee. If for any
reason, not the fault of Giant, such utilities are
- 6 -
suspended or discontinued, Giant shall not be liable to
Licensee for any interruption of its operations by
reason of such suspension or discontinuance, but
Licensee shall be entitled to a proportionate abatement
of the fees if the utilities are suspended or
discontinued for more than forty-eight (48) hours; and
(ii) Giant shall keep and maintain the Store and
toilet facilities in good order and repair, including,
without limitation, plumbing and electrical equipment,
heating, air conditioning, doors, windows and all
structural portions of the Store. Giant shall not be
responsible for any additional equipment that may be
required and installed or maintained on the Premises by
Licensee.
Notwithstanding anything to the contrary contained in this Agree-
ment, if any provision in this Agreement imposes an obligation
upon Giant which under Giant's lease for the Store is the respon-
sibility of Giant's landlord, Giant shall have discharged its
obligation under this Agreement if it uses diligent, good faith
efforts to cause the landlord to perform its responsibilities
under the lease.
11. ADVERTISING, PROMOTION AND RELATED ACTIVITIES.
(a) Each party agrees to cooperate with and promote the
goodwill and business of the other party at the Store.
(b) Any solicitation by Licensee of Giant's customers shall
be done in a professional and courteous manner and in accordance
with written practices and policies established by Licensee and
approved by Giant, which approval will not be unreasonably
withheld.
(c) Both Giant and Licensee may, at their expense, advertise
the existence and location of the Chinese Food Section in such
media and in such manner as each deems appropriate. However, the
prior approval of each party shall be obtained with regard to any
advertisement that is to be transmitted by or appear in any
electronic or print medium that refers to both parties, and the
cost of any such joint advertising shall be shared as agreed to
prior to such advertising being undertaken.
(d) Subject to Giant's prior approval, which will not be
unreasonably withheld, Licensee may sell, or offer as promotional
products outside the Chinese Food Section within the Store itself;
provided, however, such products are those typically offered at
- 7 -
the Chinese Food Section and do not compete with the products
offered by Giant .
(e) Licensee shall have access to the intercommunications
system ("Intercom") within the Store. The use of the Intercom
shall be coordinated between the Store manager and the Chinese
Food Section manager, and shall be further subject to Licensee
obtaining the prior consent of the Store manager, which consent
will not be unreasonably withheld. It is the parties' intention
that the joint use of the Intercom shall benefit both parties for
the purpose of paging and announcing various specials being
promoted by either party within the Store.
12. INSURANCE.
(a) Licensee shall carry its own personal property and
betterments insurance and shall also keep in force during the term
of this Agreement general liability insurance with respect to its
Chinese Food Section operations naming Giant as an additional
insured under such policies. The liability limits of such policy
shall not be less than One Million Dollars ($1,000,000.00) per
occurrence for bodily injury and with a minimum of Three Hundred
Thousand Dollars ($300,000.00) for property damage. Within ten
(10) days of Giant's written request, Licensee shall furnish Giant
with such certificates of insurance evidencing compliance with
this section. The insurance coverages required hereunder and in
Paragraph 7(b) hereof shall not be terminated without thirty (30)
days notice in writing to Giant. Failure to provide and maintain
insurance by Licensee as set forth in this License Agreement shall
be deemed a default hereof.
(b) If requested, Licensee shall name Giant's landlord as an
additional insured on Licensee's casualty and liability insurance
policies with respect to the Store.
(c) Licensee shall, at its own cost and expense, comply with
all regulations or orders of any insurance company or companies
providing insurance with respect to the Store related to the
Chinese Food Section operations in the Store.
(d) Licensee agrees to release, waive and discharge Giant,
and any of its agents, affiliates, officers, shareholders and
employees, and covenants not to sue each of them, from all
liability to Licensee for all loss or damages, or any claim or
demands therefor, on account of injury (including death) to the
person or property of Licensee, including loss of consortium,
unless caused in whole or in part by the negligence, recklessness
or willful misconduct of Giant.
- 8 -
(e) Licensee agrees to indemnify and hold harmless Giant
from and against any and all losses, liabilities, claims, demands,
actions, costs, expenses, and damages, including reasonable
attorney's fees, brought against Giant for any injury (including
death) to any person or property, including loss of consortium,
caused in whole or in part by reason of Licensee's acts, neglect,
or omissions, whether active or passive, sole or concurrent, or
whether negligent, reckless, or pursuant to strict liability or
otherwise, in any way connected to the presence of Licensee,
Licensee's employees or any agent or contractor of Licensee, on
any premises owned, leased or rented by Giant. In the event that
any legal proceeding is brought against Giant, Licensee further
agrees to pay Giant any and all expenses and costs, including
reasonable attorney's fees, associated with enforcing this
provision of the Agreement.
13. T ES.
Licensee shall pay all taxes, other than real estate taxes,
assessed by any taxing authority because of its operations at the
Chinese Food Section. In the event any unapportioned tax assessed
against Giant includes Licensee's property, other than real estate
taxes, Licensee shall pay such portion of the tax as the value of
such Licensee property that was included in Giant's assessment at
the time of the assessment bears to the total value of the
property assessed in the Store.
14. DEFAULT BY LICENSEE.
(a} If Licensee shall fail to make the payments required
hereunder when the same are due, and the same shall not be paid
within ten (10) days after written notice to Licensee, or if
Licensee breaches any other covenant of this Agreement and fails
to remedy same within thirty (30) days after written notice of
such breach, Giant may, at its option, declare this Agreement
terminated without prejudice to any additional remedy which may be
available to Giant.
(b} Anything in this Agreement to the contrary notwith-
standing, in the event that Licensee shall become insolvent,
bankrupt or make any assignment for the benefit of creditors, or
if its interest hereunder shall be levied upon or sold under
execution or other legal process, or in the event Licensee is
closed for more than a fourteen (14) day period, without prejudice
to any additional remedy which may be available to Giant, Giant
may declare this Agreement terminated.
- 9 -
(c) Licensee shall indemnify and hold Giant harmless against
all claims, damages and expenses, including legal costs and
attorneys' fees, incurred or suffered by Giant as a result of any
default by Licensee in the performance of its obligations under
this Agreement.
15. DEFAULT BY GIANT.
(a) Subject to the Last sentence of Paragraph 10 above, if
Giant breaches any covenant in this Agreement and fails to remedy
same within thirty (30) days after written notice of such breach,
or if the same is not reasonably capable of being cured within
thirty (30) days, and Giant fails to commence to remedy same
within thirty (30) days and diligently prosecute the remedying of
the breach, Licensee may, at its option, declare this Agreement
terminated without prejudice to any additional remedy which may be
available to Licensee.
(b) Giant shall indemnify and hold Licensee harmless against
all claims, damages and expenses, including legal costs and
attorneys' fees, incurred or suffered by Licensee as a result of
any default by Giant in the performance of its obligations under
this Agreement.
16. POSSESSION UPON TERMINATION.
Within thirty (30) days after the expiration or any other
termination of this Agreement, Licensee shall surrender peaceful
possession of the Premises and shall, at its expense, remove all
improvements, furnishings and equipment placed on the Premises by
or through Licensee and restore the Premises to as good a
condition as it received same, loss or damage by fire, catastrophe
or act of God and ordinary wear and tear from reasonable use alone
excepted. If at the expiration or other termination of this
Agreement, Licensee does not promptly remove its equipment and
other property from the Store within fifteen (15) days, the same
shall be deemed abandoned and may be disposed of by Giant without
liability to the Licensee.
17. DAMAGES TO PREMISES.
If by fire or other casualty, the Premises or the Store is
destroyed or damaged to the extent that Licensee is deprived of
occupancy or use of the same, and if such damage or destruction
can be repaired within one hundred eighty (180) days from the date
of such damage or destructian, Giant shall proceed with due
diligence to restore the Premises and the Store to substantially
the same condition as existed before such damage or destruction,
- 10 -
or if Giant's landlord is responsible for such restoration, Giant
shall use its best efforts to assure that landlord satisfies the
terms of this paragraph. The license fees and other charges
payable by Licensee hereunder with regard to the Premises shall be
abated to the extent that Licensee is unable to occupy and use the
Premises. In the event such damage or destruction cannot be
repaired within one eighty (180) days, Licensee may, at its
option, terminate this Agreement by giving ten (10) days' written
notice to Giant, whereupon Giant shall have no further liability
or obligations to Licensee, and Licensee shall have no further
liability or obligations to Giant, other than those imposed prior
to the event. In the event this Agreement is not terminated
pursuant to this Section, Giant and Licensee at their expense
shall be solely responsible for repairing, restoring and
refixturing the Chinese Food Section with due diligence as
required under the original construction, fixturing and outfitting
of the Chinese Food Section.
18. CONDEMNATION.
If the Premises are taken or condemned by any competent
authority so as to prevent Licensee from conducting its operations
in substantially the same manner as theretofore conducted, this
Agreement will terminate upon ten (10) days' notice from Licensee.
If the Store is so taken or condemned such that Giant, at its
option, elects to terminate its lease, Giant shall notify Licensee
and this Agreement shall terminate effective as of the termination
date of the lease. All awards made by reason of condemnation
shall be made to Giant, and Licensee hereby irrevocably assigns to
Giant all its rights, title and interest in and to any such award.
19. PEACEFUL POSSESSION_
Giant warrants that for so long as Licensee performs its
obligations under this Agreement, Licensee shall have quiet and
peaceful possession of the Premises during the term of this
Agreement free from interruption of Giant or any other person
claiming under or through Giant.
20. ASSIGNMENT BY LICENSEE.
Licensee shall have no right to assign its rights and obliga-
tions hereunder to any other person or entity without the express
written consent of Giant, which consent may be withheld in its
sole discretion. Any persons or entities to which Giant consents
shall be deemed "Permitted Successors and Assigns".
