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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
<PAGE> 2
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.
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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.
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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");
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(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.
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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).
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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
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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.
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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.
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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;
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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)
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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,
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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:
<TABLE>
<S><C>
Kmart Corporation
3100 West Big Beaver Road
Troy, Michigan 48084
Attn: Vice President, General Merchandise Manager, Food and Consumables
Fax: (248) 614-0638
</TABLE>
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.
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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.
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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
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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
-------------------------------------------
Name: Mark S. Hansen
Title: Chairman and Chief Executive Officer
KMART CORPORATION
By
--------------------------------------------
Name: Charles C. Conaway
Title: Chairman and Chief Executive Officer
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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
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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
<TABLE>
<CAPTION>
BK STORE 2001 PROPOSED SK STORE FRES. / 2001 PROPOSED
NUMBER DC NUMBER SAC. DC NOTE
------------------------------------------------------------------------
<S> <C> <C> <C> <C>
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
</TABLE>
1
<PAGE> 19
<TABLE>
<S> <C> <C> <C>
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
</TABLE>
2
<PAGE> 20
<TABLE>
<S> <C> <C> <C> <C>
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 3837 Allentown PA
3535 Allentown PA 3861 Allentown PA
3558 Allentown PA 3862 Allentown PA
3561 Allentown PA 3873 Allentown PA
3564 Allentown PA 3877 Allentown PA
3569 Allentown PA 3879 Allentown PA
3586 Allentown PA 3884 Allentown PA
3593 Allentown PA 3885 Allentown PA
3596 Allentown PA 3895 Allentown PA
3597 Allentown PA 3911 Allentown PA
3600 Allentown PA 3912 Allentown PA
3616 Allentown PA 3927 Allentown PA
3630 Allentown PA 3928 Allentown PA
3638 Allentown PA 3937 Allentown PA
3641 Allentown PA 3942 Allentown PA
3643 Allentown PA 3943 Allentown PA
3654 Allentown PA 3949 Allentown PA
3681 Allentown PA 3951 Allentown PA
3691 Allentown PA 3953 Allentown PA
3694 Allentown PA 3954 Allentown PA
3709 Allentown PA 3963 Allentown PA
3710 Allentown PA 3964 Allentown PA
3711 Allentown PA 3979 Allentown PA
3737 Allentown PA 3981 Allentown PA
3787 Allentown PA 3987 Allentown PA
3792 Allentown PA 3988 Allentown PA
3794 Allentown PA 3990 Allentown PA
3795 Allentown PA 4010 Allentown PA
3796 Allentown PA 4034 Allentown PA
3798 Allentown PA 4054 Allentown PA
3799 Allentown PA 4064 Allentown PA
3800 Allentown PA 4113 Allentown PA
3807 Allentown PA 4123 Allentown PA
3810 Allentown PA 4150 Allentown PA
3824 Allentown PA 4176 Allentown PA
3825 Allentown PA 4199 Allentown PA
3827 Allentown PA 4207 Allentown PA
</TABLE>
3
<PAGE> 21
<TABLE>
<S> <C> <C> <C>
4212 Allentown PA 4897 Allentown PA
4229 Allentown PA 7025 Allentown PA
4233 Allentown PA 7032 Allentown PA
4248 Allentown PA 7039 Allentown PA
4275 Allentown PA 7044 Allentown PA
4313 Allentown PA 7048 Allentown PA
4334 Allentown PA 7065 Allentown PA
4344 Allentown PA 7075 Allentown PA
4361 Allentown PA 7083 Allentown PA
4362 Allentown PA 7097 Allentown PA
4373 Allentown PA 7104 Allentown PA
4383 Allentown PA 7109 Allentown PA
4394 Allentown PA 7110 Allentown PA
4397 Allentown PA 7119 Allentown PA
4399 Allentown PA 7120 Allentown PA
4407 Allentown PA 7125 Allentown PA
4409 Allentown PA 7129 Allentown PA
4418 Allentown PA 7133 Allentown PA
4429 Allentown PA 7134 Allentown PA
4444 Allentown PA 7142 Allentown PA
4445 Allentown PA 7144 Allentown PA
4446 Allentown PA 7155 Allentown PA
4448 Allentown PA 7171 Allentown PA
4460 Allentown PA 7172 Allentown PA
4468 Allentown PA 7177 Allentown PA
4470 Allentown PA 7179 Allentown PA
4478 Allentown PA 7182 Allentown PA
4479 Allentown PA 7187 Allentown PA
4483 Allentown PA 7188 Allentown PA
4496 Allentown PA 7192 Allentown PA
4703 Allentown PA 7197 Allentown PA
4709 Allentown PA 7198 Allentown PA
4713 Allentown PA 7200 Allentown PA
4726 Allentown PA 7204 Allentown PA
4741 Allentown PA 7209 Allentown PA
4742 Allentown PA 7217 Allentown PA
4770 Allentown PA 7232 Allentown PA
4771 Allentown PA 7235 Allentown PA
4772 Allentown PA 7238 Allentown PA
