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Amended and Restated Term Sheet: Supply Agreement,
dated as of September 24, 1999
1. Term 15 years from Effective Date (September 24, 1999).
2. Merchandise Substantially all requirements (not less than 95%)
for grocery, bakery, candy, store supplies and all
Perishables. Perishables means items in the following
categories: meat (other than frozen), deli, seafood
(other than frozen), produce, dairy and floral.
Substantially all requirements (not less than 95%)
for frozen (mainline), frozen bakery, ice cream,
frozen meat, frozen seafood and ice for the Northern
division, *
GU is not required to purchase from C&S, (i) products
that, as of the date hereof, are supplied by direct
store delivery vendors other than C&S ; provided,
that if C&S elects to warehouse any such item, GU
will support C&S and will purchase its requirements
of such item from C&S, provided that the C&S pricing
on such item is cost-competitive, and (ii) the
following promotional items that are delivered direct
from the manufacturer to the store: paper, modular
displays, powdered drinks, water, detergents and, as
agreed to, seasonal items.
Notwithstanding any other provision to the contrary,
if GU is not purchasing the Minimum Purchases from
C&S, then GU shall purchase all (as opposed to
substantially all) of its requirements from C&S of
the products carried by C&S, and GU shall not seek to
cross-dock product carried by C&S. Furthermore,
absent a service level deficiency, GU will not
purchase from a secondary supplier product carried by
C&S.
3. Base Price *
4. Other Pricing Provisions *
5. Quality control. C&S will not substitute any item without GU's prior
authorization *
6. Payments.
a. General. *
b. Produce. *
c. [Terms of seasonal distributions to come]
October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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d. New Stores. *
e. Time is of the essence. If GU fails to make any payment when
due under the Agreement, C&S shall both give notice to GU of
such failure to receive payment and shall have the right to
stop shipping product under this Agreement. If all payments
due and owing are not received within 72 hours from receipt by
GU of such notice, C&S shall have the right to terminate this
Agreement. Notwithstanding the foregoing, GU shall have the
right to dispute price, quantities and whether such amount is
due and owing, and GU will notify C&S promptly if it believes
there is an error. The parties agree to use their best efforts
to resolve such dispute within 2 weeks after delivery of such
notice.
f. Notice. The supply agreement shall require any notice to be
provided to the President, Chief Financial Officer and General
Counsel of the party receiving the notice.
g. Letter of Credit. *
7. Review Rights. The parties agree to work to develop a weekly price file
reconciliation process as follows. C&S will transmit to GU all cost
information on a weekly basis three weeks prior to billing. GU will
match the C&S cost file to GU's cost file and transmit an exception
report back to C&S the next day. The parties will then meet to resolve
any cost discrepancies prior to billing. GU may also review C&S's Base
Price information on a quarterly basis, commencing such review within
180 days following the end of the applicable Contract Quarter and
completing such review within 210 days of the end of the Contract
Quarter under review. Any review shall be conducted by individuals
knowledgeable regarding industry standards and customs, and such
persons shall keep all such information strictly confidential. Within
30 days of the end of the GU's review, C&S will reimburse GU for any
actual findings that C&S over-billed GU (including any upcharges or
other fees under the supply agreement related to such over-billed
amount), and correspondingly GU will pay C&S for any actual findings
that C&S under-billed GU (including any upcharges or other fees under
the supply agreement related to such under-billed amount). It is the
intent of the parties that the weekly data transmittal and GU's review
of such information shall be the primary mechanism to ensure pricing
accuracy.
8. Standard Credit. * The parties have established an overage/shortage
program with respect to all Merchandise categories, attached hereto
(the "Standard Credit Policy"). The Standard Credit Policy also
provides for store delivery documentation and remedy procedures in the
event of a "missing pallet." Product shortages that exceed the standard
credit program cap will be investigated to determine the whereabouts of
the product. A
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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Credit will not be issued under the following circumstances:
a. the product is located at the store,
b. the product is located at another site and reshipped,
c. the load has been audited, witnessed and verified as complete
without error,
d. the delivery receipt and load documentation indicate that the
product was received at the store.
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If a store disagrees with the outcome of the investigation, it may
immediately appeal its claim through GU's operations liaison, who in
turn may contact the C&S customer service manager (Janet Gauthier). The
parties will work to provide further information and reach an agreeable
solution within 5 working days. If an agreement cannot be reached, the
GU Vice President of Operations may contact the C&S Vice President of
Sales (Marilyn Tillinghast) for final resolution. Through this process,
the parties will resolve any and all disputes involving amounts in
excess of the standard credit within fourteen days of one party
notifying the other that a dispute exists. Both parties shall authorize
and empower their respective designees to resolve such disputes.
