Exhibit 10.80
CONFIDENTIAL
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Secretary of the Securities and Exchange
Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as
amended. Such portions are marked with the word "(CONFIDENTIAL)".
AGREEMENT
THIS AGREEMENT is made as of February 2, 2001 (the "Effective Date"), by
FLEMING COMPANIES, INC., an Oklahoma corporation ("Fleming"), and KMART
CORPORATION, a Michigan corporation ("Kmart"), with reference to the following
circumstances:
A. The parties desire to provide for the supply by Fleming of certain
products to all the "Big K" and "Super K" stores currently open and that will be
opened by Kmart or any subsidiary or affiliate of Kmart during the term of this
Agreement in the United States and the Caribbean (collectively, the "Stores").
The Stores open on the Effective Date are listed by number on Schedule A to this
Agreement. The Fleming Distribution Centers (the "Distribution Centers")
initially designated to service primarily each of the Stores are opposite the
Store served by such Distribution Center listed on Schedule A.
B. The objective of this Agreement is to create a strategic alliance
between Fleming and Kmart to merchandise, procure and distribute pantry and
supermarket products in the most cost efficient manner. The parties desire to
provide for the joint exploration, evaluation, and implementation of practices
and procedures to reduce total supply chain costs and allow each party to
equitably share the benefits of such practices and procedures.
The parties agree as follows:
1. Product Procurement and Pricing.
1.1 Procurement Services. Subject to the terms and conditions of this
Agreement, Fleming will be the sole provider to the Stores of certain
categories of warehouse delivered products listed on Schedule 1.1
(collectively, the "Products"), except for the following: (i) typical
direct to Store shipments, (ii) all existing contractual arrangements of
Kmart with Supervalu Inc., TriCorp and Grocers Supply Company (the "Kmart
Existing Arrangements"), and other arrangements with third parties relating
to the procurement and supply of Products (the "Kmart Additional
Arrangements"), (iii) Products that Fleming decides not to source or carry,
(iv) local orders that Fleming decides not to source or carry, (v)
annually, a basket of up to 5% of annual purchases of Products under this
Agreement for each year after the Transition Period, and with respect to
the Transition Period, a reasonable estimate by the parties of 5% of
purchases under this Agreement during the Transition Period, (vi) Products
used or offered by Kmart in the restaurants in the Stores, and (vii) as
contemplated by Section 1.5. Kmart will be permitted to procure large block
buys of Products for the Stores and the Joint Venture Stores for the "Wall
of Values," in and out, or spot buys on perishable Products which purchases
shall count against the 5% basket contemplated in the immediately preceding
sentence. Because the intent of the parties is to work together to further
reduce the cost of goods, for so long as this Agreement remains in effect,
Fleming's central procurement organization will be in a position to
negotiate the price of Products for the total volume of the Stores and the
Joint Venture Stores. Subject to the terms and conditions of this
Agreement, Kmart will carry Fleming private label brands as the exclusive
private label brand in the Stores for Product categories covered by this
Agreement, to the extent consistent with Store format. Fleming shall
maintain and operate in accordance with prudent business practices its
central procurement organization for procurement under this Agreement and
shall procure and pay for all Products acquired to meet the anticipated
needs of Kmart for the Stores. Such needs shall be estimated based upon (a)
historic and forecasted Product turn information and (b) advance estimates
of promotional volumes, as provided by Kmart to Fleming from time to time
during the term of this Agreement. The procurement services to be provided
hereunder shall include purchasing (and paying for) Products procured
hereunder, and owning the inventory of Products. With respect to
consignment Products, the procurement services hereunder shall include the
right of Fleming to transfer title thereto to Kmart.
1.2 Future Procurement; Fuel.
1.2.1 Within ninety (90) days after the Effective Date, the
parties shall conduct good faith negotiations to expand the categories
of Products covered by this Agreement to include health and beauty
aids and cosmetics ("HBC"), and general merchandise ("GMD") described
on Schedule 1.2A (collectively, the "Additional Products"). The
parties shall also conduct good faith negotiations with respect to the
potential expansion of the categories of Products covered by this
Agreement to cover Store supplies within 180 days following the
Effective Date. Fleming shall cause its wholly owned subsidiary,
Dunigan Fuels, Inc. ("Dunigan") to enter into a Supply Agreement for
the sale of fuel and other services to Kmart owned or operated fuel
centers in accordance with terms set forth on Schedule 1.2B and such
other terms as are usual and customary for fuel supply agreements of
this nature within ninety (90) days after the Effective Date. Fleming
shall guarantee Dunigan's performance of its obligations under such
Supply Agreement. If Fleming fails to cause Dunigan to enter into a
Supply Agreement upon the terms set forth herein within the ninety
(90) day period following the Effective Date, then, at Kmart's option,
the provisions of Schedule 1.2B shall constitute a binding agreement
between Kmart and Fleming, whereby Fleming shall have all the rights,
duties and obligations of Dunigan pursuant to the terms of Schedule
1.2B; provided, however, that in addition to the foregoing, Kmart
shall be entitled to be indemnified and held harmless by Fleming on
terms usual and customary for fuel supply agreements.
1.2.2 (CONFIDENTIAL) The parties acknowledge that the realization
of such benefits may require, among other things, implementing
programs for the purchase of Additional Products for Kmart and the
Joint Venture Stores, the Fleming Stores and independent contractors
serviced by Fleming (any such programs, an "Additional Program"). The
parties agree that if Fleming unreasonably refuses to implement any
Additional Program proposed by Kmart, Fleming shall not be entitled to
any adjustment of the Logistics Fee under this Section 1.2.2.
(CONFIDENTIAL)
1.3 Product Pricing. Fleming, with input, participation and strategic
direction from Kmart, will have primary responsibility for the negotiation
with vendors of Products with respect to the costs therefor to meet the
anticipated needs of Kmart based upon historic and forecasted turn movement
and Kmart provided advance estimates of promotional volumes. Kmart will be
given reasonable notice of all major program negotiations with any vendors
and will be permitted to participate in such negotiations. If Kmart so
elects, it may provide input and strategic direction whether or not it
actually participates in such negotiations. No pricing arrangement with
respect to any major program with vendors for Products procured exclusively
for Kmart or the Joint Venture Stores shall apply to the procurement of
Products hereunder unless Kmart expressly agrees thereto. No pricing
arrangement with respect to any program (other than major programs) with
vendors for Products procured exclusively for Kmart or the Joint Venture
Stores shall apply to the procurement of Products hereunder unless such
pricing arrangements fall within the general parameters and benchmarks set
forth therefor by Kmart. Kmart shall not engage in any unilateral
negotiations with vendors regarding the procurement of Products hereunder
without Fleming's consent, except to the extent Kmart is permitted
hereunder to procure Products directly. If a national program (the
"National Cost"), a regional program (the "Regional Cost") or a local
program (the "Local Cost") is negotiated in accordance with the terms
hereof or if Fleming commits to a cost for one or more Products or program
for all of the Stores with respect to such Products, and in the case of
negotiated costs with vendors such negotiations include floor stock
protection, Fleming will bill Kmart the respective National Cost, Regional
Cost, Local Cost or the cost to which Fleming committed, as the case may
be, or the actual cost paid by Fleming for such Products, whichever is
less. If the parties are unable to secure floor stock protection with
respect to a Product, Fleming will bill Kmart the actual cost paid by
Fleming for such Product for a maximum of four weeks from the date the
Product cost is reduced and thereafter Fleming will bill Kmart the
respective National Cost, Regional Cost or Local Cost. Product pricing for
Products purchased pursuant to this Agreement (other than the pricing
arrangements specified in this Section 1.3) shall be as described on
Schedule 1.3.
1.4 Third Party Supply. If Fleming fails to procure and supply any
advertised Products, Products to be specially displayed in Stores and Joint
Venture Stores and high velocity Products (which as of the Effective Date
are those specified on Schedule 1.4) ordered by Kmart hereunder, Kmart
shall be permitted to purchase any such Products that Fleming has failed to
deliver from any third parties. In addition, except where Fleming's failure
is a result of a condition beyond its control as described in Section 22.5,
or where Fleming's failure is due to product unavailability or materially
inaccurate forecasting of needed volume by Kmart, Fleming shall reimburse
Kmart on demand any fees and direct costs reasonably incurred by Kmart in
excess of the costs that would have been incurred by Kmart had Fleming
procured and delivered such Products. If Kmart purchases Products from any
third party in the circumstances specified in this Section 1.4, such
purchases from third parties shall count toward fulfilling volume
requirements necessary to achieve graduated reductions in fees based on
purchase volume.
1.5 Excluded Stores. Nothing in this Agreement shall require Fleming
to supply Products to any Store the supply of which by Fleming would cause
Fleming to violate the Non-Compete Agreement dated June 20, 1994, between
Fleming and Di Giorgio Corporation, as amended, or the noncompete covenants
in the Asset Purchase Agreement between Fleming and Associated Grocers,
Incorporated dated as of September 10, 1998 ("Excluded Stores"). When the
supply of Products to any Excluded Stores would no longer violate either of
such agreements such Excluded Stores shall be deemed Stores for all
purposes hereunder and Fleming and Kmart shall cooperate in transitioning
to Fleming's supply of such Excluded Store as soon as reasonably
practicable. Prior to the time that the supply of an Excluded Store by
Fleming would not violate either of the agreements, if Kmart purchases any
Products for such Excluded Store from a third party, Fleming shall
reimburse Kmart on demand for any fees and direct costs reasonably incurred
by Kmart over the costs that would have been incurred had Fleming procured
and delivered such Products, and such purchases shall count toward
fulfilling volume requirements necessary to achieve graduated reductions in
fees based on purchase volume. Fleming shall use commercially reasonable
efforts to cause the non-compete covenants described in this section to be
terminated or to obtain a consent or waiver, at Fleming's expense,
necessary to permit Fleming to supply Products to any Excluded Stores.
Fleming shall give Kmart notice of any such termination, consent, or waiver
as soon as practicable following such termination, consent or waiver.
2. Logistics Services. Fleming shall provide to Kmart the logistics
services described on Schedule 2 (the "Logistics Services"). Fleming reserves
the right to utilize third-party logistics providers, reasonably acceptable to
Kmart, as a part of its service package. To the extent that Fleming selects and
retains third party providers, Fleming shall bear all costs associated therewith
and shall remain liable for the acts and omissions of said third party providers
irrespective of any approval therefor by Kmart.
3. Transportation and Title. Kmart shall be directly responsible for all
direct costs associated with the delivery of Products from all Distribution
Centers (including GMD, if any) to the Stores and for the cost of the return of
pallets and totes to the Distribution Centers. In addition to the services which
relate to the transportation of Products and which are part of the Logistics
Services, Fleming shall arrange for transportation for Products from the
Distribution Centers to the Stores and select third party carriers for the
Products, unless Kmart elects to do so. All carriers shall be reasonably
acceptable to Fleming and Kmart. In cases where Fleming selects the carrier,
title and risk of loss to Products shall pass to Kmart upon receipt of Products
at the Stores, and Fleming shall be responsible for all shortages and damage to
Products until such time as such Products are actually received at the Stores.
In cases where Kmart selects the carrier, title and risk of loss shall pass to
Kmart upon loading of the Products at Fleming's dock at the Distribution Center
assigned to the applicable Store, and Fleming shall not be responsible for any
claims for shortages or damages to Products after the carrier leaves Fleming's
dock, subject to the shrink allowance described in Schedule 4C. Fleming shall be
responsible for all packaging and loading costs, provided that Kmart will be
responsible for the cost of packaging and shipping all Products shipped from a
Distribution Center to the Stores by a third-party parcel delivery service
(e.g., UPS, FedEx) at Kmart's request. However, if the third-party parcel
delivery service must be used because of Fleming's inability to deliver the
Products, Fleming will be responsible for the cost of packaging and shipping.
Kmart will store all pallets and totes in designated areas of the Stores. Kmart
shall be entitled to all revenues, net of Fleming unloading costs, resulting
from back-haul generated from Kmart contracted carriers on Kmart exclusive
routes. Fleming shall arrange for the return of pallets and totes in a manner
that seeks to minimize, to the extent reasonably practicable, Kmart's costs
associated therewith.
4. Service Requirements. The service requirements and the consequences of
achieving or not achieving the service levels are set forth on Schedule 4A.
These service requirements will be the key performance indicators applicable to
Fleming. The parties shall establish the quality program described on Schedule
4B, including provision for quality control inspectors and reporting procedures.
The parties shall establish a shrink audit procedure as described on Schedule
4C. The parties shall establish a mechanism for the conduct of audits of the
parties' performance under this Agreement as provided in Schedule 4D. Fleming
shall provide to Kmart from time to time during the term of this Agreement the
management reports of key performance indicators set forth on Schedule 4E.
5. Ordering, Fees and Payment. For services provided by Fleming under this
Agreement, Fleming will accumulate by Distribution Center all weekly billings by
Store (described in Schedule 5), in accordance with Kmart's fiscal week
(Thursday to Wednesday). The weekly accumulated billings will be in the form of
a single hard copy Kmart "chain statement" for each servicing Distribution
Center, and will summarize all charges, whether for Product, fees, drop
shipments or any other miscellaneous charges, by Store. Kmart shall pay in full
the aggregated total of all chain statements each week as to all items that are
not subject to a good faith dispute by Kmart. Kmart shall give Fleming prompt
written notice of items that are disputed in good faith, in which case such
items shall be addressed promptly by the parties in accordance with the dispute
resolution procedures of this Agreement. Fleming will also endeavor to provide
Kmart throughout each week, electronic transmissions, including both advance
shipment notifications (ASN's) and EDI invoices, containing all amounts included
in the weekly chain statements. Kmart shall provide Fleming weekly, a file of
pending claims with the specific reason for each, in which case such items shall
be addressed promptly (within fourteen (14) days) by the parties in accordance
with the dispute resolution procedures of this Agreement. Payments under this
Agreement shall be made by automated clearing house transfer on Friday for
invoices billed during Kmart's immediately preceding fiscal week, as summarized
on the Kmart chain statements. The parties shall, within a reasonable period of
time after the Effective Date, address and use commercially reasonable efforts
to resolve any disputes under the Existing Agreement, process bottlenecks and
inefficiencies regarding account receivable in accordance with the terms of
Schedule 5B. Initially and until the parties change the ordering procedure,
Kmart shall order Products under this Agreement in the same manner as under the
Existing Agreement.
6. Best Practices. Fleming and Kmart shall establish a "best practices
team" consisting initially of two members, of which Kmart and Fleming shall each
designate a senior executive as its designated member (the "BPT"). The BPT may
consist of the same individuals appointed to the Account Management Team
described in Section 11.1. Among other things, the BPT will focus on reducing
costs and achieving greater efficiencies in the product supply chain in
accordance with the strategies and goals of management of the parties. The
members of the BPT shall be subject to approval of both parties and shall be
vested with authority within their respective organizations to engage the
appropriate officers and employees in achieving the strategies and goals agreed
upon by the parties. The following terms shall govern the operation and
responsibilities of the BPT.
6.1 Employment. The BPT shall be based in Troy, Michigan, but each
member of the BPT shall continue to be employed by the party appointing
such member who shall be responsible for all compensation and benefits for
its team members serving on the BPT.
6.2 Replacement. Either party may replace its designated member of the
BPT at any time, provided that any replacement shall require the prior
approval of the other party.
6.3 Compensation Incentive. A portion of the compensation payable to
members of the BPT by the employer of such members shall be linked to the
achievement of lower costs and greater efficiencies in the product supply
chain under this Agreement.
6.4 Priorities. Among the priority matters for the BPT shall be the
following, in order of initial priority:
(i) Uniform common item codes;
(ii) Accurate advance shipment notices ("ASN");
(iii) Joint procurement contracts;
(iv) Paperless payment process;
(v) Transportation services;
(vi) Plant direct shipment; and
(vii) Distribution flow.
6.5 Costs and Expenses. Each party shall bear the costs and expenses
associated with the implementation by such party of the recommendations of
the BPT.
7. Delivery of Products. Each Super K Store will receive at least three
grocery, frozen, and dairy deliveries per week. Each Pantry Store with average
orders of at least 1,000 cases per week over a thirty (30) day period
immediately preceding the delivery will receive two deliveries per week;
otherwise the Pantry Stores will receive at least one delivery per week. The
foregoing notwithstanding, for all Stores, perishable Products will be delivered
a minimum of three times per week, fresh meat and produce will be delivered four
times per week, and bakery/deli will be delivered two times per week. If there
are increases in average order size resulting in the number of deliveries
specified in this Section 7 being insufficient to deliver the increased orders,
the parties will adjust the number of deliveries per week so that such orders
are properly sourced in a cost efficient manner.
