SUPPLY AGREEMENT BY AND BETWEEN THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. AND C&S WHOLESALE GROCERS, INC. *
Exhibit
10.39
BY
AND BETWEEN
THE
GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.
AND
C&S
WHOLESALE GROCERS, INC. *
THIS
AGREEMENT, made as of the 27th day of June, 2005 (this “Agreement”), is by and
between The Great Atlantic & Pacific Tea Company, Inc. and its subsidiaries
("A&P"), a Maryland corporation with its principal office at 0 Xxxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, and C&S Wholesale Grocers, Inc.
("C&S"), a Vermont corporation with its principal office at 0 Xxxxxxxxx
Xxxxx,
Xxxxx, Xxx Xxxxxxxxx 00000.
Whereas, A&P
desires to
exit the distribution business;
Whereas,
A&P sells groceries and other merchandise through its retail stores under
the banners A&P, The Food Emporium, Xxxxxxxx'x, Foodmart, Food Basics,
Sav-A-Center, and Super Fresh;
Whereas, C&S
is a wholesale supplier of groceries, perishables and other merchandise sold
in
supermarkets;
Whereas,
C&S currently supplies A&P product in a number of item categories
(including grocery, frozen, dairy and deli) and the parties desire to continue
and expand their relationship by C&S increasing the volume of merchandise
C&S supplies to A&P; and
Whereas, the
current supply relationship is covered in the Master Supply Agreement dated
October 27, 2003 (the “Existing Supply Agreement”) and the parties deem it in
their respective best interest to enter into this Agreement, which covers volume
that is separate and apart from the volume covered by the Existing Supply
Agreement.
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants and
agreements hereinafter set forth, A&P and C&S, intending to be legally
bound, hereby agree as follows:
Section
1. Defined Terms. The
following capitalized terms shall have the meanings set forth
below:
1.1
Term. “Term”
means, unless earlier terminated in accordance with the terms of this Agreement,
the period from June 27, 2005 until June 27, *.
1.2 Contract
Year. “Contract Year” means the
twelve-month period commencing on October 9, 2005 and on the anniversary
of October 9 thereafter. Each Contract Year consists of four 13-week
“Contract Quarters ”. Each Contract Year shall begin on October 9 and
continue through and include the following October 8. The parties
will in good faith attempt to make the beginning and ending of
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
each
Contract Quarter coincide with the beginning and ending of A&P’s fiscal
accounting periods.
1.3 Commencement
Date. “Commencement Date” means July 10, 2005.
1.4 Facilities. “Facilities”
means collectively the A&P distribution facilities in Islip, New York,
Baltimore, Maryland, and Dunmore, Pennsylvania.
1.5 A&P
Store Locations. “A&P Store Locations” means the A&P
stores set forth on Schedule 1.5. Any new or replacement stores of
A&P or any of its subsidiaries or affiliates in the geographic region of any
of the A&P Store Locations shall also be supplied by C&S under this
Agreement, provided that if A&P purchases a group of 10 or more stores,
then, regardless of whether or not C&S has a supply agreement with the
former owner of the purchased stores, C&S and A&P will meet and in good
faith adjust the terms of this Agreement to the extent of any benefits or costs
resulting from such additional volume and the existing agreement, if
any.
1.6
Merchandise. “Merchandise”
means A&P’s entire requirements of grocery,
bakery, GM/HBC, candy, spices, meat, deli, seafood, produce, dairy, floral,
and
certain other merchandise in the product categories carried by C&S or
A&P, provided, however, Merchandise does not include products
that, as of the Effective Date are not supplied from an A&P or C&S
warehouse (i.e., are supplied by direct store delivery (“DSD”)
vendors), provided, further, if C&S elects to warehouse a DSD item, then
A&P will support C&S and will purchase such item from C&S if, and
for so long as, A&P in its discretion determines it is cost-competitive to
do so taking into account the costs associated with any services provided by
the
vendor of such product. If A&P decides to have an item of
C&S supplied Merchandise become a DSD item, then the parties shall meet and
in good faith agree on an appropriate upcharge adjustment if appropriate to
keep
C&S whole while permitting A&P to receive the net benefits of such
change. A&P will in good faith negotiate with C&S with
respect to C&S taking over the supply of tobacco, ice, store supplies and
front-end candy.
1.7
CPI.
“CPI” means the Consumer Price Index for all urban consumers (CPI-U)
for New York-Northern New Jersey-Long Island for food and beverages or similar
appropriate index chosen by the parties if the CPI is no longer
available.
1.8 ECI. “ECI”
means the U.S. Department of Labor Employment Cost Index -- Wholesale Trade
Excluding Sales Occupations (Series ID ECU11402I) or similar appropriate index
chosen by the parties if the ECI is no longer available.
1.9 Shipped
Cases/Pieces. C&S will continue
to
count shipped cases/pieces in a manner that is consistent with A&P’s
historical practices.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-2-
Section
2. Agreement to Purchase and
Implementation.
2.1 Agreement. During
the Term, A&P agrees to purchase from C&S, and C&S agrees to sell to
A&P, A&P's entire requirements of Merchandise for all A&P Store
Locations. From the date hereof (the “Effective Date”) until the respective
Procurement Conversion Date (the “Transition Period”), the parties shall use
their respective best efforts to coordinate the transition of A&P’s
distribution business to C&S on the respective Procurement Conversion
Date.
2.2 Schedule. C&S
will phase in the supply and procurement of Merchandise from July 10, 2005
through October 16, 2005, and all A&P Stores will be accepting delivery of
their entire requirements of Merchandise from C&S by October 16,
2005. The detailed implementation schedule is attached hereto as
Schedule 2.1. The implementation schedule may, by mutual agreement of
the parties, be adjusted.
Section
3. Price, Upcharges and
Fees.
3.1 Base
Price. A&P shall pay C&S the Base Price for each product
as set forth below, plus the applicable upcharges and fees.
(a) General. Except
as stated below, the Base Price shall be the manufacturer’s published list price
(as delivered) in the best bracket in which A&P or C&S normally
purchases such item for the applicable facility (including all inbound
transportation charges), less any published retail off-invoice
allowances.
(b) Reserve
Price. The "Reserve Price" shall be the price established at the
time product is purchased into the Reserve.
(c) Fresh
Deli (non-packaged), Produce, Floral, Fresh Meat, and Fresh
Seafood. The Base Price for items in the Fresh Deli
(non-packaged), Produce, Floral, Fresh Meat, and Fresh Seafood will be quoted
*
by C&S based upon market conditions and availability. The Base
Price shall be reviewed with and accepted * by A&P. Produce and
meat items covered by an A&P negotiated contract or any renewal thereof
shall be sold at the A&P contracted price. If A&P can
purchase an item covered by this Section 3.1(c) at a price lower than C&S’s
quote, then C&S will match such quote or purchase the item from the A&P
specified vendor. Additional perishable procurement procedures are
set forth on Schedule 3.1(c).
(d)
Private
Label. A&P shall have the right to negotiate directly with
vendors
on the delivered price of A&P private label items to be shipped by C&S
to A&P Stores. The private label items covered by this Section
3.1(d) will have a Base Price equal to the amount agreed to between A&P and
the vendor, including all inbound and accessorial charges payable by C&S,
provided that the price negotiated by A&P represents a market
price. C&S and A&P will explore a program for cooperative
buying on private label brands.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-3-
(e)
Price
Bulletin. C&S will publish electronically the Base Price * in
a bulletin
and price file prepared for A&P.
(f) Logistics
Programs. The Base Price shall include all current logistics,
plant direct and other similar logistics programs that A&P is involved with
as of the Effective Date. (Such programs are set forth on Schedule
3.1(f)). If a vendor initiates a new logistics program similar to those on
Schedule 3.1(f), then C&S will reflect * of the net savings of such program
in the Base Price after subtracting any costs of C&S related to compliance
with such program, provided, however, if a vendor converts an A&P trade
funding program into a logistics initiative, then A&P will be entitled to
the full amount of such initiative less any costs related to C&S’s
compliance with such initiative.
(g) Transferred
Inventory. The Base Price for each item of Transferred Inventory
(as defined in the Asset Purchase Agreement) will be the price paid by C&S
to A&P for such item.
3.2 Upcharges.
General
Background. The per case cost to A&P under this Agreement
will be * per case following June 1, 2006 premised on the provisions set forth
in Sections 3.2(b), (c) and (d). While this per case cost is
implemented in several components as noted below, the intent is that the
upcharge of * per case will be the baseline cost and C&S will provide *
reconciliation for variances or changes. The fee was reached based on
A&P’s present overall distribution costs of approximately * minus over * in
annual savings, which savings do not include any A&P overhead
savings. Following such savings, C&S annual expenses charged to
A&P would be approximately * initially following each Procurement Conversion
Date and * following October 1, 2006. For example, if A&P’s
annual case volume hereunder is * then the upcharge would be calculated as
follows:
|
A&P’s
blended warehousing and transportation:
|
*
|
|
A&P
Initial Savings
|
*
|
|
Final
Additional Initial Savings
|
*
|
|
Diverting
Buyout (Section 3.2(c)(iv))
|
*
|
|
Facility
Credit
|
*
|
|
Stop
Fee Savings (Section 3.2(b)(ii))
|
*
|
|
Coupon
Conversion Credit (Section 3.2(c)(v))
|
*
|
|
Additional
Savings (Section 3.2(c)(vi))
|
*
|
|
Total:
|
*
|
(i)
Warehouse Upcharge. A&P shall pay to C&S the per
case Upcharges set forth on Schedule 3.2(b)(i) (the “Upcharge”) on
all Merchandise delivered to A&P following a Procurement Conversion Date as
set forth below, except GM/HBC Merchandise and Merchandise supplied to the
New
Orleans division (“New Orleans Merchandise”). In addition to the
Upcharge, A&P will pay to C&S a surcharge of * per case
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-4-
on
all
private label cases in excess of * of the Merchandise supplied hereunder in
any
Contract Year.
The
Procurement Conversion Date for Merchandise presently supplied from the below
facilities shall be:
|
July
10, 2005
|
Edison
and Freshtown
|
|
August
28, 2005
|
Baltimore
|
|
September
18, 2005
|
Central
Islip
|
|
October
2, 2005
|
New
Orleans
|
|
October
16, 2005
|
Dunmore
|
Prior
to
a Procurement Conversion Date, A&P will reimburse C&S for the total
actual cost of operating the Facilities and the New Orleans Facility and
delivering Merchandise consistent with A&P’s past practices, including
without limitation, labor and benefit costs of the hired Affected Employees
(as
defined in the Asset Purchase Agreement), all as calculated pursuant to Schedule
3.2(a)(i). However, the costs attributable to conversion to C&S
systems, including costs related to training for EXE, shall not be reimbursed
by
A&P but will be borne by C&S. Within * following a
Procurement Conversion Date the parties shall reconcile the actual costs charged
for a facility prior to the Procurement Conversion Date.
(ii)
Stop Fee. (A) Facility
Deliveries. Prior to October 2, 2005, C&S will charge A&P
for deliveries from the Facilities the amounts set forth on Schedule 3.2(b)(i),
provided that if A&P opens or closes a store(s), then the transportation
expense to deliver or not to deliver to these stores will be added to or
subtracted from such amount. The parties shall work together in good
faith to reduce the transportation costs from the Facilities and C&S
Facilities and, based on * cases supplied per Contract Year, in no event will
such savings be less than * in the first Contract Year. Prior to
August 1, 2005, C&S will provide A&P with a list of savings programs
totaling at least *. On October 2, 2005, the parties will (i) take
the projected annual transportation costs from the Facilities as they exist
as
of October 2 , 2005, minus (ii) the projected savings from the implementation
of
the savings programs implemented by C&S, (iii) divide the projected annual
transportation costs by the projected number of total annual stops as of October
2, 2005 and (iv) the result of such calculation shall be the Stop Fee for
Facilities following October 2, 2005. The method of calculating the
Stop Fee is more fully set forth on Schedule 3.2(b)(ii). It is agreed
that A&P has the obligation to implement the savings programs needed to
achieve the * savings except to the extent that to do so would in, A&P’s
reasonable judgment, be materially detrimental to its business.
(B)
C&S Facility Deliveries. For Merchandise that is not
delivered from a Facility (e.g. Harrisburg, Windsor Locks, North Xxxxxxxx and
PDC) (collectively, C&S Facilities”), prior to October 2, 2005, C&S will
charge A&P for deliveries from C&S Facilities the amounts set forth on
Schedule 3.2(b)(i), provided that if A&P opens or closes a store(s), then
the transportation expense to deliver or not to deliver to these stores will
be
added to or subtracted from the such amount. On October 2, 2005, the
parties
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-5-
will
calculate the Stop Fee for C&S Facilities as follows: (i) * minus (ii) the
projected amount of the annual savings resulting from the implementation of
a
savings program for a C&S Facility set forth on the list provided pursuant
to Section 3.1(b)(ii)(A) (which when combined with the savings under Section
3.2(b)(ii)(A) shall be no less than * ), (iii)
divide
the projected transportation costs by the number of total projected annual
stops
as of October 2, 2005 and (iv) the result of such calculation shall be the
Stop
Fee for C&S Facilities following October 2, 2005.
(iii)
Dunmore
Upcharge. (A) Following October 9, 2005, the
upcharge
for GM/HBC Merchandise is * per unit. The Dunmore upcharge reflects *
of savings from A&P’s present costs in Dunmore. Attached as
Schedule 3.2(b)(iii) is the calculation of the Dunmore Upcharge. In
addition, the agreed to imputed rent for the Dunmore Facility shall
be paid by A&P to C&S. The parties will establish the
standard credit policy and reserve for Dunmore within * of the Effective
Date. The parties will meet and discuss in good faith a volume
incentive for GM/HBC volume.