9. Delivery Schedule. *
a. Delivery Requirements. *
b. Delivery Service Level. "Delivery Service Level" means a
percentage reflecting the ratio of (i) the number of orders
delivered on-time by C&S to GU in any week per the Delivery
Schedule, to (ii) the total number of orders scheduled for
delivery by C&S to GU during such week, per the Delivery
Schedule. Delivery Service Level percentages will not be
adversely affected by any event of force majeure or any
nonperformance or error by GU including, without limitation,
delivery delays caused by GU. For example, if a truck arrives
at a store but no receiving crew is present, then C&S will not
be responsible for the delay delivering at subsequent stops
due to such GU mistake. C&S will provide GU a weekly Delivery
Service Level Reconciliation Report showing the times of all
deliveries during such week.
c. Delivery Service Level Deficiency. If, for any reason other
than a breach, nonperformance or error by GU or an event of
force majeure, C&S fails to achieve a * Delivery Service Level
(the "Targeted Service Level") for any * during the Term (the
"Measurement Period") and GU gives notice of such alleged
delivery service level deficiency to C&S, then such failure
shall constitute a "Delivery Service Level Deficiency". In the
event of a Delivery Service Level Deficiency, C&S shall use
its reasonable best efforts to immediately restore the
Delivery Service Level to at least * .
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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d. Cure of Delivery Schedule Breach. If, during the week
following the occurrence of a Delivery Service Level
Deficiency (the "Delivery Penalty Week"), the Delivery Service
Level is restored to at least * then the Delivery Service
Level Deficiency shall be cured and a new Measurement Period
shall begin.
e. Delivery Service Level Deficiency Penalty. If C&S fails to
restore the Delivery Service Level to * during the Delivery
Penalty Week, then C&S will rebate to GU the load fees and
stop charges with respect to those deliveries that were not
timely delivered during such week and each subsequent week
until the Delivery Service Level is restored to *.
f. Delivery Service Level Termination. If the Delivery Service
Level is below * for * , and prior to the end of the * , GU
has provided C&S with notice that it intends to terminate the
agreement, and prior to the end of * , C&S has not restored
the Delivery Service Level to at least * , then GU may
terminate the agreement within seven days following the end
of * .
10. Service Level.
a. Service Level Reporting. C&S will electronically transmit to
GU a daily Service Level Reconciliation Report showing, * .
b. Service Level. "Service Level" means a percentage reflecting
(i) the number of cases shipped divided by (ii) the number of
cases ordered, less unauthorized, discontinued, over-pulled,
and manufacturers' out-of-stock cases. The term
"manufacturer's out-of-stock cases" refers to commodity
shortages and cases that are unavailable from the manufacturer
or cut by the manufacturer; provided, that C&S placed orders
for such cases within the normal lead time. The Service Level
will not be adversely affected by any nonperformance or error
by GU, including without limitation errors in booking
advertising and feature items (including sales levels of
feature items in excess of projections made by GU and
adjustments to pre-orders where applicable), GU's directions
with respect to items procured by GU, or any event of force
majeure. C&S will use its commercially reasonable best efforts
to achieve a Service Level of * .
c. Service Level Deficiency. If, for any reason other than a
breach, nonperformance or error by GU or an event of force
majeure, C&S fails to maintain a * Service Level (the
"Targeted Service Level") for * during the Term (the
"Measurement Period") and GU gives notice of such alleged
service level deficiency to C&S, then such failure shall
constitute a Service Level Deficiency. In the event of a
Service
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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Level Deficiency, C&S shall use its reasonable best efforts
to immediately restore the Targeted Service Level * .
d. Cure of Delivery Schedule Breach. If, during the week
following the occurrence of a Service Level Deficiency (the
"Service Penalty Week"), the Service Level is restored to at
least * , then the Service Level Deficiency shall be cured and
a new Measurement Period shall begin.