8. Labor Disputes. To the extent permitted under applicable law, with
respect to labor disputes involving Distribution Centers whose volume is more
than 40% but that are not Dedicated Distribution Centers, Fleming will consult
with Kmart regarding actions taken to mitigate the effect of any labor dispute.
With respect to any Dedicated Distribution Centers, Fleming and Kmart shall
consult and agree on any actions to be taken to mitigate such disputes. If the
parties fail to reach agreement within a reasonable period of time, Fleming can
take such actions as it deems appropriate in the exercise of its reasonable
business judgment so as to minimize detriment to both parties.
9. Term and Early Termination.
9.1 Term. The term of this Agreement will be ten (10) years commencing
on the Effective Date.
9.2 Termination for Cause. Each party may provide the other party with
a notice of intent to terminate this Agreement (a "Notice of Intent to
Terminate") in the event of:
9.2.1 A default by the other party of an obligation to pay an
amount exceeding, in the aggregate, $1 million due under this
Agreement within seven (7) days following written notice to the other
party of non-payment;
9.2.2 A material breach of any covenant or agreement,
representation, or warranty of the other party set forth herein other
than as a result of a breach of 9.2.1;
9.2.3 A material failure of the other party to be in compliance
with all applicable federal, state, and local laws and regulations
relating to the performance of this Agreement;
9.2.4 The insolvency of, or the institution of proceedings by or
against, the other party under any federal or state bankruptcy or
insolvency law;
9.2.5 An assignment by the other party for the benefit of all or
substantially all of its creditors or the appointment of a receiver
for all or a substantial part of the party's assets; or
9.2.6 A cessation of all or substantially all operations by the
other party.
Except with respect to Sections 9.2.1, 9.2.4, 9.2.5, and 9.2.6 as to which
no cure period shall apply, if the breaching party fails to cure or provide
evidence of cure to the non-breaching party within ninety (90) days of receipt
of the related Notice of Intent to Terminate or, if the event giving rise to the
right to terminate is not reasonably capable of being cured within such ninety
(90) days, and the breaching party fails to promptly and diligently commence to
cure such event within such ninety (90) days, the non-breaching party may
provide the breaching party a written notice of termination (a "Notice of
Termination") effective as of the expiration of the applicable Termination
Period as provided in Section 9.5. However, the non-breaching party in the case
of a breach that cannot reasonably be cured within ninety (90) days after
receipt of the related Notice of Intent to Terminate may in any event provide
the breaching party with a Notice of Termination effective as of the expiration
of the applicable Termination Period as provided in Section 9.5 if the breaching
party fails to cure its breach or to provide evidence of cure to the
non-breaching party within one hundred eighty (180) days of receipt of the
Notice of Intent to Terminate.
9.3 Other Termination.
9.3.1 By Kmart. Kmart may terminate this Agreement upon twelve
(12) months written notice if any of the following events have
occurred:
(a) A Change in Control of Fleming; or
(b) The fifth anniversary of the Effective Date.
9.3.2 By Fleming. Fleming may terminate this Agreement upon
twelve (12) months written notice if any of the following events have
occurred:
(a) A Change in Control of Kmart; or
(b) The fifth anniversary of the Effective Date.
9.3.3 By Either Party. Either party may terminate this Agreement
upon twelve (12) months written notice if any of the following events
have occurred:
(a) If during the term of this Agreement, the volume of
Products purchased by Kmart hereunder, on an aggregate basis,
declines by more than thirty percent (30%) for any consecutive
180 day period as compared to the corresponding period from the
prior year; or
(b) If Kmart makes a public announcement of its intention to
close thirty percent (30%) or more of its Stores open at the time
of such announcement, or its intention to discontinue or
significantly reduce the sale of all or a substantial portion of
the Products in the Stores.
9.4 Change of Control.
9.4.1 Fleming. For purposes of Section 9.3.1(a), "Change of
Control of Fleming" shall mean the acquisition of a majority or
controlling interest in, or the acquisition of all or substantially
all the assets of, Fleming by a Competitor; and the term "Competitor"
shall mean a discount mass merchandiser or any affiliate thereof with
average annual sales during the immediately preceding two years of at
least $(CONFIDENTIAL), such as, as of the Effective Date
(CONFIDENTIAL).
9.4.2 Kmart. For purposes of Section 9.3.2(a), "Change of Control
of Kmart" shall mean the acquisition of a majority or controlling
interest in, or the acquisition of all or substantially all the assets
of, Kmart by a Competitor; and the term "Competitor" shall mean a
company or any affiliate thereof engaged in the wholesale business of
selling or distributing food, grocery or related products, with
average annual sales during the immediately preceding two years of at
least $(CONFIDENTIAL) such as, as of the Effective Date,
(CONFIDENTIAL).
9.5 Termination Transition. Upon delivery of a Notice of Termination
pursuant to Section 9.2 (except as a result of an event specified in
Section 9.2.6) or a written notice pursuant to Section 9.3.1 or 9.3.2, at
Kmart's option, a termination transition period (the "Termination Period")
shall begin. Upon delivery of a written notice pursuant to Section 9.3.3, a
12-month Termination Period shall begin. The Termination Period shall
extend for the period reasonably determined by Kmart, such period not to
exceed twenty (24) months following delivery of a Notice of Termination or
a written notice pursuant to Section 9.3.1 or 9.3.2. In the case of a
termination pursuant to Section 9.3 (except a termination pursuant to
9.3.3), the Termination Period shall be the twelve (12) month notice period
contemplated by Sections 9.3.1 and 9.3.2 and an additional wind down period
reasonably determined by Kmart, such additional wind down period not to
exceed twelve (12) months. In the case of a material breach of this
Agreement giving rise to a cure period pursuant to Section 9.2, the
Termination Period shall extend for up to a maximum of twenty-one (21)
months following expiration of any ninety (90) day cure period, or eighteen
(18) months following the expiration of any 180-day cure period rather than
twenty-four (24) months. During the Termination Period, the parties shall
cooperate with each other in terminating and winding down the business
relationship contemplated by this Agreement, subject to the service level
requirements set forth on Schedule 4A. In connection therewith, the parties
shall take the following additional actions:
9.5.1 Kmart shall purchase and take delivery from Fleming of the
Products identified in Section 19 in accordance with the terms
thereof.
9.5.2 If Fleming gives Kmart a Notice of Termination pursuant to
Section 9.2.1, the obligation of Fleming to cooperate with Kmart in
terminating and winding down the business relationship contemplated by
this Agreement during the Termination Period pursuant to Section 9.5
(including without limitation, the continued extension of credit to
Kmart) shall be conditioned upon Fleming's receipt of adequate
assurances of future performance by Kmart failing which Fleming shall
be entitled to condition its continued support on C.O.D. payments,
letters of credit, or other assurances of payment satisfactory to
Fleming. The foregoing shall not apply: (i) with respect to unpaid
amounts by Kmart that are the subject of a good faith dispute if
reasonable steps are being taken in good faith to resolve such dispute
and (ii) if Kmart is contesting in good faith the grounds for the
termination hereof pursuant to Section 9.2.1. Nothing set forth in
this Section 9.5.2 shall limit, restrict or otherwise affect in any
manner the right of either party to demand adequate assurance of
future performance in accordance with applicable law.
9.5.3 Fleming shall discontinue all diverting and forward buying
for Kmart during the Termination Period.
9.6 Additional Obligations on Termination.
9.6.1 If the termination is a result of a material breach of this
Agreement by Fleming, a Change of Control of Fleming, or pursuant to
Section 9.3.2(b), Fleming shall reimburse Kmart for the Start-Up Costs
incurred under this Agreement. The reimbursement shall be an amount
equal to the product of (a) the total Start-Up Costs paid to Fleming
by Kmart multiplied by (b) a fraction, the numerator of which is the
sum of (x) the number of full years remaining in the term of this
Agreement and (y) any partial year remaining in the term of this
Agreement, and the denominator of which is ten.
9.6.2 Upon a termination or expiration of this Agreement, Kmart,
directly or through any affiliate thereof, shall have the right to
purchase from Fleming, and Fleming shall be obligated to sell to
Kmart, any Distribution Center from which at least 80% of the annual
sales are attributable to Kmart business (a "Dedicated Distribution
Center"). Upon a termination of this Agreement by Fleming, Fleming may
require Kmart to purchase any Dedicated Distribution Center. The
purchase price for any Dedicated Distribution Center shall be the then
current fair market value. The purchase of any Distribution Center
will include (i) the acquisition of the real property and improvements
of an owned Distribution Center, (ii) the acquisition of all
furniture, fixtures, equipment (including racking) and other personal
property used in the operation of the Distribution Center, (iii) the
assignment and assumption of the lease of any leased Distribution
Center, (iv) to the extent legally assignable, and subject to the last
sentence of this Section 9.6.2, the assignment and assumption of any
lease of any personal property or license of any software used
exclusively in the operation of the Distribution Center, (v) a
transfer free of all liens, claims, and encumbrances, and (vi) a
warranty of title to the transferred assets. Any such purchase shall
be without any warranty as to the physical condition of the
transferred assets, except that Fleming shall remain liable for any
release of any hazardous substance in, on, or under the Distribution
Center caused by Fleming. Fleming shall use commercially reasonable
efforts to obtain the consent of any third party (e.g., landlords,
software licensors and equipment lessors) necessary for the transfer
of any Distribution Center to Kmart.
10. Transition Period. The first year of this Agreement commencing on the
Effective Date shall be a transition period (the "Transition Period"). During
the Transition Period, Fleming and Kmart will take the actions specified on
Schedule 10.
10.1 Transition Team. Each party will designate a team to coordinate
all actions taken by the parties during the Transition Period (the
"Transition Team"). The Transition Team shall establish or modify
milestones to achieve a complete transition to this Agreement such
milestones to be consistent with the actions specified on Schedule 10 (the
"Transition Milestones"). The leaders of the Transition Team shall consist
of designated officers of each party and shall include senior executive
officers with expertise and responsibility for procurement, logistics and
administration functions within their respective organizations.
10.2 Transition Milestones. If the parties fail to achieve the
Transition Milestones (which shall be deemed to include Fleming's
obligations under Section 10.3) within agreed upon time frames and such
failure by Fleming is not attributable to Kmart or any of Kmart's existing
suppliers, Fleming shall reimburse Kmart on demand for any fees and direct
costs reasonably incurred by Kmart over the costs that would have been
incurred had the Transition Milestones been met on time. If Kmart purchases
products from any third party due to Fleming's failure to achieve the
Transition Milestones, such purchases from third parties shall count toward
fulfilling volume requirements necessary to achieve graduated reductions in
fees based on purchase volumes under this Agreement.
10.3 Distribution Centers. Within 149 days following the Effective
Date, Fleming will make investments in existing Distribution Centers and
establish new Distribution Centers both as required to service the Stores
commencing as promptly as practicable and in no event later than the
expiration of the 149-day period referred to above and continuing during
the term of this Agreement; provided, however, that with respect to the
Distribution Center located in Massillon, Ohio, such investments shall be
made in 2002. At Kmart's request, Fleming shall make its general plans for
implementation of the Start-Up Costs (as defined in Schedule 5) available
to Kmart for review.
10.4 Commencement of Fees. For each Distribution Center currently
servicing Stores, the fees for services and costs of goods described in
this Agreement will commence to apply with respect to all Products when
Kmart begins to transfer the procurement of any such Products from current
Kmart wholesale suppliers to Fleming for such Distribution Center. For each
Distribution Center currently servicing Stores and which is not expected to
receive additional volume of Products, the fees for services and costs of
Products described in this Agreement will commence to apply with respect to
all Products when such fees are applied for the first time pursuant to the
immediately preceding sentence. Prior to the time for which the fee for
services and prices for Products contemplated in this Agreement commence to
apply in the manner contemplated in the two immediately proceeding
sentences, product pricing and fees for Products being supplied to Kmart
shall be the same as are charged to Kmart under the existing Supply
Agreement between the parties dated October 11, 1999 (the "Existing
Agreement"). For all new Distribution Centers, the fees for services and
price of Products contemplated in this Agreement shall apply immediately.
10.5 Termination of Existing Agreement. Pricing and fees charged for
Products in the circumstances contemplated in the first sentence of Section
10.4 shall be those set forth in the Existing Agreement, which to that
effect are hereby incorporated by reference. On the Effective Date, the
Existing Agreement shall be terminated without further action by either
party and neither party shall have any obligations to the other thereunder,
except for the first two sentences of Section 5(d). On June 1, 2001, Kmart
shall repay to Fleming an amount equal to a proportionate part of the
unamortized portion of the Conversion Allowance (as defined in the Existing
Agreement) as of such date calculated pursuant to Exhibit E.2 thereof. As
soon as practicable after the Effective Date, Kmart and Fleming shall
attempt to resolve any disputes regarding unpaid charges for product
purchases under the Existing Agreement, resolution of all outstanding
accounts receivable, pallet reconciliation, and other claims and disputed
charges in accordance with the terms of Schedule 5B hereof. Kmart shall not
be required to purchase any inventory maintained by Fleming pursuant to
Section 5(d) of the Existing Agreement.
11. The Account Team.
11.1 The Account Management Team. Within fifteen (15) days after the
Effective Date, the parties shall create an account management team (the
"Account Management Team"). The Account Management Team shall have
responsibility for the overall operational implementation of the provisions
hereof and the recommendations of the BPT.
11.2 Meetings. The Account Management Team shall conduct weekly video
conferences, and participate in the weekly operations meetings of each
party pertaining to the implementation of the provisions of this Agreement.
The Account Management Team shall conduct monthly meetings in Troy,
Michigan and in Dallas, Texas, on an alternating basis. On a quarterly
basis, the Account Management Team shall meet at locations to be determined
from time to time, to (a) evaluate the parties activities under this
Agreement, (b) discuss real estate opportunities and issues pertinent to
the Agreement, (c) develop, implement and monitor future supply chain
efficiencies and improvements, and (d) develop six month promotional
planning.
11.3 Resolution of Operational and Performance Issues. The Account
Management Team shall be responsible for addressing and resolving
operational issues that arise during the term of the Agreement, including
without limitation the parties failure to meet the minimum or target
service level requirements as described on Schedule 4A, as well as other
issues regarding the parties performance or non-performance under this
Agreement. If the Account Management Team is unable to resolve the issues
within thirty (30) days, such issues shall be referred to the BPT for
further consideration. If the BPT is unable to resolve the issues within
thirty (30) days, such issues shall be referred to a designated group of
senior executive officers of each party. If the parties are unable resolve
the issues, either party shall be entitled to pursue its rights and
remedies under this Agreement, including the right to pursue arbitration of
the dispute in accordance with Section 16 hereof.
12. Joint Venture.
12.1 Formation. Following the Effective Date, Fleming and Kmart shall
explore in good faith the possibility of establishing a limited liability
company or other mutually agreeable form of business organization (the
"Joint Venture") to develop and operate a chain of price impact retail
stores (the "Joint Venture Stores") which may include, if the parties so
agree, some or all of the price impact stores currently operated by Fleming
under the Food 4 Less(R) banner or any successor banner, if such stores
continue to be owned by Fleming (the "Fleming Stores"), subject to any
existing contractual agreements with respect to such stores. This Agreement
contains references to the Joint Venture Stores and the Fleming Stores in
respect of cumulative volumes of purchases, merchandising and other
matters. If the Joint Venture contemplated in this Section is not formed
and the Joint Venture Stores are not created, then all provisions in this
Agreement regarding the Joint Venture Stores, the Joint Venture and the
Fleming Stores shall be deemed to be deleted, except with respect to the
references to the Fleming Stores contained in the proviso in the last
sentence of Section 12.2.
12.2 Merchandising. Kmart will be responsible for the merchandising
functions relating to Products supplied to the Stores and the Joint Venture
Stores, including pricing, promotional planning, assortment planning, and
display planning. If the product assortment for other parties sourced by
Fleming differs from that requested by Kmart, the parties will try to
coordinate product selection and will review in good faith the Product
assortment that is most cost effective at a given quality level. If Kmart
and Fleming cannot agree upon the Product assortment, they shall refer the
matter to the BPT for a recommendation. In any event, Kmart shall have the
ultimate discretion regarding the merchandise assortment for the Stores,
and the Joint Venture Stores. Fleming shall have the ultimate discretion as
to the merchandise assortment for the Fleming Stores and its independent
customers; provided, however, until such time as the Joint Venture is
formed Fleming shall be responsible for the merchandising functions for the
Fleming Stores but Fleming shall coordinate with Kmart and cooperate in
merchandising for the Fleming Stores and shall align strategies to achieve
the benefits contemplated by this Agreement.
13. Confidentiality.
13.1 As used in this Agreement, the term "Confidential Information"
means any non-public and/or proprietary information that is disclosed by
one party to this Agreement (the "Disclosing Party") to the other party
("Recipient") or otherwise learned by Recipient as a result of this
Agreement. The Confidential Information will include all information
derived from the foregoing Confidential Information. The provisions of this
Agreement and all information relating to the prices charged to Kmart,
Products, services, fees and allowances is deemed Confidential Information.