(B)
If for either the *, A&P’s purchases of GM/HBC Merchandise from C&S are
less than *, then A&P shall pay to C&S a GM/HBC Reduced Volume Surcharge
(the “Reduced Volume Surcharge”) equal to * for all * purchases for the
applicable * less than *. The GM/HBC Reduced Volume Surcharge
calculated as set forth in this Section 3.2(b)(iii)(B) for any * period shall
be
paid by A&P by the * after the end of any such
period. Notwithstanding the prior sentence, if A&P sells a
division, then (i) the GM/HBC Upcharge shall be * resulting from such sale,
(ii)
the Upcharge will be adjusted to reflect the fact that * associated with the
supply of GM/HBC merchandise, and (iii) the base for the GM/HBC Reduced Volume
Surcharge shall be *.
(iv) New
Orleans Upcharge. Following September 25, 2005, the
upcharge for the New Orleans division shall be * per case (the actual cost
of
the New Orleans operations). In addition, the agreed to imputed rent
for the owned New Orleans facility shall be paid by A&P to
C&S. The New Orleans division supply arrangements shall be in
accordance with this Agreement and Schedule 3.2(b)(iv).
(v)
Baltimore Imputed Rent. In addition to the Warehouse
Upcharge, the agreed to imputed rent for the owned Baltimore facility shall
be
paid by A&P to C&S.
(c) Warehouse
Adjustments.
(i)
Upcharges. The essence of this upcharge section is that
the Upcharge reflects A&P’s cost per case for the trailing * prior to
February 26, 2005 for all distribution related expenses with a savings of *
per
case. Schedule 3.2(c)(i) sets forth the information used to calculate
the Upcharge. Notwithstanding the parties’ best efforts regarding the
determination of the proper Upcharge and other fees, surcharges, and incentives
under Section 3 of this Agreement, within * of the end of the first Contract
Quarter and * Contract Year, the parties shall meet to review the projections
and data used to calculate the Upcharge and the other fees, surcharges, and
incentives covered under
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-6-
Section
3
of this Agreement and shall in good faith adjust, if necessary, the Upcharge
and
other fees, surcharges, and incentives under Section 3 of this Agreement based
on the accuracy of the data provided or data unavailable at the time of the
original calculations. It is the parties’ intent that A&P will
continue to employ the same business practices with respect to the Facilities
or
otherwise with respect to supplying the A&P Stores as it employed while it
was operating the Facilities (i.e., full pallet rounding and full pallet
ordering, mix of inner packs/xxxxxx/full cases) and the parties will maintain
the same methodology for converting xxxxxx to cases. If there is a
fundamental change following the Commencement Date in A&P’s sales mix,
service requirements or other substantive changes affecting the cost of
supplying the A&P Stores, then the parties agree to meet and in good faith
adjust the Upcharge.
(ii)
CPI. Commencing with the * and for each * thereafter, C&S
will * the Upcharge in Sections 3.2(b)(i) and (iii) (e.g. Warehouse and
Dunmore) and the Cross Dock fee set forth in Section 3.5 based on * from the
*
as follows: *. The Warehouse Upcharge used for this calculation shall
*, provided that the Warehouse Upcharge shall be adjusted to reflect *. To illustrate, assume
that
(i) the *, (ii) the CPI and the ECI for September *, (iii) the CPI for * and
(iv) the Warehouse Upcharge less the Central Islip and Baltimore Facility
occupancy expenses is *, then the Warehouse Upcharge for the * would be
*
To
further illustrate, assume that (i) the *, (ii) the CPI and the ECI for *,
(iii)
the CPI for * and (iv) the Warehouse Upcharge less the Central Islip and
Baltimore Facility occupancy expenses is *, then the Warehouse Upcharge for
the
* would be *
.
(iii)
Vendor Inbound Compliance. C&S will continue vendor
inbound compliance programs and charge vendors for noncompliance (i.e.,
noncompliance with routing guide instructions, late delivery, missed
appointments, broken pallets). If a fee is reduced or eliminated and
A&P has not provided the support set forth in the prior sentence, then the
upcharge will be increased to reflect such reduction or elimination, provided,
however, prior to any such increase the Presidents of A&P and C&S shall
meet to try and find another method for making up the decrease in vendor
compliance income in lieu of increasing the upcharge.
(iv)
*. The initial Warehouse Upcharge has been * to reflect A&P’s
agreement *. C&S and A&P agree that *. C&S may
*. To the extent that A&P requests that C&S * and C&S so
complies, then the parties shall in good faith determine * and adjust the
upcharge to compensate *. In addition, if A&P requests that
C&S * and C&S’s compliance with such request causes *, then the parties
shall in good faith determine the * and adjust the upcharge to compensate
*. The parties will from time to time mutually agree to the *.
(v)
Coupons. A&P will transfer its coupon processing to
C&S and the parties will follow the coupon processing program set forth on
Schedule 3.2(c)(v). Immediately following the commencement of C&S
processing A&P’s coupons, the Upcharge will be reduced by * per
case.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-7-
(vi)
Additional Savings. On June 1, 2006, the Upcharge shall be
reduced by * per case.
(d) Stop
Fee Adjustments. (i) Fuel Cost Adjustment. For
purposes of this Section 3.2(d)(i), the Base Cost of Fuel is as set forth on
Schedule 3.2(d)(i). The Base Cost of Fuel is calculated as set forth
on Schedule 3.2(d)(i). Within * of the end of each Contract Quarter,
C&S shall calculate the cost of fuel for such Contract Quarter (the
“Quarterly Fuel Cost”) in the same method as set forth on Schedule 3.2(d)(i) and
shall either xxxx A&P if the Quarterly Fuel Cost is more than the Base Cost
of Fuel or credit A&P if the Quarterly Fuel Cost is less than the Base Cost
of Fuel calculated as follows: (i) the percentage increase or decrease in the
Quarterly Cost of Fuel compared against the Base Cost of Fuel, multiplied by
*.
The Stop
Fee Fuel Component for Facilities and C&S Facilities shall be calculated as
part of the calculations done pursuant to Section 3.2(b)(ii). For
example, if (i) the Base Cost of Fuel is $2.00, *.
(ii)
Tolls and Road Taxes. Each Contract Quarter the Stop Fee for
both Facilities and C&S Facilities shall be adjusted to reflect
any increase or decrease in tolls and road taxes as compared to the prior
Contract Quarter.
(iii)
CPI/ECI. Commencing on the first day of the * and on the first
day of each * thereafter, C&S will increase or decrease the Stop Fee for
both Facilities and C&S Facilities by an amount equal to * from the first
day of *. The CPI Stop Fee Amount for Facilities and C&S
Facilities will be agreed to as part of the Stop Fee calculation under Section
3.2(b)(ii). The increase or decrease in the CPI shall be
*.
(iv)
Driver
Cost Increases. Commencing with the *, on
the *
following any increase in the labor and/or employee benefit costs with respect
to the drivers delivering Merchandise from a Facility, the Stop Fee for
Facilities will be adjusted to reflect * of the actual cost of any such
increases. If A&P can demonstrate that any such driver cost
increase is materially out of line with labor and employee benefits cost
increases for truck drivers in the trucking industry in the Northeastern United
States, then the parties will meet and in good faith determine whether * or
some
lower percentage is the fair and equitable percentage to use to adjust the
Stop
Fee. If there is a non-productivity related negotiated benefit that
offsets a labor or employee benefit cost increase, then such negotiated benefit
shall be factored into the determination of the cost increase used to adjust
the
Stop Fee. For example, if there is a wage increase, but a holiday is
eliminated, then the cost benefit of the elimination of such holiday will be
factored into the calculation of such wage increase. By way of
further example, if there is an employee benefit cost increase, but eligibility
requirements are changed, then the cost benefit of such eligibility requirements
will be factored into the calculation of the employee benefit cost
increase.
(v)
Stop
Fee Savings. Following October 2, 2005, A&P will receive
*
and C&S *
of any Stop Fee Savings for Facilities and C&S Facilities resulting from
A&P decreasing the number of stops.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-8-
(e) Notice/Backup. C&S
will provide A&P with back-up documentation of any increase under Section 3
(c) or (d) and written notice prior to the implementation of any such
change.
(f) *. If
the contemplated * does not occur, then C&S and A&P will meet and in
good faith mutually agree on terms and conditions for *.
3.3 *. C&S
will credit * to A&P any * purchased under this
Agreement. The initial * shall be no less than *. C&S will
provide at least * prior notice of any change in Vendor’s * terms.
3.4 Restocking
Fee. C&S will charge A&P a restocking fee of * for the
return of all cases ordered in error by A&P. This fee will not
apply to the return of any cases generated by C&S mispicks or other errors
or returns from a new store or a major remodel within * of the store’s grand
opening or reopening.
3.5 Cross-Dock. C&S
will charge A&P a cross dock fee of * per case for cross-dock
cases. If A&P commences cross-docking cases of a new DSD vendor
C&S will charge A&P * per pallet for any such cross-docked pallets,
provided that (i) the * fee is premised on there being an average of * cases
per
pallet and if there is not such average, then the parties shall in good faith
adjust the * fee, and (ii) the Stop Fee shall be adjusted to reflect the
increased transportation cost, if any, resulting from these additional
cross-dock cases. If A&P converts selected cases to
cross-dock, then C&S will charge A&P * per pallet for such cross-dock
cases. If the mix of existing cross-dock Merchandise changes or the
average cases per pallet changes, then parties will meet and good faith adjust
the relevant fees set forth above. With respect to cross-dock pallets
or totes that require breakdown, A&P and C&S will negotiate in good
faith to determine an appropriate fee. The handling fee will be
subject to adjustment for cases exceeding * cubic feet. Cross-dock
product is not slotted in C&S facilities and C&S is not required to hold
any cross-dock product more than * .
3.6 Cardboard
Xxxxx. For * per bale C&S will pick up A&P’s
cardboard xxxxx at A&P stores, transport them to a C&S Facility or
Facility and load them on a trailer to be provided by A&P or a party
designated by A&P. A&P shall promptly remove full trailer
loads of xxxxx from the applicable facility. Any costs incurred by
C&S with respect to proper disposal or other disposition of the baled
cardboard shall be the responsibility of A&P. A&P shall
clearly xxxx its xxxxx, e.g. with an A&P day glow sticker.
3.7 Volume
Incentive. If for either the *, A&P’s purchases from C&S
are more than * cases, then C&S shall pay to A&P a Volume Incentive (the
“Volume Incentive”) equal to * per case for all case purchases for the
applicable * in excess of * . The
Volume Incentive calculated as set forth in this Section 3.7 for any * period
shall be paid by C&S by the * following any such period.
3.8
Reduced
Volume and Lost Profits Surcharge.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-9-
(a) If
for
either the *, A&P’s purchases from C&S are less than * cases, then
A&P shall pay to C&S a Reduced Volume Surcharge (the “Reduced Volume
Surcharge”) equal to * per case for all case purchases for the applicable * less
than * .
(b) The
Reduced Volume Surcharge calculated as set forth in this Section 3.8 for any
*
period shall be paid by A&P by the * after the end of any such
period.
(c) As
for
all other purposes under this Agreement, volume under the Existing Supply
Agreement shall be excluded from the calculations under this Section 3.8 and
Section 3.7 (Volume Incentive). In addition, GM/HBC Merchandise, New
Orleans Merchandise and cross-dock Merchandise shall be excluded from the
calculations under this Section 3.8 and Section 3.7 (Volume
Incentive).
3.9 Seasonal
GM/HBC Storage. C&S will oversee the operation of seasonal
GM/HBC storage and A&P shall be responsible for the cost of seasonal GM/HBC
storage, including occupancy, transportation and warehousing, which costs
A&P shall reasonably approve in advance.
Section
4. Implementation
Committee.
4.1
Implementation Committee. The parties will form an
implementation committee to oversee the implementation of this
Agreement. The committee will establish the requisite information
flow. It also will work to (i) xxxxxx efficient and timely
communications and information sharing, (ii) to develop mutually beneficial
operating efficiencies and savings, (iii) ensure that the actions of one party
do not negatively impact the operations and/or profits of the other, (iv)
monitor, adjust and/or create new key performance indicators (“KPIs”) and (v)
identify items that could be added or subtracted for the parties’ mutual
benefit.
4.2 Committee
Priorities. Within the first six months following the date of
this Agreement, the committee will work to develop mutually beneficial policies
in the following areas: store order frequency; better programs with respect
to
packaging to reduce damages; pallet rounding; reduction in vendor lead times;
ordering efficiencies; receiving efficiencies (store and warehouse); combined
purchasing (cooperative purchasing opportunities in not for resale items);
service level/fill rate; new items speed to shelf; inventory management;
seasonal item management; manufacturer out of stock issues; ad underpulls and
overpulls (future promotions and past performance); new store openings and
remodels; and pallet exchange efficiencies.
Section
5. Additional Buying and Supply
Provisions.
5.1 Deal
Extensions. C&S will reflect all vendors' retail trade
allowances * after the vendors’ last order date, except for the short coded
items set forth on Schedule 5.1.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-10-
5.2 Slow
Movers. C&S is entitled to discontinue any A&P unique
items that move less than * , unless
A&P elects to pay a * cent per case surcharge on such items or allows
C&S to deliver such items * . On
or before the * , C&S shall
provide A&P with a report indicating all A&P unique items that averaged
less than * of movement. A&P shall have until the * to determine
whether C&S may discontinue such items or whether A&P elects to pay the
additional surcharge for such slow moving items.