- 11 -
21. REMODELING OR VACATION OF STORE.
(a) Licensee acknowledges that Giant may find it desirable
to remodel or enlarge the Store to accommodate changes in retail-
ing pattern or for any other purpose. In such an event, Giant
agrees to discuss with Licensee its plans to determine if the
Chinese Food Section at the Store can be moved to another location
within the Store mutually satisfactory to Giant and Licensee and
agrees to give Licensee ten (10) days written notice before any
relocation is commenced. In the event that the relocation
necessitates the closing of the Chinese Food Section for a period
of more than seven (7) consecutive days, Licensee shall not be
obligated to pay the prorata portion of the Minimum Rent
attributable to the period that Licensee was unable to operate the
Chinese Food Section because of such relocation. The term of this
License Agreement shall be extended proportionately for a period
equal to the number of days Minimum Rent was abated, and all other
term provisions of this Licensee Agreement shall be in effect
during such extension period. If Licensee is not satisfied with
the move proposed by Giant, Licensee's sole and exclusive remedy
shall be to terminate this Agreement as of the date Giant begins
its remodeling or enlargement. If, pursuant to this Section, this
Agreement is terminated, Licensee shall deliver up the Premises in
accordance with Section 16 of this Agreement or if Licensee
relocates to a different location in the Store, Giant shall pay to
relocate the Improvements and equipment in the Chinese Food
Section to another location in the Store.
(b) In the event Giant decides to cease operating and vacate
the Store, except as provided in subsection (c) below, Giant will
give Licensee notice of such decision at least ninety {90) days
prior to the day the Store will cease operating. If the Store is
to be relocated in another building, Licensee shall have the
option of terminating this Agreement or relocating its Chinese
Food Section in the new store under the same terms and conditions
as provided under this Agreement at the time of such relocation.
If the Store is not relocated, this Agreement will terminate as of
the day Giant ceases its operations in the Store.
(c) (i) In the event Giant sells, leases, subleases,
assigns or otherwise transfers its interest in the Store to
an entity ("Transferee") other than Giant or other than a
subsidiary or partnership of which Giant is a majority owner,
Giant shall have the unilateral right to terminate this
Agreement if such Transferee refuses to accept an assignment
of Giant's interest in this Agreement at no cost to Giant.
Giant shall make a good faith effort to persuade such Trans-
feree to accept such an assignment.
- 12 -
(ii) Upon notice by Giant of termination pursuant
to the foregoing subsection (c)(i}, Licensee shall
vacate the Premises in accordance with Section 16 of
this Agreement, except that the Premises shall be
vacated within thirty (30) days of receipt of such
notice unless a longer period is required by federal or
state law.
22. SECURITY.
(a) It shall be Licensee's obligation to provide security
for the Chinese Food Section. Giant shall not be responsible for
safeguarding any of Licensee's property or that of any of its
employees.
(b) Licensee hereby releases Giant from any claims, loss or
damage that Licensee might sustain by virtue of a theft or
attempted theft from the Chinese Food Section except for those
caused by Giant's gross negligence, recklessness or willful
misconduct.
23. CONFIDENTIALITY.
Each party acknowledges that in connection with this Agree-
ment or in the performance hereof, it may come into possession or
knowledge of material and information which is proprietary to the
other party. Each party, therefore, agrees to hold such material
and information in strictest confidence, not to make use thereof
except in the performance of this Agreement, and not to release or
disclose it to any other party with the exception of parent
companies, subsidiaries and affiliates of the parties.
24. SUPPLYING OTHER GIANT STORES. In the event that Giant
requests and Licensee agrees to provide prepared Chinese foods for
any other store(s) operated by Giant, Giant shall purchase such
Chinese foods from Licensee at prices to be negotiated by Giant
and Licensee.
25. CAPTIONS.
The captions of the several sections of this Agreement are
not part of the context hereof and shall be ignored in construing
this Agreement. They are intended only as aids in locating
various provisions hereof.
- 13 -
26. SEVERABILITY.
Each provision contained }n the Agreement shall be indepen-
dent and severable from all other provisions contained herein, and
the invalidity of any such provision shall in no way affect the
enforceability of the other provisions.
27. GOVERNING LAW.
The parties agree that all questions of interpretation and
enforcement arising from or related in any way to this Agreement
shall be governed and controlled by the laws of, and shall be
enforced in the courts of, the Commonwealth of Pennsylvania in
which the Stare is located.
28. BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the
benefit of Giant and its successors and assigns and of Licensee
and its Permitted Successors and Assigns.
29. NOTICES.
(a) All notices required or permitted hereunder shall be in
writing and signed by the party or a duly authorized
representatives of the party making the same. All notices shall
be deemed effective when delivered personally; or when sent by a
recognized overnight delivery service, such as Federal Express,
requiring a receipt upon delivery; or following deposit in the
United States mail, registered or certified, return receipt
requested, postage or overnight delivery charge prepaid, addressed
as follows:
(i) If to Giant, then to:
Giant Food Stores, Inc.
1149 Harrisburg Pike
P. O. Box 249
Carlisle, Pennsylvania 17013
Attention: Raymond Hironimus
(ii) If to Licensee, then to:
D & J Eastern Enterprises, Inc.
62 Pleasant View Road
Mechanicsburg, Pennsylvania 17055
Attention: Dorothy L. F. Fang, President
- 14 -
(b) The names and addresses for the purpose of this section
may be changed by giving notice of such change in the manner
herein provided for giving notice. Unless and until such notice
is actually received, the last name and address stated by notice
or provided herein, if no such written notice of change has been
received, shall be deemed to continue in effect for all purposes
hereunder.
30. ENTIRE AGREEMENT.
The parties agree that this Agreement and any exhibits
attached hereto set forth all the promises, agreements and
understandings between them with respect to Licensee's right and
license to operate and maintain a Chinese Food Section at the
Store. This Agreement is a license and not a lease, and no
leasehold interest or tenancy is created hereby. There are no
promises, agreements, understandings, representations or war-
ranties, express or implied, with respect to the suitability of
the Premises for Licensee's purposes, or with respect to any other
matter, either oral or written, all of which are merged herein,
between the parties other than as set forth herein. No amendment
or modification to this Agreement shall be binding unless such
amendment or modification is in writing and signed by both
parties.
IN WITNESS WHEREOF, with intent to be legally bound hereby,
the parties have caused this Agreement to be duly executed as of
the date first set forth at the beginning of this Agreement. This
Agreement may be signed in counterparts.
ATTEST: GIANT FOOD STORES, INC.:
~ ~
By
Name:
Title : !/ P. S pl ~,s ~C /~'I ~,,,_c ~.„a,,,,~ ~ s ~ ~--
LICENSEE:
D & J EASTERN ENTERPRISES, INC.
By ~ 7
Dorothy L. Fi F ng, P sident
- 15 -
ATTEST:
a" ~.,
~I~.
,..
I ...,, t_- ;w.„rtw~. ~.'. -,..,;
~~. < F ~, ~; " .~,l~a
.%w wxer. -4•
~ S -Y a„ ~~ „7F .6~++.~l! T. +-.. .
ct[:«. :s _ti..:. .~. .w~4•S 1FJ7~ ~`
~
~ I ~s ~ w L 1 4s Cau d~ ~j
6 ~ O •' w ,t ft•n C I.v.tA1Mt ~1r(~w. M I lo-~- Hoi F~
C ~ '„'~ ' ~"wi'~ a 1iuR ~- tl I (4aso w~o~ [ii)
~ ( W NJS { • ~f ~ ` !G/S S MOK1+10111/~ ~ 1 kbEy-RT SP 1~0+ Se~a~ tN ~
~ 1 ~-•+TrKco saX su+r wv w Y ~ aa~~l+Kpr. T
^~ ~ ~ '!ti0•~c fit - SA~'aev/eN U-11~ d.. ~ w~~ /i.-'1pp MtV~.rR
-- I ~-i w~~ aa~1K+r ~ u .K R ~ *.1 zo 2o+.e.
I b'" M~71lO 97~AC.><i itA.~CK. ,i 1 ~} 403
S
. T 1 r~ ~s+ctN)
~ese>s~vlK
J I W V i~Yr`It'1''O• Si-f~~~•t ~ ! flrgc. ~ 1 INS<sCTOC~I'IL'~f~. It S
K ( AM MO Z1N1G.
a • w ~ ada lR.~ v
I ~ COioa.~R. SNlta~ly [~
'~t
Exhibit A - Store #53
- C~iH~,~ KITCH~I PREP LE6END
EXHIBIT B-1
Annual License Fees
Licensee will pay to Giant the following annual license fees for
the Chinese Food Section, such fees being payable biweekly
pursuant to Section 5 of the Agreement:
GROSS SALES BIWEEKLY
(EXCLUDING SALES TAX)
SUBJECT TO LICENSE FEES
BIWEEKLY LICENSE FEES
BASED ON PERCENTAGE OF
GROSS SALES
$1 TO $11,540
$11,541 TO $16,150
OVER $16,150
6%
8%
10%
1 1 ~' ~
i ~ i
1 1 f , • ~
i i , s
Each day your staff will obtaln $ cash till from our cash office. At the end of
the day it will be returned back to the office and the money deposited into
Giant's bank account.
Each Monday 6tant will ppraCeSS $ Ch@Ck payabl$ t0 Licensee for
the amount of sales of ehinesr food products including the sales tax. This check
will be mailed on Tuesday to Licensee at the address in the License Agreement.
The i•icense agreement provides for 'the coarpission duo Giant to be paid every two
weeks. To reduce the aMOUnt of paper work, Giant will d@duct the ccomissian from
every other check and will pravid$ you with a full accounting of the amounts.
Initially w$ w111 withhold the commission at a rate of 8X of sales net of sales
tax. Ne will monitor the sales for this location and wilt make ad~ustncnts for
the commission rate on a quart@r1y bases based gpon the sates results.
~~ F.,u~~
Brian fields
Director of Accounting
w~rr
sw
Q~a1it food stores, Inc.
Pte. 8osc 849
1148 KeI'rieba~~gg Pike
Carlisle, Ps. 1781-Q849
d@CYCIt;'n ..'era rc~u
.:~ ~ : :1 ~'1NJ1tU:a'+1EyT
Phones (7x7) 84a-7494
Fax: (717) 849-S87i
Exhibit B-2
EXHIBIT C
CHINESE KITCHEN
Giant Supplied Items
telephone
scanning equipment - register, etc.
menu board
hood, with ansil system
hot food case
receiving desk
sales counter
sink
SP1500 scale
Hobart SM20 scale
stand-at tables (for customers to eat at)
S/S work tables
Lyons cash drawers
pans for hot food case
number system
towel and soap dispenser
wok
two small fryers
salamander broiler
rice cooker and rice warmer
two 6' sandwich units
stand/table for rice cooker and warmer
soup kettles
All fixtures identified on legend portion of Exhibit A
for Oriental Kitchen
EXHIBIT
«D~~
~,
~~.