13.2 Recipient agrees to hold Confidential Information it receives
from the Disclosing Party in confidence, treating such Confidential
Information as if it were Recipient's own confidential information.
However, Recipient must at a minimum take commercially reasonable steps to
ensure that the Disclosing Party Confidential Information is not disclosed
to, or used by any person, firm or entity except Recipient's own employees
and agents and then only to the extent necessary for performance of this
Agreement. The confidentiality obligations set forth above do not apply to
information (a) available to the public through no fault of Recipient; (b)
released by Disclosing Party on a non-confidential basis without
restrictions on disclosure; and (c) to the extent disclosure of information
is required by law, including under any valid court or governmental order,
and Recipient provides Disclosing Party immediate notice thereof so that
Disclosing Party will have an opportunity to contest disclosure or seek an
appropriate protective order. Notwithstanding the foregoing, the parties
shall be entitled to disclose this Agreement, including the Exhibits and
Schedules hereto to the Securities and Exchange Commission and any
securities exchange on which the securities of either party are listed;
provided however, the parties shall use commercially reasonable efforts to
secure permission not to disclose the commercial or economic terms of this
Agreement and will cooperate with each other in good faith to prevent such
disclosure if legally permitted to do so. The confidentiality and
non-disclosure obligations in this Agreement survive and continue for three
years following termination of this Agreement for any reason and bind
Recipient's legal representatives, successors and assigns.
13.3 The parties will consult with each other prior to making any
press release or similar public announcements regarding this Agreement.
13.4 This Section 13 supersedes the terms of any previous
confidentiality agreements between the parties, including, without
limitation, the letter agreement dated November 28, 2000.
14. Representations and Warranties.
14.1 Both Parties. Each party represents and warrants to the other
party that:
14.1.1 it is a duly organized, validly existing and in good
standing in each jurisdiction where necessary to perform this
Agreement;
14.1.2 it has the full legal right, power and authority to
execute, deliver, and perform this Agreement;
14.1.3 to its knowledge, no litigation or governmental,
regulatory, or administrative agency investigation or proceeding is
pending or threatened against it that might adversely affect its
ability to perform this Agreement;
14.1.4 the signing and delivery of this Agreement by the person
signing for the party and the performance of this and any agreement
relating to this Agreement by the party have been duly authorized by
all necessary action of its board of directors and do not conflict
with (a) any law, order, writ, injunction, decree, rule, or regulation
of any court, administrative agency, or any other governmental
authority, (b) any agreement to which it is a party or by which it is
otherwise bound, or (c) any provision of its certificate of
incorporation or bylaws, and does not result in any breach of,
constitute a default under or result in the creation of any lien,
charge, security interest, or other encumbrance upon the Products;
14.1.5 no approval, consent, or withholding of objection is
required from any governmental authority or any other party with
respect to the entering into or performing this Agreement; and
14.1.6 this Agreement has been authorized, executed, and
delivered by the party and constitutes a legal, valid, and binding
obligation of the party, enforceable against the party in accordance
with its terms.
14.2 Kmart. Kmart represents and warrants that not later than the
expiration date of the Transition Period, all Kmart Additional Arrangements
shall have been terminated and that not later than July 1, 2001, all Kmart
Existing Arrangements shall have been terminated and that such arrangements
shall not have been extended or renewed. To the best of its knowledge,
Kmart has no material existing contractual relationship with suppliers of
products comparable to the products to be supplied under this Agreement
other than the Kmart Existing Arrangements.
15. No Implied Covenants/Reliance. Each party has relied solely and
exclusively on its own judgment and the advice of its own attorneys in entering
into this Agreement. No representative or agent of a party has made any
statement or representation to the other beyond those in this Agreement that
have induced signing of this Agreement. There are no implied or otherwise
unstated covenants, rights, or obligations by, of, or against either party. The
parties expressly disclaim the existence of any implied covenant of good faith
and/or fair dealing.
16. Applicable Law/Arbitration. THIS AGREEMENT, AND ALL OTHER ASPECTS OF
THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES, SHALL BE CONSTRUED, INTERPRETED
AND ENFORCED UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF MICHIGAN
WITHOUT REGARD TO CHOICE OF LAW PROVISIONS. Any controversy, claim or dispute of
whatever nature arising out of or in connection with this Agreement or the
breach, termination, performance or enforceability hereof or out of the
relationship created by this Agreement (a "Dispute") in which the amount in
controversy exceeds One Million Dollars ($1,000,000), shall be resolved by
mediation and, if mediation fails to settle the Dispute, by binding arbitration.
Any such binding arbitration will be held in Detroit, Michigan. The procedures
to be followed by the parties are as follows:
16.1 Mediation. Neither party shall commence an arbitration proceeding
unless such party shall first give a written notice (a "Dispute Notice") to
the other party setting forth the nature of the Dispute. The parties shall
attempt in good faith to resolve the Dispute by mediation under the CPR
Institute for Dispute Resolution ("CPR") Model Mediation Procedure for
Business Disputes in effect at the time of this Agreement. If the parties
cannot agree on the selection of a mediator within twenty (20) days after
receipt of the Dispute Notice, the mediator will be selected in accordance
with the CPR Procedure.
16.2 Arbitration. If the Dispute has not been resolved by mediation as
provided above within sixty (60) days after receipt of the Dispute Notice,
or if a party fails to participate in a mediation, then the Dispute shall
be determined by binding arbitration in Detroit, Michigan. The arbitration
shall be conducted in accordance with the Commercial Arbitration Rules of
the American Arbitration Association ("AAA") in effect on the Effective
Date, subject to any modifications in this Agreement.
16.2.1 Three arbitrators will be employed to hear disputes under
this provision. Persons eligible to serve as arbitrators shall be
members of the AAA Large, Complex Case Panel or any person mutually
acceptable to all parties. The arbitrators shall base the award on the
applicable law and judicial precedent that would apply if the Dispute
were decided by a United States District Court, and the arbitrators
shall have no authority to render an award that is inconsistent
therewith. The award shall be in writing and include the findings of
fact and conclusions of law upon which is it based if so requested by
either party. Absent of showing a good cause, the hearing shall be
conducted within ninety (90) days from the service of the statement of
claim. Except as contemplated in Section 16.6, each party shall bear
the expense of its own attorneys, experts, and out of pocket costs as
well as 50% of the expense of administration and arbitrators' fees.
16.2.2 Depositions, other than those taken in lieu of live
testimony, shall not be taken except under the arbitrators' finding of
special need. The parties shall be entitled to conduct document
discovery in accordance with a procedure where responses to
information requests shall be made within twenty (20) days from their
receipt. The parties knowingly and voluntarily waive their rights to
have any Dispute tried and adjudicated by a judge or a jury.
16.2.3 The arbitration shall be governed by the laws of the State
of Michigan, without regard to conflicts-of-law rules, and by the
arbitration law of the Federal Arbitration Act (Title 9, U.S. Code).
Judgment upon the award rendered may be entered in any court having
jurisdiction. Notwithstanding the foregoing, upon the application by
either party to a court for an order confirming, modifying, or
vacating the award, the court shall have the power to review whether,
as a matter of law based on the findings of fact determined by the
arbitrator(s), the award should be confirmed, modified or vacated in
order to correct any errors of law made by the arbitrator(s). In order
to effectuate such judicial review limited to issues of law, the
parties agree (and shall stipulate to the court) that the findings of
fact made by the arbitrator(s) shall be final and binding on the
parties and shall serve as the facts to be submitted to and relied
upon by the court in determining the extent to which the award should
be confirmed, modified or vacated.
16.2.4 Except as otherwise required by law, the parties and the
arbitrator(s) shall keep confidential and not disclose to third
parties any information or documents obtained in connection with
arbitration process, including the resolution of the Dispute. If
either party fails to proceed with arbitration as provided in this
Agreement, or unsuccessfully seeks to stay the arbitration, or fails
to comply with the arbitration award, or is unsuccessful in vacating
or modifying the award pursuant to a petition or application for
judicial review, the other party may be entitled to be awarded costs,
including reasonable attorneys' fees, paid or incurred in successfully
compelling such arbitration or defending against the attempt to stay,
vacate, or modify such arbitration award and/or successfully defending
or enforcing the award, the determination of awarding costs to be made
by the arbitrator(s).
16.2.5 Notwithstanding anything to the contrary in this
Agreement:
(a) The parties recognize that their business relationships
may give rise to the need for one or more of the parties to seek
emergency, provisional, or summary judicial relief to, among
other things, repossess and sell or otherwise dispose of goods,
equipment and/or fixtures, to prevent the sale or transfer of
goods, equipment, fixtures, and other real and personal property,
to protect real or personal property from injury, to obtain
possession of real property, to enforce indemnification rights,
and for temporary injunctive relief. Immediately following the
issuance of any such relief, the parties agree to the stay of any
judicial proceedings pending mediation or arbitration of all
underlying claims between the parties.
(b) The parties recognize that, under applicable law, the
arbitrators may not have the power to order equitable relief and
the parties do not by this Agreement waive any rights they may
have to seek and enforce equitable relief. Therefore, any claims
for equitable relief that cannot be fully awarded by the
arbitrators are outside the scope of this Agreement and the
parties are free to pursue civil remedies for such claims. Any
such claim(s) shall be brought in the United States District
Court for the Eastern District of Michigan.
(c) Nothing shall restrict the right of a party to file
counterclaims, cross claims or third party claims in any
litigation brought by a third party.
(d) Except with respect to the confidentiality obligations
contained in Section 13 that involve willful misconduct or gross
negligence, EACH PARTY WAIVES THE RIGHT IN ANY ARBITRATION OR
JUDICIAL PROCEEDING TO RECEIVE CONSEQUENTIAL, PUNITIVE,
EXEMPLARY, OR STATUTORILY PRESCRIBED DAMAGES. THE ARBITRATORS
SHALL NOT HAVE THE POWER TO AWARD CONSEQUENTIAL, PUNITIVE,
EXEMPLARY OR STATUTORILY PRESCRIBED DAMAGES, unless the
arbitrator(s) or a court of competent jurisdiction determines
that this limitation, under the circumstances, violates public
policy.
17. Independent Contractor. Fleming is an independent contractor of Kmart
in the performance of this Agreement, and nothing in this Agreement may be
construed to create or constitute a joint venture, partnership, agency,
franchise, lease, or any other arrangement other than as expressly described in
this Agreement. Each party is responsible for its own operations. Each party
must exercise control over its employees, agents, representatives,
subcontractors, and suppliers and is solely responsible for the verification of
identity and employment eligibility, for the payment of any wages, salaries, or
other remuneration of its employees, agents, representatives, subcontractors and
suppliers, and for the payment of any payroll taxes, contributions for
unemployment or workers compensation, social security, pensions or annuities
that are imposed as a result of the employment of its employees, agents,
representatives, subcontractors, and suppliers. Neither party may pledge credit,
incur any obligation or liability, hire any employee, nor purchase any products
or services in the name of the other party or any subsidiary or affiliate of the
other party.
18. Notices. Any notice required by this Agreement shall be written and
shall be given or sent personally, by national overnight courier, by facsimile
copy or by first-class certified mail, postage prepaid, return receipt
requested. All notices shall be addressed as follows:
18.1 Notices to Fleming:
Fleming Companies, Inc.
1945 Lakepointe Dr.
Lewisville, Texas 75057-6424
Attn: Executive Vice President, President of Wholesale
Fax: (972) 906-1541
With a copy to:
Fleming Companies, Inc.
1945 Lakepointe Dr.
Lewisville, Texas 75057-6424
Attn: General Counsel
Fax: (972) 906-1530
18.2 Notices to Kmart:
Kmart Corporation
3100 West Big Beaver Road
Troy, Michigan 48084
Attn: Vice President, General Merchandise Manager,
Food and Consumables
Fax: (248) 614-0638
With a copy to:
Kmart Corporation
3100 West Big Beaver Road
Troy, Michigan 48084
Attn: General Counsel
Fax: (248) 463-1054
A party may designate another address on fifteen (15) days prior notice to the
other party in accordance with the foregoing.
19. Purchase of Store Supplies and Control Label Products. Upon the
expiration of this Agreement, or the Termination Period, if any, Kmart will
purchase from Fleming (a) all store supplies that Fleming has purchased or
obtained as supplies for Kmart, (b) Products procured exclusively for Kmart, (c)
booked promotional merchandise, and (d) any inventory in Dedicated Distribution
Centers attributable to Kmart purchases. Kmart shall pay for and remove such
items from Fleming's Distribution Centers within thirty (30) days after the
termination of this Agreement at the purchase price otherwise provided in this
Agreement.
20. Office Space; Solicitation of Employees.
20.1 Office Space. From time to time, employees of Kmart may perform
tasks relating to this Agreement at Fleming's premises, and employees of
Fleming may perform tasks relating to this Agreement at Kmart's premises.
Each party shall make available at its expense, appropriate office space
and related support services for such purposes to employees of the other
party performing tasks relating to this Agreement at its premises.
20.2 Solicitation of Employees. The parties agree that, during the
term of this Agreement and for a period of one year following termination
of this Agreement, neither of them will, without the prior written consent
of the other party directly or indirectly, solicit for employment or hire
any employee (director level or above) of the other party or any of its
subsidiaries with whom they have had contact or who first became known to
them in connection with the Agreement, provided, however, that the
foregoing provision will not prevent them from employing any such persons
(i) who initiate discussions regarding such employment without any direct
or indirect solicitation by them, (ii) who respond to any public
advertisements placed by them, or (iii) whose employment with either party
or its subsidiaries terminated prior to employment discussions with the
other party.
21. Insurance and Indemnity.
21.1 Insurance Coverages. During the term of this Agreement, Fleming
shall maintain the following insurance coverages:
21.1.1 Commercial general liability written on an occurrence
coverage form including bodily injury and property damage liability,
products and completed operations liability, contractual liability,
and personal and advertising liability, with coverage limits of at
least $3,000,000 per occurrence; $3,000,000 aggregate (products and
completed operations); and $3,000,000 general aggregate;
21.1.2 Automobile liability for all owned, leased, or rented
vehicles with property damage and bodily injury coverage with combined
single limit not less than of $3,000,000 per each occurrence;
21.1.3 Workers compensation (statutory) and employers' liability
with minimum limits of not less than $1,000,000 per accident,
$1,000,000 disease (each employee), and $1,000,000 disease (policy
limit), but in no event less than the minimum amounts required by law;
and
21.1.4 Umbrella/excess liability with minimum limits of
$5,000,000 each occurrence and aggregate.
21.2 Forms of Policies; Evidence. The insurance required by this
section may have deductibles in such amounts as Fleming reasonably
determines. Kmart shall be named as an additional insured under such
insurance, except the workers compensation insurance. Fleming may fulfill
these insurance obligations through blanket coverage and through any
combination of primary and excess policies. Fleming will provide Kmart
certificates of insurance evidencing the insurance coverage required by
this section. The certificates shall provide that the issuing company will
endeavor to mail 30 days prior written notice to Kmart of any cancellation
of coverage before the stated expiration date. Fleming shall give Kmart
thirty (30) days prior written notice of the cancellation or non-renewal of
any insurance coverage before the stated expiration date. Fleming shall
maintain such coverage with one or more insurance companies reasonably
acceptable to Fleming and Kmart and licensed to do business in the states
where such licensing is required to provide the required insurance.
21.3 Fleming Limited Warranty. Fleming warrants that (i) it will
convey to Kmart good and marketable title to all Products supplied
hereunder, and (ii) all Products sold to Kmart shall (a) be free and clear
of all liens, claims and encumbrances, (b) properly stored, handled and
transported, and (c) shall be free of defects created by the negligence or
willful misconduct of Fleming. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, EXPRESS OR IMPLIED. FLEMING
DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
21.4 Vendor Warranties. Fleming shall assist and cooperate with any
effort by Kmart to avail itself of the benefits of any warranties made by
any manufacturer, vendor, or supplier of Products and any services relating
to Products and of any insurance relating thereto. Fleming shall use
commercially reasonable efforts to obtain the written confirmation by all
manufacturers, vendors, and suppliers of Products and services relating to
Products that their warranties with respect to Products and such services
and the related insurance coverage extend to Kmart and Kmart's customers.
If Kmart is unable to avail itself directly of any such benefits, such
efforts may include, upon Kmart's request, Fleming seeking indemnification
or contribution from any such manufacturers, vendors, or suppliers directly
and passing on any proceeds therefrom to Kmart, except and to the extent
Fleming shall have paid the claim arising under the vendor's warranty.