4785 Allentown PA 7240 Allentown PA
4788 Allentown PA 7257 Allentown PA
4793 Allentown PA 7269 Allentown PA
4807 Allentown PA 7281 Allentown PA
4812 Allentown PA 7282 Allentown PA
4825 Allentown PA 7283 Allentown PA
4831 Allentown PA 7293 Allentown PA
4832 Allentown PA 7325 Allentown PA
4839 Allentown PA 7334 Allentown PA
4840 Allentown PA 7341 Allentown PA
4860 Allentown PA 7357 Allentown PA
4861 Allentown PA 7363 Allentown PA
4867 Allentown PA 7372 Allentown PA
4868 Allentown PA 7374 Allentown PA
4871 Allentown PA 7375 Allentown PA
4874 Allentown PA 7415 Allentown PA
4878 Allentown PA 7417 Allentown PA
</TABLE>
4
<PAGE> 22
<TABLE>
<S> <C> <C> <C>
7427 Allentown PA 9411 Allentown PA
7432 Allentown PA 9412 Allentown PA
7451 Allentown PA 9413 Allentown PA
7452 Allentown PA 9414 Allentown PA
7453 Allentown PA 9415 Allentown PA
7470 Allentown PA 9416 Allentown PA
7476 Allentown PA 9417 Allentown PA
7492 Allentown PA 9418 Allentown PA
7507 Allentown PA 9419 Allentown PA
7519 Allentown PA 9420 Allentown PA
7535 Allentown PA 9421 Allentown PA
7554 Allentown PA 9422 Allentown PA
7575 Allentown PA 9423 Allentown PA
7581 Allentown PA 9424 Allentown PA
7592 Allentown PA 9425 Allentown PA
7602 Allentown PA 9438 Allentown PA
7605 Allentown PA 9446 Allentown PA
7608 Allentown PA 9521 Allentown PA
7612 Allentown PA 9524 Allentown PA
7654 Allentown PA 9529 Allentown PA
7664 Allentown PA 9536 Allentown PA
7673 Allentown PA 9539 Allentown PA
7676 Allentown PA 9542 Allentown PA
7677 Allentown PA 9589 Allentown PA
7695 Allentown PA 9597 Allentown PA
7699 Allentown PA 9609 Allentown PA
7707 Allentown PA 9642 Allentown PA
7708 Allentown PA 9662 Allentown PA
7713 Allentown PA 9692 Allentown PA
7725 Allentown PA 9733 Allentown PA
7728 Allentown PA 9752 Allentown PA
7729 Allentown PA 9769 Allentown PA
7746 Allentown PA 9770 Allentown PA
7749 Allentown PA 3010 Fresno CA
7760 Allentown PA 3018 Fresno CA
7766 Allentown PA 3041 Fresno CA
7777 Allentown PA 3053 Fresno CA
7790 Allentown PA 3086 Fresno CA
9123 Allentown PA 3106 Fresno CA
9125 Allentown PA 3110 Fresno CA
9133 Allentown PA 3124 Fresno CA
9140 Allentown PA 3127 Fresno CA
9146 Allentown PA 3130 Fresno CA
9147 Allentown PA 3162 Fresno CA
9149 Allentown PA 3169 Fresno CA
9158 Allentown PA 3174 Fresno CA
9161 Allentown PA 3235 Fresno CA
9166 Allentown PA 3274 Fresno CA
9231 Allentown PA 3276 Fresno CA
9234 Allentown PA 3334 Fresno CA
9255 Allentown PA 3337 Fresno CA
9274 Allentown PA 3345 Fresno CA
9382 Allentown PA 3362 Fresno CA
9392 Allentown PA 3363 Fresno CA
9393 Allentown PA 3368 Fresno CA
9410 Allentown PA 3369 Fresno CA
</TABLE>
5
<PAGE> 23
<TABLE>
<S> <C> <C> <C>
3376 Fresno CA 4366 Fresno CA
3412 Fresno CA 4367 Fresno CA
3431 Fresno CA 4371 Fresno CA
3435 Fresno CA 4396 Fresno CA