•~~ ~ ~'~
~~
~y~~
TABLE OF CONTENTS
1. DEFINITIONS ........................................................... 1
2. TERM .................................................................. 1
3. RENEWALS ...................... ...................................... 2
4. SECURITY DEPOSIT ...................................................... 2
5. PAYMENTS .............................................................. 2
6. USE AND OCCUPANCY ..................................................... 3
7. LICENSEE'S EMPLOYEES ......................................... ....... 4
8. IMPROVEMENTS, ADDITIONS AND SIGNS ..................................... 5
9. APPROVALS ............................................................. 5
10. UTILITIES, MAINTENANCE AND REPAIR ..................................... 5
11. ADVERTISING, PROMOTION AND RELATED ACTIVITIES ......................... 6
12. INSURANCE..... ....................................................... 7
13. TAXES ................................................................. 8
14. COMPLIANCE WITH LAWS .................................................. 8
15. DEFAULT BY LICENSEE ................................................... 8
16. DEFAULT BY GIANT ............................. ....................... 9
17. POSSESSION UPON TERMINATION ........................................... 9
18. DAMAGES TO PREMISES ................................................... 9
19. CONDEMNATION .......................................................... 10
20. PEACEFUL POSSESSION ................................................... 10
21. ASSIGNMENT BY LICENSEE ..............................................~.. 10
22. REMODELING OR VACATION OF STORE ....................................... 10
23. SECURITY .............................................................. 11
24. CONFIDENTIALITY ....................................................... 11
25. CAPTIONS ...................
........................................... 11
26. SEVERABILITY .......................................................... 12
27. GOVERNING LAW ......................................................... 12
28. BINDING EFFECT .................
....................................... 12
29. NOTICES ............................................................... 12
30. ENTIRE AGREEMENT ...................................................... 13
LICENSE AGREEMENT
THIS LICENSE AGREEMENT, is made as of this 20th day of November, 1998, by
and between GIANT FOOD STORES, INC., a Delaware corporation with its principal
office at 1149 Harrisburg Pike, PO Box 249, Carlisle, Pennsylvania 17013
("Giant"), and D & J EASTERN ENTERPRISES, INC., a Pennsylvania corporation
{"Licensee").
W I T N E S S E T H:
In consideration of the mutual promises and subject to the terms and
conditions set forth herein, Giant hereby grants to Licensee the right to
maintain and operate a Chinese Food Section, as defined below, in the Giant
store identified below in accordance with the provisions hereinafter set forth.
1. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
following meanings:
(a) "Chinese Food Section" shall mean Premises, together with
Improvements, as defined in Section 8 hereof from which Licensee shall conduct
the business of preparing and selling Chinese foods.
(b) "Minimum Rent" shall mean Three Hundred Dollars ($300.00) per
biweekly period which shall be applied to, and not in addition to, the
percentage rent set forth in Exhibit B hereto.
(c) "Premises" shall mean the area within the Store to be occupied by
the Chinese Food Section as more specifically designated on Exhibit A hereto.
Jl/e~~F zb7
(d) "Store" shall mean the Giant store known as Store #119 located in
Gettysburg (Straban Township), Adams County, Pennsylvania, within which the
license under this Agreement is granted.
2. TERM
This Agreement shall commence on the Commencement Date, as defined below,
and shall terminate three {3) years from the Commencement Date, unless earlier
terminated or extended as provided hereunder (the "Initial Term"). The
Commencement Date shall be the date Licensee opens for business within the
gremises. Either party to this License Agreement shall have the right to
terminate the License Agreement after the first year of the Initial Term upon
goad cause shown, provided that the terminating party gives the other written
notice of its concern and thirty (30) days to remedy the same. If the concern
is not remedied within the thirty (30) day period, the terminating party shall
give sixty (60) days notice to the other.
3. RENEWALS.
This Agreement may be renewed at Licensee's option for one (1) additional
term of two (2) years. This Agreement shall automatically renew for an
additional term unless Licensee notifies Giant in writing of its election not
to renew at least one hundred eighty (160) days prior to the expiration of the
Initial Term, The renewal will be on the same terms and conditions as set
forth herein.
4. SECURITY DEPOSIT.
Upon execution of this Agreement, Licensee shall pay Giant the sum of Two
Thousand Dollars {$2,000,00) as a license security deposit (the "Security
Deposit") which shall remain on deposit with Giant in a non-interest bearing
account for a period not to exceed thirty (30) days beyond the expiration or
termination of this Agreement. It is expressly understood and agreed that the
Security Deposit shall be held as security for performance by Licensee of the
terms, covenants and conditions of this Agreement and that the Security Deposit
is not to be deemed as a licensee fee payment or other payment by the Licensee
to be credited to the last installment of the license fees or otherwise. The
Security Deposit may be used by Giant to pay any indebtedness due from Licensee
whether arising from debt, fees, damages or otherwise. Upon notice by Giant
that any portion of the Security Deposit has been used by Giant to pay any
obligation of Licensee under the terms hereof, Licensee shall have ten (10)
days following written notice from Giant to pay the amount necessary to restore
the Security Deposit with Giant. Giant may use any portion of the Security
Deposit to correct any damage to or about the Store caused by or related to the
use of the Chinese Food Section which is caused by the negligence of Licensee,
its employees or agents, whether such damage occurs before or after any
proceedings or actions brought by Giant and for any costs and expenses incurred
by Giant in enforcing Licensee's performance under this Agreement, including
without limitation Giant's reasonable attorney's fees. If Giant consents to
the assignment by Licensee of this Agreement, the Security Deposit shall be
assigned simultaneously with the Agreement and shall become the property of the
assignee of Licensee.
5. PAYMENTS.
On or before the Commencement Date, Licensee shall pay to Giant an
initial license payment of Zero Dollars ($0.00) for the right to commence
operation of the Chinese Food Section.
In addition, Licensee shall pay to Giant for use of the Premises the fees
set forth on Exhibit B hereto. The obligation to pay Licensee's fees hereunder
shall commence on the Commencement Date. The annual license fees shall be
payable in biweekly installments, commencing at the end of the first full two
week period after the Commencement Date. Each biweekly payment of the Minimum
Rent shall be due within seven (7) days of the end of each biweekly period.
The biweekly periods shall coincide with Giant's fiscal accounting periods,
which currently end at the close of business Saturdays. The first and last
biweekly payments in each year of the term of this Agreement shall include pro
rata adjustments for any partial biweekly period. Notwithstanding the
- 2 -
foregoing, the procedure for the remittance of license fees shall be
substantially the same as that described in Exhibit B-1 hereto.
Giant shall provide a cash register for the Chinese Food Section which
will record sales directly into the Store's sales accounting system. A report
showing Licensee's sales shall be forwarded to Licensee at the end of each
quarter of each year during which this License is in effect. Licensee shall
have thirty (30) days from the date of such notice to pay the balance of the
percentage rent due as set forth in Exhibit B. Notices shall be given in
accordance with Section 29 of this Agreement.
In the event that at the end of the first year of the Initial Term,
Licensee's biweekly gross sales (excluding sales tax) average for the first
year less than Five Thousand Dollars ($5,000.00) per biweekly period, either
party may terminate this Agreement upon thirty (30) days written notice to the
other.
6. USE AND OCCUPANCY.
(a} Licensee shall have the exclusive right to use and occupy the
Premises for the operation of a Chinese Food Section. Giant shall have no
ownership or other right,. title or interest in Licensee's business or in the
receipts, profits or losses thereof, and Giant shall not be deemed to be a
joint venturer with or a principal or agent of Licensee. Licensee shall have
no right or power to incur any commitments or obligations which shall be
binding on Giant.
(b) Each party shall conduct its business at the Store in a clean and
lawful manner. Each party agrees that it shall not block or restrict the
aisles or passageways of the other party, nor shall either party interfere with
the other party's business.
(c) The Chinese Food Section shall be open for business with adequate
personnel provided by Licensee for a minimum of seventy (70) hours a week
allocated over the week as follows: Monday through Saturday from 11:00 am. to
9:00 p.m., and on Sundays from 11:00 a.m. to 9:00 p.m., except for any of those
hours which the Store is closed. Any changes in the hours of operation of the
Chinese Food Section shall be approved by Giant.
(d) Licensee shall be permitted to purchase its ingredients, produce
and other items necessary for the operation of the Chinese Food Section from
any suppliers and shall not be obligated to purchase same from or through
Giant.
(e) Licensee shall gromptly pay and discharge all bona fide expenses
and obligations which it incurs in connection with the operation of the Chinese
Food Section, including but not limited to the purchase of all materials and
supplies, the compensation of its employees, applicable taxes, permit fees
payable to public authorities, license fees incurred under this Agreement and
all other expenses in the operation of the Chinese Food Section.
- 3 -
(f) Licensee shall be~solely responsible for all costs related to the
installation, maintenance and use of all telephone lines and equipment which
Licensee elects to install in the Chinese Food Section.
{g) Licensee shall not offer for sale any products or merchandise (for
example, grocery items such as canned and packaged foods) which conflict with
Giant's normal grocery business operation.
(hy All deliveries to Licensee shall be made to receiving facilities
designated by Giant. No deliveries shall be made to the front entrances of the
Store. Normal hours for delivery will be between 8:00 a.m. and 4:00 p.m. It
is expected that in those few instances where a delivery truck should arrive
prior to 8:OO a.m. or after 9:00 p.m., due to an unusual situation, Giant will
use its best effort to accept the delivery.
7. LICENSEE'S EMPLOYEES.
(a) Licensee shall comply with and abide by, and cause its employees to
comply with and abide by, all reasonable rules and regulations adopted by Giant
regarding conduct at the Store, provided such rules and regulations and any
amendments thereto are made available at least seven (7) days in advance to
Licensee's employees and do not unreasonably impair Chinese Food Section opera-
tions. All persons employed by Licensee in or about, or in connection with,
the operation of the Chinese Food Section shall be Licensee's employees for all
purposes under this Agreement. Giant agrees to cooperate with Licensee in
providing access to the Premises at reasonable times while the Store is open
for business, but only as absolutely necessary during periods of time when the
Store is not open for business. Licensee shall not be entitled to have a key
to the Store.