Fleming shall indemnify and hold harmless Kmart, and its affiliates, and
their respective officers, directors, and employees, from all claims,
liabilities, losses, damages, expenses, and costs (including reasonable
attorneys' fees) arising out of matters covered by the warranties of such
manufacturers, vendors, and suppliers of Products and services relating to
Products. The foregoing indemnity obligation is only to the extent Fleming
receives payment under or with respect to such warranties and has not paid
the related claim arising under the warranty, if any.
21.5 Survival. The provisions of Sections 21.3 and 21.4 shall survive
the termination of this Agreement.
22. Miscellaneous.
22.1 Assignment. The provisions of this Agreement are binding upon and
inure to the benefit of the parties hereto and their respective permitted
successors and assigns; provided, however, neither this Agreement nor the
rights and obligations of either party hereunder shall be assignable
without the prior written consent of the other party, which a party may
grant or withhold in its sole discretion. However, either party may assign
this Agreement to a subsidiary or affiliate that is owned or controlled by,
or is under common ownership or control with that party. Any prohibited
assignment is void. With respect to any permitted assignment, the assigning
party remains fully responsible for performance and for all acts and
omissions of its assignee.
22.2 Incorporation and Integration. This Agreement, including the
schedules attached hereto, is the final and complete agreement between
Kmart and Fleming with respect to the subject matter hereof. No
representations, inducements, promises, or understandings in relation to
the subject matter hereof, whether oral or written, exist unless they are
expressly set forth in this Agreement. This Agreement supersedes all prior
understandings, agreements, contracts, or arrangements between the parties,
whether oral or written, unless otherwise expressly incorporated in this
Agreement. No agreement or other understanding purporting to add to or to
modify the terms and conditions hereof is binding unless agreed to by the
parties in writing. Any terms or conditions in any invoices, statements, or
other forms of the parties used in the performance of this Agreement that
are in addition to or conflict with the terms and conditions hereof are
void.
22.3 Headings. Headings or captions of the sections in this Agreement
are for convenience of reference only and in no way define or limit or
describe the intent of this Agreement or any provision hereof.
22.4 Limitation of Actions. An action for breach of this Agreement
must be commenced within three years after the cause of action accrued. A
party shall commence an action by sending the other party a statement of
claim and demand for arbitration under the provisions of this Agreement.
22.5 Force Majeure. Neither party shall be deemed in default of this
Agreement if such party's non-performance is the result of a condition
beyond its control, including, but not limited to, labor strikes (subject
to Section 8), government rationing and acts of God. A party's financial
condition is not a condition beyond its control. If any event beyond
Fleming's control affects Fleming's ability to source any Store from any
Distribution Center but does not otherwise affect Fleming's operations as a
whole, then Fleming shall use reasonable efforts to source the affected
Stores from another Distribution Center; provided, however, that any
reasonable incremental cost arising from such sourcing shall be paid by
Kmart.
22.6 State and Local Taxes. Kmart represents and warrants that all
Products and other tangible personal property purchased from Fleming shall
be purchased for resale in the ordinary course of Kmart's business and that
Kmart shall comply with pertinent state and local laws regarding the
collection and payment of sales, use, and other taxes applicable to all
such resale transactions and furnish evidence thereof to Fleming. If any
such tangible personal property is put to a taxable use by Kmart or is
purchased by Kmart other than for resale, Kmart shall make timely return
and payment to the proper taxing authority of all sales, use, and like
taxes applicable thereto, and shall indemnify Fleming against such taxes
and all penalties and interest related thereto. Kmart shall reimburse
Fleming for all transaction taxes paid by Fleming (including, without
limitation, bottle and other recycling taxes and service taxes) imposed on
the sale of property and services contemplated by this Agreement.
22.7 Severable. If any provision of this Agreement is determined by a
court of competent jurisdiction or arbitrators appointed pursuant to this
Agreement to be void or unenforceable, then the remaining provisions of
this Agreement shall be given effect as if such void or unenforceable
provision was not a part of this Agreement.
22.8 Counterparts. This Agreement may be executed in multiple
counterparts, all of which taken together will constitute one instrument
and each of which will be considered an original for all purposes.
22.9 Authority to Sign. Each person signing below warrants and
represents that he has full power and authority to execute this Agreement
on behalf of the party he represents. Upon request, each party must provide
a certified resolution or certificate of authority authorizing the
undersigned to enter into and sign this Agreement.
22.10 Waivers. No waiver of any breach or default is a waiver of any
subsequent breach or default.
22.11 Approval. Wherever this Agreement provides for the consent or
approval of a party as a condition to an action by the other party, except
as otherwise provided in Section 22.1, the party whose consent or approval
is required shall not unreasonably withhold, condition or delay its
consent.
EXECUTED as of the day and year first written above.
FLEMING COMPANIES, INC.
By MARK S. HANSEN
Name: Mark S. Hansen
Title: Chairman and Chief Executive Officer
KMART CORPORATION
By CHARLES C. CONAWAY
Name: Charles C. Conaway
Title: Chairman and Chief Executive Officer
SCHEDULES
Schedule A Stores
Schedule 1.1 Products
Schedule 1.2A HBC and GMD
Schedule 1.2B Dunigan Fuel Terms
Schedule 1.3 Product Pricing
Schedule 1.4 High Velocity Products
Schedule 2 Logistics Services
Schedule 4A Service Requirements
Schedule 4B Quality Assurance and Food Safety Guidelines
Schedule 4C Shrink Audit Procedure
Schedule 4D Audit Procedures
Schedule 4E Management Reports
Schedule 5 Product and Service Fees and Charges
Schedule 5A Bid Values
Schedule 5B Accounts Receivable Reconciliation
Schedule 10 Transition Milestones
SCHEDULE A
STORES
The following list of Stores will be deemed to be automatically amended
from time to time without further action of the parties to provide for (a) the
removal of Stores from the list as a result of closure, relocation, sale, or
other disposition by Kmart, and (b) the addition of Stores to the list as a
result of the opening or acquisition of new Stores through the term of this
Agreement, whether designated "Super K," "Big K" or by any successor names to
such stores. Kmart will provide to Fleming at least sixty (60) days prior
written notice of Stores to be removed or added, as the case may be, during the
term of this Agreement so that Fleming may commence or terminate service.
Initially, each Store shall be primarily supplied by the Distribution Center
named opposite to such Store.
NOTE: Super K stores with a * in the "Fres./Sac. Note" column will utilize the
following supply arrangement:
From Fresno: Grocery, Dairy, Frozen, Candy, Cigarettes
From Sacramento: Lunch/Frozen Meat, Smoked IQF, Bakery, Deli, Seafood,
Commodity Meat
From Tracy: Produce, Floral
Products from Tracy will be straight runs to stores
or crossdocked through Fresno
BK Store 2001 SK Store Fres./Sac. 2001
Number Proposed DC Number Note Proposed DC
- ---------------------------------------------------------------------------------------
3008 Allentown PA 4906 Allentown PA
3021 Allentown PA 4928 Allentown PA
3026 Allentown PA 4929 Allentown PA
3027 Allentown PA 4935 Allentown PA
3028 Allentown PA 4936 Allentown PA
3040 Allentown PA 4939 Allentown PA
3047 Allentown PA 4960 Allentown PA
3048 Allentown PA 4963 Allentown PA
3050 Allentown PA 4967 Allentown PA
3051 Allentown PA 3974 * Fresno CA
3056 Allentown PA 4957 * Fresno CA
3060 Allentown PA 4987 * Fresno CA
3071 Allentown PA 7697 * Fresno CA
3073 Allentown PA 3575 Ft Wayne IN
3077 Allentown PA 3784 Ft Wayne IN
3087 Allentown PA 3786 Ft Wayne IN
3093 Allentown PA 3910 Ft Wayne IN
3098 Allentown PA 4059 Ft Wayne IN
3102 Allentown PA 4108 Ft Wayne IN
3115 Allentown PA 4722 Ft Wayne IN
3117 Allentown PA 4745 Ft Wayne IN
3129 Allentown PA 4764 Ft Wayne IN
3131 Allentown PA 4821 Ft Wayne IN
3136 Allentown PA 4903 Ft Wayne IN
3138 Allentown PA 4910 Ft Wayne IN
3141 Allentown PA 4913 Ft Wayne IN
3146 Allentown PA 4915 Ft Wayne IN
3149 Allentown PA 4924 Ft Wayne IN
3152 Allentown PA 4937 Ft Wayne IN
3158 Allentown PA 4938 Ft Wayne IN
3160 Allentown PA 4949 Ft Wayne IN
3167 Allentown PA 4954 Ft Wayne IN
3172 Allentown PA 4964 Ft Wayne IN
3175 Allentown PA 4966 Ft Wayne IN
3183 Allentown PA 4971 Ft Wayne IN
3187 Allentown PA 4982 Ft Wayne IN
3193 Allentown PA 4984 Ft Wayne IN
3196 Allentown PA 4990 Ft Wayne IN
3201 Allentown PA 4991 Ft Wayne IN
3202 Allentown PA 4992 Ft Wayne IN
3216 Allentown PA 4994 Ft Wayne IN
3222 Allentown PA 4995 Ft Wayne IN
3225 Allentown PA 4998 Ft Wayne IN
3229 Allentown PA 7416 Ft Wayne IN
3232 Allentown PA 7525 Ft Wayne IN
3237 Allentown PA 7584 Ft Wayne IN
3244 Allentown PA 7634 Ft Wayne IN
3256 Allentown PA 7913 Ft Wayne IN
3259 Allentown PA 9817 Ft Wayne IN
3264 Allentown PA 3948 Garland TX
3266 Allentown PA 3992 Garland TX
3268 Allentown PA 4904 Garland TX
3277 Allentown PA 4908 Garland TX
3282 Allentown PA 4919 Garland TX
3285 Allentown PA 4920 Garland TX
3288 Allentown PA 4931 Garland TX
3295 Allentown PA 4941 Garland TX
3318 Allentown PA 4948 Garland TX
3325 Allentown PA 4972 Garland TX
3332 Allentown PA 3901 Lafayette LA
3333 Allentown PA 4922 Lafayette LA
3339 Allentown PA 4926 Lafayette LA
3340 Allentown PA 4930 Lafayette LA
3350 Allentown PA 4946 Lafayette LA
3352 Allentown PA 4947 Lafayette LA
3361 Allentown PA 4958 Lafayette LA
3372 Allentown PA 4959 Lafayette LA
3380 Allentown PA 4973 Lafayette LA
3390 Allentown PA 7550 Lincoln NE
3392 Allentown PA 4914 Memphis TN
3393 Allentown PA 4968 Memphis TN
3394 Allentown PA 4969 Memphis TN
3396 Allentown PA 4970 Memphis TN
3399 Allentown PA 3995 Phoenix AZ
3401 Allentown PA 4911 Phoenix AZ
3406 Allentown PA 4912 Phoenix AZ
3414 Allentown PA 4996 Phoenix AZ
3415 Allentown PA 4933 Sacramento CA
3416 Allentown PA 4943 Sacramento CA
3418 Allentown PA 4944 Sacramento CA
3419 Allentown PA 4983 Sacramento CA
3433 Allentown PA 3043 Salt Lake City UT
3434 Allentown PA 4917 Salt Lake City UT
3436 Allentown PA 4918 Salt Lake City UT
3438 Allentown PA 4934 Salt Lake City UT
3454 Allentown PA 7378 Salt Lake City UT
3459 Allentown PA 4719 Warsaw NC
3460 Allentown PA 4916 Warsaw NC
3465 Allentown PA 3785 Warsaw NC
3467 Allentown PA 3908 Warsaw NC
3480 Allentown PA 4758 Warsaw NC
3486 Allentown PA 4901 Warsaw NC
3495 Allentown PA 4927 Warsaw NC
3498 Allentown PA 4950 Warsaw NC
3499 Allentown PA 4953 Warsaw NC
3509 Allentown PA 4955 Warsaw NC
3512 Allentown PA 4956 Warsaw NC
3516 Allentown PA 4961 Warsaw NC
3517 Allentown PA 4986 Warsaw NC
3521 Allentown PA 4988 Warsaw NC
3522 Allentown PA 4997 Warsaw NC
3523 Allentown PA 7345 Warsaw NC
3524 Allentown PA 7353 Warsaw NC
3527 Allentown PA 7469 Warsaw NC
3529 Allentown PA
3535 Allentown PA
3558 Allentown PA
3561 Allentown PA
3564 Allentown PA
3569 Allentown PA
3586 Allentown PA
3593 Allentown PA
3596 Allentown PA
3597 Allentown PA
3600 Allentown PA
3616 Allentown PA
3630 Allentown PA
3638 Allentown PA
3641 Allentown PA
3643 Allentown PA
3654 Allentown PA
3681 Allentown PA
3691 Allentown PA
3694 Allentown PA
3709 Allentown PA
3710 Allentown PA
3711 Allentown PA
3737 Allentown PA
3787 Allentown PA
3792 Allentown PA
3794 Allentown PA
3795 Allentown PA
3796 Allentown PA
3798 Allentown PA
3799 Allentown PA
3800 Allentown PA
3807 Allentown PA
3810 Allentown PA
3824 Allentown PA
3825 Allentown PA
3827 Allentown PA
3837 Allentown PA
3861 Allentown PA
3862 Allentown PA
3873 Allentown PA
3877 Allentown PA
3879 Allentown PA
3884 Allentown PA
3885 Allentown PA
3895 Allentown PA
3911 Allentown PA
3912 Allentown PA
3927 Allentown PA
3928 Allentown PA
3937 Allentown PA
3942 Allentown PA
3943 Allentown PA
3949 Allentown PA
3951 Allentown PA
3953 Allentown PA
3954 Allentown PA
3963 Allentown PA
3964 Allentown PA
3979 Allentown PA
3981 Allentown PA
3987 Allentown PA
3988 Allentown PA
3990 Allentown PA
4010 Allentown PA
4034 Allentown PA
4054 Allentown PA
4064 Allentown PA
4113 Allentown PA
4123 Allentown PA
4150 Allentown PA
4176 Allentown PA
4199 Allentown PA
4207 Allentown PA
4212 Allentown PA
4229 Allentown PA
4233 Allentown PA
4248 Allentown PA
4275 Allentown PA
4313 Allentown PA
4334 Allentown PA
4344 Allentown PA
4361 Allentown PA
4362 Allentown PA
4373 Allentown PA
4383 Allentown PA
4394 Allentown PA
4397 Allentown PA
4399 Allentown PA
4407 Allentown PA
4409 Allentown PA
4418 Allentown PA
4429 Allentown PA
4444 Allentown PA
4445 Allentown PA
4446 Allentown PA
4448 Allentown PA
4460 Allentown PA
4468 Allentown PA
4470 Allentown PA
4478 Allentown PA
4479 Allentown PA
4483 Allentown PA
4496 Allentown PA
4703 Allentown PA
4709 Allentown PA
4713 Allentown PA
4726 Allentown PA
4741 Allentown PA