5.3. New
Items. C&S will work with vendors to make new items available
for shipment to A&P at the earliest shipment date. If A&P
provides C&S at least * notice of any new item, C&S will ship such new
product within * of vendor’s first available ship date, subject to vendor
availability of the product. Strategic items, as reasonably
determined by A&P, shall be shipped on the vendor’s first available ship
date, subject to vendor product availability.
5.4
Expedite. If C&S causes the shortage of any time sensitive
items, such items will be expedited at no expense to A&P, provided that
A&P shall pay additional costs for any shortages due to its
error.
5.5
Standard Credit
Policy. (a) With respect to the Facilities,
the parties shall follow the standard credit policy set forth on Schedule
5.5(a), which is intended to mirror A&P’s current standard credit
practices. With respect to any other C&S facilities, the parties
shall follow the standard credit policy set forth on Schedule
5.5(b). The audit procedures to support the C&S facilities'
policy are also set forth on Schedule 5.5(b). With respect to
Facilities, C&S will, after taking into account credits that it has issued
to the stores pursuant to its warehouse audits and store called-in credits
and
all other reserve adjustments, pay to or xxxx A&P the net shortage or gain
in each warehouse, all as described on Schedule 5.5(c). A&P will
continue to receive current swell allowances for product shipped from a
Facility. C&S will receive all swell allowances on any vendor
that switches to a swell allowance and will pass on to A&P * of such
allowances received. C&S will receive all swell allowances for
Merchandise shipped from a C&S Facility and will pass on to A&P * of
such allowances received. If a vendor that switches to a swell
allowance is a successor to an A&P swell vendor, then the parties will meet
and in good faith agree on the proper allocation of the swell allowance from
the
successor vendor. C&S will primarily rely on the A&P Help Desk to issue
credits because A&P is being billed for or paying the net shortages or
gains. C&S shall maintain a level of security at the facilities
serving A&P sufficient to mutually satisfy the parties that the Merchandise
is being adequately protected, with the presumption that the relative level
of
security on the date hereof is sufficient for such purposes. C&S
shall provide A&P with a reconciliation report of net shortages and gains in
inventory within * of the end of each A&P accounting period.
(b)
Other Customers. Following the commencement of shipment
by
C&S
to customers other than A&P from the Facilities, the parties will follow the
standard credit policy attached as Schedule 5.5(b).
5.6 Discontinued/No
Movement items. The parties will work together to
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-11-
eliminate
items that have no movement for * ,
including, without limitation working together to have the responsible
manufacturer repurchase and remove such inventory. For any and all
items that A&P discontinues or items that have no movement for * (excluding
seasonal items that A&P represents it will sell the following year), C&S
will provide A&P notice. Upon receipt of such notice, A&P
will either provide for the vendor to remove and repurchase all such cases
remaining in the warehouse or give C&S a distribution for such
cases. In either event, such goods will be removed by vendor or store
distribution within * of A&P’s receipt of notice. To minimize
such inventory, A&P will give C&S advance notice of any discontinuance
to avoid unnecessary ordering. Furthermore, if such item is not
unique to A&P in the applicable facility, A&P will only be responsible
for such discontinued items to the extent that such leftover inventory is
A&P leftover ad product.
5.7 Ads. (a) A&P
shall book all ads by facility for the first 18 months following the
Commencement Date. Following such 18 month period A&P shall only
be responsible for providing C&S with the aggregate number of cases per ad
per item across all facilities supplying A&P. In addition, the
parties will in good faith work on a feathering process to bring in ad product
to each facility prior to the commencement of the ad. A&P shall
provide to C&S distribution quantities for dry grocery by store for at least
* of the product booked for a front page ad for C&S’ distribution prior to
the commencement of the ad, provided that A&P will use its commercially
reasonable efforts to provide C&S distribution quantities of * . Prior
to the end of the * Contract Year, A&P will strive to provide C&S
distribution quantities for at least * of all ad product prior to the
commencement of an ad. Left-over ad product may be sent back to the
Facilities subject to Section 3.4. A&P will purchase left-over
perishable ad product from C&S prior to such product being out-of-code,
provided that if A&P is unable to so purchase, A&P will be responsible
for the cost and disposition of such product. C&S and A&P
will work together to minimize leftover ad product, including, continuing
A&P’s practices of remerchandising items where possible, canceling trucks
and having vendors pick-up leftover ad product. Left-over ad product
in excess of * normal turn movement (as measured against the physical balance)
shall be placed into the Reserve.
(b) A&P
will be responsible for all fresh seafood, chicken and other poultry pre-orders
and will purchase such items from C&S prior to the seafood or chickens being
out-of-code, provided that if A&P is unable to so purchase, A&P will be
responsible for the disposition of such product.
5.8 SKU’s. C&S
shall not be obligated to carry more than * above the number of SKU’s per
Facility than A&P carries as of the Effective Date absent the consent of
C&S, which consent will not be unreasonably withheld, provided that the
maximum increase in SKU’s per Contract Year shall be no more than * of the
number of SKU’s per Facility that A&P carried in the prior Contract
Year. Schedule 5.8 sets forth the present number of A&P SKU’s by
category and warehouse.
5.9 *. C&S
will reflect to A&P the * subject to *.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-12-
5.10 *. If
an item has *, then C&S will reflect the * on the *. If there is
*, then C&S will *, provided that any such amount *.
5.11 Base
Price and other Adjustments.
(a) To
the extent that an income item formerly available to one party is eliminated
but
such program dollars are made available to the other party in another form,
then
the party benefited by such change will make the other party whole by an
adjustment to the Base Price of such goods or other agreed to
adjustment.
(b) Each
party acknowledges that the other party has historically benefited from certain
sources of income, including, but not limited to: Cross-Roads, warehouse
slotting, retail store slotting, alternative source buying, and cash
discounts. Furthermore, as of the date hereof, A&P earns a
certain amount of trade funds, but also engages in certain activities that
one
may claim could impact trade funds, such as diverting or vendor compliance
programs. Neither party will knowingly interfere with the other
party’s programs. More specifically, no action by C&S that
differs from A&P’s actions, be it, for example, C&S’ increasing the
amount of diverting or vendor charges from A&P’s level, will negatively
impact A&P’s current level of trade funds. A&P will use its
commercially reasonable best efforts to both prevent a vendor from claiming
that
C&S’ programs interfere with A&P’s trade funds and to preserve C&S’
programs. As part of A&P’s efforts in this regard, on a
case-by-case basis, A&P will include C&S in vendor meetings, and with
all parties present, inform such vendor that it is the vendor’s issue to resolve
with C&S and that in no way is the vendor to reduce A&P’s trade
funds.
(c) The
pricing provisions herein are based upon the parties’ mutual assumption that no
fundamental changes will occur in the structuring or level of promotions or
other factors affecting the wholesale cost of Merchandise. If the
parties’ mutual assumptions cease to be true at any time during the Term, the
parties agree to negotiate in good faith to reach agreement on new, mutually
acceptable pricing terms. It is A&P’s intention to continue to
negotiate and structure deals that will lower A&P’s net cost of
goods.
(d) Within
* of the end of each Contract Quarter or as reasonably requested by a party,
the
most senior merchandising executive at C&S and the most
senior merchandising executive at A&P will meet and review any
instances where a party’s trade funding has decreased in the prior Contract
Quarter. If a party can show that a decline in its funding on a
vendor is due to a program of the other party that has resulted in an increase
in such party’s trade funding from such vendor, then the benefited party will
promptly meet with such vendor and attempt to determine what effect, if any,
its
increased trade funding had on the other party’s trade funding. If a
program of a party has had a negative impact on the other party’s funding, then
the benefited party will seek to cause such vendor to reverse such
decline. If the benefited party is unsuccessful in causing the vendor
to reverse the other party’s decline in trade funds, then A&P and C&S
shall jointly meet with the applicable vendor and attempt to cause the vendor
to
reverse the decline. If such effort is unsuccessful, then the
benefited party will either take such vendor off the program in its entirety,
take the
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-13-
vendor
off the program with respect to the other party or otherwise make up the decline
in the other party’s trade funds. As part of the quarterly
reconciliation between the A&P and C&S executives, the parties will
provide each other with any information regarding the other party’s programs
requested by a party, unless any such information is subject to a
confidentiality obligation. Any dispute under this Section 5.11(d)
that cannot be resolved by the merchandising executives shall be elevated to
and
settled by the Presidents of A&P and C&S prior to the end of the
subsequent Contract Quarter.
5.12 *. Any
* will be paid *.
Section
6. Billing and Payment.
6.1 *
Statements. Each * , C&S shall
electronically transmit to A&P, files (such files shall be referred to
collectively as the “* Statement”)
for all amounts owed (including purchases, fees, upcharges and credits) for
the
immediately preceding * (the “* Statement
Amount”). There will be a Shipment File with all product charges to
the stores; an Adjustment File with fees, upcharges, and credits; a Cost and
Weight File for random weight product; and a Cost File for all other
products. A separate Manual Charge file will be provided, which shall
include special delivery and trailer fees and all other miscellaneous charges,
by customer number and by invoice. The * Statement will be received
on the * following the * such shipments were made.
6.2 Payment. Each
* ,
A&P will make a wire transfer in the amount of * (adjusted as set forth
below) with respect to purchases to be made on such * together with the
purchases made on the immediately preceding * , * and
* . Each
* ,
A&P will make a second wire transfer in the amount of * with respect to
purchases made on the immediately preceding * and to be made on * and * . A&P
will adjust the payment to be made on the next succeeding * to reflect any
overpayment or underpayment for the previous * purchases, based upon the
statement rendered by C&S on * . Should
the due date of A&P's payment fall on a date on which banks in New York are
required to be closed, the due date shall be accelerated to the previous day
that banks in New York may legally open. The parties acknowledge that
the * figure used in this Section 6.2 is * of the projected * purchases, plus
the projected fees and other charges under this Agreement for the first Contract
Quarter. The parties agree that such figure shall be adjusted up or
down from time to time (but no less than each Contract Quarter) to approximately
* of the actual volume of * purchases then being made by A&P pursuant to
this Agreement. If at any time A&P’s S&P corporate credit
rating is * or above, then C&S will adjust A&P’s payment terms for a *
payment of the * estimated * payment amount.
6.3 Miscellaneous
Billing and Payment Matters. Time is of the
essence. If any payment under Section 6.2 is in default, and A&P
has failed to cure the default within * after
receiving notice from C&S, then, subject to
Section 14, C&S shall have the right (which rights shall be nonexclusive,
cumulative of and additional to all other remedies) to defer further deliveries
until all payments in default have been made or, if such payment is in default
for more than * following notice from C&S, to terminate this
Agreement. If A&P
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-14-
disputes
any portion of a statement, absent manifest error, it shall nonetheless pay
the
full amount of the statement by the payment due date, without any deductions
or
offsets. A&P shall give C&S notice of any billing adjustments
it believes should be made, and the parties shall attempt to reach agreement
on
any adjustments within * . If
either party believes a billing adjustment should be made, it shall give notice
to the other party and the parties shall attempt to reach agreement on any
adjustments within * from the date notice is received. In the event
an agreement cannot be reached on disputed adjustments within said * , the parties
will settle the dispute pursuant to Section 31.
6.4 *. If
A&P’s *, then A&P will immediately *. If following *, then
the obligation of A&P *, provided that if A&P’s *, then A&P shall be
obligated to * pursuant to the terms of this Section 6.4.
6.5 Review
Rights. The parties will within * of the Effective
Date develop a * price file reconciliation process in a format with
sufficient detail as reasonably requested by A&P, whereby C&S will
transmit to A&P all Base Price information on a * basis and A&P may
review and comment on such information. A&P may also review
C&S’ Base Price information as set forth in Section 15.
6.6 Third
Party Deductions. From time to time, A&P may ask C&S,
in
writing,
to act as its agent to deduct amounts that are due from manufacturers to
A&P. A&P must provide C&S with supporting documentation
before C&S will process such deduction. C&S has the right, in
its discretion, to refuse to honor any third party deduction request that
A&P may make; provided that C&S shall use this right to refuse a
deduction in a reasonable manner and shall discuss such with A&P, in
advance, and work with A&P to resolve any of A&P’s
concerns. If C&S makes a deduction on A&P’s behalf and the
manufacturer disputes the deduction made by C&S, A&P agrees to
indemnify, defend and hold C&S harmless from any claim by the manufacturer
related to such deduction, provided that C&S will cooperate with A&P in
the defense of any such claim. If after taking a deduction and paying
the amount of such deduction to A&P, C&S repays any such deduction,
A&P will, upon receipt of notice and supporting documentation from C&S,
repay such amount to C&S. A&P will use its best efforts so
that the supply of merchandise from manufacturers to C&S is not adversely
affected solely by any third party deductions that C&S may take on A&P’s
behalf. Service level shall not be adversely affected by an
interruption in the supply of Merchandise from a manufacturer to C&S if the
interruption is caused by the refusal of the manufacturer to ship product to
C&S and such refusal is attributable to a disputed deduction that C&S
has taken on A&P’s behalf at A&P’s direction. C&S will
add to each deduction from a vendor a fee to process the deduction made by
C&S on A&P’s behalf; such processing fee shall be (i) * for deductions
equal to or less than * and (ii) * for deductions in excess of * .