(b) Licensee shall, at its own cost and expense, maintain worker's
compensation coverage, unemployment compensation coverage and any other
insurance which may be required by law with respect to Licensee's employees.
Licensee shall provide certificates of insurance or other evidence that
insurance is in place to protect the interests of Giant.
(c) Licensee's employees, while working at the Chinese Food Section,
shall be entitled to use the toilet facilities and break-room in the Store
provided by Giant for the convenience of Giant employees.
{d) Licensee shall furnish to Giant the motor vehicle license numbers
of its employees working at the Chinese Food Section and shall require them to
park their automobiles only in locations designated by Giant.
- 4 -
8. IMPROVEMENTS, ADIIITIONS AND SIGNS
(a) Giant, at its sole cost and expense, shall furnish all fixtures,
plumbing and electrical installations, and equipment as specifically described
on Exhibit C hereto necessary for the Chinese Food Section operations (the
"Improvements") and shall pay any and all costs of modification of the Store
for the installation of the Improvements. The Improvements which Giant
installs in the Chinese Food Section shall remain the property of Giant.
Licensee shall not make any modification to said Improvements either initially
or at any other time during the term of this Agreement, without Giant's prior
written approval.
(b) Licensee shall provide all other types of kitchen equipment, small
appliances, tools and utensils, including but not limited to woks, knives,
cutting boards, etc., which Licensee needs to conduct its business in the
Chinese Food Section.
(c) Giant shall permit Licensee to place interior signs only
identifying its operations in the vicinity of the Chinese Food Section, such
signs being of such design and dimensions and at such locations as Giant shall
determine are reasonable.
9. .APPROVALS.
Giant agrees to promptly obtain any necessary waivers or consents from
its landlord with respect to provisions in its lease regarding exclusive uses,
subletting, alterations to the Store, or other matters, that would prevent
Licensee from operating a Chinese Food Section as contemplated by this
Agreement.
10. UTILITIES, MP-TNTENANCE AND REPAIR
(a) Licensee shall, at its sole cost and expense, maintain the Premises
as follows:
(i) Licensee shall keep and maintain the Chinese Food Section in
a clean, safe, orderly and attractive manner consistent with the design and
appearance of the Store, including the Improvements and all other equipment
installed therein and used in connection therewith.
(ii) Licensee shall be responsible for the repair and maintenance
of the equipment constituting the Improvements as set forth on Exhibit C
hereto. Licensee shall be permitted to select contractors at its discretion to
do the repairs and maintenance, provided however that all contractors shall be
reputable and skilled in the type of repair work to be done at the Premises.
Giant will assign any assignable warranties which it may have on new equipment
which is part of the Improvements to Licensee during the term of this
Agreement, so long as the manufacturer will allow the same without cost to
Licensee. To the extent that the manufacturer will not allow the warranty to
be assigned without cost to Licensee, Giant will agree to have the repairs
performed during the initial warranty period at no expense to Licensee. After
the warranty period, Licensee will assume the day to day maintenance and repair
of the equipment.
- 5 -
(iii) Licensee and its employees shall at all times strictly comply
with all applicable governmental regulations for businesses of this type,
including but not limited to, those promulgated by any state or local health
department having jurisdiction.
(iv) Giant shall provide all necessary janitorial services for the
Chinese Food Section, however Licensee shall be responsible for routine daily
cleaning of the kitchen and serving areas.
(b) Giant shall, at its sole cost and expense, provide the following
maintenance and services:
(i) Giant shall furnish all lighting, air conditioning, heating
and other utilities for the Store, including the Premises, with the exception
of gas service to the Premises, which shall be separately metered and shall be
paid by Licensee. If for any reason, not the fault of Giant, such utilities
are suspended or discontinued, Giant shall not be liable to Licensee for any
interruption of its operations by reason of such suspension or discontinuance,
but Licensee shall be entitled to a proportionate abatement of the fees if the
utilities are suspended or discontinued for more than forty-eight (98) hours;
and
(ii) Giant shall keep and maintain the Store and toilet facilities
in good order and repair, including, without limitation, plumbing and
electrical equipment, heating, air conditioning, doors, windows and all
structural portions of the Store. Giant shall not be responsible for any
additional equipment that may be required and installed or maintained on the
Premises by Licensee.
Notwithstanding anything to the contrary contained in this Agreement, if any
provision in this Agreement imposes an obligation upon Giant which under
Giant's lease for the Store is the responsibility of Giant's landlord, Giant
shall have discharged its obligation under this Agreement if it uses diligent,
good faith efforts to cause the landlord to perform its responsibilities under
the lease.
11. ADVERTISING. PROMOTION AND RELATED ACTIVITIES
(a) Each party agrees to cooperate with and promote the goodwill and
business of the other party at the Store.
{b) Any solicitation by Licensee of Giant's customers shall be done in
a professional and courteous manner and in accordance with written practices
and policies established by Licensee and approved by Giant, which approval will
not be unreasonably withheld.
(c) Both Giant and Licensee may, at their expense, advertise the
existence and location of the Chinese Food Section in such media and in such
manner as each deems appropriate. However, the prior approval of each party
shall be obtained with regard to any advertisement that is to be transmitted by
or appear in any electronic or print medium that refers to both parties, and
- 6 -
the cost of any such joint advertising shall be shared as agreed to prior to
such advertising being undertaken.
(d) Subject to Giant's prior approval, which will not be unreasonably
withheld, Licensee may sell, or offer as promotional products outside the
Chinese Food Section within the Store itself; provided, however, such products
are those typically offered at the Chinese Food Section and do not compete with
the products offered by Giant.
(e) Licensee shall have access to the interco~nunications system
("Intercom") within the Store. The use of the Intercom shall be coordinated
between the Store manager and the. Chinese Food Section manager, and shall be
further subject to Licensee obtaining the prior consent of the Store manager,
which consent will not be unreasonably withheld. It is the parties' intention
that the joint use of the Intercom shall benefit both parties for the purpose
of paging and announcing various specials being promoted by either party within
the Store.
12. INSURANCE.
(a) Licensee shall carry its own personal property and betterments
insurance and shall also keep in force during the term of this Agreement
general liability insurance with respect to its Chinese Food Section operations
naming Giant as an additional insured under such policies. The liability
limits of such policy shall not be less than One Million Dollars
($1,000,000.00) per occurrence for bodily injury and with a minimum of Three
Hundred Thousand Dollars ($300,000.00) for property damage. Within ten (10)
days of Giant's written request, Licensee shall furnish Giant with such
certificates of insurance evidencing compliance with this section. The
insurance coverages required hereunder and in Paragraph 7(b) hereof shall not
be terminated without thirty (30) days notice in writing to Giant. Failure to
provide and maintain insurance by Licensee as set forth in this License
Agreement shall be deemed a default hereof.
{b) If requested, Licensee shall name Giant's landlord as an additional
insured on Licensee's casualty and liability insurance policies with respect tv
the Store.
(c) Licensee shall, at its own cost and expense, comply with all
regulations or orders of any insurance company or companies providing insurance
with respect to the Store related to the Chinese Food Section operations in the
Store.
{d) Licensee agrees to release, waive and discharge Giant, and any of
its agents, affiliates, officers, shareholders and employees, and covenants not
to sue each of them, from all liability to Licensee for all loss or damages, or
any claim or demands therefor, on account of injury (including death) to the
person or property of Licensee, including loss of consortium, unless caused in
whole or in part by the negligence, recklessness or willful misconduct of
Giant.
(e} Licensee agrees to indemnify and hold harmless Giant from and
against any and all losses, liabilities, claims, demands, actions, costs,
- 7 -
expenses, and damages, including reasonable attorney's fees, brought against
Giant for any injury (including death) to any person or property, including
loss of consortium, caused in whole or in part by reason of Licensee's acts,
neglect, or omissions, whether active or passive, sole or concurrent, or
whether negligent, reckless, or pursuant to strict liability or otherwise, in
any way connected to the presence of Licensee, Licensee's employees or any
agent or contractor of Licensee, on any premises owned, leased or rented by
Giant. In the event that any legal proceeding is brought against Giant,
Licensee further agrees to pay Giant any and all expenses and costs, including
reasonable attorney's fees, associated with enforcing this provision of the
Agreement.
13. TAXES.
Licensee shall pay all taxes, other than real estate taxes, assessed by
any taxing authority because of its operations at the Chinese Food Section. In
the event any unapportioned tax assessed against Giant includes Licensee's
property, other than real estate taxes, Licensee shall pay such portion of the
tax as the value of such Licensee property that was included in Giant's
assessment at the time of the assessment bears to the total value of the
property assessed in the Store.
14. COMPLIANCE WITH LAWS.
Licensee shall at all times during the term of this Agreement fully
comply with any and all federal, state, local, municipal or administrative
laws, rules, regulations and orders applicable to Licensee or the conduct or
operation of Licensee's business including, but not limited to, those relating
to the Immigration and Nationality Act, 8 U.S.C. 1101, et seq., as amended from
time to time (the "Immigration Act"), and those relating to health, safety and
environmental matters. Licensee shall at such times as Giant shall request
certify to Giant in writing that it is in full compliance with the Immigration
Act's employment authorization verification requirements. As requested by
Giant, Licensee shall provide Giant with evidence that Licensee has duly
completed all forms and procedures in connection with such requirements.
15. DEFAULT BY LICENSEE.
(a) If Licensee shall fail to make the payments required hereunder when
the same are due, and the same shall not be paid within ten (10) days after
written notice to Licensee, or if Licensee breaches any other covenant of this
Agreement and fails to remedy same within thirty (30) days after written notice
of such breach, Giant may, at its option, declare this Agreement terminated
without prejudice to any additional remedy which may be available to Giant.
(b) Anything in this Agreement to the contrary notwithstanding, in the
event that Licensee shall become insolvent, bankrupt or make any assignment for
the benefit of creditors, or if its interest hereunder shall be levied upon or
sold under execution or other legal process, or in the event Licensee is closed
for more than a fourteen (14) day period, without prejudice to any additional
remedy which may be available to Giant, Giant may declare this Agreement
terminated.