4742 Allentown PA
4770 Allentown PA
4771 Allentown PA
4772 Allentown PA
4785 Allentown PA
4788 Allentown PA
4793 Allentown PA
4807 Allentown PA
4812 Allentown PA
4825 Allentown PA
4831 Allentown PA
4832 Allentown PA
4839 Allentown PA
4840 Allentown PA
4860 Allentown PA
4861 Allentown PA
4867 Allentown PA
4868 Allentown PA
4871 Allentown PA
4874 Allentown PA
4878 Allentown PA
4897 Allentown PA
7025 Allentown PA
7032 Allentown PA
7039 Allentown PA
7044 Allentown PA
7048 Allentown PA
7065 Allentown PA
7075 Allentown PA
7083 Allentown PA
7097 Allentown PA
7104 Allentown PA
7109 Allentown PA
7110 Allentown PA
7119 Allentown PA
7120 Allentown PA
7125 Allentown PA
7129 Allentown PA
7133 Allentown PA
7134 Allentown PA
7142 Allentown PA
7144 Allentown PA
7155 Allentown PA
7171 Allentown PA
7172 Allentown PA
7177 Allentown PA
7179 Allentown PA
7182 Allentown PA
7187 Allentown PA
7188 Allentown PA
7192 Allentown PA
7197 Allentown PA
7198 Allentown PA
7200 Allentown PA
7204 Allentown PA
7209 Allentown PA
7217 Allentown PA
7232 Allentown PA
7235 Allentown PA
7238 Allentown PA
7240 Allentown PA
7257 Allentown PA
7269 Allentown PA
7281 Allentown PA
7282 Allentown PA
7283 Allentown PA
7293 Allentown PA
7325 Allentown PA
7334 Allentown PA
7341 Allentown PA
7357 Allentown PA
7363 Allentown PA
7372 Allentown PA
7374 Allentown PA
7375 Allentown PA
7415 Allentown PA
7417 Allentown PA
7427 Allentown PA
7432 Allentown PA
7451 Allentown PA
7452 Allentown PA
7453 Allentown PA
7470 Allentown PA
7476 Allentown PA
7492 Allentown PA
7507 Allentown PA
7519 Allentown PA
7535 Allentown PA
7554 Allentown PA
7575 Allentown PA
7581 Allentown PA
7592 Allentown PA
7602 Allentown PA
7605 Allentown PA
7608 Allentown PA
7612 Allentown PA
7654 Allentown PA
7664 Allentown PA
7673 Allentown PA
7676 Allentown PA
7677 Allentown PA
7695 Allentown PA
7699 Allentown PA
7707 Allentown PA
7708 Allentown PA
7713 Allentown PA
7725 Allentown PA
7728 Allentown PA
7729 Allentown PA
7746 Allentown PA
7749 Allentown PA
7760 Allentown PA
7766 Allentown PA
7777 Allentown PA
7790 Allentown PA
9123 Allentown PA
9125 Allentown PA
9133 Allentown PA
9140 Allentown PA
9146 Allentown PA
9147 Allentown PA
9149 Allentown PA
9158 Allentown PA
9161 Allentown PA
9166 Allentown PA
9231 Allentown PA
9234 Allentown PA
9255 Allentown PA
9274 Allentown PA
9382 Allentown PA
9392 Allentown PA
9393 Allentown PA
9410 Allentown PA
9411 Allentown PA
9412 Allentown PA
9413 Allentown PA
9414 Allentown PA
9415 Allentown PA
9416 Allentown PA
9417 Allentown PA
9418 Allentown PA
9419 Allentown PA
9420 Allentown PA
9421 Allentown PA
9422 Allentown PA
9423 Allentown PA
9424 Allentown PA
9425 Allentown PA
9438 Allentown PA
9446 Allentown PA
9521 Allentown PA
9524 Allentown PA
9529 Allentown PA
9536 Allentown PA
9539 Allentown PA
9542 Allentown PA
9589 Allentown PA
9597 Allentown PA
9609 Allentown PA
9642 Allentown PA
9662 Allentown PA
9692 Allentown PA
9733 Allentown PA
9752 Allentown PA
9769 Allentown PA
9770 Allentown PA
3010 Fresno CA
3018 Fresno CA
3041 Fresno CA
3053 Fresno CA
3086 Fresno CA
3106 Fresno CA
3110 Fresno CA
3124 Fresno CA
3127 Fresno CA
3130 Fresno CA
3162 Fresno CA
3169 Fresno CA
3174 Fresno CA
3235 Fresno CA
3274 Fresno CA
3276 Fresno CA
3334 Fresno CA
3337 Fresno CA
3345 Fresno CA
3362 Fresno CA
3363 Fresno CA
3368 Fresno CA
3369 Fresno CA
3376 Fresno CA
3412 Fresno CA
3431 Fresno CA
3435 Fresno CA
3440 Fresno CA
3483 Fresno CA
3501 Fresno CA
3531 Fresno CA
3565 Fresno CA
3568 Fresno CA
3582 Fresno CA
3595 Fresno CA
3635 Fresno CA
3639 Fresno CA
3653 Fresno CA
3696 Fresno CA
3697 Fresno CA
3699 Fresno CA
3725 Fresno CA
3748 Fresno CA
3764 Fresno CA
3834 Fresno CA
3842 Fresno CA
3855 Fresno CA
3865 Fresno CA
3915 Fresno CA
3916 Fresno CA
3920 Fresno CA
3945 Fresno CA
3962 Fresno CA
3968 Fresno CA
3982 Fresno CA
3986 Fresno CA
3998 Fresno CA
4007 Fresno CA
4037 Fresno CA
4047 Fresno CA
4117 Fresno CA
4151 Fresno CA
4191 Fresno CA
4200 Fresno CA
4239 Fresno CA
4240 Fresno CA
4274 Fresno CA
4277 Fresno CA
4281 Fresno CA
4282 Fresno CA
4285 Fresno CA
4291 Fresno CA
4320 Fresno CA
4330 Fresno CA
4340 Fresno CA
4341 Fresno CA
4342 Fresno CA
4349 Fresno CA
4364 Fresno CA
4366 Fresno CA
4367 Fresno CA
4371 Fresno CA
4396 Fresno CA
4408 Fresno CA
4421 Fresno CA
4424 Fresno CA
4432 Fresno CA
4449 Fresno CA
4452 Fresno CA
4457 Fresno CA
4472 Fresno CA
4474 Fresno CA
4482 Fresno CA
4705 Fresno CA
4706 Fresno CA
4721 Fresno CA
4749 Fresno CA
4751 Fresno CA
4762 Fresno CA
4806 Fresno CA
4811 Fresno CA
4819 Fresno CA
4829 Fresno CA
4843 Fresno CA
4862 Fresno CA
7098 Fresno CA
7165 Fresno CA
7175 Fresno CA
7195 Fresno CA
7225 Fresno CA
7287 Fresno CA
7379 Fresno CA
7390 Fresno CA
7422 Fresno CA
7471 Fresno CA
7481 Fresno CA
7486 Fresno CA
7548 Fresno CA
7552 Fresno CA
7587 Fresno CA
7606 Fresno CA
7609 Fresno CA
7619 Fresno CA
7625 Fresno CA
7639 Fresno CA
7653 Fresno CA
7701 Fresno CA
7702 Fresno CA
7714 Fresno CA
7756 Fresno CA
7916 Fresno CA
9153 Fresno CA
9328 Fresno CA
9551 Fresno CA
9608 Fresno CA
9746 Fresno CA
9761 Fresno CA
9797 Fresno CA
3009 Ft Wayne IN
3013 Ft Wayne IN
3029 Ft Wayne IN
3032 Ft Wayne IN
3033 Ft Wayne IN
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3069 Ft Wayne IN
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3016 Garland TX
3019 Garland TX
3044 Garland TX
3067 Garland TX
3114 Garland TX
3120 Garland TX
3128 Garland TX
3192 Garland TX
3199 Garland TX
3217 Garland TX
3238 Garland TX
3284 Garland TX
3321 Garland TX
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3475 Garland TX
3493 Garland TX
3519 Garland TX
3636 Garland TX
3649 Garland TX
3690 Garland TX
3717 Garland TX
3718 Garland TX
3727 Garland TX
3738 Garland TX
3743 Garland TX
3771 Garland TX
3772 Garland TX
3776 Garland TX
3791 Garland TX
3932 Garland TX
3933 Garland TX
3935 Garland TX
4023 Garland TX
4127 Garland TX
4139 Garland TX
4267 Garland TX
4346 Garland TX
4389 Garland TX
4473 Garland TX
4707 Garland TX
4708 Garland TX
4733 Garland TX
4773 Garland TX
4775 Garland TX
4778 Garland TX
4782 Garland TX
4808 Garland TX
4809 Garland TX
4828 Garland TX
4841 Garland TX
4885 Garland TX
7003 Garland TX
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7041 Garland TX
7056 Garland TX
7077 Garland TX
7170 Garland TX
7230 Garland TX
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7270 Garland TX
7286 Garland TX
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7314 Garland TX
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7404 Garland TX
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9264 Garland TX
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9364 Garland TX
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9398 Garland TX
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9512 Garland TX
9545 Garland TX
9552 Garland TX
9576 Garland TX
9582 Garland TX
9590 Garland TX
9607 Garland TX
9711 Garland TX
9717 Garland TX
9744 Garland TX
3054 Geneva AL
3082 Geneva AL
3099 Geneva AL
3132 Geneva AL
3166 Geneva AL
3194 Geneva AL
3219 Geneva AL
3223 Geneva AL
3289 Geneva AL
3353 Geneva AL
3355 Geneva AL
3356 Geneva AL
3359 Geneva AL
3424 Geneva AL
3487 Geneva AL
3528 Geneva AL
3545 Geneva AL
3602 Geneva AL
3629 Geneva AL
3660 Geneva AL
3661 Geneva AL
3672 Geneva AL
3673 Geneva AL
3674 Geneva AL
3675 Geneva AL
3700 Geneva AL
3701 Geneva AL
3713 Geneva AL
3714 Geneva AL
3747 Geneva AL
3762 Geneva AL
3847 Geneva AL
3854 Geneva AL
3867 Geneva AL
3905 Geneva AL
3929 Geneva AL
3930 Geneva AL
3931 Geneva AL
3939 Geneva AL
3940 Geneva AL
3946 Geneva AL
3947 Geneva AL
3957 Geneva AL
3967 Geneva AL
3975 Geneva AL
3978 Geneva AL
3980 Geneva AL
3989 Geneva AL
3991 Geneva AL
3994 Geneva AL
3996 Geneva AL
4071 Geneva AL
4072 Geneva AL
4122 Geneva AL
4138 Geneva AL
4198 Geneva AL
4210 Geneva AL
4283 Geneva AL
4286 Geneva AL
4308 Geneva AL
4410 Geneva AL
4451 Geneva AL
4489 Geneva AL
4723 Geneva AL
4760 Geneva AL
4769 Geneva AL
4797 Geneva AL
4817 Geneva AL
4833 Geneva AL
4836 Geneva AL
4848 Geneva AL
7001 Geneva AL
7020 Geneva AL
7028 Geneva AL
7059 Geneva AL
7071 Geneva AL
7079 Geneva AL
7183 Geneva AL
7184 Geneva AL
7265 Geneva AL
7330 Geneva AL
7336 Geneva AL
7360 Geneva AL
7388 Geneva AL
7435 Geneva AL
7558 Geneva AL
7595 Geneva AL
7604 Geneva AL
7613 Geneva AL
7629 Geneva AL
7637 Geneva AL
7640 Geneva AL
7643 Geneva AL
7901 Geneva AL
9217 Geneva AL
9569 Geneva AL
9571 Geneva AL
9627 Geneva AL
9657 Geneva AL
9714 Geneva AL
7478 Hawaii
7480 Hawaii
7488 Hawaii
7680 Hawaii
7682 Hawaii
7683 Hawaii
7705 Hawaii
9430 Hawaii
3006 Kansas City MO
3097 Kansas City MO
3137 Kansas City MO
3171 Kansas City MO
3184 Kansas City MO
3236 Kansas City MO
3239 Kansas City MO
3322 Kansas City MO
3358 Kansas City MO
3391 Kansas City MO
3422 Kansas City MO
3447 Kansas City MO
3508 Kansas City MO
3547 Kansas City MO
3579 Kansas City MO
3585 Kansas City MO
3591 Kansas City MO
3605 Kansas City MO
3655 Kansas City MO
3656 Kansas City MO
3758 Kansas City MO
3759 Kansas City MO
3803 Kansas City MO
3813 Kansas City MO
3814 Kansas City MO
3907 Kansas City MO
3934 Kansas City MO
3971 Kansas City MO
4026 Kansas City MO
4130 Kansas City MO
4156 Kansas City MO
4157 Kansas City MO
4160 Kansas City MO
4171 Kansas City MO
4174 Kansas City MO
4215 Kansas City MO
4220 Kansas City MO
4222 Kansas City MO
4270 Kansas City MO
4304 Kansas City MO
4332 Kansas City MO
4350 Kansas City MO
4427 Kansas City MO
4433 Kansas City MO
4443 Kansas City MO
4453 Kansas City MO
4465 Kansas City MO
4720 Kansas City MO
4743 Kansas City MO
7018 Kansas City MO
7024 Kansas City MO
7037 Kansas City MO
7040 Kansas City MO
7082 Kansas City MO
7161 Kansas City MO
7169 Kansas City MO
7193 Kansas City MO
7261 Kansas City MO
7324 Kansas City MO
7365 Kansas City MO
7409 Kansas City MO
7444 Kansas City MO
7458 Kansas City MO
7484 Kansas City MO
7493 Kansas City MO
7526 Kansas City MO
7543 Kansas City MO
7553 Kansas City MO
7572 Kansas City MO
7579 Kansas City MO
7583 Kansas City MO
7585 Kansas City MO
7672 Kansas City MO
7710 Kansas City MO
7782 Kansas City MO
7903 Kansas City MO
9105 Kansas City MO
9222 Kansas City MO
9243 Kansas City MO
9287 Kansas City MO
9319 Kansas City MO
9330 Kansas City MO
9331 Kansas City MO
9332 Kansas City MO
9334 Kansas City MO
9336 Kansas City MO
9338 Kansas City MO
9344 Kansas City MO
9345 Kansas City MO
9351 Kansas City MO
9353 Kansas City MO
9623 Kansas City MO
9647 Kansas City MO
3000 LaCrosse WI
3024 LaCrosse WI
3031 LaCrosse WI
3034 LaCrosse WI
3039 LaCrosse WI
3042 LaCrosse WI
3045 LaCrosse WI
3049 LaCrosse WI
3052 LaCrosse WI
3059 LaCrosse WI
3075 LaCrosse WI
3088 LaCrosse WI
3107 LaCrosse WI
3182 LaCrosse WI
3190 LaCrosse WI
3287 LaCrosse WI
3405 LaCrosse WI
3441 LaCrosse WI
3533 LaCrosse WI
3534 LaCrosse WI
3541 LaCrosse WI
3578 LaCrosse WI
3583 LaCrosse WI
3617 LaCrosse WI
3618 LaCrosse WI
3692 LaCrosse WI
3735 LaCrosse WI
3740 LaCrosse WI
3750 LaCrosse WI
3768 LaCrosse WI
3769 LaCrosse WI
3774 LaCrosse WI
3775 LaCrosse WI
3777 LaCrosse WI
3778 LaCrosse WI
3779 LaCrosse WI
3780 LaCrosse WI
3781 LaCrosse WI
3831 LaCrosse WI
3832 LaCrosse WI
3833 LaCrosse WI
3851 LaCrosse WI
3866 LaCrosse WI
3883 LaCrosse WI
3893 LaCrosse WI
3897 LaCrosse WI
3952 LaCrosse WI
3970 LaCrosse WI
4018 LaCrosse WI
4022 LaCrosse WI
4041 LaCrosse WI
4051 LaCrosse WI
4057 LaCrosse WI
4089 LaCrosse WI
4158 LaCrosse WI
4170 LaCrosse WI
4219 LaCrosse WI
4254 LaCrosse WI
4255 LaCrosse WI
4272 LaCrosse WI
4289 LaCrosse WI
4297 LaCrosse WI
4314 LaCrosse WI
4315 LaCrosse WI
4321 LaCrosse WI
4351 LaCrosse WI
4353 LaCrosse WI
4374 LaCrosse WI
4376 LaCrosse WI
4380 LaCrosse WI
4385 LaCrosse WI
4395 LaCrosse WI
4434 LaCrosse WI
4485 LaCrosse WI
4486 LaCrosse WI
4704 LaCrosse WI
4735 LaCrosse WI
4737 LaCrosse WI
4744 LaCrosse WI
4803 LaCrosse WI
4813 LaCrosse WI
4882 LaCrosse WI
7002 LaCrosse WI
7010 LaCrosse WI
7023 LaCrosse WI
7031 LaCrosse WI
7100 LaCrosse WI
7106 LaCrosse WI
7178 LaCrosse WI
7189 LaCrosse WI
7191 LaCrosse WI
7206 LaCrosse WI
7212 LaCrosse WI
7214 LaCrosse WI
7216 LaCrosse WI
7306 LaCrosse WI
7318 LaCrosse WI
7326 LaCrosse WI
7328 LaCrosse WI
7463 LaCrosse WI
7475 LaCrosse WI
7530 LaCrosse WI
7536 LaCrosse WI
7559 LaCrosse WI
7603 LaCrosse WI
7620 LaCrosse WI
7632 LaCrosse WI
7648 LaCrosse WI
7649 LaCrosse WI
7650 LaCrosse WI
7656 LaCrosse WI
7657 LaCrosse WI
7704 LaCrosse WI
7767 LaCrosse WI
7792 LaCrosse WI
7907 LaCrosse WI
9065 LaCrosse WI
9180 LaCrosse WI
9184 LaCrosse WI
9204 LaCrosse WI
9220 LaCrosse WI
9233 LaCrosse WI
9273 LaCrosse WI
9309 LaCrosse WI
9359 LaCrosse WI
9383 LaCrosse WI
9386 LaCrosse WI
9391 LaCrosse WI
9397 LaCrosse WI
9525 LaCrosse WI
9534 LaCrosse WI
9537 LaCrosse WI
9543 LaCrosse WI
9564 LaCrosse WI
9573 LaCrosse WI
9583 LaCrosse WI
9588 LaCrosse WI
9600 LaCrosse WI
9645 LaCrosse WI
9659 LaCrosse WI
9689 LaCrosse WI
9704 LaCrosse WI
9713 LaCrosse WI
9781 LaCrosse WI
3320 Lafayette LA
3347 Lafayette LA
3423 Lafayette LA
3497 Lafayette LA
3647 Lafayette LA
3648 Lafayette LA
3652 Lafayette LA
3663 Lafayette LA
3665 Lafayette LA
3721 Lafayette LA
3728 Lafayette LA
3745 Lafayette LA
3757 Lafayette LA
3770 Lafayette LA
3809 Lafayette LA
3830 Lafayette LA
3835 Lafayette LA
3844 Lafayette LA
3863 Lafayette LA
3870 Lafayette LA
3872 Lafayette LA
3878 Lafayette LA
3900 Lafayette LA
3904 Lafayette LA
3909 Lafayette LA
3913 Lafayette LA
3936 Lafayette LA
4128 Lafayette LA
4213 Lafayette LA
4223 Lafayette LA
4302 Lafayette LA
4425 Lafayette LA
4810 Lafayette LA
4820 Lafayette LA
4853 Lafayette LA
7052 Lafayette LA
7061 Lafayette LA
7114 Lafayette LA
7221 Lafayette LA
7223 Lafayette LA
7350 Lafayette LA
7384 Lafayette LA
7386 Lafayette LA
7439 Lafayette LA