3440 Fresno CA 4408 Fresno CA
3483 Fresno CA 4421 Fresno CA
3501 Fresno CA 4424 Fresno CA
3531 Fresno CA 4432 Fresno CA
3565 Fresno CA 4449 Fresno CA
3568 Fresno CA 4452 Fresno CA
3582 Fresno CA 4457 Fresno CA
3595 Fresno CA 4472 Fresno CA
3635 Fresno CA 4474 Fresno CA
3639 Fresno CA 4482 Fresno CA
3653 Fresno CA 4705 Fresno CA
3696 Fresno CA 4706 Fresno CA
3697 Fresno CA 4721 Fresno CA
3699 Fresno CA 4749 Fresno CA
3725 Fresno CA 4751 Fresno CA
3748 Fresno CA 4762 Fresno CA
3764 Fresno CA 4806 Fresno CA
3834 Fresno CA 4811 Fresno CA
3842 Fresno CA 4819 Fresno CA
3855 Fresno CA 4829 Fresno CA
3865 Fresno CA 4843 Fresno CA
3915 Fresno CA 4862 Fresno CA
3916 Fresno CA 7098 Fresno CA
3920 Fresno CA 7165 Fresno CA
3945 Fresno CA 7175 Fresno CA
3962 Fresno CA 7195 Fresno CA
3968 Fresno CA 7225 Fresno CA
3982 Fresno CA 7287 Fresno CA
3986 Fresno CA 7379 Fresno CA
3998 Fresno CA 7390 Fresno CA
4007 Fresno CA 7422 Fresno CA
4037 Fresno CA 7471 Fresno CA
4047 Fresno CA 7481 Fresno CA
4117 Fresno CA 7486 Fresno CA
4151 Fresno CA 7548 Fresno CA
4191 Fresno CA 7552 Fresno CA
4200 Fresno CA 7587 Fresno CA
4239 Fresno CA 7606 Fresno CA
4240 Fresno CA 7609 Fresno CA
4274 Fresno CA 7619 Fresno CA
4277 Fresno CA 7625 Fresno CA
4281 Fresno CA 7639 Fresno CA
4282 Fresno CA 7653 Fresno CA
4285 Fresno CA 7701 Fresno CA
4291 Fresno CA 7702 Fresno CA
4320 Fresno CA 7714 Fresno CA
4330 Fresno CA 7756 Fresno CA
4340 Fresno CA 7916 Fresno CA
4341 Fresno CA 9153 Fresno CA
4342 Fresno CA 9328 Fresno CA
4349 Fresno CA 9551 Fresno CA
4364 Fresno CA 9608 Fresno CA
</TABLE>
6
<PAGE> 24
<TABLE>
<S> <C> <C> <C>
9746 Fresno CA 3309 Ft Wayne IN
9761 Fresno CA 3314 Ft Wayne IN
9797 Fresno CA 3327 Ft Wayne IN
3009 Ft Wayne IN 3328 Ft Wayne IN
3013 Ft Wayne IN 3338 Ft Wayne IN
3029 Ft Wayne IN 3343 Ft Wayne IN
3032 Ft Wayne IN 3344 Ft Wayne IN
3033 Ft Wayne IN 3349 Ft Wayne IN
3066 Ft Wayne IN 3351 Ft Wayne IN
3069 Ft Wayne IN 3371 Ft Wayne IN
3100 Ft Wayne IN 3373 Ft Wayne IN
3105 Ft Wayne IN 3379 Ft Wayne IN
3111 Ft Wayne IN 3407 Ft Wayne IN
3126 Ft Wayne IN 3410 Ft Wayne IN
3139 Ft Wayne IN 3411 Ft Wayne IN
3142 Ft Wayne IN 3420 Ft Wayne IN
3155 Ft Wayne IN 3421 Ft Wayne IN
3159 Ft Wayne IN 3425 Ft Wayne IN
3170 Ft Wayne IN 3426 Ft Wayne IN
3177 Ft Wayne IN 3446 Ft Wayne IN
3180 Ft Wayne IN 3455 Ft Wayne IN
3181 Ft Wayne IN 3462 Ft Wayne IN
3191 Ft Wayne IN 3473 Ft Wayne IN
3195 Ft Wayne IN 3474 Ft Wayne IN
3197 Ft Wayne IN 3484 Ft Wayne IN
3198 Ft Wayne IN 3496 Ft Wayne IN
3200 Ft Wayne IN 3507 Ft Wayne IN
3207 Ft Wayne IN 3515 Ft Wayne IN
3218 Ft Wayne IN 3536 Ft Wayne IN
3220 Ft Wayne IN 3537 Ft Wayne IN
3233 Ft Wayne IN 3546 Ft Wayne IN
3234 Ft Wayne IN 3555 Ft Wayne IN
3241 Ft Wayne IN 3556 Ft Wayne IN
3243 Ft Wayne IN 3557 Ft Wayne IN
3248 Ft Wayne IN 3559 Ft Wayne IN