Section
7. Reserve System. The parties
have established the reserve system described below (the
“Reserve”).
7.1 Designated
Reserve Product. Promptly following receipt of notice from
A&P that it wishes C&S to acquire specified product to be held in
reserve for forward buy,
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-15-
C&S
will purchase such product and hold it in reserve for A&P at the Reserve
Price which is established when the product is purchased by
C&S. If A&P requests that C&S buy more than a * supply of
private label product, the amount in excess of * will be added into the Reserve
unless A&P’s order on such product is in excess of * in order to meet the
vendor’s minimum order size and is consistent with past practice. In
addition, leftover ad product covered under Section 5.7 and leftover seasonal
items (such as Halloween candy) that will have no or minimal movement until
the
commencement of the next season for such item shall be added to the
Reserve. The amount of forward buy product shall be an economically
rational amount based on A&P’s normal * movement. C&S shall
xxxx A&P the Reserve Price of all such reserve product described in this
Section 7.1 with such charges to appear on *.
7.2 Delivery
Out of Reserve. Every * C&S shall provide a report detailing
all product held in reserve for A&P. It is A&P’s obligation
to take delivery of all reserve product from C&S before such product is
out-of-code.
7.3 Limitation
on Reserve. The Reserve shall not exceed * cases of grocery
Merchandise composed of a mix of product reflective of past sales of Merchandise
under this Agreement (collectively, the “Reserve Limit”). A&P
will not forward buy on fixed fund or straight line accrual
vendors.
7.4 Reserve
Charges. From time to time, C&S may, in its sole discretion,
consent to the number of cases in the Reserve to exceed the Reserve
Limit. In such an event, A&P will pay C&S a
Reserve Charge equal to * for each case of product in excess of the Reserve
Limit that is held as of the * . All
Reserve Charges will be calculated each * after the last morning billing has
been run and before the first afternoon billing has been run, and shall be
billed to and paid by A&P in accordance with Section 3. Reserve
Charges are in addition to, and not in lieu of, Upcharges and other fees and
charges described in Section 3.
7.5. Allocation
of Reserve. The Reserve Limit shall be allocated among the
facilities based on available space at each facility supplying A&P and a
particular facility’s percentage of the overall volume under this
Agreement.
Section
8. Delivery
8.1 Requirement. Delivery
frequencies shall be as set forth on the Delivery Schedule, which shall be
mutually agreed to by the parties and be attached hereto as Schedule
8.1. C&S will communicate to A&P and the stores via e-mail
the estimated time of arrival. A delivery shall be considered on time
if it is within the delivery window set forth on the Delivery Schedule as
amended from time to time by mutual agreement of the parties, provided that
a
delivery shall not be considered late if a delay is caused by A&P, adverse
weather (i.e., ice and snow), or an event of force majeure. If
C&S is late to the first stop, it shall communicate revised ETA’s to the
subsequent stops. A&P will provide a list of stores with
municipal and/or lease restrictions as of the Commencement
Date. C&S is responsible for meeting all municipal and/or lease
restrictions unless such failure is caused by A&P or an event of force
majeure, and C&S shall hold A&P harmless from any damages caused by
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-16-
such
C&S failure. In the event that A&P receives a notice of
default under a lease arising out of the delivery(s) of C&S, A&P will
provide C&S with a copy of same and C&S will use its best efforts to
immediately cure such default and provide A&P with documentation thereof so
A&P may provide same to its landlord. C&S will provide A&P with
routing information prior to a delivery’s departure from the C&S
facility. The parties acknowledge that the higher the cube
utilization, the lower the transportation fees per
case. Consequently, the parties will work together and adjust
delivery schedules wherever reasonable and practical so as to have full
truckloads.
8.2 The
Delivery and Service Levels are as follows:
|
Contract
Quarter
|
“Target
Level”
|
“Required/Penalty
Level”
|
“Termination
Level”
|
|
1st
Contract
Quarter
|
*
|
N/A
|
N/A
|
|
2nd
Contract
Quarter
|
*
|
*
|
*
|
|
Thereafter
|
*
|
*
|
*
|
8.3 Delivery
Schedule Violation. If, for any reason other than a delay caused
by A&P or an event of force majeure, C&S fails to deliver at least the
Required/Penalty Level of all deliveries on time in accordance with the Delivery
Schedule for deliveries scheduled to be made during a Measurement Period, then
such failure shall be a “Delivery Schedule Violation.” Each four-week
period will be a “Measurement Period” and there will be 13 Measurement Periods
each Contract Year.
8.4 Delivery
Penalty. Should A&P believe that a Delivery Schedule
Violation has occurred, A&P shall give notice to C&S and C&S shall
use its best efforts to immediately restore the Required Service
Level. Following such notice, upon a Delivery Schedule Violation,
A&P will be entitled to a penalty payment equal to * per load for all
unexcused late loads below the Required/Penalty Level for such Measurement
Period (the “Penalty Payment”). C&S will pay the Penalty Payment
within * of the end of the applicable Measurement Period. This
penalty will not apply for the * Contract Quarter.
8.5 Delivery
Termination. If the Delivery Service Level is below the
Termination Level for * consecutive Measurement Periods, A&P may terminate
the Agreement, provided that it has provided Timely Notice of
Termination. Timely Notice of Termination shall mean written notice
provided to C&S by A&P anytime within * of the expiration of the *
Measurement Period. If, after receipt of a Timely Notice of
Termination, C&S does not achieve at least the Termination Level in the *
Measurement Period, then, as set forth in the Notice of Termination, the entire
Agreement will terminate * following the end of the * Measurement
Period. Should A&P give late Timely Notice of Termination, the
time periods for cure, including extension into subsequent consecutive
Measurement Periods, shall be extended accordingly. Following an
event under this Section 8.5 that gives rise to a right of termination by
A&P, A&P may request that only a portion of this Agreement be
terminated. Following such request C&S will promptly meet with
A&P and the parties will in
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-17-
good
faith amend this Agreement to both parties’ mutual satisfaction to accommodate
A&P’s request.
8.6 Service
Level Adjustments. The operating committee will from time to time
review and, if appropriate, adjust the Delivery and Service levels and
calculations set forth in Sections 8.2 and 9.1, based on actual operational
experience and changes in service requirements taking into account the parties’
performance, technological advances and capabilities and the type of items
that
C&S is supplying.
8.7 Serious
Late Delivery Penalty. If a C&S delivery is more than * late,
then, to the extent such delay was not due to A&P (including, but not
limited to, delay at the first stop or a transmission delay) or an event of
Force Majeure, such late delivery shall be considered a Serious Late
Delivery. Upon a Serious Late Delivery, A&P may xxxx C&S *
for a delivery that is between * late and * for a delivery that is more than
*
late. The payment for this penalty will be received by A&P as a
credit on the billing statement the * after it has been levied.
8.8 Drop
Trailers. C&S will continue A&P’s present practices with
respect to providing drop trailers to the A&P Stores, provided that if there
is a material increase in drop trailers, the parties shall meet and in good
faith come up with a fee for the incremental trailers. In addition, C&S will
provide (i) a trailer within * of a store’s request when necessary as a result
of an emergency and (ii) a trailer on a non-emergency basis within * of a
store’s request. A&P will provide C&S, with as close as
reasonably possible, * advance notice of trailers A&P will require for
seasonal purposes and C&S will use its commercially reasonable efforts to
provide, at A&P’s expense, such trailers. The parties acknowledge
and agree that the foregoing time frames do not cover emergencies or
catastrophes affecting * or more A&P stores and in such a case C&S will
use its commercially reasonable efforts to provide A&P with as many trailers
as requested by A&P as quickly as possible.
8.9 Trailer
Advertising. A&P may, at A&P’s expense, place A&P
logos and signage
on up to * of the C&S trailers delivering Merchandise from the Facilities or
the New Orleans facility, provided that if there is a significant shift of
volume out of the Facilities, then the parties shall meet and in good faith
agree on a method of advertising that will not diminish the number of trailers
with advertising as compared with the number prior to such shift in
volume.
8.10 Perishables. The
general method for shipping meat, dairy and produce Merchandise shall be to
ship
these categories on the same truck.
Section
9. Service Level.
9.1 Service
Level Requirement. The parties’ mutual objective is to
maintain the Target Levels set forth in Section 8.2. In
computing the Service Level the numerator shall be the number of cases shipped,
and the denominator shall be the number of cases ordered, less unauthorized
cases, discontinued, and documented manufacturer’s
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-18-
out-of-stocks. An
item will qualify as a manufacturer out of stock if the manufacturer provides
written proof of such status to C&S or if the manufacturer consecutively
scratches such item * . Ad
overpulls will not be factored into the calculation of service levels, provided
that (i) C&S receives A&P’s ad projection * in advance of each ad, (ii)
C&S is provided with the retail and ad placement of the ad and the ad
layout, and (iii) the ad distribution is no more than * above A&P’s
aggregate ad projection. If A&P materially changes its
promotional advertising strategy in a manner that adversely impacts C&S’s
ability to meet Service Levels, then the immediately prior sentence shall not
apply for * following such change, provided that during such * period, A&P
shall use its best efforts to provide C&S with accurate ad
forecasting. Prior to the Commencement Date, A&P will provide
C&S with * of A&P ad movement data.
9.2
Service Level Violation. If, for any reason other than due to
an act or omission
by A&P, a documented vendor issue, adverse weather (i.e. ice and snow), or
an event of force majeure, C&S fails to maintain a Service Level of at least
the Required/Penalty Level for the Measurement Period, then such failure shall
be a “Service Level Violation.” The Required/Penalty Level may be
adjusted in accordance with Section 8.6.
9.3
Service Level Penalty. Should A&P believe that a Service
Level Violation has occurred, A&P shall give notice to C&S and C&S
shall use its best efforts to immediately restore the Required Service
Level. Following such notice, upon a Service Level Violation, A&P
will be entitled to a penalty payment equal to: (i) the difference
between the Required/Penalty Level and the average actual service level
percentage during the Measurement Period, multiplied by (ii) the number of
cases
delivered during such Measurement Period, multiplied by (iii) * (the “Service
Penalty Payment”); provided, that before any penalty is assessed the parties
will meet to discuss the cause for such Service Level failure, what can be
done
to prevent future failure, and to determine, given the reasons for such failure,
whether or not a penalty should be charged. Once it has been
determined that the charge is appropriate, A&P will xxxx C&S for any
such penalty and C&S will pay such xxxx within * . This
penalty will not apply for the first Contract Quarter. In addition,
during the period of any Service Level Violation, A&P may purchase from
other sources Merchandise that is causing the Service Level to fall below the
Required Service Level and any such purchases shall nonetheless be included
as
volume purchased under this Agreement.
9.4 Service
Level Termination. If the Service Level is below the Termination
Level for * consecutive Measurement Periods, A&P may terminate the
Agreement, provided that it has provided Timely Notice of
Termination. Timely Notice of Termination shall mean written notice
provided to C&S by A&P anytime within * of the expiration of the *
Measurement Period. If, after receipt of a Timely Notice of
Termination, C&S does not achieve at least the Termination Level in the *
Measurement Period, then, as set forth in the Notice of Termination, the
Agreement will terminate * following the end of the * Measurement Period. Should
A&P give late Timely Notice of Termination, the time periods for cure,
including extension into subsequent consecutive Measurement Periods, shall
be
extended accordingly. Following an event under this Section 9.4 that
gives rise to a right of termination by A&P, A&P may request that only a
portion of this Agreement be terminated.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-19-
Following
such request C&S will promptly meet with A&P and the parties will in
good faith amend this Agreement to both parties’ mutual satisfaction to
accommodate A&P’s request.
Section
10. Transmission
Delays. Just as C&S delivery delays can cause
expense for A&P, delays in A&P’s order transmissions (store polling) can
cause severe expenses for C&S. C&S will report * A&P’s
on-time and late transmission delays. The parties will meet to fix
any such problems and ensure that they are not repeated. If delays
continue to occur, then the parties will meet to determine how C&S will be
kept whole.
Section
11. Pallet
Exchange. C&S will primarily select and
ship product on plastic pallets. C&S will record the number and
type of shipped pallets on each manifest and collect all such pallets at
A&P’s warehouse or stores each * ; provided
that
the operating committee will analyze the feasibility and cost of an at store
pallet exchange program. C&S will track pallets delivered and
returned by type of pallet and report such numbers to A&P each * . At
the end of each * , C&S will
xxxx A&P for any shortfall in returned pallets at C&S’ cost (currently *
per plastic pallet and * for CHEP pallets). A&P may pay any such
shortfall in cash or in kind. At the * of the first quarter, the
operating committee shall reasonably determine the amount of pallets in
A&P’s system that will be returned the * following the * of the first
quarter and this amount shall be factored into any amount owing by
A&P.
Section
12. Liaison. Two
additional full-time employees of C&S for this Agreement will be located at
A&P’s designated headquarters to provide on-site service solely for A&P
for all business between the parties. The key responsibilities of the
liaison are set forth on the job description attached as Schedule
12.