7594 Lafayette LA
7599 Lafayette LA
7623 Lafayette LA
7642 Lafayette LA
7751 Lafayette LA
7910 Lafayette LA
9390 Lafayette LA
9520 Lafayette LA
9544 Lafayette LA
9682 Lafayette LA
9796 Lafayette LA
3061 Miami FL
3074 Miami FL
3092 Miami FL
3140 Miami FL
3144 Miami FL
3164 Miami FL
3176 Miami FL
3179 Miami FL
3246 Miami FL
3249 Miami FL
3257 Miami FL
3269 Miami FL
3317 Miami FL
3329 Miami FL
3381 Miami FL
3398 Miami FL
3457 Miami FL
3461 Miami FL
3464 Miami FL
3476 Miami FL
3478 Miami FL
3530 Miami FL
3540 Miami FL
3563 Miami FL
3573 Miami FL
3590 Miami FL
3603 Miami FL
3604 Miami FL
3608 Miami FL
3609 Miami FL
3613 Miami FL
3615 Miami FL
3624 Miami FL
3626 Miami FL
3642 Miami FL
3651 Miami FL
3657 Miami FL
3666 Miami FL
3668 Miami FL
3676 Miami FL
3677 Miami FL
3679 Miami FL
3683 Miami FL
3684 Miami FL
3734 Miami FL
3746 Miami FL
3760 Miami FL
3761 Miami FL
3783 Miami FL
3793 Miami FL
3818 Miami FL
3829 Miami FL
3845 Miami FL
3853 Miami FL
3874 Miami FL
3882 Miami FL
3896 Miami FL
3906 Miami FL
3956 Miami FL
3972 Miami FL
3973 Miami FL
3985 Miami FL
3993 Miami FL
4243 Miami FL
4245 Miami FL
4292 Miami FL
4295 Miami FL
4296 Miami FL
4298 Miami FL
4311 Miami FL
4327 Miami FL
4343 Miami FL
4355 Miami FL
4356 Miami FL
4390 Miami FL
4403 Miami FL
4415 Miami FL
4420 Miami FL
4484 Miami FL
4490 Miami FL
4494 Miami FL
4715 Miami FL
4725 Miami FL
4727 Miami FL
4728 Miami FL
4732 Miami FL
4761 Miami FL
4765 Miami FL
4767 Miami FL
4768 Miami FL
4844 Miami FL
4858 Miami FL
4869 Miami FL
4870 Miami FL
4886 Miami FL
4887 Miami FL
4893 Miami FL
4894 Miami FL
7067 Miami FL
7147 Miami FL
7150 Miami FL
7196 Miami FL
7231 Miami FL
7233 Miami FL
7263 Miami FL
7268 Miami FL
7277 Miami FL
7294 Miami FL
7295 Miami FL
7310 Miami FL
7321 Miami FL
7333 Miami FL
7335 Miami FL
7339 Miami FL
7359 Miami FL
7366 Miami FL
7389 Miami FL
7413 Miami FL
7419 Miami FL
7446 Miami FL
7447 Miami FL
7505 Miami FL
7513 Miami FL
7517 Miami FL
7520 Miami FL
7522 Miami FL
7544 Miami FL
7556 Miami FL
7566 Miami FL
7568 Miami FL
7570 Miami FL
7574 Miami FL
7628 Miami FL
7665 Miami FL
7669 Miami FL
7711 Miami FL
7741 Miami FL
7752 Miami FL
7768 Miami FL
7781 Miami FL
7783 Miami FL
7784 Miami FL
7786 Miami FL
7793 Miami FL
9224 Miami FL
9289 Miami FL
9324 Miami FL
9394 Miami FL
9511 Miami FL
9614 Miami FL
9785 Miami FL
9787 Miami FL
9789 Miami FL
9793 Miami FL
3022 Nashville, TN
3057 Nashville TN
3063 Nashville TN
3065 Nashville TN
3083 Nashville TN
3084 Nashville TN
3103 Nashville TN
3121 Nashville TN
3143 Nashville TN
3147 Nashville, TN
3221 Nashville TN
3230 Nashville TN
3245 Nashville TN
3297 Nashville TN
3348 Nashville TN
3408 Nashville TN
3640 Nashville TN
3644 Nashville TN
3646 Nashville TN
3671 Nashville TN
3685 Nashville TN
3688 Nashville TN
3689 Nashville TN
3702 Nashville TN
3703 Nashville TN
3705 Nashville TN
3715 Nashville TN
3716 Nashville TN
3773 Nashville TN
3782 Nashville TN
3812 Nashville TN
3822 Nashville TN
3823 Nashville TN
3836 Nashville TN
3846 Nashville TN
3848 Nashville TN
3849 Nashville TN
3850 Nashville TN
3876 Nashville TN
3941 Nashville TN
3944 Nashville TN
3958 Nashville TN
3966 Nashville TN
4006 Nashville TN
4033 Nashville TN
4077 Nashville TN
4093 Nashville TN
4103 Nashville TN
4180 Nashville TN
4232 Nashville TN
4241 Nashville TN
4244 Nashville TN
4312 Nashville TN
4475 Nashville TN
4717 Nashville TN
4739 Nashville TN
4740 Nashville TN
4753 Nashville TN
4759 Nashville TN
4774 Nashville TN
4827 Nashville TN
4835 Nashville TN
4847 Nashville TN
4864 Nashville TN
4883 Nashville TN
4898 Nashville TN
4899 Nashville TN
7021 Nashville TN
7026 Nashville TN
7045 Nashville TN
7063 Nashville TN
7064 Nashville TN
7066 Nashville TN
7069 Nashville TN
7076 Nashville TN
7132 Nashville TN
7138 Nashville TN
7146 Nashville TN
7154 Nashville TN
7174 Nashville TN
7237 Nashville TN
7244 Nashville TN
7245 Nashville TN
7255 Nashville TN
7280 Nashville TN
7288 Nashville TN
7304 Nashville TN
7317 Nashville TN
7354 Nashville TN
7356 Nashville TN
7358 Nashville TN
7362 Nashville TN
7430 Nashville TN
7434 Nashville TN
7437 Nashville TN
7442 Nashville TN
7459 Nashville TN
7460 Nashville TN
7461 Nashville TN
7502 Nashville TN
7607 Nashville TN
7610 Nashville TN
7627 Nashville TN
7718 Nashville TN
7719 Nashville TN
9014 Nashville TN
9112 Nashville TN
9121 Nashville TN
9445 Nashville TN
9503 Nashville TN
9513 Nashville TN
9560 Nashville TN
9566 Nashville TN
9620 Nashville TN
9621 Nashville TN
9622 Nashville TN
9625 Nashville TN
9629 Nashville TN
9633 Nashville TN
9634 Nashville TN
9639 Nashville TN
9648 Nashville TN
9651 Nashville TN
9674 Nashville TN
9680 Nashville TN
9694 Nashville TN
9728 Nashville TN
9735 Nashville TN
9749 Nashville TN
9757 Nashville TN
9758 Nashville TN
9783 Nashville TN
3014 Phoenix AZ
3058 Phoenix AZ
3076 Phoenix AZ
3095 Phoenix AZ
3108 Phoenix AZ
3151 Phoenix AZ
3188 Phoenix AZ
3228 Phoenix AZ
3301 Phoenix AZ
3304 Phoenix AZ
3375 Phoenix AZ
3403 Phoenix AZ
3444 Phoenix AZ
3452 Phoenix AZ
3491 Phoenix AZ
3551 Phoenix AZ
3592 Phoenix AZ
3611 Phoenix AZ
3628 Phoenix AZ
3670 Phoenix AZ
3678 Phoenix AZ
3680 Phoenix AZ
3682 Phoenix AZ
3695 Phoenix AZ
3707 Phoenix AZ
3708 Phoenix AZ
3719 Phoenix AZ
3811 Phoenix AZ
3828 Phoenix, AZ
3857 Phoenix AZ
3858 Phoenix AZ
3881 Phoenix AZ
3918 Phoenix AZ
3919 Phoenix AZ
3922 Phoenix AZ
3923 Phoenix AZ
3924 Phoenix AZ
4136 Phoenix AZ
4185 Phoenix AZ
4201 Phoenix AZ
4205 Phoenix AZ
4252 Phoenix AZ
4260 Phoenix AZ
4269 Phoenix AZ
4271 Phoenix AZ
4290 Phoenix AZ
4306 Phoenix AZ
4359 Phoenix AZ
4369 Phoenix AZ
4387 Phoenix AZ
4400 Phoenix AZ
4711 Phoenix AZ
4776 Phoenix AZ
4857 Phoenix AZ
4880 Phoenix AZ
7035 Phoenix AZ
7047 Phoenix, AZ
7092 Phoenix, AZ
7236 Phoenix AZ
7313 Phoenix AZ
7347 Phoenix AZ
7367 Phoenix AZ
7371 Phoenix AZ
7385 Phoenix AZ
7418 Phoenix AZ
7497 Phoenix AZ
7551 Phoenix AZ
7586 Phoenix AZ
7633 Phoenix AZ
7636 Phoenix AZ
7638 Phoenix AZ
7655 Phoenix AZ
7678 Phoenix AZ
7755 Phoenix AZ
9101 Phoenix AZ
9119 Phoenix AZ
9325 Phoenix AZ
9389 Phoenix AZ
9406 Phoenix AZ
9528 Phoenix AZ
9784 Phoenix AZ
3085 Salt Lake City UT
3094 Salt Lake City UT
3096 Salt Lake City UT
3189 Salt Lake City UT
3298 Salt Lake City UT
3310 Salt Lake City UT
3548 Salt Lake City UT
3622 Salt Lake City UT
3627 Salt Lake City UT
3749 Salt Lake City UT
3765 Salt Lake City UT
3890 Salt Lake City UT
3891 Salt Lake City UT
3892 Salt Lake City UT
3894 Salt Lake City UT
3917 Salt Lake City UT
3977 Salt Lake City UT
4115 Salt Lake City UT
4121 Salt Lake City UT
4129 Salt Lake City UT
4131 Salt Lake City UT
4159 Salt Lake City UT
4162 Salt Lake City UT
4181 Salt Lake City UT
4187 Salt Lake City UT
4224 Salt Lake City UT
4273 Salt Lake City UT
4303 Salt Lake City UT
4471 Salt Lake City UT
4736 Salt Lake City UT
4748 Salt Lake City UT
4750 Salt Lake City UT
4792 Salt Lake City UT
4814 Salt Lake City UT
4837 Salt Lake City UT
4838 Salt Lake City UT
4863 Salt Lake City UT
4879 Salt Lake City UT
7000 Salt Lake City UT
7006 Salt Lake City UT
7027 Salt Lake City UT
7029 Salt Lake City UT
7057 Salt Lake City UT
7099 Salt Lake City UT
7107 Salt Lake City UT
7139 Salt Lake City UT
7303 Salt Lake City UT
7329 Salt Lake City UT
7412 Salt Lake City UT
7423 Salt Lake City UT
7425 Salt Lake City UT
7426 Salt Lake City UT
7512 Salt Lake City UT
7533 Salt Lake City UT
7538 Salt Lake City UT
7542 Salt Lake City UT
7560 Salt Lake City UT
7618 Salt Lake City UT
7624 Salt Lake City UT
7668 Salt Lake City UT
9046 Salt Lake City UT
9074 Salt Lake City UT
9225 Salt Lake City UT
9241 Salt Lake City UT
9261 Salt Lake City UT
9306 Salt Lake City UT
9515 Salt Lake City UT
9630 Salt Lake City UT
9715 Salt Lake City UT
9751 Salt Lake City UT
9759 Salt Lake City UT
9792 Salt Lake City UT
9794 Salt Lake City UT
3025 Seattle WA
3072 Seattle WA
3133 Seattle WA
3209 Seattle WA
3214 Seattle WA
3270 Seattle WA
3275 Seattle WA
3354 Seattle WA
3389 Seattle WA
3413 Seattle WA
3430 Seattle WA
3443 Seattle WA
3580 Seattle WA
3584 Seattle WA
3623 Seattle WA
3722 Seattle WA
3839 Seattle WA
3840 Seattle WA
3888 Seattle WA
3889 Seattle WA
3969 Seattle WA
4081 Seattle WA
4146 Seattle WA
4147 Seattle WA
4155 Seattle WA
4178 Seattle WA
4208 Seattle WA
4225 Seattle WA
4253 Seattle WA
4288 Seattle WA
4339 Seattle WA
4404 Seattle WA
4406 Seattle WA
4435 Seattle WA
4439 Seattle WA
4455 Seattle WA
4467 Seattle WA
4480 Seattle WA
4755 Seattle WA
4779 Seattle WA
7030 Seattle WA
7033 Seattle WA
7034 Seattle WA
7143 Seattle WA
7153 Seattle WA
7166 Seattle WA
7207 Seattle WA
7253 Seattle WA
7315 Seattle WA
7331 Seattle WA
7338 Seattle WA
7569 Seattle WA
7580 Seattle WA
7598 Seattle WA
7621 Seattle WA
7904 Seattle WA
9530 Seattle WA
9698 Seattle WA
9808 Seattle WA
3002 Warsaw NC
3080 Warsaw NC
3116 Warsaw NC
3122 Warsaw NC
3154 Warsaw NC
3168 Warsaw NC
3206 Warsaw NC
3240 Warsaw NC
3253 Warsaw NC
3294 Warsaw NC
3324 Warsaw NC
3336 Warsaw NC
3365 Warsaw NC
3428 Warsaw NC
3442 Warsaw NC
3471 Warsaw NC
3544 Warsaw NC
3560 Warsaw NC
3598 Warsaw NC
3606 Warsaw NC
3621 Warsaw NC
3625 Warsaw NC
3632 Warsaw NC
3634 Warsaw NC
3645 Warsaw NC
3658 Warsaw NC
3667 Warsaw NC
3669 Warsaw NC
3706 Warsaw NC
3742 Warsaw NC
3744 Warsaw NC
3752 Warsaw NC
3753 Warsaw NC
3754 Warsaw NC
3763 Warsaw NC
3801 Warsaw NC
3806 Warsaw NC
3808 Warsaw NC
3815 Warsaw NC
3816 Warsaw NC
3817 Warsaw NC
3826 Warsaw NC
3838 Warsaw NC
3852 Warsaw NC
3868 Warsaw NC
3869 Warsaw NC
3875 Warsaw NC
3880 Warsaw NC
3886 Warsaw NC
3887 Warsaw NC
3925 Warsaw NC
3961 Warsaw NC
3965 Warsaw NC
3976 Warsaw NC
4016 Warsaw NC
4043 Warsaw NC
4044 Warsaw NC
4062 Warsaw NC
4084 Warsaw NC
4090 Warsaw NC
4112 Warsaw NC
4135 Warsaw NC
4137 Warsaw NC
4141 Warsaw NC
4189 Warsaw NC
4202 Warsaw NC
4237 Warsaw NC
4317 Warsaw NC
4319 Warsaw NC
4450 Warsaw NC
4701 Warsaw NC
4712 Warsaw NC
4716 Warsaw NC
4738 Warsaw NC
4752 Warsaw NC
4754 Warsaw NC
4757 Warsaw NC
4777 Warsaw NC
4826 Warsaw NC
4850 Warsaw NC
4865 Warsaw NC
4866 Warsaw NC
4872 Warsaw NC
4873 Warsaw NC
7043 Warsaw NC
7046 Warsaw NC
7058 Warsaw NC
7060 Warsaw NC
7062 Warsaw NC
7080 Warsaw NC
7090 Warsaw NC
7136 Warsaw NC
7149 Warsaw NC
7160 Warsaw NC
7208 Warsaw NC
7226 Warsaw NC
7239 Warsaw NC
7254 Warsaw NC
7256 Warsaw NC
7259 Warsaw NC
7274 Warsaw NC
7276 Warsaw NC
7278 Warsaw NC
7323 Warsaw NC
7340 Warsaw NC
7342 Warsaw NC
7351 Warsaw NC
7361 Warsaw NC
7382 Warsaw NC
7407 Warsaw NC
7410 Warsaw NC
7420 Warsaw NC
7462 Warsaw NC
7555 Warsaw NC
7582 Warsaw NC
7616 Warsaw NC
7622 Warsaw NC
7626 Warsaw NC
7670 Warsaw NC
7717 Warsaw NC
7754 Warsaw NC
7787 Warsaw NC
9084 Warsaw NC
9129 Warsaw NC
9150 Warsaw NC
9154 Warsaw NC
9207 Warsaw NC
9237 Warsaw NC
9320 Warsaw NC
9379 Warsaw NC
9547 Warsaw NC
9549 Warsaw NC
9563 Warsaw NC
9606 Warsaw NC
9619 Warsaw NC
9652 Warsaw NC
9656 Warsaw NC
9666 Warsaw NC
9667 Warsaw NC
9668 Warsaw NC
9688 Warsaw NC
9737 Warsaw NC
9747 Warsaw NC
SCHEDULE 1.1
PRODUCTS
Product List:
Meat Department Category and Item Assumptions
Beef (All Private Brands, National, Regional, and Local Brands)
o All Fresh and Beef Primals and Sub-Primals
o Inclusive of all Retail Ready Pre-Packaged Beef
o Inclusive of all Pre-Cooked Beef Products
o Inclusive of all Hotel and Case Ready Cuts and Primals
o All Fresh and Frozen Ground Meat Products
o Inclusive of all Bulk, Pre-Packaged and Retail Ready Products
o Inclusive of all Fresh and Frozen by Products
Pork (All Private Brands, National, Regional, and Local Brands)
o All Fresh and Frozen Pork Primals and Sub-Primals
o Inclusive of all Retail Ready Pre-Packaged Products
o Inclusive of all Bone-In and Boneless Product
o Inclusive of all Fresh and Frozen by Products
o Inclusive of all Smoked and Country Cured Products (boneless and bone-in)
Poultry (All Private Brands, National, Regional, and Local Brands)
o All Fresh, Frozen, and Chill Pack Products
o Bulk, Pre-Package, IQF Poultry and Breaded Poultry Products
o Trayed, Bagged or Bulk (C02)
o Inclusive of all Fresh and Frozen Turkeys
o Whole and Parts
o Ducks, Geese, Capons, and Game Hens
Packaged Meat Products (All Private Brands, National , Regional, and Local
Brands)
o Inclusive of all items Packaged, Bulk, Cooked, Raw, Fresh or Frozen Products
sold from the meat department or dairy department in the following categories:
o Bacon
o Fresh Sausage
o Smoked Sausage
o Canned Hams and All other Refrigerated Canned Meat Items
o All Refrigerated Pickles and Sauerkraut
o Hot Dogs, Wieners, Conies
o All Cup Salads and Bulk Salad Items traditionally sold in the Meat
Department or Dairy Case
Packaged Meat Products (All Private Brands, National, Regional, and Local
Brands)
o All Prepackaged Refrigerated Process Cold Cuts
o All Bulk Cold cuts that are processed and sold in the Meat Department
o All Market Style - Bulk and Pre-Cut Cheese (sold in the Meat Department)
o All Meals To Go - Meal Kits - Quick to Fix Items - Home Meal Replacement
Items to include but not limited to:
o Pizzas (market style)
o Lunchables
o Tyson/Oncor/Advanced Products
Seafood (All Private Brands, National, Regional, and Local Brands)
o All Frozen, Packaged and Bulk Seafood Inclusive of:
o Whole H&G
o Fillets and Steakfish
o All Frozen Shell Fish
o Shrimp (Raw, Cooked, Fresh, Frozen)
o Imitation Seafood Products
o Pre-Cooked Heat and Serve Products
o All glass and plastic container product related to the category
Produce
In support of Kmart, Fleming will source and negotiate all Branded, Non-Branded
and Private Label Produce for the following products/categories, including but
not limited to:
- - All Fresh Categories (Including Value Added Products)
- - All Non-Fresh Manufactured Categories
- - All Floral Accessories (Including Balloons, Planters, Pots, Supplies, etc.)