- 8 -
(c) Licensee shall indemmaify and hold Giant harmless against all
claims, damages and expenses, including legal costs and attorneys' fees,
incurred or suffered by Giant as a result of any default by Licensee in the
performance of its obligations under this Agreement.
16. DEFAULT BY GIANT.
(a) Subject to the last sentence of Paragraph 10 above, if Giant
breaches any covenant in this Agreement and fails to remedy same within thirty
(30) days after written notice of such breach, or if the same is not reasonably
capable of being cured within thirty (30) days, and Giant fails to commence to
remedy same within thirty (30) days and diligently prosecute the remedying of
the breach, Licensee may, at its option, declare this Agreement terminated
without prejudice to any additional remedy which may be available to Licensee.
(b) Giant shall indemnify and hold Licensee harmless against all
claims, damages and expenses, including legal costs and attorneys' fees,
incurred or suffered by Licensee as a result of any default by Giant in the
performance of its obligations under this Agreement.
17. POSSESSION UPON TERMINATION.
Within thirty (30) days after the expiration or any other termination of
this Agreement, Licensee shall surrender peaceful possession of the Premises
and shall, at its expense, remove all improvements, furnishings and equipment
placed on the Premises by or through Licensee and restore the Premises to as
good a condition as it received same, loss or damage by fire, catastrophe or
act of God and ordinary wear and tear from reasonable use alone excepted. If
at the expiration or other termination of this Agreement, Licensee does not
promptly remove its equipment and other property from the Store within fifteen
(15) days, the same shall be deemed abandoned and may be disposed of by Giant
without liability to the Licensee.
18. DAMAGES TO PREMISES.
If by fire or other casualty, the Premises or the Store is destroyed or
damaged to the extent that Licensee is deprived of occupancy or use of the
same, and if such damage or destruction can be repaired within one hundred
eighty (180} days from the date of such damage or destruction, Giant shall
proceed with due diligence to restore the Premises and the Store to
substantially the same condition as existed before such damage or destruction,
or if Giant's landlord is responsible for such restoration, Giant shall use its
best efforts to assure that landlord satisfies the terms of this paragraph.
The license fees and other charges payable by Licensee hereunder with regard to
the Premises shall be abated to the extent that Licensee is unable to occupy
and use the Premises. In the event such damage or destruction cannot be
repaired within one eighty (180) days, Licensee may, at its option, terminate
this Agreement by giving ten (10) days' written notice to Giant, whereupon
Giant shall have no further liability or obligations to Licensee, and Licensee
shall have no further liability or obligations to Giant, other than those
imposed prior to the event. In the event this Agreement is not terminated
pursuant to this Section, Giant and Licensee at their expense shall be solely
responsible for repairing, restoring and refixturing the Chinese Food Section
- 9 -
with due diligence as required under the original construction, fixturing and
outfitting of the Chinese Food Section.
19 . CONDENII~IATION .
If the Premises are taken or condemned by any competent authority so as
to prevent Licensee from conducting its operations in substantially the same
manner as theretofore conducted, this Agreement will terminate upon ten (10)
days' notice from Licensee. If the Store is so taken or condemned such that
Giant, at its option, elects to terminate its lease, Giant shall notify
Licensee and this Agreement shall terminate effective as of the termination
date of the lease. All awards made by reason of condemnation shall be made to
Giant, and Licensee hereby irrevocably assigns to Giant all its rights, title
and interest in and to any such award.
20. PEACEFUL POSSESSION.
Giant warrants that for so long as Licensee performs its obligations
under this Agreement, Licensee shall have quiet and peaceful possession of the
Premises during the term of this Agreement free from interruption of Giant or
any other person claiming under or through Giant.
21. ASSIGNMENT BY LICENSEE.
Licensee shall have no right to assign its rights and obligations
hereunder to any other person or entity without the express written consent of
Giant, which consent may be withheld in its sole discretion. Any persons or
entities to which Giant consents shall be deemed "Permitted Successors and
Assigns".
22. REMODELING OR VACATION OF STORE.
(a) Licensee acknowledges that Giant may find it desirable to remodel
or enlarge the Store to accommodate changes in retailing pattern or for any
other purpose. In such an event, Giant agrees to discuss with Licensee its
plans to determine if the Chinese Food Section at the Store can be moved to
another location within the Store mutually satisfactory to Giant and Licensee
and agrees to give Licensee ten (10) -days written notice before any relocation
is commenced. In the event that the relocation necessitates the closing of the
Chinese Food Section for a period of more than seven (7) consecutive days,
Licensee shall not be obligated to pay the pro rata portion of the Minimum Rent
attributable to the period that Licensee was unable to operate the Chinese Food
Section because of such relocation. The term of this License Agreement shall
be extended proportionately for a period equal to the number of days Minimum
Rent was abated, and all other term provisions of this Licensee Agreement shall
be in effect during such extension period. If Licensee is not satisfied with
the move proposed by Giant, Licensee's sole and exclusive remedy shall be to
terminate this Agreement as of the date Giant begins its remodeling or
enlargement. If, pursuant. to this Section, this Agreement is terminated,
Licensee shall deliver up the Premises in accordance with Section 16 of this
Agreement or if Licensee relocates to a different location in the Store, Giant
shall pay to relocate the Improvements and equipment in the Chinese Food
Section to another location in the Store.
- 10 -
(b) In the event Giant decides to cease operating and vacate the Store,
except as provided in subsection (c) below, Giant will give Licensee notice of
such decision at least ninety (90) days prior to the day the Store will cease
operating. If the Store is to be relocated in another building, Licensee shall
have the option of terminating this Agreement or relocating its Chinese Food
Section in the new store under the same terms and conditions as provided under
this Agreement at the time of such relocation. If the Store is not relocated,
this Agreement will terminate as of the day Giant ceases its operations in the
Store.
(c) (i) In the event Giant sells, leases, subleases, assigns or
otherwise transfers its interest in the Store to an entity ("Transferee") other
than Giant or other than a subsidiary or partnership of which Giant is a
majority owner, Giant shall have the unilateral right to terminate this
Agreement if such Transferee refuses to accept an assignment of Giant's
interest in this Agreement at no cost to Giant. Giant shall make a good faith
effort to persuade such Transferee to accept such an assignment.
(ii) Upon notice by Giant of termination pursuant to the foregoing
subsection (c)(i), Licensee shall vacate the Premises in accordance with
Section 17 of this Agreement, except that the Premises shall be vacated within
thirty (30) days of receipt of such notice unless a longer period is required
by federal or state iaw.
23. SECURITY.
(a) It shall be Licensee's obligation to provide security for the
Chinese Food Section. Giant shall not be responsible for safeguarding any of
Licensee's property or that of any of its employees.
(b) Licensee hereby releases Giant from any claims, loss or damage that
Licensee might sustain by virtue of a theft or attempted theft from the Chinese
Food Section except for those caused by Giant's gross negligence, recklessness
or willful misconduct.
24. CONFIDENTIALITY.
Each party acknowledges that in connection with this Agreement or in the
performance hereof, it may come into possession or knowledge of material and
information which is proprietary to the other party. Each party, therefore,
agrees to hold such material and information in strictest confidence, not to
make use thereof except in the performance of this Agreement, and not to
release or disclose it to any other party with the exception of parent
companies, subsidiaries- and affiliates of the parties.
25. CAPTIONS.
The captions of the several sections of this Agreement are not part of
the context hereof and shall be ignored in construing this Agreement. They are
intended only as aids in locating various provisions hereof.
- 11 -
26. SEVERABILITY.
Each provision contained in the Agreement shall be independent and
severable from all other provisions contained herein, and the invalidity of any
such provision shall in no way affect the enforceability of the other
provisions.
27. GOVERNING LAW.
The parties agree that all questions of interpretation and enforcement
arising from or related in any way to this Agreement shall be governed and
controlled by the laws of and shall be enforced in the courts of the State or
Commonwealth in which the Store is located.
28. BINDING EFFECT.
This Agreement shall be binding upon and shall inure to the benefit of
Giant and its successors and assigns and of Licensee and its Permitted
Successors and Assigns.
29. NOTICES.
(a) All notices required or permitted hereunder shall be in writing and
signed by the party or a duly authorized representatives of the party making
the same. All notices shall be deemed effective when delivered personally; or
when sent by a recognized overnight delivery service, such as Federal Express,
requiring a receipt upon delivery; or following deposit in the United States
mail, registered or certified, return receipt requested, postage or overnight
delivery charge prepaid,. addressed as follows:
(i) If to Giant, then to:
Giant Food Stores, Inc.
1149 Harrisburg Pike
PO Box 249
Carlisle, Pennsylvania 17013
Attention: Real Estate Department
(ii) If to Licensee, then to:
D & J Eastern Enterprises, Inc.
1219 Redwood Hills Circle
Carlisle, Pennsylvania 17013
Attention: Dorothy L. F. Fang, President
(b) The names and addresses for the purpose of this section may be
changed by giving notice of such change in the manner herein provided for
giving notice. Unless and until such notice is actually received, the last
name and address stated by notice or provided herein, if no such written notice
of change has been received, shall be deemed to continue in effect for all
purposes hereunder.
- 12 -
30. ENTIRE AGREEMENT.
The parties agree that this Agreement and any exhibits attached hereto
set forth all the promises, agreements and understandings between them with
respect to Licensee's right and license to operate and maintain a Chinese Food
Section at the Store. This Agreement is a license and not a lease, and no
leasehold interest or tenancy is created hereby. There are no promises,
agreements, understandings, representations or warranties, express or implied,
with respect to the suitability of the Premises for Licensee's purposes, or
with respect to any other matter, either oral or written, all of which are
merged herein, between the parties other than as set forth herein. No
amendment or modification to this Agreement shall be binding unless such
amendment or modification is in writing and signed by both parties.
IN WITNESS
have caused this
at the beginning
counterparts.
-~I1t.55
~s~:
WHEREOF, with intent to be legally bound hereby, the parties
Agreement to be duly executed as of the date first set forth
of this Agreement. This Agreement may be signed in
ANT FOOD STORES, INC.:
By
Richard E. Welsh
Director of Real Estate
LICENSEE:
D & J EASTERN ENTERPRISES, INC.