e. Service Level Deficiency Penalty/Third Party Sourcing. If C&S
fails to restore the Targeted Service Level during the Service
Penalty Week, then GU will be entitled to either (i) the
Penalty Payment during such week and each subsequent week
until the the Targeted Service Level is restored ("Penalty
Period") or (ii) * . The Penalty Payment shall be equal to:
(i) the difference between * and the average actual service
level percentage during the Penalty Period, multiplied by (ii)
the number of cases delivered during the Penalty Period,
multiplied by (iii) * . The Penalty Payment shall be paid
within 15 days of the end of the Contract Quarter in which the
Penalty Period occurs. *
f. Service Level Termination. If the Service Level is below * for
* in a Contract Year, and prior to the end * , GU has provided
C&S with notice that it intends to terminate the agreement,
and prior to the end * , C&S has not restored the Targeted
Service Level to at least * , then GU may terminate the
agreement within seven days following the end * . Furthermore,
if (a) there have * in a Contract Year, (b) during such
deficiencies the Service Level was below * , and (c) within
seven days following the * , GU has provided C&S with notice
that it intends to terminate the agreement, then GU may
terminate the agreement within seven days following the end *
.
g. Example of Penalty Payment. If a Penalty Period lasted for one
week, the average actual service level during such Penalty
Period was * , the number of cases delivered during such
Penalty Period was * .
11. Fees. Upcharges are on Base Price and exclusive of ripening fees.
Merchandise shall be placed in a category classification according to
C&S's historical practices, subject to a list of grand-fathered items,
if any, attached to the supply agreement). The following fees shall
apply:
Grocery, supplies, candy (full case) *
Delivery Fee - first stop *
- each additional *
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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Perishables
Meat and deli *
Produce *
Dairy upcharge *
Delivery Fee
All Perishables delivered on same truck
- first stop *
- each additional *
Banana ripening *
Stone Fruit ripening *
Frozen and ice cream *
*
Delivery - first stop *
- each additional
*
Label Charge *
Restocking Fee (charged on Base Price) *
Special Deliveries *
(extra delivery on already scheduled run)
ASAP deliveries *
(additional run; cost adjustable for additional fuel/cost)
Trailer rental (pick-up and delivery involves a mileage charge of
$1.20/mile, based upon current trip rates and fuel costs; trailer
rental is subject to increase for increases in third party rental
charges)
dry *
refrigerated *
turkey (extended use with maintenance) *
12. Full truckload fee. [Deleted]
13. Bales/totes/cross-dock/reclamation pick-up. * . To assist C&S in
managing its own inventory and the Service Level requirements herein,
GU shall inform C&S of when GU has purchased/received Merchandise into
Montgomery and GU's intended distribution of such product.
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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14. Frozen Holiday Turkeys/Shrimp. With respect to holiday turkeys and
shrimp (including to the extent that GU wishes C&S to handle frozen
holiday turkeys or shrimp for the Southern and Eastern divisions prior
to such goods becoming Merchandise hereunder), * .
15. Forward Buy Reserve. C&S will handle forward buy *
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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16. Marketing Funds.
a. Amount: * .
b. Schedule: Payments within 14 days of the following dates
*
17. Suspension of Marketing Funds, New Store Advertising Credits and
Construction Credits. C&S shall suspend the payment of any Marketing
Funds, New Store Advertising Credits and Construction Credits otherwise
due and payable to GU upon:
a. an Event of Insolvency with respect to GU; provided, that this
paragraph 17(a) will not apply, if GU is a debtor under
Chapter 11 of the Bankruptcy Code and GU has assumed the
supply agreement as part of the bankruptcy case;
b. a default under the supply agreement; or
c. material default under material credit agreement, indenture or
other debt instrument unless such default is waived by all of
the appropriate lenders and such waiver is not conditioned or
temporary.
Upon such suspension, C&S shall give notice of and the reason for such
suspension. If GU cures such defect, then it shall give notice to C&S
of such cure, and C&S shall pay such suspended payment within three
business days of receipt of such notice.