3250 Ft Wayne IN 3570 Ft Wayne IN
3251 Ft Wayne IN 3571 Ft Wayne IN
3252 Ft Wayne IN 3589 Ft Wayne IN
3254 Ft Wayne IN 3594 Ft Wayne IN
3260 Ft Wayne IN 3599 Ft Wayne IN
3261 Ft Wayne IN 3619 Ft Wayne IN
3262 Ft Wayne IN 3620 Ft Wayne IN
3265 Ft Wayne IN 3631 Ft Wayne IN
3267 Ft Wayne IN 3637 Ft Wayne IN
3271 Ft Wayne IN 3659 Ft Wayne IN
3272 Ft Wayne IN 3662 Ft Wayne IN
3278 Ft Wayne IN 3664 Ft Wayne IN
3279 Ft Wayne IN 3687 Ft Wayne IN
3281 Ft Wayne IN 3720 Ft Wayne IN
3283 Ft Wayne IN 3723 Ft Wayne IN
3286 Ft Wayne IN 3724 Ft Wayne IN
3290 Ft Wayne IN 3730 Ft Wayne IN
3292 Ft Wayne IN 3731 Ft Wayne IN
3299 Ft Wayne IN 3741 Ft Wayne IN
3302 Ft Wayne IN 3751 Ft Wayne IN
3308 Ft Wayne IN 3756 Ft Wayne IN
</TABLE>
7
<PAGE> 25
<TABLE>
<S> <C> <C> <C>
3767 Ft Wayne IN 4206 Ft Wayne IN
3789 Ft Wayne IN 4209 Ft Wayne IN
3790 Ft Wayne IN 4214 Ft Wayne IN
3804 Ft Wayne IN 4228 Ft Wayne IN
3805 Ft Wayne IN 4235 Ft Wayne IN
3819 Ft Wayne IN 4249 Ft Wayne IN
3820 Ft Wayne IN 4256 Ft Wayne IN
3821 Ft Wayne IN 4257 Ft Wayne IN
3841 Ft Wayne IN 4263 Ft Wayne IN
3843 Ft Wayne IN 4264 Ft Wayne IN
3859 Ft Wayne IN 4268 Ft Wayne IN
3864 Ft Wayne IN 4276 Ft Wayne IN
3902 Ft Wayne IN 4293 Ft Wayne IN
3914 Ft Wayne IN 4301 Ft Wayne IN
3938 Ft Wayne IN 4331 Ft Wayne IN
3950 Ft Wayne IN 4352 Ft Wayne IN
3959 Ft Wayne IN 4375 Ft Wayne IN
3960 Ft Wayne IN 4377 Ft Wayne IN
4000 Ft Wayne IN 4381 Ft Wayne IN
4030 Ft Wayne IN 4382 Ft Wayne IN
4031 Ft Wayne IN 4384 Ft Wayne IN
4035 Ft Wayne IN 4386 Ft Wayne IN
4039 Ft Wayne IN 4393 Ft Wayne IN
4040 Ft Wayne IN 4405 Ft Wayne IN
4048 Ft Wayne IN 4414 Ft Wayne IN
4065 Ft Wayne IN 4416 Ft Wayne IN
4066 Ft Wayne IN 4422 Ft Wayne IN
4067 Ft Wayne IN 4423 Ft Wayne IN
4074 Ft Wayne IN 4428 Ft Wayne IN
4079 Ft Wayne IN 4430 Ft Wayne IN
4082 Ft Wayne IN 4436 Ft Wayne IN
4083 Ft Wayne IN 4438 Ft Wayne IN
4091 Ft Wayne IN 4442 Ft Wayne IN
4095 Ft Wayne IN 4459 Ft Wayne IN
4096 Ft Wayne IN 4464 Ft Wayne IN
4098 Ft Wayne IN 4481 Ft Wayne IN
4100 Ft Wayne IN 4488 Ft Wayne IN
4105 Ft Wayne IN 4700 Ft Wayne IN
4106 Ft Wayne IN 4724 Ft Wayne IN
4148 Ft Wayne IN 4729 Ft Wayne IN
4152 Ft Wayne IN 4747 Ft Wayne IN
4163 Ft Wayne IN 4781 Ft Wayne IN
4165 Ft Wayne IN 4783 Ft Wayne IN
4166 Ft Wayne IN 4784 Ft Wayne IN
4168 Ft Wayne IN 4794 Ft Wayne IN
4169 Ft Wayne IN 4795 Ft Wayne IN
4173 Ft Wayne IN 4796 Ft Wayne IN
4175 Ft Wayne IN 4801 Ft Wayne IN
4177 Ft Wayne IN 4802 Ft Wayne IN
4179 Ft Wayne IN 4815 Ft Wayne IN
4183 Ft Wayne IN 4822 Ft Wayne IN
4188 Ft Wayne IN 4823 Ft Wayne IN
4192 Ft Wayne IN 4830 Ft Wayne IN
4196 Ft Wayne IN 4845 Ft Wayne IN
4203 Ft Wayne IN 4851 Ft Wayne IN
4204 Ft Wayne IN 4852 Ft Wayne IN
</TABLE>
8
<PAGE> 26
<TABLE>
<S> <C> <C> <C>
4855 Ft Wayne IN 7700 Ft Wayne IN
4875 Ft Wayne IN 7723 Ft Wayne IN
4895 Ft Wayne IN 7733 Ft Wayne IN