Section
13. Reclamation
Program. A&P will participate in C&S'
reclamation program for all of its stores. C&S will assume
A&P's rights and obligation as the Customer under A&P’s contract (the
“Carolina Agreement”) with Carolina Logistics Services ("CLS") and live up to
all terms and conditions of the contract. The CLS contract is
attached hereto as Schedule 13. C&S will provide to A&P
substantially the same services, including but not limited to reports, salvage
income and directed charitable gifts, as are being provided by
CLS. A&P has provided to C&S its calculation of income
derived from reclamation and C&S will
make
A&P whole, including providing A&P with its current level of chute and
salvage income. The parties will also work together to drive
additional benefits throughout the term of the agreement. C&S
will use Carolina to produce the reports and provide the services that they
are
providing to meet A&P's business requirements and C&S will continue to
do so until it can produce the same reports and can deliver the same services
(or their substantial equivalents) to A&P’s reasonable
satisfaction. A&P will make every effort to support the transfer
of its reclamation program to C&S in a reasonable timeframe, provided such
transfer does not expose A&P to any claims, charges or obligations under the
Carolina Agreement.
Section
14. Force Majeure.
Notwithstanding any other provision of this
Agreement, the performance of
the affected party shall be excused to the extent (but only to the extent)
it is delayed, hindered or prevented by the following events: the
business operations of either C&S or A&P are interrupted by reason of
riots, insurrection, war, acts of terrorism, acts of
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-20-
God,
or
if beyond the reasonable control of C&S or A&P producers or
manufacturers establish allocations or restrictions on quantities of supplies
available to C&S. In the event of a Force Majeure, the
party whose performance is affected will promptly notify the other party of
such
event and the steps that the affected party is taking to mitigate such
event.
Section
15. Verification. A&P
shall have the right to audit C&S’ records in order to confirm that the Base
Price charged to A&P during the six month period covered by the audit is in
accordance with the provisions of Section 3 of this Agreement. Such
audits will be conducted at C&S’ premises and will be limited to two in any
twelve month period and be limited to the six month period immediately preceding
the audit. Notwithstanding the preceding sentence, in the event that
a discrepancy is discovered by an audit during the six months covered by such
audit, then the audit may include prior periods but only to verify that the
same
discrepancy had not occurred during such prior periods, provided, however,
if a
material issue is detected then such issue will be addressed. Unless
any significant discrepancies are found, each such audit shall be completed
in
fifteen working days. As is the customary practice, C&S will
continue to produce reports and price verifications traditionally supplied
to
A&P and such other information and reports as are reasonably requested or
needed by A&P to have the full transparency upon which this Agreement is
premised. The parties' mutual objective is to identify and
resolve any errors promptly after they occur rather than to rely upon the audit
procedure to identify errors.
Section
16. Financial
Reports. C&S shall provide A&P with an audited
Financial Statement including the comparative balance sheets, statements of
income, retained earnings and cash flows prepared by C&S's independent
certified public accountants, not later than ninety (90) days after the end
of
each fiscal year of C&S.
Section
17. Operations. C&S
shall conduct all operations required of it hereunder in conformance with the
standards set by the Federal Food and Drug Administration from time to time
and
at a level of sanitation at least equal to that required by the Federal Food
and
Drug Administration or any other governmental agency having jurisdiction over
merchandise and other facilities utilized by C&S in the performance of this
Agreement. In addition, prior to commencement of supply and
periodically during the term, the parties will review and mutually agree on
recall procedures with respect to the merchandise covered by this Agreement,
which procedures shall be substantially in accordance with A&P’s recall
procedures.
Section
18. Insurance. C&S
agrees to maintain and cause to be maintained, at its own cost and expense,
the
following policies of insurance from insurance companies duly authorized to
do
business in New York and the other jurisdictions covered by this
Agreement.
18.1 Casualty
Insurance. Casualty insurance providing all risk coverage with
limits not less than the full insurable value of the warehouses from which
C&S is serving A&P hereunder ("C&S Premises", whether Facilities or
C&S Facilities) and all of the goods and merchandise held or to be held
therein.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-21-
18.2 Comprehensive
Public Liability Insurance. Comprehensive public liability
insurance, including products liability and contractual liability coverage,
with
limits of liability of not less than $5,000,000 for property damage, personal
injury and bodily injury. The products liability coverage shall
be continued in effect for not less than two (2) years after delivery of the
product.
18.3 Worker’s
Compensation Insurance. Workers' compensation insurance and
employer's liability insurance in the amounts required by law.
18.4 Commercial
Automobile Liability Insurance. Commercial automobile liability
insurance affording coverage on all owned, non-owned and hired vehicles with
limits of liability of not less than $50,000,000 per occurrence for bodily
injury and property damage liability.
Said
policies of insurance (except for the workers' compensation and employer's
liability policies) shall name A&P as an additional insured and shall
provide that they may not be cancelled unless thirty (30) days' prior written
notice has been given to all named insureds, and such policies of insurance
and
certificates of insurance shall be delivered to A&P within fifteen (15) days
from the date of this Agreement and renewals thereof, as required, shall be
delivered at least thirty (30) days prior to the expiration of the policy
term. All insurance policies shall be written by insurers reasonably
acceptable to A&P.
18.5 Indemnification.
(a) C&S. C&S
shall defend, indemnify and hold harmless A&P and its employees, affiliates,
servants, agents, successors and assigns from any and all losses, claims charges
and expenses including reasonable attorney’s fees and costs of settlement which
are incurred by virtue of or result from (a) the inaccuracy in or breach of
any
representation or warranty made by C&S in this Agreement, (b) the
non-fulfillment of any covenant, provision or agreement to be performed by
C&S under this Agreement during the Term; or (c) any claims for injury to
person or damage to property arising out of or resulting from (i) acts or
omissions of C&S in any manner relating to its handling, storage, use or
delivery of the merchandise supplied to A&P pursuant to the terms of this
Agreement or (ii) the willful misconduct or negligent acts of C&S or its
employees, provided, however, this indemnification and hold harmless shall
not
apply to the extent of any claims arising from or as a result of the omission,
willful misconduct or negligent acts of A&P or its
employees. Whenever A&P receives notice of a claim or demand that
would be covered by this provision, A&P shall in turn provide C&S with
prompt written notice of such claim or demand.
(b) A&P. A&P
shall defend, indemnify and hold harmless C&S and its employees, affiliates,
servants, agents, successors and assigns from any and all losses, claims charges
and expenses including reasonable attorney’s fees and costs of settlement which
are incurred by virtue of or result from (a) the inaccuracy in or breach of
any
representation or warranty made by A&P in this Agreement, (b) the
non-fulfillment of any covenant, provision or agreement to be performed by
A&P under this Agreement during the Term; or (c) any claims for
injury to person or damage to property arising out of or resulting
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-22-
from
(i)
acts or omissions of A&P in any manner relating to the handling or use of
the merchandise supplied to A&P pursuant to the terms of this Agreement or
(ii) the willful misconduct or negligent acts of A&P or its employees, or
(iii) subject to exhaustion of efforts in 18.5(c), for Merchandise procured
and
delivered hereunder; provided, however, this indemnification and hold harmless
shall not apply to the extent of any claims arising from or as a result of
the
omission, willful misconduct or negligent acts of C&S or its
employees. Whenever C&S receives notice of a claim or demand that
would be covered by this provision, C&S shall in turn provide A&P with
prompt written notice of such claim or demand.
(c) Product
Liability. Notwithstanding any provision to the contrary
contained herein, with respect to product liability claims, the parties shall
look to the manufacturer of such product for any and all defense, indemnity
or
hold harmless claims unless there is clear proof that such claim is the result
of an act or omission by the counter-party, in which case the provisions of
this
Section 18.5 shall apply.
18.6 Confidentiality. Each
of A&P and C&S agree to and will cause its respective authorized agents,
representatives, affiliates, employees, officers, directors, accountants,
counsel and other designated representatives (collectively, "Representatives")
to (i) treat and hold as confidential (and not disclose or provide access to
any
Person to) this Agreement and all records, books, contracts, instruments,
computer data and other data and information (collectively, "Information")
concerning the other in its possession or furnished by the other or the other's
Representatives pursuant to this Agreement, (ii) if either party or its
Representatives become legally compelled to disclose any such Information,
provide the other party with prompt written notice of such requirement so that
such other party may seek a protective order or other remedy or waive compliance
with this Section 18.6, and (iii) if such protective order or other remedy
is
not obtained, or the other party waives compliance with this Section 18.6,
furnish only that portion of such Information which is legally required to
be
provided and exercise its best efforts to obtain assurances that confidential
treatment will be accorded such Information; provided, that this sentence
shall not apply to any Information that, at the time of disclosure, is (a)
available publicly and was not disclosed in breach of this Agreement by such
party or its Representatives; or (b) is required to be disclosed by A&P
pursuant to its obligations arising under Federal securities law or the rules
of
a national securities exchange. Each party agrees and acknowledges
that remedies at law for any breach of its obligations under this Section 18.6
are inadequate and that in addition thereto the other party shall be entitled
to
seek equitable relief, including injunction and specific performance, in the
event of any such breach, without the necessity of demonstrating the inadequacy
of monetary damages.
Section
19. Access to Premises. C&S
shall allow A&P reasonable access to the C&S Premises during C&S's
regular business hours. C&S shall permit A&P, at reasonable times and on
reasonable notice, (a) to review the inventory records of A&P relating to
any A&P owned goods and merchandise, (b) to inspect the warehouse facilities
and transportation equipment and (c) as otherwise needed in connection with
Section 15. The parties shall follow the facility inspection
procedures attached as Schedule 19. C&S shall provide workspace
with internet capabilities for up to and including 3 A&P quality
assurance
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-23-
personnel
and will allow such personnel to inspect in-coming and out-going loads of fresh
product.
Section
20. Termination.
20.1 Termination
by C&S.
(a) Subject
to the provisions of Section 14, C&S may terminate this Agreement for cause
upon written notice to A&P setting forth the termination date (i) as
provided in Section 6.3; (ii) upon * written notice, if A&P’s purchases from
C&S under this Agreement are less than * cases in any Contract Year; (iii)
if A&P has breached any of its material obligations under this Agreement and
if such breach is curable, remains uncured after * following written notice
of
such breach from C&S, or (iv) if an Event of Insolvency occurs with respect
to A&P; provided, that C&S shall not terminate this Agreement upon the
occurrence of an Event of Insolvency if A&P is otherwise in compliance with
the terms of this Agreement and A&P provides adequate assurance of future
performance under this Agreement.
(b) If
C&S terminates this Agreement pursuant to this Section 20.1 (Termination for
Cause), then, A&P shall, among other things, be responsible for and pay
C&S’s Wind-down Costs. Wind-down Costs shall include all of
C&S’s costs in connection with or related to the shut-down, as a result of
C&S’s terminating this Agreement pursuant to Section 20.1, of any facility
then primarily supplying A&P with Merchandise
hereunder. Specifically, Wind-down Costs shall include (i) the Net
Book Value of any and all of the assets employed by C&S in a facility
primarily supplying A&P that are transferred to A&P following
termination, including, without limitation, any and all Facilities and any
replacement facilities primarily supplying A&P pursuant to this Agreement
(“Replacement Facilities”), and the property, plant, equipment and rolling stock
used with respect to each such facility (collectively, the “Assets”), (ii) any
costs following the Termination Date arising out of or related to any lease
or
agreement related to the provision of the services required by this Agreement,
including any lease of a Facility or any and all Replacement Facilities, (iii)
reimbursement for any and all severance and other employee termination costs
incurred by C&S as a result of C&S terminating the employment of
individuals providing services to A&P hereunder at any and all Facilities
and Replacement Facilities, including, but not limited to any and all WARN
costs
incurred by C&S in terminating employees, (iv) the total ERISA withdrawal
liability paid by C&S attributable to a shut Facility, and (v) any other
costs established by C&S directly related to the shutdown of any and all
Facilities and Replacement Facilities. A&P may mitigate the above
C&S Wind-down Costs by purchasing at Net Book Value the above described
Assets C&S agrees to sell to A&P and/or assuming the above described
liabilities. A&P will upon C&S’s termination under this
Section 20.1 purchase at the applicable Base Price any and all saleable
inventory purchased by C&S for delivery to A&P (the
“Inventory”). The parties agree and acknowledge that the remedies
under this section are nonexclusive, cumulative of and additional to all other
rights or
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-24-
remedies
in law or equity of C&S, including, without limitation, C&S’s right to
collect any volume related surcharges for the remainder of the
Term. “Net Book Value” shall mean, as of the Termination Date, the
acquisition cost less the accumulated depreciation of an Asset determined in
accordance with Generally Accepted Accounting
Principles. “Termination Date” means the effective date of the
termination of this Agreement pursuant to Section 20.1(b).
20.2 Termination
by A&P. Subject to the provisions of Section 14,
A&P may terminate this Agreement for cause upon written notice to C&S
setting forth the termination date (i) if an Event of Insolvency occurs with
respect to C&S; provided that A&P shall not terminate this Agreement
upon the occurrence of an Event of Insolvency if C&S is otherwise in
compliance with the terms of this Agreement and C&S provides adequate
assurance of future performance under this Agreement; (ii) if C&S has
breached any of its material obligations under this Agreement and if such breach
is curable, remains uncured after * following written notice of such breach
from
A&P; or (iii) as provided for in Sections 8.5 and
9.4.
20.3 Event
of Insolvency. "Event of Insolvency" shall mean that, with
respect to an entity, such entity shall (a) become insolvent, (b) make a general
assignment for the benefit of creditors or to an agent authorized to liquidate
any substantial amount of its assets, (c) become the subject of an "order for
relief" within the meaning of the United States Bankruptcy Code, (d) file a
petition in bankruptcy or for reorganization or to effect a plan or other
arrangement with creditors, (e) file an answer to a creditor's petition,
admitting the material allegations thereof, for involuntary bankruptcy or for
reorganization or to effect a plan or other arrangement with creditors, (f)
apply to a court for the appointment of a receiver or custodian for any of
its
assets or properties, with or without consent, and such receiver shall not
be
discharged within sixty (60) days after appointment, or (g) adopt a plan of
complete liquidation of its assets.
20.4 A&P
Buyout Options. (a) If there is
a change in control of A&P or C&S or there is a fundamental change in
the grocery business, then, at any time following the * Contract Year and prior
to the * Contract Year, A&P shall, upon * prior written notice (the
“Notice”), have the option to pay C&S the Buyout Price (as defined below)
and perform its obligations under the first sentence of Section 20.1(b) with
respect to Wind Down Costs and, following such payment and performance, this
Agreement shall become null and void and of no further force and
effect. The “Buyout Price” shall equal: (i) A&P’s
Projected Purchases from C&S under this Agreement multiplied by * , plus (ii)
any
amounts due by A&P to C&S in connection with the performance of
A&P’s obligations under the first sentence of Section
20.1(b). “A&P’s Projected Purchases” means an amount equal to
projected purchases (Base Price) under this Agreement by A&P from the date
of termination until * based on an annual purchase baseline equal to A&P’s
purchases under this Agreement in the * prior to the Notice divided by * . For
example, if A&P exercised its option and sent the Notice on the * and
A&P’s purchases in the * were *, then the Buyout Price would be
*.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-25-
(b) At
any time following the commencement of the * Contract
Year, A&P shall, upon * prior written notice, have the option to perform its
obligations under the first sentence of Section 20.1(b) with respect to
Wind-down Costs and, following such performance, this Agreement shall become
null and void and of no further force and effect. In addition,
A&P will on the date that is * following A&P’s notice under this Section
20(b) purchase at the applicable Base Price any and all Inventory.
Section
21. Facilities. C&S
may, in its sole discretion, cease operations at and/or sell any or all of
the
facilities supplying A&P. C&S shall provide A&P * prior
notice of its intention to close such a facility. Notwithstanding anything
contained in the Asset Purchase Agreement to the contrary, if C&S closes a
facility supplying A&P, then C&S will be liable for the amount of the
total withdrawal liability related to such closure except to the extent set
forth in Section 20.1 and 20.4.
Section
22. Remedies. Any right
of termination set forth in this Agreement is a nonexclusive remedy and any
termination shall be without prejudice to any claims for damages or other rights
of the terminating party.
Section
23. Nonassignability;
Subcontracting. The rights and obligations of this
Agreement may not be assigned or subcontracted by C&S or A&P without the
prior written consent of the other party. Further, C&S shall not
sell all or substantially all of its assets, nor shall ownership or control
of
C&S be changed, without at least * prior notice of such sale or change being
first given to A&P. Finally, if C&S is acquired by a major
direct competitor of A&P, such as The Stop & Shop Supermarket Company,
Pathmark, Inc., or Wakefern, Inc., then, upon * prior written notice, A&P
may terminate this Agreement.
Section
24. Binding Effect. This
Agreement is binding upon permitted successors and assigns of each
party.
Section
25. Notices. All notices
hereunder shall be in writing and shall be deemed to have been duly given if
(i) hand-delivered, (ii) delivered by overnight courier, (iii)
mailed by registered or certified mail, postage prepaid or (iv) faxed with
receipt confirmed by phone; in each case to the following addresses or fax
number, unless and until either party notifies the other in accordance with
this
Agreement of a change of address:
|
If
to C&S:
|
C&S
Wholesale Grocers, Inc.
|
|
|
0
Xxxxxxxxx Xxxxx
|
||
|
Xxxxx,
XX 00000
|
||
|
Attn: Chief
Executive Officer (Xxxxxxx X. Xxxxx)
|
||
|
Via
fax (000) 000-0000
|
||
|
With
a copy to:
|
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-26-
|
Chief
Financial Officer (Xxxx Xxxxx)
|
||
|
Via
fax (000) 000-0000
|
||
|
Senior
Vice President of Legal and Business Affairs
|
||
|
(Xxxx
Xxxxxxxxx)
|
||
|
Via
fax (000) 000-0000
|
||
|
If
to A&P:
|
||
|
The
Great Atlantic & Pacific Tea Company, Inc.
|
||
|
0
Xxxxxxx Xxxxx
|
||
|
Xxxxxxxx,
XX 00000
|
||
|
President
(Xxxxx Xxxxx)
|
||
|
With
a copy to:
|
||
|
Executive
Vice President, Chief Financial Officer and Secretary
|
||
|
(Xxxxxxxx
Xxxxxxxxx)
|
||
|
Via
fax (000) 000-0000
|
||
|
Vice
President, Chief Legal Officer and Asst. Secretary
|
||
|
(Xxxx
Xxxxx Offer)
|
||
|
Via
Fax (000) 000-0000
|
Section
26. Entire
Agreement. This Agreement contains the entire
understanding of the parties with respect to its subject matter and may be
amended only by written instrument executed by both parties or their respective
successors or permitted assigns. The Existing Supply Agreement
is a separate and independent agreement. On the date hereof the parties are
executing an Asset Purchase Agreement (the “Asset Purchase Agreement”) which
covers, among other things, C&S’s acquisition of the effected warehousing
and distribution business of A&P. The Asset Purchase Agreement is
an essential material condition to this Agreement and hereby incorporated and
made a part of this Agreement. It is agreed that upon execution
hereof by the parties hereto, that the Negotiation-Inducement/Continuation
Agreement, dated May 9, 2005, between C&S and A&P, is terminated and
canceled and all rights and obligations thereunder are extinguished and
satisfied.
Section
27. Waiver. No claim or
right arising out of the breach of this Agreement can be discharged in whole
or
in part by waiver or renunciation of a claim or right unless the waiver or
renunciation is supported by consideration and is in writing and signed by
the
aggrieved party. Waiver by either party of a breach by the other of any
provision of this Agreement shall not be deemed a waiver of any other provision
or future compliance with all provisions hereunder, and all such provisions
shall remain in full force and effect. Failure of either party to enforce any
right hereunder shall not be deemed a waiver of any subsequent right
hereunder.
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-27-
Section
28. Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each
of
which shall be deemed to do so and all of which together shall constitute one
and the same instrument.
Section
29. Authority. Each
individual signing this Agreement hereby represents and warrants that he has
the
full corporate power and authority to do so and thereby bind the corporation
on
whose behalf the individual has signed the Agreement.
Section
30. Applicable Law. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York, without regard to the principles of conflicts of laws
thereof. If any provision, clause or part, or the application thereof
under certain circumstances, is held invalid, the remainder of this Agreement
or
the application of such provision, clause or part shall not be affected
thereby.
Section
31. Dispute
Resolution. (a) Any controversy, claim, or
dispute between the parties, directly or indirectly, concerning this Agreement
or the breach hereof, or the subject matter hereof, including questions
concerning the scope and applicability of this arbitration clause, shall be
finally settled by arbitration in New York City pursuant to the rules then
applying of the American Arbitration Association, with the sole exception as
envisioned in Section 18.6 for a breach of confidentiality requiring injunctive
relief. The arbitrators shall consist of one party representative
selected by A&P, one party representative selected by C&S and one
neutral representative selected jointly by the first two
arbitrators. The party arbitrators shall be selected within * after
the commencement of the arbitration proceeding, and the neutral arbitrator
shall
be selected within * of the appointment of the last party
arbitrator. The parties agree that the arbitrators’ Award shall be
duly made in writing within * after the hearings in the arbitration proceedings
are closed, and that an Award agreed upon by any two of the arbitrators shall
be
binding and conclusive on all of the parties to this Agreement. The
arbitrators shall have the right and authority to assess the cost of the
arbitration proceedings and to determine how their decision as to each issue
or
matter in dispute may be implemented or enforced.
Judgment
upon the Award may be sought and entered in any competent federal or state
court
located in the United States of America. An application may be made
to such court for confirmation of the Award and for any other equitable or
legal
remedies that may be necessary to effectuate such Award or otherwise preserve
any rights for which no adequate remedy at law exists.
The
parties understand and agree that they hereby are giving up and waiving any
claim or right to litigate in court or by a jury trial, unless or to the extent
that such rights are specially provided for under this Agreement or cannot
be
waived under applicable law.
Section
32. Exhibits. The
Parties agree that the attached exhibits and schedules ("Exhibits") may
not at the time of execution of this Agreement all be final and shall be
supplemented and/or revised prior to the applicable Procurement Conversion
Dates
or at
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-28-
another
time to be mutually agreed to by the Parties. The Parties acknowledge and
agree that substantially all of the terms of the Exhibits have been agreed
upon
and are reflected in the attached Exhibits and accordingly the Exhibits shall
be
in substantially similar forms as the Exhibits attached to this Agreement on
the
date hereof. The Parties agree to engage in subsequent good faith
negotiation with respect to any outstanding issues or requested supplements
or
revisions to the Exhibits.
[Remainder
of page intentionally left blank]
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-29-
Section
33. Capitalized
Terms. Capitalized terms used herein
and not otherwise defined shall have the meanings set forth in the Asset
Purchase Agreement.
IN
WITNESS WHEREOF, the parties have duly executed this Agreement as of the date
first above written.
|
THE
GREAT ATLANTIC & PACIFIC
TEA
COMPANY, INC.
By:
______________________________________________
Name:
Title:
|
C&S
WHOLESALE GROCERS, INC.
By:
_____________________________________________
Name:
Title:
|
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule
24-b2.
-30-
SCHEDULES
|
Schedule
1.5
|
Store
Locations
|
|
Schedule
2.1
|
Implementation
Schedule [CONFIDENTIAL]
|
|
Schedule
3.1(c)
|
Perishable
Procurement Procedures [CONFIDENTIAL]
|
|
Schedule
3.1(f)
|
Logistics
Programs
|
|
Schedule
3.2(a)(i)
|
Transition
Period Actual Costs [CONFIDENTIAL]
|
|
Schedule
3.2(b)(i)
|
Upcharge
Calculation [CONFIDENTIAL]
|
|
Schedule
3.2(b)(ii)
|
Stop
Fee Calculation Template [CONFIDENTIAL]
|
|
Schedule
3.2(b)(iii)
|
Dunmore
[CONFIDENTIAL]
|
|
Schedule
3.2(b)(iv)
|
New
Orleans Specifics [CONFIDENTIAL]
|
|
Schedule
3.2(c)(v)
|
Coupons
[CONFIDENTIAL]
|
|
Schedule
3.2(d)(i)
|
Base
Cost of Fuel
|
|
Schedule
5.1
|
Short
Coded Items[CONFIDENTIAL]
|
|
Schedule
5.5(a)
|
Standard
Credit Policy for Facilities [CONFIDENTIAL]
|
|
Schedule
5.5(b)
|
Non-Facility
Standard Credit Policy [CONFIDENTIAL]
|
|
Schedule
5.5(c)
|
Shrink
Gain/Loss [CONFIDENTIAL]
|
|
Schedule
5.8
|
SKU’s
[CONFIDENTIAL]
|
|
Schedule
8.1
|
Delivery
Schedule [CONFIDENTIAL]
|
|
Schedule
12
|
Liaison
Job Description
|
|
Schedule
13
|
Carolina
Logistics Services (“CLS”) [Attach]
[CONFIDENTIAL]
|
|
Schedule
19
|
Facility
Inspection Procedures
[CONFIDENTIAL]
|
*Material
omitted and filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment under Rule 24-b2.
-31-
Schedule
1.5
Store
Locations
|
Location
|
Xxxxxx
|
Xxxxxxx
|
Xxxx
|
Xxxxx
|
Xxx
|
|
00000
|
A&P
|
000
XXXXX 000
|
XXXXXXXX
|
XX
|
00000
|
|
32609
|
A&P
|
XXXXXX
X XXX 0 XX XXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
32752
|
A&P
|
00
XXXXXXXXXX XXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
34610
|
A&P
|
000
XXXXXX XXXXXX & XX 000
|
XXXXXXX
|
XX
|
00000
|
|
32607
|
A&P
|
000
XXXXXX XXXXXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
32618
|
A&P
|
000
XXXXXXXX XXX
|
XXXXXXXX
|
XX
|
00000
|
|
34895
|
A&P
|
000
XXXXX XXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
32809
|
A&P
|
00
XXXXXXXX XXXX
|
XXXXXXXX
|
XX
|
00000
|
|
32867
|
A&P
|
000
XXXXXXXXXX XXXX.
|
XXXXXXXXXXX
|
XX
|
00000
|
|
32847
|
A&P
|
000
XXXXXX XXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
32864
|
A&P
|
000
XXXXXX XXXX
|
XXXXX
XXXXXXXXX
|
XX
|
00000
|
|
34801
|
A&P
|
000
XXXXXXXXXX XXXXXX XXXX
|
XXXXXX
|
XX
|
00000
|
|
34650
|
A&P
|
000
XXX XXXX XXXX
|
XXXXX
XXXXXXXXXX
|
XX
|
00000
|
|
32897
|
A&P
|
000
XXXXXXXXX XXXX XXXX
|
XXXXX
|
XX
|
00000
|
|
34836
|
A&P
|
000
XX XXXXXXX XXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
32640
|
A&P
|
000
00XX XXXXXX
|
XXXXXX
XXXX
|
XX
|
00000
|
|
34639
|
A&P
|
00
XX XXXXXX XXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
34685
|
A&P
|
0000
XXXXX XXXXXX XXXX
|
XXXX
XXXXXXX
|
XX
|
00000
|
|
34701
|
A&P
|
0000
XXXXX 00
|
XXXX
XXXXXXXX
|
XX
|
00000
|
|
34677
|
A&P
|
000
XXXXXXXX XXXXXXXX
|
XXXXXX
|
XX
|
00000
|
|
34620
|
A&P
|
000
XXXX XXXXXX
|
XXXXXXX
XXXX
|
XX
|
00000
|
|
34642
|
A&P
|
0000
XXXXXXXXX XXXXXX XXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
34990
|
A&P
|
000
XXXXX 00
|
XXXXXXX
XXXXXX
|
XX
|
00000
|
|
34638
|
A&P
|
00
XXXXXXX XXX
|
XXXXXXX
XXXXX
|
XX
|
00000
|
|
34684
|
A&P
|
000
XXXXX 00
|
XXXXXX
|
XX
|
00000
|
|
34621
|
A&P
|
XXXXXX
000 XXX 00
|
XXXXXX
|
XX
|
00000
|
|
34668
|
A&P
|
000
XXXXXX XXXX
|
XXXXX
|
XX
|
00000
|
|
32653
|
A&P
|
0
XXXXXXXX XXXXX
|
XXXX
|
XX
|
00000
|
|
32664
|
A&P
|
000
XXXXXXXXXXXX XXXX
|
XXXX
XXXXX
|
XX
|
00000
|
|
32391
|
A&P
|
00
XXXXXXX XXXXXX
|
XXXXXXXXXXX
|
XX
|
00000
|
|
32651
|
A&P
|
000
XXXXXXX XXXX
|
XXXXXXXXXX
XXXXXX
|
XX
|
00000
|
|
32658
|
A&P
|
000
XXX XXXXXX XXXX
|
XXX
XXXXXX
|
XX
|
00000
|
|
34659
|
A&P
|
000
XXXXXXXX XXXXX XXXX
|
XXXXXXXXX
XXXX
|
XX
|
00000
|
|
34924
|
A&P
|
XXXXX
00 & XXXXXX XXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
34927
|
A&P
|
0000
XXXXX 00
|
XXXX
XXXXXXXX
|
XX
|
00000
|
|
34626
|
A&P
|
000
XXXXXXXXXXX XXX
|
XXXXXX
XXXXX
|
XX
|
00000
|
|
34656
|
A&P
|
0000
XXXXX 00 XXXXX
|
XXXXXXX
|
XX
|
00000
|
|
34855
|
A&P
|
000
XXXXXXXX XXXXXX
|
XXXXXX
XXXXXX
|
XX
|
00000
|
|
34926
|
A&P
|
000
XXXXXX XXXX XXXX & XXXXX 000
|
XXXX
XXXXXXXX
|
XX
|
00000
|
|
34825
|
A&P
|
000
XXXXX 00
|
XXXXXXX
|
XX
|
00000
|
|
34874
|
A&P
|
000
XX 00 XXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
34686
|
A&P
|
000
XXXXX 00
|
XXXXXXXXXX
|
XX
|
00000
|
|
34806
|
A&P
|
ROUTE
000 XXX XXXXXX XXXXX XXXX
|
XXXXXXX
|
XX
|
00000
|
|
34649
|
A&P
|
000
XXXX XXXX XXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
34951
|
A&P
|
0
XXXXXXXXXXX XXXX
|
XXXXX
XXXXX
|
XX
|
00000
|
|
34688
|
A&P
|
000
XXXXXX XXXXX XXXX & XX 00
|
XXXXXXXX
|
XX
|
00000
|
|
34417
|
A&P
|
000
XXXX XXXXXX XXXX
|
XXXXXXX
XXXXX
|
XX
|
00000
|
|
34687
|
A&P
|
000
XXXXXXXXXX XXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
34891
|
A&P
|
000
XXXXXXX XXXXXX
|
XXX
XXXXXXXXXX
|
XX
|
00000
|
|
34909
|
A&P
|
XXXXXXXXXX
XXXXXX XXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
34810
|
A&P
|
XXXXX
0 & XXXXXXXX XXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
25463
|
A&P
|
000
XXXX XXXXX 00
|
XXXXXXX
|
XX
|
00000
|
|
34802
|
A&P
|
00
XXXXX XXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
34908
|
A&P
|
XXXXX
00 & 00
|
XXXXXX
XXXXX
|
XX
|
00000
|
|
34949
|
A&P
|
XXX
XXXXX 00
|
XXXXXXX
|
XX
|
00000
|
|
34886
|
A&P
|
000
XXXXX 00
|
XXXX
XXXXXXXXX
|
XX
|
00000
|
|
34760
|
A&P
|
0000
XXXXX XXXXXX
|
XXXXXX
|
XX
|
00000
|
|
34807
|
A&P
|
000
XXXXX 00 XXXXX
|
XXXXXXX
|
XX
|
00000
|
|
34413
|
A&P
|
000
XXXXX XXXX XXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
34811
|
A&P
|
0000
XXXXX 0
|
XXX
XXXXXX
|
XX
|
00000
|
|
34887
|
A&P
|
000
XXXXXXXX XXXX & XX0 XXXXX
|
XXXXX
XXXXXXXXX
|
XX
|
00000
|
|
27813
|
A&P
|
0000
XXXXX XXXXXX
|
XXXXXXXXXXX
|
XX
|
00000
|
|
32050
|
A&P
|
0000
XXXX XXX XXXX XXXX
|
XXXXX
|
XX
|
00000
|
|
32154
|
A&P
|
0000
XXXXX 00
|
XXXXXXXX
|
XX
|
00000
|
|
32125
|
A&P
|
XXXXX
0 & XXXXXXXXXX XXXXXX
|
XXXXXX
|
XX
|
00000
|
|
32784
|
A&P
|
000
XXXXXX XXXX XXXX
|
XXXXXX-X-XXXX
|
XX
|
00000
|
|
32207
|
A&P
|
XXXXXX
00 & 000
|
XXXXXXX
XXXXXX
|
XX
|
00000
|
|
32202
|
A&P
|
000
XXXXXXX XXXX
|
XXXXXXX
|
XX
|
00000
|
|
32164
|
A&P
|
XXXXX
0 & XXXXXX XXXX
|
XXXXXXX
|
XX
|
00000
|
|
32151
|
A&P
|
000
XXXXXXXXXX XXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
32208
|
A&P
|
000
XXX XXXX XXXXX XXXX
|
XXXXXXXX
|
XX
|
00000
|
|
32226
|
A&P
|
XXXXX
000 & XXXXXXX XXX
|
XXXXX
XXXXX
|
XX
|
00000
|
|
32723
|
A&P
|
00
XXXX XXXXX XXXXXX
|
XXXXX
XXXXXX
|
XX
|
00000
|
|
32107
|
A&P
|
0000
XXXX XXXX XXXXXX
|
XXXXXXX
XXXX
|
XX
|
00000
|
|
32194
|
A&P
|
XXXXX
XXXXXX & XXXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
32778
|
A&P
|
000
XXXXXX XXXX XXXX
|
XXXXXXXXXXX
|
XX
|
00000
|
|
32776
|
A&P
|
0000
XXXXXX XXXX XXXX
|
XXX
|
XX
|
00000
|
|
32192
|
A&P
|
000
XXXXXXX XXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
32153
|
A&P
|
0000
XXXX XXXX XXXXXX
|
XXXXX
XXX
|
XX
|
00000
|
|
32787
|
A&P
|
000
XXXXXXXX XXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
32205
|
A&P
|
000
XXXXXXXX XXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
32193
|
A&P
|
000
XXXXXXXXX XXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
32786
|
A&P
|
000
XXXXXXXXX XXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
32185
|
A&P
|
0000
XXXXXXXXXX XXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
32186
|
A&P
|
000
XXXXXX XXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
32713
|
A&P
|
0000
XXXXXXX XXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
32198
|
A&P
|
000
XXXXXX XXXX
|
XXX
XXXXXXXX
|
XX
|
00000
|
|
32746
|
A&P
|
00
XXXXXX XXXX
|
XXXXXXXXXXX
|
XX
|
00000
|
|
32794
|
A&P
|
XXXXX
000 & XXXX XXXX
|
XXXXXX
XXXXXXX
|
XX
|
00000
|
|
27284
|
A&P
|
000
XXXX XXXXXXX XXXX
|
XXXXXX
XXXXXX
|
XX
|
00000
|
|
27257
|
A&P
|
00
XXXXXX XXXX
|
XXXX
XXXXXXX
|
XX
|
00000
|
|
27260
|
A&P
|
XXXX
XXX XXXXXX XXXXX
|
XXXXX
XXXXXXX
|
XX
|
00000
|
|
27232
|
A&P
|
XXXXXX
XXXXXX
|
XXXXXXXXXXX
|
XX
|
00000
|
|
32169
|
A&P
|
0000
XXXXX 00
|
XXXXXXXX
|
XX
|
00000
|
|
32003
|
A&P
|
0000
XXXXX 00
|
XXXXXXXX
|
XX
|
00000
|
|
32126
|
A&P
|
0000
XXXXX 00
|
XXXXXXXXX
|
XX
|
00000
|
|
32094
|
A&P
|
XXXXX
00 & XXXXX XXXXXX
|
XXXXXXXX
XXXXXX
|
XX
|
00000
|
|
47074
|
A&P
|
000
XXXXX XXXXXXX
|
XXXXXX
|
XX
|
00000
|
|
47069
|
A&P
|
0000
XXXXXXXX XXXXXX
|
XXX
XXXXXXX
|
XX
|
00000
|
|
47071
|
A&P
|
000
XXXXX XXXXXX
|
XXX
XXXXXXX
|
XX
|
00000
|
|
32606
|
A&P
|
000
XXXXXXX XXXXXX
|
XXXXXXX
|
XX
|
0000
|
|
34834
|
A&P
FOOD MARKET
|
00
XXXXXXXXX XXX
|
XXXXX
|
XX
|
00000
|
|
59504
|
FOOD
BASICS
|
000
XXXXXXX XXXXXX
|
XXXX
XXXX
|
XX
|
00000
|
|
59512
|
FOOD
BASICS
|
0000
XXXXXXX XXXX
|
XXXXX
XXXXXX
|
XX
|
00000
|
|
59501
|
FOOD
BASICS
|
000
XXX XXXXXX XXX
|
XXXXXXX
|
XX
|
00000
|
|
59505
|
FOOD
BASICS
|
000
XXXXXXXX XXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
59506
|
FOOD
BASICS
|
000
XXXX XXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
59502
|
FOOD
BASICS
|
000
XXXXX XXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
59511
|
FOOD
BASICS
|
00
XXXX XXXXXXX XXX
|
XXXXXX
|
XX
|
00000
|
|
59513
|
FOOD
BASICS
|
XXXXX
00
|
XXXXXXXXX
|
XX
|
00000
|
|
59503
|
FOOD
BASICS
|
0000
XXXXX XXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
59518
|
FOOD
BASICS
|
0000
X. XXXXX XXXXXX
|
XXXXXXXXXXXX
|
XX
|
00000
|
|
59510
|
FOOD
BASICS
|
0000
XXXXXXXXX XXXXXXX
|
XXXXXXXXXXXX
|
XX
|
00000
|
|
36740
|
FOOD
EMPORIUM
|
000
XXXX XXXXXX XXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
36725
|
FOOD
EMPORIUM
|
000
XXX XXXXXX
|
XXX
XXXXXX
|
XX
|
00000
|
|
36750
|
FOOD
EMPORIUM
|
0000
XXXXXX XXXX XXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
36780
|
FOOD
EMPORIUM
|
0000
XXXX XXXXX XXXX
|
XXXXXXXX
|
XX
|
00000
|
|
36710
|
FOOD
EMPORIUM
|
0000
XXXXXXX XXX
|
XXXX
XXX
|
XX
|
00000
|
|
36715
|
FOOD
EMPORIUM
|
00 XXXXX
XXXXXX 00XX XXX XXXX
|
XXX
XXXX
|
XX
|
00000
|
|
36720
|
FOOD
EMPORIUM
|
000
XXXXX XXXXXX XXXX 00XX XX
|
XXX
XXXX XXXX
|
XX
|
00000
|
|
36777
|
FOOD
EMPORIUM
|
000
XXXXXXXXX XXXXXX
|
XXX
XXXX XXXX
|
XX
|
00000
|
|
36767
|
FOOD
EMPORIUM
|
000
XXXX 00XX XXXXXX
|
XXX
XXXX XXXX
|
XX
|
00000
|
|
36732
|
FOOD
EMPORIUM
|
000
0XX XXX
|
XXX
XXXX
|
XX
|
00000
|
|
36711
|
FOOD
EMPORIUM
|
0000
XXXXX XXXXXX
|
XXX
XXXX XXXX
|
XX
|
00000
|
|
36742
|
FOOD
EMPORIUM
|
0000
0XX XXX 00XX XXXXXX
|
XXX
XXXX
|
XX
|
00000
|
|
36707
|
FOOD
EMPORIUM
|
000
XXXXXX XXXXXX
|
XXX
XXXX
|
XX
|
00000
|
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0000
XXXXX XXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
27235
|
WALDBAUMS
|
0000
XXXXX XXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
27643
|
WALDBAUMS
|
0000
XXXXXXXX XXXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
27275
|
WALDBAUMS
|
000-00
00XX XXXXXX
|
XXXXXXX
XXXXX
|
XX
|
00000
|
|
27270
|
WALDBAUMS
|
000-00
XXXXX XXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
27657
|
WALDBAUMS
|
00-00
XXXXXXX XXXXX XXXX
|
XXXXXXX
|
XX
|
00000
|
|
27632
|
WALDBAUMS
|
000-00
00XX XXXXXX
|
XXX
XXXXXXX
|
XX
|
00000
|
|
27209
|
WALDBAUMS
|
00-00
XXXXXXX XXXXX XXXXXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
27247
|
WALDBAUMS
|
000-00
00XX XXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
27641
|
WALDBAUMS
|
00-00
00XX XXXXXX
|
XXXXXXX
XXXXXXX
|
XX
|
00000
|
|
27243
|
WALDBAUMS
|
000-00
XXXXXX XXXXXXX XXXX
|
XXXXXXXX
|
XX
|
00000
|
|
27651
|
WALDBAUMS
|
000-00
XXXXX XXX XXXX
|
XXXXXX
XXXXX
|
XX
|
00000
|
|
27668
|
WALDBAUMS
|
00-00
000XX XXXXXX
|
XXXXXX
XXXXX
|
XX
|
00000
|
|
27669
|
WALDBAUMS
|
0000
XXXXXX XXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
27633
|
WALDBAUMS
|
000
XXXXXXX XXXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
27685
|
WALDBAUMS
|
000
XXXXXXXX XXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
27610
|
WALDBAUMS
|
0
XXXXXXXX XXXXXX
|
XXXXX
XXXXX
|
XX
|
00000
|
|
27655
|
WALDBAUMS
|
0-0
XXXX XXXXX
|
XXXX
XXXX
|
XX
|
00000
|
|
27639
|
WALDBAUMS
|
0000
XXXXX XXXXXX
|
XXXX
XXXXXXX
|
XX
|
00000
|
|
00000
|
XXXXXXXXX
|
XXX
& XXXXXXX XXXXXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
27658
|
WALDBAUMS
|
00
XXXX XXXX XXXXXX
|
XXXX
XXXXX
|
XX
|
00000
|
|
27279
|
WALDBAUMS
|
0000
XXXXXXX XXXX
|
XXXXXXX
|
XX
|
00000
|
|
27647
|
WALDBAUMS
|
000
XXXXX XXXXXX
|
XXXXXXXXX
XXXXXX
|
XX
|
00000
|
|
27213
|
WALDBAUMS
|
0000
XXXX XXXXX XXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
27210
|
WALDBAUMS
|
000
XXX XXXXXXX XXXX
|
XXXXXXXX
|
XX
|
00000
|
|
27616
|
WALDBAUMS
|
000-00
XXXXX XXXXXXX XXXXX
|
XXXXX
XXXXXX
|
XX
|
00000
|
|
27661
|
WALDBAUMS
|
000
XXXXXXX XXXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
27253
|
WALDBAUMS
|
0000
XXXXXX XXXXXXX XXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
27203
|
WALDBAUMS
|
00
XXXXXXX XXXXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
27215
|
WALDBAUMS
|
00
XXXXXXXXXX XXXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
27699
|
WALDBAUMS
|
0000
XXXX XXXX XXX
|
XXXX
XXXX
|
XX
|
00000
|
|
27673
|
WALDBAUMS
|
000
XXXXXXX XXXXXXX
|
XXXX
XXXXX
|
XX
|
00000
|
|
27277
|
WALDBAUMS
|
0000
XXXXXXXXX XXXXXXX
|
XXXX
XXXXXXXX
|
XX
|
00000
|
|
27638
|
WALDBAUMS
|
000
XXXX XXXXXX
|
XXXXXXXXXXX
|
XX
|
00000
|
|
27217
|
WALDBAUMS
|
000
XXXXXXX XXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
27286
|
WALDBAUMS
|
000
XXXXX XXXXXX
|
XXXXXXXX
|
XX
|
00000
|
|
27236
|
WALDBAUMS
|
00
XXXX XXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
27681
|
WALDBAUMS
|
000
XXXX XXXXXXX XXXXXXXX
|
XXXXXXXXXX
XXX.