By
Dorot y F. an , Pres ent
- 13 -
. .
yea..
123 I
'L~
-~• ~ 8•_
36
Y-6' 4
SEi4FO0D COOLER D A 3'-0' x T-0' f
CHICKEN COOLER D A 3'-0' x T -0' {
~Ei.t PREP D A 3'-0" x 7'-0' !
AF '- " x 7'- " i
AT D A 3 -0 x 7 -O I
1"fEAT COOLER D A ? 3'-0'x 7'-O'
f"~AT COOLER BOX D 5'-O' 8'-O' I
FREE BOX DOOR 5'-O' x 8'-O'
DA Y - - ~ f
S A D A 2 3'-6 7 -6 I
SALES AREA O A 2 3 -0'x 7'-0' f
BAKERY FREEZER BOX DOOR 3'-0' x 6'-8" i
BAKERY COOLER 0 A 3'-0' x 7'-0' I
-~,
I 558.
~i. PROOIJCE -f`
PALLETS ~~
VZRON`ENTAL WALL
Mgt 120
•~- --- --
. ,
~' Sfi~L At30V1:~
. ,
I I p''`' I .E..
127
® ra O
128 ~.~_ ~
~ ~ ~ 0
K6
8'-1' 1~,,, ~ ~: O n
~~~~ KN O
K7
c~_ 8-~
`~: _ ~•
-~'
L
i
BEVERAGE ~'~' ~ `~
cou~rrER `s. '~`~
TRASH/GOf~SI"ENTS p B,~
~~
s
'OZSPLAY (TYP)
a r~~Q
18'-8' j
,~ 556.00"~
i ~
44
r~~ ~•
~ ~
~ ~~~ ~
O
~$ODUCE
IIB
116
'~ RETURN
AIR
CHASE
EXHIBIT A
[Attach a floor plan of
the Store showing the
location of the Premises
Pursuant to Paragraph 1(c).]
EXHIBIT B-1
Annual License Fees
GROSS SALES BIWEEKLY
(EXCLUDING SALES TAX)
SUBJECT TO LICENSE FEES
BIWEEKLY LICENSE FEE5
BASED ON PERCENTAGE OF
GROSS SALES
From $1 to $11,590 6$
On sales from $11,541 to $16,540 8$
On sales over $16,540 10~
Note:
By way of example, on gross sales of $19,000, the license fees
would be calculated as follows:
On sales of the first $11,540 @ 6$ $ 692.40
On sales from $11,541 to $16,540 @ 8~ $ 900.00
On sales over $16,540 @ 10$ $ 246.00
TOTAL LICENSE FEES $1,338.40
EXHIBIT C
CHINESE KITCHEN
Giant Supplied Items
telephone
scanning equipment - register, etc.
menu board
hood, with ansil system
hot food case
receiving desk
sales counter
sink
SP1500 scale
Hobart SM20 scale
stand-at tables (for customers to eat at)
S/S work tables
Lyons cash drawers
pans for hot food case
number system
towel and soap dispenser
wok
one small fryer
salimander broiler
rice cooker and rice warmer
two 6' sandwich units
stand/table for rice cooker and warmer
soup kettles
All fixtures identified on legend portion of Exhibit A
for Oriental Kitchen
EXHIBIT C
CHINESE KITCHEN
Giant Supplied Items
EXHIBIT
«E~~
aYf1'
,~~~
P.O. Box 249 • 1149 Harrisburg Pike • Carlisle, Pennsylvania • 170]3-0249
Tune 30, 2005
John & Dorothy Fang
D&J Easfiem Enterprises
121 S Redwood Hips Cincie
CarNsle, PA 17013
Dear John 8c Dorothy:
This noticc is to serve as a Leiter of Understanding by and between Giant Food Stores, LLC.
(Giant} and DBc.T Easterm Enterprises that your License Agrreement to Operate a C;kunese Kitchen
within Giant Store #112 located at 255 S. Spring Garden St., Carlisle, 1'A expired ~on April 20,
2004. It is Giant's intention to permit you to continue operating under the terms and conditions
of your original License Agreement referenced above on a month to month basis. This month to
month operation will continue until both parties agree to execute a new License Agreement or a
30 day Notification to Quit is provided in writing by either of the mentioned parties to the address
listed in the Agreement.
Sincerely,
cCotmeU
Franchise Development Manager
Received and agreed to this ~ day of , 2005 by:
Name:
Signature:
Title:
~ ~ GIANT Pood Stores, LLC
Operators of
M GIANT Food Stores
W MAR'I7N'S Food Markets ~
An Atwtd U5A Company TOPS Markeffi
EXHIBIT
«F~~
Food S~Ort=, LLC
P.O. Box 249 • 1149 Harrisburg Pike • Carlisle, Pennsylvania • 17013-0249
June 30, 2005
John ~ Dorothy Fang
D8,! Eastern Enterprises
4219 Redwood HiAs Circle
Carlisle, PA 17013
Dear Jam & Dorothy:
This notice is to serve as a Lettter of Understanding by and between Giant Food Stares, LLC..
(Giant] and D&J Eastern Enterprises that your License Agreement to Operate a Chinese Kitchen
within Giant Store #252, located at 5074 Jonestown Road, Harrisburg, PA expired on January 29,
2005. It is Giant's intention to permit you to continue operating under the terms and conditions
of your original License Agreement referenced above on a month to month basis. This month to
month operation will continue until both parties agree to execute a new License Agreement or a
30 day Notification to Quit is provided in writing by either of the mentioned parties to the address
listed in the Agreement.
Sincerely,
Franchise Development Manager
Received and agreed to this ~ day of , 2005 by:
Name:
Signahue:
Title:
GIANT Food Stores, I.u
~ Operatoca of
GIANT Food Stores
MARTIN'S Food Markets ds
T(JPS Markets
.n Alwld USA Company
EXHIBIT
«G~~
~~~
P.O. Box 249 • 1149 Harrisburg Pike • Carlisle, T'ennsylvania • 17013-0249
June 30, 2005
John & Dorothy Fang
DB~J E~tem Entet~xtses
1219 Redwood Hgls Circle
Carlyle, PA 17013
Dear John & Dorothy:
This notice is to serve as a Letter of Understanding by and between Giant Food Stores, LLC.
(Giant) and DBtJ Eastern Enterprises that your License Agr+eemertt to Operate a Chinese Kitchen
within Giant Store #267, located at 44 Natural Springs Rd., Gettysburg, PA expired on November
20, 2003. It is Giant's intention to permit you to continue operating under the terms and
conditions of your original License Agreement referenced above on a month to month basis. This
month to month operatinn will continue until both parties agree to execute a new License
Agreement or a 30 day Notification to Quit is provided in writing by either of the mentioned
parties to the address listed in the Agreement.
Sincerely,
McCoruiell
Franchise Development Manager
Received and agreed to this ____ day of ~r __ 2005 by:
Name:
Signature:
Title:
GIANT Food Stares, LLC
Operators of
GIANT Food Stores
MARTIN'S Food Markets tit
M nheld van company TOPS Markets
EXHIBIT
«H~~
Flood Sto1+li, LLC
P.O. Box 249 • 1149 Harrisburg Pike ~ Carlisle, Pennsylvania • 17013-0249
June 30, 2005
John S Dorothy Fang
a&.! Eastern Enterprises
1219 Redwood Hibs Circle
Carlisle. PA 17013
Dear Sohn & Dorothy:
This notice is to serve as a Letter of UnderstGwaing by and between Giant Food Stores, LLC.
(Giant) and D&J Eastern Enterprises that your License Agreement to Operate a Chinese Kitchen
within Giant Store # 23, located at 700 Nutt Road, Phoenixville, PA expired on January 18, 2005.
8 is Giant's intention to peraut you to continue operating under the terms and conditions of your
original License Agreement referenced shave on a month to month basis. This month to month
operation will continue until both parties agree to execute a new License Agtacment or a 30 day
Notification to Quit is provided in writing by either of the mentioned parties to the address listed
in the Agreement.
Sincerely,
cConnell
Franchise Development Manager
Received and agreed to this `day of , 2005 by;
Name:
Signature:
Title:
~ ~ ~rA tJpera~ of ' Lu
GIANT Foos stores
MARTIN`S Foos Markets do
An ntwld uSA cwnpany TOPS Markets
EXHIBIT
«I~~
•
Food St~ftS, LLC
P.O. Box 249 • 1149 Harrisburg Pike • Carlisle, Pennsylvania • 17013-0249
June 30, 2005
John & Dorothy Fang
D8J Eastem Enterprises
1219 Redwood Hilts Cycle
Carlisle, PA 170'! 3
Dear John & Dorothy:
'.this notice is to serve as a Letter of Understanding by and between Giant Food Stores, LLC.
(Giant) and D&J Eastern Enterprises that your License Agreement to Operate a Chinese Kitchen
within Giant Store #111, located at 2222-2250 E. College Ave., State College, PA expired on
November 20, 2003. It is Giant's intention to permit you to continue operating under the terms
and conditions of your original License Agreement referenced above on a month to month basis.
This month to month operation will continue until both parties agree to execute a new License
Agreement or a 30 day Notification to Quit is provided in whiting by either of the mentioned
parties to the address listed in the Agreement.
Sincerely,
nnell
Franchise Development Manager
Received and agreed to this ____ day of , 2005 by:
ilatrzc::
Signature:
Title:
~ GIANT Food Stores, LLC
Operators of
GIANT Food Stores
MARTIIV'S Food Markets &
An Ahold USA Company TOPS Markets
EXHIBIT
« J~~
THE LAW OFFICES OF
JOSEPH D. BUCKLEY
1237 HOLLY PIKE
CARLISLE, PA 17013
TELEPHONE (717) 249-2448
July 25, 2005
Sean McConnell
Franchise Development Manager
Giant Food Stores, LLC
P.O. Box 249
1149 Harrisburg, Pike
Carlisle, PA 17013-0249
Re: D&J Eastern Enterprises, Inc.
Dear Sean:
FAX (717) 249-4103
As you may or may not know, I represent D&J Eastern Enterprises, Inc. and have
had many discussions with your predecessors. Please contact my office regarding recent
letters sent having to do with various License Agreements. I would like to set up a
meeting as my records and the terms of the agreement in our files seem to differ from
those in your files.