7014 Ft Wayne IN 7736 Ft Wayne IN
7022 Ft Wayne IN 7753 Ft Wayne IN
7042 Ft Wayne IN 7772 Ft Wayne IN
7068 Ft Wayne IN 7775 Ft Wayne IN
7073 Ft Wayne IN 7789 Ft Wayne IN
7081 Ft Wayne IN 9003 Ft Wayne IN
7084 Ft Wayne IN 9005 Ft Wayne IN
7127 Ft Wayne IN 9018 Ft Wayne IN
7131 Ft Wayne IN 9026 Ft Wayne IN
7140 Ft Wayne IN 9030 Ft Wayne IN
7185 Ft Wayne IN 9038 Ft Wayne IN
7190 Ft Wayne IN 9088 Ft Wayne IN
7205 Ft Wayne IN 9089 Ft Wayne IN
7229 Ft Wayne IN 9092 Ft Wayne IN
7243 Ft Wayne IN 9096 Ft Wayne IN
7246 Ft Wayne IN 9122 Ft Wayne IN
7249 Ft Wayne IN 9124 Ft Wayne IN
7272 Ft Wayne IN 9163 Ft Wayne IN
7275 Ft Wayne IN 9186 Ft Wayne IN
7289 Ft Wayne IN 9187 Ft Wayne IN
7305 Ft Wayne IN 9218 Ft Wayne IN
7337 Ft Wayne IN 9245 Ft Wayne IN
7368 Ft Wayne IN 9288 Ft Wayne IN
7381 Ft Wayne IN 9335 Ft Wayne IN
7383 Ft Wayne IN 9339 Ft Wayne IN
7393 Ft Wayne IN 9340 Ft Wayne IN
7395 Ft Wayne IN 9348 Ft Wayne IN
7397 Ft Wayne IN 9349 Ft Wayne IN
7399 Ft Wayne IN 9352 Ft Wayne IN
7402 Ft Wayne IN 9354 Ft Wayne IN
7431 Ft Wayne IN 9355 Ft Wayne IN
7455 Ft Wayne IN 9357 Ft Wayne IN
7472 Ft Wayne IN 9360 Ft Wayne IN
7473 Ft Wayne IN 9362 Ft Wayne IN
7474 Ft Wayne IN 9363 Ft Wayne IN
7477 Ft Wayne IN 9368 Ft Wayne IN
7490 Ft Wayne IN 9373 Ft Wayne IN
7498 Ft Wayne IN 9375 Ft Wayne IN
7499 Ft Wayne IN 9376 Ft Wayne IN
7500 Ft Wayne IN 9378 Ft Wayne IN
7504 Ft Wayne IN 9385 Ft Wayne IN
7524 Ft Wayne IN 9502 Ft Wayne IN
7527 Ft Wayne IN 9527 Ft Wayne IN
7532 Ft Wayne IN 9532 Ft Wayne IN
7547 Ft Wayne IN 9538 Ft Wayne IN
7563 Ft Wayne IN 9557 Ft Wayne IN
7589 Ft Wayne IN 9585 Ft Wayne IN
7631 Ft Wayne IN 9586 Ft Wayne IN
7641 Ft Wayne IN 9593 Ft Wayne IN
7644 Ft Wayne IN 9611 Ft Wayne IN
7645 Ft Wayne IN 9640 Ft Wayne IN
7646 Ft Wayne IN 9660 Ft Wayne IN
7660 Ft Wayne IN 9676 Ft Wayne IN
</TABLE>
9
<PAGE> 27
<TABLE>
<S> <C> <C> <C>
9684 Ft Wayne IN 4808 Garland TX
9693 Ft Wayne IN 4809 Garland TX
9695 Ft Wayne IN 4828 Garland TX
9703 Ft Wayne IN 4841 Garland TX
9705 Ft Wayne IN 4885 Garland TX
9709 Ft Wayne IN 7003 Garland TX
9745 Ft Wayne IN 7015 Garland TX
9772 Ft Wayne IN 7016 Garland TX
9782 Ft Wayne IN 7017 Garland TX
9804 Ft Wayne IN 7041 Garland TX
3016 Garland TX 7056 Garland TX
3019 Garland TX 7077 Garland TX
3044 Garland TX 7170 Garland TX
3067 Garland TX 7230 Garland TX
3114 Garland TX 7248 Garland TX
3120 Garland TX 7250 Garland TX
3128 Garland TX 7270 Garland TX
3192 Garland TX 7286 Garland TX
3199 Garland TX 7296 Garland TX
3217 Garland TX 7300 Garland TX
3238 Garland TX 7308 Garland TX
3284 Garland TX 7309 Garland TX
3321 Garland TX 7314 Garland TX
3382 Garland TX 7396 Garland TX
3475 Garland TX 7404 Garland TX
3493 Garland TX 7511 Garland TX
3519 Garland TX 7615 Garland TX
3636 Garland TX 7734 Garland TX
3649 Garland TX 7795 Garland TX