|
XX
|
00000
|
|
27298
|
WALDBAUMS
|
000
XXXX XXXXXXX XX
|
XXXXXXXX
|
XX
|
00000
|
|
27289
|
WALDBAUMS
|
000
XXXXX XXXXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
27697
|
WALDBAUMS
|
XXXXX
00X & XXXXXXXXX XX.
|
XXX
XXXX
|
XX
|
00000
|
|
27283
|
WALDBAUMS
|
0000
XXXXXXXXX XXXXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
27251
|
WALDBAUMS
|
00
XXXXXXX XXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
27256
|
WALDBAUMS
|
0000
XXXXXXX XXXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
27688
|
WALDBAUMS
|
000
XXXXXXXXXX XXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
00000
|
XXXXXXXXX
|
XXXXXX
XXXXX XXXX
|
XXXXXX
XXXXX
|
XX
|
00000
|
|
27288
|
WALDBAUMS
|
0000
XXXXXXX XXXXXXX
|
XXXXXXX
|
XX
|
00000
|
|
27241
|
WALDBAUMS
|
000
XXXX XXXXXXX XXXXXXX
|
XXXXX
XXXXXXXXX
|
XX
|
00000
|
|
27660
|
WALDBAUMS
|
000
XXXXXXX XXXXXXX
|
XXXX
XXXXXXXXX
|
XX
|
00000
|
|
27611
|
WALDBAUMS
|
000
XXXXX 00X
|
XXXXX
XXXXX
|
XX
|
00000
|
|
27630
|
WALDBAUMS
|
000
XXXXXXX XXXX
|
XXXX
XXXXXXXXXX
|
XX
|
00000
|
|
27662
|
WALDBAUMS
|
000
XXXXXX XXXXXXX XXXX
|
XXXXXX
|
XX
|
00000
|
|
27214
|
WALDBAUMS
|
0000
XXXXXXXX XXX
|
XXXXXXXXX
|
XX
|
00000
|
|
27278
|
WALDBAUMS
|
000
XXXX XXXX XXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
27601
|
WALDBAUMS
|
0000
XXXXXXXXX XXX
|
XXXXX
XXXXX
|
XX
|
00000
|
|
27285
|
WALDBAUMS
|
000
XXXXX XXXXXXXX
|
XXXXXXXXXX
|
XX
|
00000
|
|
27212
|
WALDBAUMS
|
0000
XXX XXXXXXX XXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
27229
|
WALDBAUMS
|
000
XXXXXXX XXXXXXX
|
XXXXXX
XXXXXXXX
|
XX
|
00000
|
|
27263
|
WALDBAUMS
|
XXXXX
00 & XXXXXXX XXXXXX
|
XXXXXXXXX
|
XX
|
00000
|
|
27604
|
WALDBAUMS
|
000
XXXXXXX XXXXXXX
|
XXXXXXX
|
XX
|
00000
|
Schedule
3.1(f)
Logistics
Programs
|
Current
Logistical Vendors
|
|
XXXXXXXX-WL/ONE
SOU
|
|
CLOROX
/ OCHLOCKNEE GA
|
|
XXXXXXX
SC
|
|
XXXXXXXX
XXXXX/XXXXXXXX
|
|
XXXXX
- XXXXXX CREEK MFG
|
|
NESTLE
FDS/DISTRIBUTION
|
|
NESTLE/XXXXX
BVRGE 28000
|
|
UNILEVER
HPC
|
Schedule
3.2(d)(i)
Base
Cost of Fuel
|
BASE
COST OF FUEL
|
||||||||||||||||||||
|
Cost
of Fuel components
|
||||||||||||||||||||
|
Edison
|
Islip
|
Baltimore
|
Freshtown
|
Dunmore
|
||||||||||||||||
|
Raw
price of fuel
|
$ |
1.3640
|
$ |
1.4350
|
$ |
1.2590
|
$ |
1.5040
|
$ |
1.3460
|
||||||||||
|
Terminal
fee
|
||||||||||||||||||||
|
Low
Sulfer differential
|
||||||||||||||||||||
|
Diesel
additive
|
||||||||||||||||||||
|
freight
|
||||||||||||||||||||
|
federal
excise tax
|
$ |
0.244
|
$ |
0.244
|
$ |
0.244
|
$ |
0.24
|
$ |
0.24
|
||||||||||
|
state
excise tax
|
$ |
0.135
|
$ |
0.080
|
$ |
0.243
|
$ |
0.31
|
||||||||||||
|
state
transfer fees
|
||||||||||||||||||||
|
Sales
tax
|
$ |
0.040
|
$ |
0.135
|
$ |
0.21
|
||||||||||||||
|
Addl
delivery fee -
|
||||||||||||||||||||
|
(ie:
no storage tank/wet hose)
|
||||||||||||||||||||
|
Other
|
$ |
0.161
|
0.192
|
0.05
|
||||||||||||||||
|
Total
Base Cost of fuel:
|
$ |
1.783
|
$ |
2.055
|
$ |
1.746
|
$ |
2.155
|
$ |
1.948
|
||||||||||
|
Note:
ALL UPCHARGES STILL SUBJECT TO FINAL DUE DILIGENCE
AND CONTRACT
SIGNING
|
||||||||||||||||||||
Schedule
12
Liaison
Job Description
|
POSITION
TITLE:
|
A&P
/ C&S LIAISON
|
REPORTS
TO:
POSITION
SUMMARY:
This
individual will work with Category Management, Procurement, and C&S to
minimize the effect of residual inventory. Day to day he/she will
monitor KPI’s and make the necessary adjustments including order cancellations
and creating additional purchase orders. The incumbent will work collaboratively
with Central Purchasing, Category Management, Transportation and C&S to make
the appropriate decisions.
KEY
ACCOUNTABILITIES:
|
·
|
Work
with A&P to coordinate developing promotional forecast and reporting
back to both A&P and C&S the accuracy of those
forecast
|
|
·
|
Meet
with appropriate A&P liaisons to resolve service level issues
including authorizing proper
substitutions.
|
|
·
|
Meet
with the appropriate authority to make timely order
adjustments.
|
|
·
|
Assist
in the disposal of the residual add
inventory.
|
|
·
|
Responsible
for daily procurement tactical
activity.
|
|
·
|
Researches,
resolves and responds to questions/issues in a timely manner
and in
accordance with standards and
protocol
|
|
·
|
Regularly
follows up on problems/issues to ensure that they are being resolved
to
our customer’s satisfaction and within an acceptable
timeframe.
|
|
·
|
Establishes
a weekly/period report of accomplishments for submission to
Supervisor.
|
PERFORMANCE
METRICS:
Customer: Achievement
of the KPI’s set fourth in the A&P and C&S agreement.
Financial:
Bonus
reward based on 50% tactical and 50% on how well A&P and C&S achieves
its agreed upon goals.
|
|
Decrease
in residual inventory/number of
days.
|
Employee: Measures
of effective working relationships.
Measures
of system and process
knowledge and proficiency.
Operations: The
ability to achieve the objectives that are set by A&P and
C&S.
SPECIAL
SKILLS, TRAINING, OR EXPERIENCE:
|
·
|
Experience
in retail, logistics, warehousing, and
transportation
|
|
·
|
Knowledge
and understanding of Company systems, policies, and
procedure
|
POSITION
SPECIFIC COMPETENCIES:
|
1.
|
Communication
Skills– Strong oral, written, presentation, and listening
skills. Demonstrated ability to present information in a clear,
concise, and compelling manner that commands attention and
respect. Exhibits empathy and self-awareness, and has the
ability to convincingly persuade and influence
others. Must be comfortable dealing at all levels of
the organization.
|
|
2.
|
Customer
Service – Creates and operates within high standards for quality
customer service; regularly speaks with customers, associates
and
suppliers; promptly acts on feedback; provides staffing levels
to achieve
customer satisfaction levels.
|
|
3.
|
Business
Case Assessment– Demonstrated ability to analyze the impact of
changing business processes, systems, techniques or other methodology
and
present a strategic assessment of the change to the overall
operation.
|
|
4.
|
Decision-Making:
Demonstrated ability to make decisions, render judgments, or
take
action.
|
|
5.
|
Analytical
Skills - Demonstrated ability to gather, relate and compare data
from
different sources; ensure data is reliable, complete and accurate;
identify issues; secure relevant information and identify
relationships.
|
|
6.
|
Multi-Tasking
- Demonstrated ability to effectively handle a variety of tasks
simultaneously while maintaining efficiency in task
accomplishment.
|
|
7.
|
Planning
and Organizing - Demonstrated ability to develop strategies and
schedules for meeting goals. Anticipates obstacles to goal
attainment and devises alternate strategies to achieve
objectives. Applies effective planning and time management
tools. Demonstrated ability to think ahead, monitor own and
others progress, and make adjustments as needed to fulfill commitments
within reasonable timeframes and to meet
deadlines.
|
CORE
COMPANY VALUES:
|
1.
|
Respect
and Integrity: Treat each of our customers, associates, vendors and
investors with integrity and respect deserving of a member of
the A&P
family.
|
|
2.
|
Customer
Focus: Strive towards understanding and anticipating what our
customers want, and more importantly, delivering what they truly
value.
|
|
3.
|
Teamwork:
Encourage commitment to hard working teams that understand the
power of a
team is greater than the sum of its
individuals.
|
|
4.
|
Excellence
and Accountability: Take personal ownership for ensuring that we
strive for excellence in all aspects of our daily
responsibilities.
|
|
5.
|
Learning:
Develop a spirit of inquiry and encourage ongoing growth and
development.
|
|
6.
|
Community
and Social Responsibility: Play an active role in enhancing the
quality of life both personally and in our
community.
|