Please contact me so that we can discuss these matters. Thank you very much,
until I heaz from you.
Very sincerely yours,
JDB:cIb
~~~
Joseph D. Buckley, Esquire
~'
cc: Dorothy Fang, President
EXHIBIT
«K~~
AWN
N{cNe~es 1~II~Ilace ~ l~urrick
~~ ~~
November 7, 2007
VIA E-MAIL AND FEDERAL EXPRESS
RHONDA M.VU~AVER
DIRECT DWI: (717) 237-5434
E-MAIL ADDRESS: RMWEAVER~MWN.COM
Joseph D. Buckley, Esq. Dorothy Fang, President
1237 Holly Pike D&J Eastern Enterprises, Inc.
Carlisle, PA 17013 1219 Redwood Hills Circle
Carlisle, PA 17013
RE: Giant Food Stores, LLC/Dorothy's Kitchen Operations
Our File No. 01332-0263
Dear Joe and Dorothy:
I am writing to follow up after our October 17, 2007 letter to both of you in which
Giant again tried to adjust the proposed closure schedule to accommodate issues raised by
D&J Eastem Enterprises, Inc. Based on my recent conversation with Joe Buckley, it is my
understanding that D&J rejected Giant's latest closure schedule set forth in the October 17,
2007 letter and objects to Giant keeping any portion of the security deposits regardless of
the expenses incurred by Giant to have the licensed premises restored to the condition D&J
is required to deliver the licensed premises pursuant to the applicable agreements.
As you know, Giant has attempted to reach a mutually acceptable closure schedule
with D8~J since July of 2007. Des 'te these efforts our et to adhere to any
closure schedule, includ' .For this reason, we are informing hat
pursuan o our my 27, 2007 written notice and several subsequent written notices, Giant is
exercising its right to terminate the applicable license agreements. As we have explained
repeatedly, each license agreement allowe~or on one (1) renewal erm and, with fhe ,
exception of the agreemen s or or`~ es 78 and 282 th renewal term in each agreement
~s a fired. After expiration of a renewal terms and in accordance with the prior written
notices provided to D&J by Giant, the license agreement terms became month to month
tenancies, terminable upon thirty (30) days notice. Because Giant informed you on July 27,
2007 it was exercising its right to terminate the month to month tenancies, it has provided
D8~J well in excess of thirty (30) days notice.
100 PINE STREET • PO 80X 1166 • HARRISBURG, PA 17108 • TEL: 717.232.8000 • FAX: 717.237.5300 • WWW.MWN.COM
COLUMBUS, OH ~ STATE COLLEGE, PA ^ LANCASTER, PA • HAZLETON, PA • WASHINGTON, DC
Joseph D. Buckley, Esq.
Dorothy Fang, President
November 7, 2007
Page 2
The closure schedule that Giant will adhere to is as follows:
Store Closure Date
310 11 /12/2007
112 11 /13/2007
267 11 /14/2007
097 11 /15/2007
111 11 /16/2007
308 11 /16/2007
271 11 /19/2007
078 11 /26/2007
289 12/09/2007
023 12/23/2007
005 01 /03/2008
253 01 /06/2008
088 02/03/2008
252 02/17/2008
282 07/22/2008
On the closure date listed above for each store, Giant will ask D&J's employees to
leave the licensed premises, will disable or remove the cash registers serving the licensed
premises and will set aside any of D8J's equipment and food product not removed by D~J
as of the closure date. D8~J may make an appointment with Sean McConnell of Giant to
gain access to the applicable licensed premises within the two (2) days following the closure
date so that D&J may clean the licensed premises pursuant to the temps of the license
agreement and remove any of its remaining equipment, food product, including perishable
food product, and other personal property. Any perishable food product not removed within
two (2) days after the closure date, will be disposed of by Giant.
D8~J may make an appointment with Sean McConnell within thirty (30) days after the
closure date to obtain any of its equipment, nonperishable food products or other personal
property not removed from the applicable Store prior to the closure date. If D&J does not
make arrangements to pick up the personal property, it will be disposed of by Giant.
If the licenses premises and Giant's equipment is not surrendered in the condition
required in accordance with the license agreements, Giant will use the security deposits
being held by it to pay for the cost of restoring the licensed premises to the condition
required by the license agreements. Any portion of the security deposits not off-set against
amounts incurred by Giant in restaring the licensed premises will be returned to Di~J.
Joseph D. Buckley, Esq.
Dorothy Fang, President
November 7, 2007
Page 3
We remain hopeful that this closure process will be carried out in an orderly and
professional manner.
Sincerely,
McNEES WALLACE & NURICK LLC
~l0'Itl>(Q
By
Rhonda M. Weaver
c: Laura Williams, Vice President and General Counsel (via a-main
~J"eff Martin, Executive Vice President, Sales and Merchandising (via a main
Bill DeBrauwere, Vice President, Deli and Bakery Merchandising (via a-main
..-&ean McConnell, Manager of Franchise Development (via a-main
Sheri-su Breski, Manager of Legal Services 8~ Licensing (via a-main
Sam Fang of D&J Eastern Enterprises, Inc. (via a-main
EXHIBIT
«L~~
Page 1 of 3
Subj: Re: Giant Food Stones/Dorothy's Kitchen
;Date: 11/9/2007 10:37:11 PM Eastern Standard Time
From: JOEBLAW
'To: RWeaverCdtmwn.com
CC: dfang001 a comcast.net, sfang001werizon.ne+
Dear Rhonda,
I never stated that you had violated any Cannon of Ethics, l was gently attempting to
inform you that I did not desire you to send any further communications directly to my client
from that date forward. Your letter was not an official notice as a termination can only be
effected by the terms of the agreement or by operation of the law. (cites omitted) A notice
claiming a termination of a contract without specific authority set forth in the agreement is a
nullity. (cites omitted) My client and this office do not believe any of your so-called notice have
any legal effect.
It is apparent that your clients have no desire to negotiate an amicable resolution, thus we
will leave it to the court and it may be best to have a court determine the terms of the parties
agreement as your client continues to disregard the clear and unambiguous language of the
agreements either Giant officials or your office prepared. Again when your client properly
terminates any one agreement in accordance with the terms of that individual agreement, my
client will as legally required, in an orderly, businesslike fashion close its operation.
Your client cannot whimsically designate each agreement's termination date. I have
reviewed the agreements, their individual dates and calculated the proper dates of termination.
Apparently you and your client have not. Each agreement gives my client an option to renew
for two years and if the option is not exercised by a proper notice the agreement is
automatically renewed for an additional three (3) year term. Your client only has a thirty (30)
day notice of termination right in the event Giant sells, leases, subleases, assigns or otherwise
transfers its interest in the store to an entity other than Giant." (Paragraph 22 (c)). Nowhere in
the agreement does it state that if Giant attempts to change the terms of this agreement and all
other agreements so as to give Giant a greater portion of my client's profits, and the other
party does not agree may Giant terminate all agreements. But this is that which your client is
attempting.
We attempted to negotiate a "Master Agreement" which turned into a bait and switch on
your client's part. For two months we negotiated in good faith even though many trust issues
had arisen between certain Giant employees, issues which will be more fully developed and
set forth in any future litigation. Your office and my office were satisfied with the language for a
new universal agreement except that the attachments and exhibits to the agreements had
always been mysteriously left blank. My client and I had assumed that the attachments would
remain identical to the former exhibits and attachments. A few weeks before we were posed to
execute the new documents the first shoe dropped. One Exhibit was forwarded to us which
would require my client to expend an additional $100,000.00 per location for new equipment.
After discussions we came to terms with how to handle and adjust this issue. A few days
before the signing, the other shoe dropped, Giant decided to finally inform my clients their fees
would be increased by a deal killing 25%. This was the straw that broke my clients back. They
decided they could never again trust Giant.
My client agreed to not renew any agreements and if your client would agree, they would
Tuesday, November 13, 2007 America Online: JOEBLAW
Page 2 of 3
begin a systematic closure. Again every time a schedule was proposed, Giant not only would
not agree, but ask for additiona{ concessions on which sites would close when. Your client
attempted to dictate an agreement and each time, 1 advised you we would not agree.
Your office advises my office and my client certain agreements are terminated, yet we do
not agree they are and I have repeatedly disagreed with your self proclaimed rights. Giant's
attempts to close any of my client operations directly violates its agreement. Again if you desire
a court determination, please file a court action. I understand you may claim the agreement is
not a lease or a sublease, but a license agreement; however, similar agreements have been
held as a lease agreements. I am notifying you that we disagree with your right to terminate
the Carlisle store and my clients will take all necessary lawful steps to protect their name. their
good will, their livelihood, their employees and their property at the site. If your client desires
the Dillsburg site to be closed my client will agree to close that site, but in doing so does so as
a mutual agreement and without prejudice to any of its other sites and agreements.
Your letter claims that my clients have not followed their proposed schedule of closure.
That is because it was a proposed schedule which your client rejected. Also your client has
held money security deposits for the sites which were closed by mutual agreement. Your
former letters and conversation has intimated that the costs associated with the closure on the
part of Giant exceeded the security deposit at each location, yet after repeated requests
nothing has ever been produced to evidence the same.
Although I repeated requested that until this matter could be resolved either through
discussions or a court determination, your clients and their employees and my clients and their
employees continue to work for the good of both entities until the matter had been resolved.
My client has faithfully abided by this sound philosophy; however, apparently your client has
begun spreading rumors down through its store personnel that Giant has given my client the
boot. I am a little shocked when I have reports that lowly clerks at individual stores are
questioning my client about store closures and terminations and also questioning my client's
employees. This has led to unnecessary issues. Such again typifies the conduct of Giant
employee and management which had been the basis of my client's earlier complaints to Giant
during the past few years.
1 look forward to the open forum of the Court of Common Pleas. Monday is a court holiday
in Cumberland County (Veteran's Day Observance) and therefore, I doubt if you can obtain an
order from the Court to have my clients removed from any location without a hearing. My client
will continue its operations unless and until we receive an order to cease operations by a court
of proper jurisdiction. I will make myself available for any hearing between now and next
Friday. The following week I will be out of the state for the entire week. If your client desires a
court determination rather than a negotiation, please inform the Court that as to my office's
position and please present a copy of this letter as my client vehemently opposes your current
unilateral position.