3690 Garland TX 7912 Garland TX
3717 Garland TX 9079 Garland TX
3718 Garland TX 9170 Garland TX
3727 Garland TX 9238 Garland TX
3738 Garland TX 9264 Garland TX
3743 Garland TX 9267 Garland TX
3771 Garland TX 9327 Garland TX
3772 Garland TX 9329 Garland TX
3776 Garland TX 9364 Garland TX
3791 Garland TX 9365 Garland TX
3932 Garland TX 9367 Garland TX
3933 Garland TX 9369 Garland TX
3935 Garland TX 9398 Garland TX
4023 Garland TX 9449 Garland TX
4127 Garland TX 9512 Garland TX
4139 Garland TX 9545 Garland TX
4267 Garland TX 9552 Garland TX
4346 Garland TX 9576 Garland TX
4389 Garland TX 9582 Garland TX
4473 Garland TX 9590 Garland TX
4707 Garland TX 9607 Garland TX
4708 Garland TX 9711 Garland TX
4733 Garland TX 9717 Garland TX
4773 Garland TX 9744 Garland TX
4775 Garland TX 3054 Geneva AL
4778 Garland TX 3082 Geneva AL
4782 Garland TX 3099 Geneva AL
</TABLE>
10
<PAGE> 28
<TABLE>
<S> <C> <C> <C>
3132 Geneva AL 4308 Geneva AL
3166 Geneva AL 4410 Geneva AL
3194 Geneva AL 4451 Geneva AL
3219 Geneva AL 4489 Geneva AL
3223 Geneva AL 4723 Geneva AL
3289 Geneva AL 4760 Geneva AL
3353 Geneva AL 4769 Geneva AL
3355 Geneva AL 4797 Geneva AL
3356 Geneva AL 4817 Geneva AL
3359 Geneva AL 4833 Geneva AL
3424 Geneva AL 4836 Geneva AL
3487 Geneva AL 4848 Geneva AL
3528 Geneva AL 7001 Geneva AL
3545 Geneva AL 7020 Geneva AL
3602 Geneva AL 7028 Geneva AL
3629 Geneva AL 7059 Geneva AL
3660 Geneva AL 7071 Geneva AL
3661 Geneva AL 7079 Geneva AL
3672 Geneva AL 7183 Geneva AL
3673 Geneva AL 7184 Geneva AL
3674 Geneva AL 7265 Geneva AL
3675 Geneva AL 7330 Geneva AL
3700 Geneva AL 7336 Geneva AL
3701 Geneva AL 7360 Geneva AL
3713 Geneva AL 7388 Geneva AL
3714 Geneva AL 7435 Geneva AL
3747 Geneva AL 7558 Geneva AL
3762 Geneva AL 7595 Geneva AL
3847 Geneva AL 7604 Geneva AL
3854 Geneva AL 7613 Geneva AL
3867 Geneva AL 7629 Geneva AL
3905 Geneva AL 7637 Geneva AL
3929 Geneva AL 7640 Geneva AL
3930 Geneva AL 7643 Geneva AL
3931 Geneva AL 7901 Geneva AL
3939 Geneva AL 9217 Geneva AL
3940 Geneva AL 9569 Geneva AL
3946 Geneva AL 9571 Geneva AL
3947 Geneva AL 9627 Geneva AL
3957 Geneva AL 9657 Geneva AL
3967 Geneva AL 9714 Geneva AL
3975 Geneva AL 7478 Hawaii
3978 Geneva AL 7480 Hawaii
3980 Geneva AL 7488 Hawaii
3989 Geneva AL 7680 Hawaii
3991 Geneva AL 7682 Hawaii
3994 Geneva AL 7683 Hawaii
3996 Geneva AL 7705 Hawaii
4071 Geneva AL 9430 Hawaii
4072 Geneva AL 3006 Kansas City MO
4122 Geneva AL 3097 Kansas City MO
4138 Geneva AL 3137 Kansas City MO
4198 Geneva AL 3171 Kansas City MO
4210 Geneva AL 3184 Kansas City MO
4283 Geneva AL 3236 Kansas City MO
4286 Geneva AL 3239 Kansas City MO
</TABLE>
11
<PAGE> 29
<TABLE>
<S> <C> <C> <C>
3322 Kansas City MO 7484 Kansas City MO
3358 Kansas City MO 7493 Kansas City MO
3391 Kansas City MO 7526 Kansas City MO
3422 Kansas City MO