- - All Silk Flowers and Plants
- - Christmas Trees
GFD
Catsup & Mustard
BBQ Sauce & Misc. Sauces
Sauces-Ital, Cooking, Paste
Salad Drsng, Mayo, Vinegar
Pickles & Relishes
Olives & Red Cherries
Jellies, Jams, Preserves
Peanut Butter & Honey
Juices & Drinks
Fruits - Canned & Glass
Vegetables - Canned & Glass
Low Cal & Health Foods
Fish & Seafood
Canned Meat
Prepared & Nationality Fd
Soup - Canned & Dry
Baby Food & Formula
Milk - Canned & Powdered
Coffee & Creamers
Tea
Cocoa & Milk Modifiers
Powdered Fruit Flav Drnks
Cereal, Pop Trts, Ins Bkfst
Cookies & Crackers
Chips, Snacks & Nuts
Dried Fruit
Dry Beans, Veg & Grains
Popcorn
Spaghetti & Macaroni
Prep Dinners & Box Pizza
Baking Accessories
Cake Mix, Frstg, Prep Mix
Pancake Mix
Breadings & Coatings
Flour & Cake Flour
Salt, Seasngs, Spices, Extr, Gravies
Desserts, Toppng, Puddings
Syrup & Molasses
Shortening & Oil
Sugar & Sugar Substitutes
Candy & Gum
Butter Margarine
Refrig Dough Products
Cheese - Retail Packaged
Bulk Cheese
Cultured Products
Juice Products
Fish/Hrsradish/Sce/Mustrd
Pickles
Refrigerated Salads
Desserts & Topping
Yeast
Juice
Fruit
Vegetables - Frozen
Potatoes
Frozen Prepared
Frozen Bakery & Desserts
Non-Dairy
Frozen Fish
Frozen Meat Packaged
Frozen Poultry Packaged
Frozen Bake-off
Other Frozen for Resale
Hispanic Foods
Oriental Foods
Italian Foods
Natural Foods
Diet Foods
Natural HABA
Baby Diapers & Pants
Dog Foods
Other Pet Foods & Litter
Dish Detergents
Laundry Detergents
Hand & Bath Soaps
Laundry Supplies & Bleach
All Prpose Clnr/Disinfect
Household Clnrs, Compounds
Household Supplies
Waxes & Polish - Furniture
Pesticides
Paper Products
Picnic Supplies & Drink Cup
Wraps, Foil, Freezer Supply
Sandwich, Storg, Trash Bags
Cigarettes
Cigars, Tobacco, Snuff, Misc.
Frozen bagels and breakfast foods
Charcoal and lighter fluids
Rock salt, water softener salt and pellets
Deli Department
o All Turkey and Poultry products including smoked, browned, flavored, dark
meat, pre-cooked holiday birds (fresh and frozen)
o All Beef products including all roast beef, corned beef, pastrami, further
processed beef products etc.
o All ham products including Honey, Virginia, Cooked, Water added, Chopped,
Capacola, Prosciutto, Flavored, canned etc.
o All Cheese categories including domestic, imports, imitations, shreds,
balls and logs, specialty
o All Smoked Meats including Canadian bacon, bacon, brats, smoked sausage,
metts, wieners, links etc
o All Luncheon meats including bologna, braunschweiger, head cheese, liver
loaf, flavor loaves
o All Dry Sausage including hard, genoa, pepperoni, summer sausage
o All "Lite" and "Lo-Salt" deli meats and cheeses
o All Salads - fresh garden salads, coleslaw, macaroni salad, potato salads,
desserts, dips, puddings, specialty, etc. (bilk and pre-packaged)
o All pizza products both fresh, frozen and pre-made
o All deli beverages including coffee, juice, tea, soft drinks etc.
o All Deli snacks, tortilla chips, crackers and mustards
o All Chicken products including fresh 8 pc and wogs, 8 pc. MRB and frozen
WOGS as well as all further processed and wing products
o All vegetables and fruits used in a deli operation both dry and frozen
o All condiments used in a Deli operation including dry, refrigerated and
frozen
o All spices used in the Deli kitchen
o All Hot Foods including entrees, vegetables, fish, BBQ, ribs, lamb,
lasagna, pork, sausage, shrimp, egg rolls, corn dogs, steaks etc.
o All Deli breads and bread board items including pita breads, lavosh etc.
o All salad bar ingredients
o All breakfast items including sausage patties, biscuits, pre-cooked bacon
etc.
o All frozen and fresh soups pre packaged or bulk
o All thaw and sell prepackaged deli products including ready to serve
entrees and vegetables,
o All other deli products including but not limited to herring, lox, olives,
pickles, cooking oils, ethnic foods,
o All seasonal and promotional items for all holidays not listed including
gift packs, seasonal candies.
Bakery Department
o All Breads and Rolls including bake off and thaw and sell
o All Bread and roll mixes and bases
o All Commodity flours, sugars, yeast
o All Donuts including frozen dough, ready to finish, mixes and thaw and sell
/ready to sell
o All cream products including refrigerated or frozen ice cream cakes,
eclairs, cream horns, pie shells, puffs, tart shells, ice cream tortes and
all other cream products
o All Sweet Goods including all frozen bake off, ready to sell or thaw and
finish Danish, cinnamon rolls, coffee cakes, turnovers, puff dough, etc,
o All Cakes either the mix, frozen uniced or pre-iced
o All cakes ready to sell or ready to finish including angel foods, brownies,
cupcakes, pound cakes, creme cakes, bundt cakes or any other product made
from cake style batters
o All pies either made in store from scratch, ready to bake or ready to thaw
and sell including all fruit, cremes, meringues etc.
o All Hispanic and other ethnic breads, pastries and desserts
o All cookies either from mix, frozen pucks or ready to thaw and sell either
in bulk or pre-packaged
o All muffin products either from mix, or thaw and sell prepackaged or bulk
o All bagel products
o All Bakery ingredients including shortenings and oils, sugars, icings,
toppings, fruit fillings, eggs, spices. Decorretes, flavors, emulsions,
cheese for baking, sanding sugars, nuts and toppings, etc.
o All cake decorating supplies
o All retail cake accessories including candles, lay-ons, napkins, party
plates, hats etc.
o All "fat free" and "sugar free" items listed above
o All seasonal and holiday items including seasonal flavors of above listed
items and commodities
o All other products sold today in the traditional Bakery department
including shop around pallets of bakery thaw and sell products
SCHEDULE 1.2A
HBC AND GMD
The Fleming / Kmart GM and HBC synergies teams, headed by Jeff Manning and Cecil
Kearse, will identify the procurement and distribution strategies and potential
benefits by category for presentation on or before May 2, 2001. The categories
will be broken out as follows:
Health & Beauty Care
Deodorants Hair Care Analgesics
Skin Care First Aid Cough and Cold
Oral Care Foot Care Eye and Ear Care
Sun Care Feminine Hygiene Diet
Shaving Needs Family Planning Nutrition
Bath Baby Needs Vitamins and Supplements
Men's Grooming Cosmetics Digestive Health
Private Label Ethnic HBC
General Merchandise
Household Softgoods Light Bulbs / Electrical Baby Sun / Reading Glasses
Closet / Cleaning Supplies Batteries / Flashlights School Supplies Seasonal Product
Bakeware / Kitchen Gadgets Photo / Audio / Video Home & Office Promotional Product
Housewares / Drinkware Hardware Sewing / Shoe Care
Tableware Toys Party Needs
Plastic Storage Automotive Panty Hose
Appliances & Clocks Gloves Direct Imports
SCHEDULE 1.2B
DUNIGAN FUEL TERMS
Fuel Management Services Agreement
Term Sheet
Purpose:
To establish business guidelines for how Dunigan Fuels will provide fuel
inventory and other related services for Kmart.
1. Services Provided:
Dunigan Fuels will provide the following services to Kmart.
A. Fuel Inventory Management - Dunigan Fuels will monitor Kmart's Fuel Center
location remotely and schedule the delivery of fuel 7 days a week. Fuel
will be automatically dispatched on an as needed basis.
B. Help Desk - Dunigan Fuels will provide a 7 day 24 hours a day help desk.
The help desk will support fuel operations only. Dunigan Fuels will
dispatch fuel maintenance companies on an as needed basis per Kmart
guidelines.
C. Environmental Monitoring - Dunigan Fuels will provide Environmental
compliance monitoring during the term of the fuel management services
agreement. Environmental Monitoring will commence once Kmart and Dunigan
Fuels execute an Environmental Monitoring Plan. This plan should be
executed within 180 days from the commencement of this agreement.
D. Accounting - Dunigan Fuels will invoice using Electronic Data Interchange.
Kmart will pay all invoices using automated clearinghouse transfers
("ACH").
2. Term:
The term will be the same as this Agreement.
3. Termination:
Termination of this agreement will be the same as this Agreement.
(CONFIDENTIAL)
5. Payments/ Payment Terms/ Invoicing:
Dunigan Fuels shall invoice Kmart for all Products sold by Dunigan Fuels to
Kmart via Electronic Data Interchange (EDI), or other mutually acceptable
methods. Payment of the Product will be due to Seller based on net ten (10)
days from delivery of each load of Product. Payment will be made via ACH.
6. Invoice Reconciliation:
Dunigan Fuels will provide all goods on a cost plus its pre-negotiated
fees. Services are considered to be included in fees generated by gallons
processed. From time to time there will be a need to correct a billing due
to an over or under charge for a good or services provided. These billing
errors will be accrued and settled on a quarterly basis. A complete
accounting by store and by invoice will be kept to justify all invoice
reconciliation.
7. Access to Tank Monitors:
Kmart will always allow Dunigan Fuels, during the term of the fuel
management services agreement, phone line access to its automatic tank
monitors. This access is necessary for Dunigan Fuels to perform its duties.
8. Environmental Monitoring:
Dunigan Fuels will help with the Environmental Monitoring of Kmart's
locations. This monitoring will be secondary to on-site monitoring of fuel
leaks and alarms. Environmental Monitoring will commence upon the signing
of a mutually agreed upon Environmental Monitoring Plan. This plan will be
established within 180 days of the signing of this agreement. If, in fact,
on-site monitoring is unavailable by Dunigan Fuels due to lack of systems
or other reasons, fees (margin) will be reduced by (CONFIDENTIAL) per
gallon.
9. Federal and Local Fuel Taxes:
Dunigan Fuels shall collect for Kmart all required federal, state, and
local taxes, including, without limitation, any additional fees or taxes
which may be levied or imposed in connection with the sale, transportation,
delivery or use of the Products at the Locations. Dunigan Fuels shall pay
all such taxes promptly to the appropriate authority within the time frame
required and indemnify, defend and hold Kmart harmless therefrom.
10. Fuel Procurement
It is the intent of Dunigan Fuels and Kmart to use whichever method
necessary to procure fuel at the lowest available cost. The current methods
used to procure fuel for this agreement will be having Dunigan Fuels buy
the fuel on its account, Kmart buying the fuel on their account, and using
Internet based auctions. In the future other methods may be identified and
used. Under all methods Dunigan Fuels will still monitor and perform its
services and still be entitled to the margin addressed in this agreement.
Any rebates earned and received by Dunigan Fuels from a specific refiner
will be prorated to Kmart based on Kmart's item percentage of Dunigan
Fuels' volume with that specific refiner. If Dunigan's pricing is below
OPIS Low after taking into account any such rebates, Dunigan will share the
savings below OPIS Low with Kmart on the basis of (CONFIDENTIAL) of such
savings to Dunigan and (CONFIDENTIAL) of such savings to Kmart.
11. Performance Reporting:
Dunigan Fuels will provide to Kmart on a quarterly basis performance
reporting. Performance reporting will be how well fuel was procured
compared to the Oil Price Information System. The price fuel was procured
at will be compared to the OPIS Average and OPIS Low price for every
location. Racks to be mutually agreed upon by Kmart and Dunigan Fuels.
Failure to perform at or below the OPIS Low published price over any
quarter for any location will be grounds for termination of that location
from the fuel management services agreement at Kmart's discretion. In times
of Natural Disaster, Government Intervention, or other events out of the
control of both parties that create abnormal price conditions, may affect
the performance reporting, these days will be excluded from any performance
reporting. Days excluded to be agreed upon by both parties. In addition, if
Dunigan is buying fuel on its own account, failure to perform at OPIS Low,
after taking into account all applicable rebates will result in a
(CONFIDENTIAL) reduction in fees to Dunigan based on gallons purchased in
that period for the specific location. Performance below OPIS Low will
result in a sharing of savings with Kmart on the basis of (CONFIDENTIAL) of
such savings to Dunigan and (CONFIDENTIAL) of such savings to Kmart for the
location.