Sincerely,
~,~~
Joseph D. Buckley, Esquire
Tuesday, November 13, 2007 America Online: JOEBLAW
Page 3 of 3
Attorney for D&J Eastern Enterprises, Inc.
1237 Holly Pike
Carlisle, PA 17013-4435
717-249-2448
JOeBLaw@aol.com
See what's new at http://www.aol.com
Tuesday, November 13, 2007 America Online: JOEBLAW
EXHIBIT
«M~~
Page 1 of 3
;Subj: RE: Giant Food Stores/Dorothy's Kitchen ~~--- --~~~~-__.--~
;Date: 11/12/2007 3:07:59 PM Eastern Standard Time j
From: RWeaver~mwn.com
To: JOEBLAW~aol.com
i
CC: RWeaver@mwn.com, HGemmillt'cDmwn.com, /aura.williams.r(.~aholdusa.com,
bdebrauwere~aholdusa.com, jeffmartinCcDaholdusa.com, sean.mcconnell@aholdusa.com
Sent from the lntemef Details
Joe:
We disagree with your legal and factual analysis set forth below. Giant will proceed with the closure schedule set
forth in our November 7, 2007 letter.
Rhonda M. Weaver
McNees Wallace 8~ Nurick LLC
Direct Dial: (717) 237-5434
rmweaver at~mwn.com
From: JOEBLAW@aol.oom [mailto:JOEBLAW@aol.com]
Sent: Friday, November 09, 2007 10:37 PM
To: Weaver, Rhonda
Cc: dfang001@comcast.net; sfang001@verizon.net
Subject: Re: Giant Food Stores/Dorothy's Kitchen
Dear Rhonda,
I never stated that you had violated any Cannon of Ethics, I was gently attempting to
inform you that I did not desire you to send any further communications directly to my client
from that date forward. Your letter was not an official notice as a termination can only be
effected by the terms of the agreement or by operation of the law. (cites omitted) A notice
claiming a termination of a contract without specific authority set forth in the agreement is a
nullity. (cites omitted) nny client and this office do not believe any of your so-called notice have
any legal effect.
it is apparent that your clients have no desire to negotiate an amicable resolution, thus we
will leave it to the court and it may be best to have a court determine the terms of the parties
agreement as your client continues to disregard the clear and unambiguous language of the
agreements either Giant officials or your office prepared. Again when your client properly
terminates any one agreement in accordance with the terms of that individual agreement, my
client will as legally required, in an orderly, businesslike fashion close its operation.
Your client cannot whimsically designa#e each agreement's termination date. I have
reviewed the agreements, their individual dates and calculated the proper dates of termination.
Apparently you and your client have not. Each agreement gives my client an option to renew
for two years and if the option is not exercised by a proper notice the agreement is
automatically renewed for an additional three (3) year term. Your client only has a thirty (30)
day notice of termination right in the event Giant sells, leases, subleases, assigns or otherwise
transfers its interest in the store to an entity other than Giant." (Paragraph 22 (c)). Nowhere in
Monday, November 12, 2007 America Online: JOEBLAW
Page 2 of 3
the agreement does it state that if Giant attempts to change the terms of this agreement and all
other agreements so as to give Giant a greater portion of my client's profits, and the other
party does not agree may Giant terminate all agreements. But this is that which your client is
attempting.
We attempted to negotiate a "Master Agreement" which turned into a bait and switch on
your client's part. For two months we negotiated in good faith even though many trust issues
had arisen between certain Giant employees, issues which will be more fully developed and
set forth in any future litigation. Your office and my office were satisfied with the language for a
new universal agreement except that the attachments and exhibits to the agreements had
always been mysteriously left blank. My client and I had assumed that the attachments would
remain identical to the former exhibits and attachments. A few weeks before we were posed to
execute the new documents the first shoe dropped. One Exhibit was forwarded to us which
would require my client to expend an additional $100,000.00 per location for new equipment.
After discussions we came to terms with how to handle and adjust this issue. A few days
before the signing, the other shoe dropped, Giant decided to finally inform my clients their fees
would be increased by a deal killing 25%. This was the straw that broke my clients back. They
decided they could never again trust Giant.
My client agreed to not renew any agreements and if your client would agree, they would
begin a systematic closure. Again every time a schedule was proposed, Giant not only would
not agree, but ask for additional concessions on which sites would close when. Your client
attempted to dictate an agreement and each time, I advised you we would not agree.
Your office advises my office and my client certain agreements are terminated, yet we do
not agree they are and I have repeatedly disagreed with your self proclaimed rights. Giant's
attempts to close any of my client operations directly violates its agreement. Again if you desire
a court determination, please file a court action. I understand you may claim the agreement is
not a lease or a sublease, but a license agreement; however, similar agreements have been
held as a lease agreements. I am notifying you that we disagree with your right to terminate
the Carlisle store and my clients will take all necessary lawful steps to protect their name. their
good will, their livelihood, their employees and their property at the site. If your client desires
the Dillsburg site to be closed my client will agree to close that site, but in doing so does so as
a mutual agreement and without prejudice to any of its other sites and agreements.
Your letter claims that my clients have not followed their proposed schedule of closure.
That is because it was a proposed schedule which your client rejected. Also your client has
held money security deposits for the sites which were closed by mutual agreement. Your
former letters and conversation has intimated that the costs associated with the closure on the
part of Giant exceeded the security deposit at each location, yet after repeated requests
nothing has ever been produced to evidence the same.
Although I repeated requested that until this matter could be resolved either through
discussions or a court determination, your clients and their employees and my clients and their
employees continue to work for the good of both entities until the matter had been resolved.
My client has faithfully abided by this sound philosophy; however, apparently your client has
begun spreading rumors down through its store personnel that Giant has given my client the
boot. I am a little shocked when I have reports that lowly clerks at individual stores are
questioning my client about store closures and terminations and also questioning my client's
employees. This has led to unnecessary issues. Such again typifies the conduct of Giant
employee and management which had been the basis of my client's earlier complaints to Giant
Monday, November 12, 2007 America Online: JOEBLAW
Page 3 of 3
during the past few years.
I look forward to the open forum of the Court of Common Pleas. Monday is a court holiday
in Cumberland County (Veteran's Day Observance) and therefore, I doubt if you can obtain an
order from the Court to have my clients removed from any location without a hearing. My client
will continue its operations unless and until we receive an order to cease operations by a court
of proper jurisdiction. I will make myself available for any hearing between now and next
Friday. The following week I will be out of the state for the entire week. If your client desires a
court determination rather than a negotiation, please inform the Court that as to my office's
position and please present a copy of this letter as my client vehemently opposes your current
unilateral position.
Sincerely,
lsl ~i6~G Y11. 2Y~(y
Joseph D. Buckley, Esquire
Attorney for D&J Eastern Enterprises, Inc.
1237 Holly Pike
Carlisle, PA 17013-4435
717-249-2448
JOeBLaw@aol.com
...**..t,-*~.*.,,..*,~....*,..~,......*.,
See what's new at http://www.aol.com
Monday, November 12, 2007 America Online: JOEBLAW
~~
0
R
r
'~s.
b
d
C
~~
~~
G"r , j..
~ i`;I
}~
C.:°
t aJ
r.
rJ
O : J ~r~s~Ex~ E,ti-rE'/1 ~rthCs , ~N c , .
r
Grfh/"T ~oo~ 5 Two ~,c-3~ =~-n'c' ~ f
d e~~,,~Qu,~- f
COMMONWEALTH OF PENNSYLVANIA
ss
COUNTY OF PERRY .
AFFIDAVIT OF SERVICE
I, JOSEPH D. BUCKLEY, Esquire, 1237 Holiy Pike, Carlisle, PA 17013, being
duly sworn, hereby swear or affirm that on the 13th day of November, 2007,
at : ~.~ p~M duly served an original copy of the attached Proposed Order, Notice of
Application for preliminary or Special Relief, Important Notice and Complaint for
Special Relief -Injunction and Preliminary Injunction in the matter of the D & J Eastern
Enterprises, Inc. v. Giant Food Stores, Inc., Court of Common Pleas of Cumberland
County, Pennsylvania, , at Docket No.07- Cy 8~~ ,upon Giant Food Stores, Inc.
by presenting the said Proposed Order, Notice of Application for preliminary or Special
Relief, Important Notice and Complaint for Special Relief -Injunction and Preliminary
Injunction to ~~DL,i~rr~ /AEI GCS o ~ ~ Lit the office of said Giant Food
Stores, Inc. 1149 Harrisburg Pike, Carlisle, PA 17013.
Sworn to and Subscribed before me this
~~
_~~~ day of c9 ~~~,k.r', 200.
NOTARIAL'SEAL- ~ - -rn
TRISHA A. UESS, Notary Public
8orouQh of Carlisle, Cumb. County, PA
My Comm+ssion ExpKes May 20, 2010
c
~5
~ a
a
~"``~
~~~ ~
~
~
,.~. ~.~' ~r
..
~ 1~ ,,,,mod
(~ • rT
W
r
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
D & J EASTERN ENTERPRISES, INC.,
Plaintiff
v.
GIANT FOOD STORES, INC.,
Defendant
NO. 07-6835 CIVIL TERM
CIVIL ACTION
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance of Helen L. Gemmill and Kimberly M. Colonna, of
the law firm of McNees Wallace & Nurick LLC, as counsel for Defendant Giant Food
Stores, LLC, incorrectly identified as Giant Food Stores, Inc., in the above-captioned
matter.
Respectfully submitted,
MCNEES WALLACE BL. NURICK LLC
By: L
Helen L. Gemmill
Pa. I.D. No. 60661
Kimberly M. Colonna
Pa. I.D. No. 80362
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108-1166
(717) 232-8000
Counsel for Defendant Giant Food
Stores, LLC
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the date specified below, a true and
correct copy of the attached Praecipe for Entry of Appearance was served by hand
delivering same on the following individual:
Joseph D. Buckley, Esq.
1237 Holly Pike
Carlisle, PA 17013
Helen L. Gemmill
Dated: November 13, 2007
na
"t~c~~ ~e
~' _...
~~ ~"
t~~
rn
t*.~
ts~
-~