18. *
19. Volume Incentive. *
20. Reduced Volume Surcharge. *
21. Lost Future Volume Surcharge. If GU's future purchases from C&S are
reduced because C&S has terminated the agreement for cause, then upon
such termination, GU shall immediately pay to C&S the amount set forth
across from the Contract Year in which C&S terminated the Agreement: *
22. Reclamation. * GU will participate in C&S' reclamation program for all
Merchandise other than produce, floral, meat, seafood and private
label. This product will be scanned at C&S' reclamation center within
seven days after the product is picked up from Grand Union Stores, and
Grand Union will receive credit, on a bi-weekly basis, for *
23. Third Party Deductions.
a. General. From time to time, GU may ask C&S to act as its agent
to deduct amounts that are due from manufacturers to GU. C&S
has the right, in its discretion, to refuse to honor any third
party deduction request that GU may
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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make. If C&S makes a deduction on GU's behalf and the
manufacturer disputes the deduction made by C&S, GU agrees to
indemnify and defend C&S against and hold C&S harmless from
any claim by the manufacturer related to such deduction. If
C&S repays any deduction that C&S makes on GU's behalf, GU
will, upon notice from C&S, repay such amount to C&S. GU will
insure that supply of Merchandise from manufacturers to C&S is
not adversely affected by any third party deductions that C&S
may take on GU'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 GU's behalf. C&S will add to each deduction from a
vendor a fee of no less than * to process the deduction made
by C&S on GU's behalf; provided, that with respect to private
label vendors, C&S will only add a fee of * . Each Friday, C&S
will reimburse GU for all deductions collected during the
preceding seven day period, less C&S' fee.
b. Perishable Accruals. *
c. Direct Booking Errors. *
24. Termination by C&S. C&S may terminate this Agreement for cause. Cause
shall be
a. nonpayment of amounts owed hereunder uncured for 72 hours
following receipt by GU of written notice;
b. other material breach uncured after 90 days following receipt
by GU of written notice;
c. Event of Insolvency; but no termination if GU otherwise
compliant; and
d. GU purchases (Base Price) less than * from C&S in any Contract
Year.
25. Termination by GU. GU may terminate this Agreement for cause. Cause
shall be:
a. nonpayment of amounts owed hereunder uncured for 72 hours
following receipt by C&S of written notice;
b. material breach uncured after 90 days following receipt by C&S
of written notice;
c. Event of Insolvency; but no termination if C&S otherwise
compliant; and
d. As set forth in Sections 9 or 10.
26. Termination Fees.
a. If C&S terminates for cause, GU shall immediately pay a
termination fee to C&S of * .
b. If GU terminates for cause, C&S shall immediately pay a
termination fee to GU of * .
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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27. Transfer of Assets.
a. Notice. GU will provide C&S with written notice of any GU plan
to sell, transfer, assign or otherwise convey ownership (a
"Sale") in one or more store. Such notice shall be given at
the earliest practicable time and shall state, among other
things, the name of the proposed purchaser, the location of
the store to be sold, the approximate timetable for
consummating the Sale and the purchaser's plans for supplying
the store in the aftermath of the Sale, if such plan is known
to GU. Such notice shall be given, at the latest, thirty (30)
days in advance of the date scheduled for the proposed Sale;
provided that such notice shall be given at least six months
in advance if the Sale involves five stores or more.
b. Prorated Sale Fee and Repayment of New Store Advertising
Credits and Construction Credits. *
28. Disclosure. Each party shall inform the other party (i) of any and all
defaults occurring under either a material Credit Agreement or any
other material lending agreement, and (ii) if remaining amounts of
credit available to under its lines of credit falls * or (iii) if the
party has been purchased by a competitor of the other party. In
addition, for so long as a party is a public reporting entity, then
such party shall provide the other with its respective 10-Q's and 10-Ks
(complete copies with any and all exhibits) upon the filing of such
documents with the SEC. If a party is not a public reporting entity,
then such party shall provide the other party its respective quarterly
financials (income statement, balance sheet and cash flow statement)
within 45 days of the end of the first three fiscal quarters and within
60 days of the end of the respective fiscal year.
29. Termination of Prior Agreements. Upon execution of the new supply
agreement, the Northern Agreement and New York Agreement will terminate
with no liability by either party to the other (including for any
audits of prior years under such agreements or for forward buy reserve
storage charges), except * .
30. Binding Effect. Binding upon and inure to the benefit of GU and C&S and
their respective successors and assigns.
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
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The parties acknowledge and agree that this Term Sheet confirms their
agreement as to the material terms of the supply relationship between the
parties going forward. The parties agree that they shall move expeditiously to
memorialize the agreed upon terms contained herein in a more formal supply
agreement within thirty days of the date hereof.
AGREED TO AND ACCEPTED
THE GRAND UNION COMPANY C&S WHOLESALE GROCERS, INC.
/x/ Gary M. Philbin /x/ Ronald J. Wright
------------------------------------- ------------------------------------
Gary Philbin Ronald J. Wright
President
President
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October 15, 1999
*Material omitted and filed separately with the SEC pursuant to a request for
Confidential Treatment.