12. Freight:
Dunigan Fuels will coordinate the delivery of fuel to Kmart's fuel centers
using common carriers. Freight rates will be provided to Kmart on a cost
basis.
13. Handling Credits and Float Rebates:
The Handling Credits collected by Dunigan Fuels from paying taxes for the
fuel sold to Kmart will be rebated to Kmart on a quarterly basis. The
rebate will be payable 30 days following Kmart's quarter end. A complete
accounting by fuel center of the handling credits will be kept and provided
to Kmart with each payment.
Float Credit - An interest float credit of $.0008 per gallon purchased will
be credited on a quarterly basis. The gallons used to determine the amount
rebated will be the gallons sold to Kmart that Dunigan Fuels collected and
paid the federal and state taxes. Any gallons that Kmart has not paid for
within the agreed upon payment term will be excluded from the rebate.
14. Margin
(CONFIDENTIAL)
Cumulative Number of Gallons
Purchased Per Gallon Fee
--------- --------------
0 - 5,000,000 gallons (CONFIDENTIAL) per gallon
5,000,001 - 7,500,000 gallons (CONFIDENTIAL) per gallon
7,500,001 - 10,000,000 gallons (CONFIDENTIAL) per gallon
10,000,001 - 12,500,000 gallons (CONFIDENTIAL) per gallon
12,500,001 - 15,000,000 gallons (CONFIDENTIAL) per gallon
15,000,001 - 17,500,000 gallons (CONFIDENTIAL) per gallon
17,500,001 - 20,000,000 gallons (CONFIDENTIAL) per gallon
20,000,001 - 22,500,000 gallons (CONFIDENTIAL) per gallon
22,500,001 - 25,000,000 gallons (CONFIDENTIAL) per gallon
25,000,001 - 27,500,000 gallons (CONFIDENTIAL) per gallon
27,500,001 - 30,000,000 gallons (CONFIDENTIAL) per gallon
30,000,001 - 32,500,000 gallons (CONFIDENTIAL) per gallon
32,500,001 - 35,000,000 gallons (CONFIDENTIAL) per gallon
35,000,001 - 37,500,000 gallons (CONFIDENTIAL) per gallon
37,500,001 - 40,000,000 gallons (CONFIDENTIAL) per gallon
40,000,001 + gallons (CONFIDENTIAL) per gallon
SCHEDULE 1.3
(CONFIDENTIAL)
SCHEDULE 1.4
HIGH VELOCITY PRODUCTS
(CONFIDENTIAL)
SCHEDULE 2
LOGISTICS SERVICES
Inbound receiving and storage of product
Order selection and loading, routing and scheduling
Maintaining an inventory to enable Fleming to supply products timely
Inventory control and quality assurance, and stock rotation
Fruit ripening
Inventory management
Transportation management (backhaul, consolidation, carrier selection, freight
bill audit and forward to Kmart for payment, pallet and tote return pursuant to
agreed procedures) - At Kmart's option, Fleming shall provide transportation
services and select third party transportation providers reasonably acceptable
to Kmart
SCHEDULE 4A
SERVICE REQUIREMENTS
Fleming shall exercise commercially reasonable efforts to achieve service
levels for Product categories described below:
Minimum
Year 2 and Service Levels
Year 1 Thereafter (Beginning on the Termination
Category Target (1) Target Effective Date) Period
- -------- ---------- ------ --------------- ------
Perishables 97 97 14 day rolling average greater than 96% 90
5 day rolling average greater than 95%
Grocery, Frozen, Dairy 96.25 97 28 day rolling average greater than 95% 90
5 day rolling average greater than 94%
HBC and GMD TBD TBD TBD TBD
- --------------------
<FN>
(1) The "Target" service level in Year 1 shall be effective beginning on the
90th day following the commencement of supply by Fleming to Kmart for each
Distribution Center.
</FN>
The failure to achieve the service level requirements set forth herein as
targets does not constitute a material breach of this Agreement, except as
provided below. Upon failure to achieve any minimum service level for any sixty
(60) days during any 365 consecutive day period at any Distribution Center, a
member of the Account Team appointed by Kmart shall present the matter to a
designated committee of executive officers of each party to resolve the issue.
If such officers are unable to agree on a plan to resolve the matter, or if the
service level deficiencies persist after implementing the actions recommended by
the executive officers, Kmart shall have the right, but not the obligation, to
refer the matter to an independent third party consultant approved by Fleming
(the "Consultant") to review the situation and recommend an action plan to
increase service levels to an acceptable level. The recommendations of the
Consultant shall not be binding on the parties, but the parties shall seek in
good faith to implement any such recommendations. The fees and expenses of the
Consultant shall be borne by the parties equally.
A material breach of this Agreement with respect to service level
requirements shall occur only if Fleming fails to achieve any minimum service
level for any 120 days during any 365 consecutive day period.
"Service level" shall be measured weekly by the number of full cases
delivered as compared to the number of full cases ordered (net of discontinued
items ordered inadvertently). The failure to deliver Products ordered by Kmart
due to vendor outs or unavailable Products, if either of such conditions exist
for a continuous period of thirty (30) days, except with respect to seasonal
Perishables, if such conditions exist for a continuous period of seven days, or
due to discontinued items, materially inaccurate forecasting of Product needs by
Kmart or materially inadequate order lead time by Kmart shall not be included in
the calculation of the service level.
Nothing contained herein shall establish service levels for Stores in
Hawaii, which shall be evaluated separately, and the parties shall, within a
reasonable time, agree upon standards for service levels for Products sold to
Stores in Hawaii.
SCHEDULE 4B
QUALITY ASSURANCE AND FOOD SAFETY GUIDELINES
1. Each Distribution Center will receive two unannounced ASI Inspections
annually. Scores of 900 or above are required. Any Distribution Center
receiving a score of less than 900 will require a re-inspection after
corrections of the deficiencies. ASI inspection documents will be available
for review by Kmart.
2. Each Distribution Center supplying perishable Products to Super K Stores
will have a minimum of two Quality Control Inspectors (one for Deli/Bakery
& Meat, one for Produce).
3. Kmart will provide perishable product specifications by department to
Fleming for receiving and shipping of product to be shipped to Kmart
stores. No product will be shipped outside of specifications without prior
approval from Kmart. Dating standards as shown below will apply to these
specifications.
4. All existing quality assurance guidelines will continue as shown below,
including unannounced quality audits to insure processes are in place to
meet specifications.
5. All inbound shipments must adhere to an incoming goods inspections process
as identified by ASI.
6. Minimum dating standards for retail delivery are as follows:
Cheese - 21 days from Expiration Date
Margarine - 21 days from Expiration Date
Cultured Product - 7 days from Expiration Date
Dough Product - 7 days from Expiration Date
Refrigerated Juice - 7 days from Expiration Date
Packaged Meat - 14 days from Expiration Date
Box Beef - 30 days from Pack
Poultry - 5 days from Expiration Date
Pork - 18 days from Pack
Deli Meats - 14 days from Expiration Date
Deli Salads - 7 days from Expiration Date
Gourmet Deli Cheeses - 14 days from Expiration Date
Domestic Deli Cheese - 21 days from Expiration Date
Frozen Deli - 14 days from Expiration Date
Fresh Poultry (cvp) - 5 days from Expiration Date
All Bakery - 14 days from Expiration Date
o All dry grocery Products delivered to the Stores shall have at least 45
days remaining until their expiration date (except for private label
Products which will have the time remaining until their respective
expiration dates. All perishable Products shall have at least the number of
days remaining until the expiration date as is usual and customary in the
supermarket industry for products of that kind. Other Products will be
handled by the parties on a case by case basis by rejection or with
appropriate consideration for price reductions.
o Upon delivery, refrigerated and frozen foods will be the proper temperature
and show no evidence of temperature abuse, i.e., thaw and refreeze. The
Stores will reject any Product shipment that has evidence of temperature
abuse.
o Fleming's distribution centers, both refrigerated and dry, must comply with
all federal, state and local health codes. Inspection reports, including
internal Fleming reports will be made available to Kmart upon request. This
includes pest control inspection reports.
o All deliveries must be free of infestation or any evidence of infestation
by rodents and insects, including stored product pests. The Stores will
reject any Product shipment that has evidence of infestation.
o Products will be shipped in a manner so as to prevent contamination and
adulteration between food and chemicals.
o Delivery vehicles must be clean, free of infestation, and odors, which
could indicate improper cleaning and sanitizing of delivery trucks.
Trailers used to ship food products may not be used to back haul garbage,
chemicals, trash or any items that may impart noxious odors that could
penetrate food.
o Fleming must immediately notify Kmart of any product recalls from
manufacturers.
o Fleming will accept the return of damaged or otherwise contaminated cases
and issue a full credit to Kmart for the return.
o Kmart food safety personnel will be permitted to visit all Fleming's
Distribution Centers supplying Products to Kmart with appropriate
coordination with Fleming.
SCHEDULE 4C
SHRINK AUDIT PROCEDURE
Fleming / Kmart Shortage Standard
Fleming will develop a Shortage Standard from actual YTD 2000 shortage credits
issued to Big K and Super K. The Shortage Standard will be calculated by
Distribution Center. Payment will be made by check within fours week after each
quarter end. Distribution Centers with no Kmart credit history will be
calculated as a composite average of all Distribution Centers excluding from the
calculation those Divisions with the highest and lowest shortage history. Rates
will be adjusted quarterly. As soon as practicable after the Effective Date, and
in any event prior to March 31, 2001, the parties shall establish an initial
shortage standard rate to be applicable upon the commencement of Fleming's
supply of incremental volume of Products pursuant to this Agreement.
Kmart will randomly supply associates to participate in the case count audit
process on Fleming's dock. Quarterly, the Shortage Standard will be based on
collaborative audit team findings by Kmart and Fleming associates from these
dock audits. Absent Kmart input, the rollup of Fleming internal 4% case count
audit results from the preceding quarter will apply.
All case count audits will be conducted on Fleming's dock during normal shipping
hours. Both parties agree to minimize disruption to shipping and on time
dockout.
Large identifiable shortages (e.g. missing pallets) will be addressed on an
individual basis. Kmart and Fleming loss control will work together at retail to
address consistent claims outside the program. Fresh Meat, Frozen Shrimp,
Cigarettes and Produce Nut Meats will be piece counted at time of delivery.
Fleming and Kmart will enforce the current Seal Procedure and identify lapses.
Seal Procedure is set forth below.
Label errors (mis-picks) will be addressed as part of Fleming's retail credit
policy.
Kmart Seal Procedure
1. Once the trailer loading is completed, a Fleming associate will close the
doors and secure the load consistent with the specific division security
procedures.
2. Billing clerk will then process the necessary paperwork, and assign the
security seals for the load. The seal number for each of the stops will be
written directly on the delivery receipt or driver run document. An
additional seal will be issued for use if the trailer has a side door.
3. Before the trailer leaves the yard, Fleming Security or the driver will
attach the seal for the first stop of the load. Security will verify that
the seal number(s) matches the paperwork. At this point, the trailer is
sealed and ready to leave Fleming.
4. Upon arrival to the first stop, the driver will ask the store receiving
personnel to break the rear door seal, verify the number and sign the
Delivery Receipt or the driver run document confirming that the seal was
intact at time of delivery. The driver will also ask the store personnel to
confirm, but not remove the seal number for any side doors.
5. If there is more than one stop on the trailer, the driver will ask the
store receiving personnel at the first stop to place a second seal on the
trailer, verify the number, and note their name directly on the Delivery
Receipt. This process will continue for additional stops.
6. In the event a seal is broken or does not correspond with the number
recorded on the Delivery Receipt, the driver and store receiving personnel
must call Fleming Customer Service immediately. Fleming will verify the
seal number and confirm that Fleming Security did not make any changes. At
this point, the load must be counted by the driver and verified by the
store.
SCHEDULE 4D
AUDIT PROCEDURES
Kmart has the right to audit Fleming's books and records regarding Product cost
files and selling prices and charges, allowances, and freight calculations
relating to Fleming's performance of and compliance with this Agreement upon
reasonable advance notice to Fleming. Fleming must maintain its books and
records in a manner that facilitates a full and complete review of Fleming's
performance of and compliance with this Agreement. All such books and records
will be available for audit by Kmart for the current prior 12 accounting periods
(i.e. for a "rolling" thirteen periods). The books and records will be
maintained on-site at each Distribution Center for the Stores serviced by that
Distribution Center for the current and six prior accounting periods (a
"rolling" seven periods), and thereafter, the books and records will be
maintained off-site by Fleming and will be made available and retrieved by
Fleming upon a specific request by Kmart to audit an identified issue. The
audits may be conducted by Kmart or its third party designee and will be
conducted at each individual Distribution Center. Kmart and Fleming will each
bear their own costs associated with the audits.
SCHEDULE 4E
MANAGEMENT REPORTS
Key Performance Indicators
Service Level
Reporting Frequency Adj NonFleming Raw Fleming
-------------------------- ------- --------------------------------- ------- -----------------
Reporting Levels Rolling Rolling Service Service
Day Week Period Level Discon New Mfg UnAval Rstrc Level Whse Mdsr Alloc
--- ---- ------ ----- ------ --- --- ------ ----- ----- ---- ---- -----
Total Company X X X
Division X X X
Ad Product X X X
Department X X X
"A" Items X X
"B" Items X X
"C" Items X X
"D" Items X X
Delivery
Reporting Frequency
-------------------
Reporting Levels Day Week Period Cube/Load % On Time % Units Damaged Pallet Balance Tote Balance
- ---------------- --- ---- ------ --------- --------- --------------- -------------- ------------
Total Company X X
Division X X X
Outstanding A/R Balance
Reporting Frequency
-------------------
% Invoices with Past Due
Reporting Levels Day Week Period Deductions Balance
- ---------------- --- ---- ------ ---------- -------
Total Company X X
Division X X
Ordering and Case Value
Reporting Frequency
-------------------
Avg Case Avg Order Orders < Late Late "Manual"
Reporting Levels Day Week Period Value Cases 800 % CSL Turn Promo Orders
- ---------------- --- ---- ------ ----- ----- --- ----- ---- ----- ------
Total Company X
Division X
Ad Product X
Department X
Reporting Frequency
-------------------
Forecast % Big Lot
Reporting Levels Day Week Period Accuracy Pallets
- ---------------- --- ---- ------ -------- -------
Total Company X
Division X
Ad Product X
Department X
Item Assortment & Movement
Reporting Frequency
-------------------
Reporting Levels Day Week Period Item Count Mvmt/Item Item < 1/Cs/wk/Str
- ---------------- --- ---- ------ ---------- --------- ------------------
Total Company X
Division X
Ad Product X
Department X
Items with low movement
Super K Going In Gross Reports as current
SCHEDULE 5
(CONFIDENTIAL)
Logistics Fees
(CONFIDENTIAL)
SCHEDULE 5A
(CONFIDENTIAL)
SCHEDULE 5B
ACCOUNTS RECEIVABLE RECONCILIATION
The parties shall commit to apply required joint Kmart / Fleming team resources
to work with diligence and good faith to eliminate in next sixty (60) days
current inter-company process bottlenecks and inefficiencies that lead to
increased A/R balances and delivery errors. These inefficiencies include, but
are not limited to:
o Centralized control, setup and propagation of new items to all Kmart
supplying divisions;
o Develop a process to handle invoice charges not specific to one line item
and miscellaneous ("hand invoice") charges;
o Address processing summary drops in lieu of "line-item" drops;
o ASN failures
o Lack of a fully implemented ASN system; and
o Lack of uniform common items codes.
SCHEDULE 10
TRANSITION MILESTONES
START UP TIME LINE
30 Days 60 Days 90 Days 120 Days 150 Days 180 Days
------- ------- ------- -------- -------- --------
22-Apr
Fresno XXXXXXXXXXXXXXXXXXXX
22-Apr
Sacramento XXXXXXXXXXXXXXXXXXXX
6-May
Memphis XXXXXXXXXXXXXXXXXXXX
6-May
Nashville XXXXXXXXXXXXXXXXXXXX
6-May
Miami XXXXXXXXXXXXXXXXXXXX
1-Apr
Warsaw XXXXXXXXXXXXXXXXXXXX
13-May
Kansas City XXXXXXXXXXXXXXXXXXXX
13-May
Garland XXXXXXXXXXXXXXXXXXXX
13-May
Lafayette XXXXXXXXXXXXXXXXXXXX
22-Apr
Phoenix XXXXXXXXXXXXXXXXXXXX
3-Jun
Salt Lake City XXXXXXXXXXXXXXXXXXXX
3-Jun
Geneva XXXXXXXXXXXXXXXXXXXX
30-Jun
LaCrosse XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
30-Jun
Northeast XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
30-Jun
Indiana XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
30-Jun
Northwest XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX