EXHIBIT 10.37
SUPERVALU Retailer's Agreement
(with Store Identification)
SUPERVALU INC.
GENERAL OFFICES: P0 XXX 000, XXXXXXXXXXX, XX 00000
AGREEMENT between SUPERVALU INC. ("SUPERVALU") and the undersigned
independent merchant ("Retailer") in consideration of the mutual promises
herein, SUPERVALU and Retailer agree as follows:
A. SUPERVALU WILL SO LONG AS RETAILER IS NOT IN DEFAULT ON ANY OBLIGATION TO
SUPERVALU:
1. License Retailer to identify and advertise itself as a "SUPERVALU"
independent retailer, and otherwise use in connection with its retail grocery
store and business at the address below, the SUPERVALU trade name, insignia,
emblem, xxxx and colors (the "Trade Name"). No license is given for Retailer to
use the Trade Name as, or on, a label, trademark on merchandise, or as a part of
any corporate name. SUPERVALU reserves the right to modify or replace the Trade
Name or any portion thereof from time to time. For the right to enter into or
maintain this SUPERVALU Retailer's Agreement, Retailer is not obligated to
obtain from SUPERVALU any particular product or services and need not pay
SUPERVALU any money for simply entering into this Retailer's Agreement.
2. Make available for lease to Retailer one or more storefront signs
bearing the Trade Name. If leased, such signs will be and remain the property of
SUPERVALU.
3. Make available to Retailer its entire line of products authorized for
sale by SUPERVALU to licensed SUPERVALU retailers at its applicable price end
fee schedule in effect at the time Retailer places each order for product.
SUPERVALU'S obligations under this paragraph are subject to the availability of
product: in eases of product shortage, SUPERVALU reserves the right to allocate
product at its discretion. All prices, fees, freight, terms and conditions are
subject to change by SUPERVALU at any time and from time to time. The Retailer's
price for each product purchase, including any fees, freight F.O.B. SUPERVALU
Warehouse, and services, will be as stated on the sales documents, including
invoices and weekly retailer statements, delivered to Retailer.
4. Make available to Retailer field advisory, warehousing, buying,
merchandising, shopping, advertising, accounting, store engineering, bulletin
services, and such other services as SUPERVALU may offer from time to time, on
SUPERVALU's established fee or charge basis, which fees and charges are subject
to change at any time and from time to time.
B. THE RETAILER WILL:
1. Cooperate with SUPERVALU with respect to ordering and delivery
procedures.
2. Pay to SUPERVALU the price for product, including any fees and freight
F.O.B. SUPERVALU Warehouse, and services as stated on the sales documents
delivered to Retailer. Unless otherwise specified by SUPERVALU, supply of
Retailer's orders will be conditioned upon prearranged authorization for payment
by electronic transfer of funds from Retailer's account to SUPERVALU or by
receipt of a signed blank check written in ink and payable to the order of
SUPERVALU INC. Notwithstanding any prior representation or agreement to the
contrary, SUPERVALU reserves the right at any time to condition delivery of
goods or services to Retailer on Retailer's payment of cash on delivery or
Retailer's prepayment by certified check, cashier's check, or wire transfer of
funds.
3. Observe all standards and conditions and requirements set forth in the
SUPERVALU Policy (a copy of which Retailer hereby acknowledges Retailer has
received, read, understands, and accepts) for the protection of the Trade Name.
4. Upon termination hereof, immediately cease all use of the Trade Name or
any confusingly similar identification, trademark, or trade name.
5. Acknowledge SUPERVALU's right to choose and select its customers and
retailers and to enter into SUPERVALU Retailer Agreements with other parties at
SUPERVALU's sole choice and discretion, including but not limited to SUPERVALU's
right to own, operate, finance, serve or supply a store at any location. Further
acknowledge that in the event of termination of this agreement SUPERVALU has no
obligations to continue to sell or supply merchandise or services of any kind to
the Retailer.
6. Either subscribe to SUPERVALU's retail accounting service thereby
furnishing SUPERVALU periodic copies of accounting and sales reports and
statements, or maintain its own similar adequate system of accounting and
furnish SUPERVALU periodic copies of accounting and sales reports and statements
as requested by SUPERVALU.
7. Hold in confidence and not disclose to any other person all information
obtained from SUPERVALU regarding price, cost, discounts, merchandising,
equipment, sales and promotions.
8. Not use the Trade Name as, or on, a label, trademark on merchandise, or
as a part of any corporate name.
9. Retailer acknowledges that its use of the Trade Name is further
conditioned on Retailer adhering to the standards for services in the SUPERVALU
Policy which is incorporated herein by reference.
10. Not question or contest during or subsequent to the life of this
Agreement the validity of SUPERVALU's ownership, right or control of any Trade
Name, including trademark, trade name, trade dress, trade style, service xxxx,
medallion xxxx, emblem, insignia or colors.
C. TERM AND TERMINATION:
This agreement shall become effective an the date appearing below, and
shall continue in full force and effect until terminated by either party hereto
upon seven (7) days' notice in writing with or without cause. This agreement
shall terminate automatically end immediately if either SUPERVALU or Retailer
becomes bankrupt or insolvent or makes an assignment for the benefit of
creditors, if a receiver is appointed with authority to take possession of all
or part of its assets, if Retailer fails to pay its obligations to SUPERVALU
when due, or if Retailer becomes incapacitated or is dissolved. In the event of
termination, the Retailer agrees that within seven (7) days following the
effective date of such termination, Retailer will have removed from the store
location and from all literature and advertising material, and will have ordered
removed from all directory listings, all references to the Trade Name or other
identification employing the Trade Name or any confusingly similar trade name,
and will have taken steps necessary to change or cause to be changed its trade
name and corporate name so that such names do not include the licensed Trade
Name or words confusingly similar thereto. Within seven (7) days following the
effective date of such termination, Retailer will return any signs bearing the
Trade Name or any other signs belonging to SUPERVALU in good condition,
reasonable wear and tear excepted, transportation charges prepaid, and do all
things necessary to advise and inform the public that affiliation with SUPERVALU
has been terminated.
The termination of the relationship between SUPERVALU and Retailer shall
not affect the obligation of the Retailer to pay all monies owed to SUPERVALU
but unpaid or unpayable at the time of termination.
If Retailer fails to comply with the terms of this Agreement following its
termination, SUPERVALU shall have and is hereby given the right to enter the
Retailer's place of business and thereupon take possession for itself and for
its own use all identification bearing the Trade Name, and the Retailer hereby
agrees to reimburse SUPERVALU for SUPERVALU's cost and expense incurred in such
taking possession and removing and changing such identification, including but
not limited to reasonable attorneys' fees.
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D. RELATIONSHIP QP PARTIES:
The relationship of the parties is that of arm's length independent buyer
and independent seller and not that of partners, joint venturers, principal and
agent, fiduciary and beneficiary, franchiser and franchisee, employer and
employee, or of special trust and confidence. There shall be no third party
beneficiaries to this Agreement. SUPERVALU will not be liable in any manner
whatsoever for the debts, liabilities, or obligations incurred by Retailer in
the operation of Retailer's business. Retailer shall indemnify and hold
SUPERVALU harmless from and against any and all claims, damages, or losses made
against or incurred by SUPERVALU, its officers, employees, or agents arising out
of the operation of Retailer's business.
E. ACKNOWLEDGEMENT OF RISKS AND RETAILER'S SOLE CONTROL OF ITS BUSINESS:
Retailer acknowledges that (i) the retail grocery business is highly
competitive and a high risk business and that SUPERVALU has not given end cannot
give any guaranty of the profitability, if any, of Retailer; (ii) Retailer may
be unprofitable and that a part or the whole of Retailer's investment in the
store may be lost in the event that Retailer is unprofitable; (iii) the business
and profitability of Retailer may be affected by many causes including, without
limitation, Retailer's sole control over its methods or operation and business
practices, competition, economic conditions, varying availability and price of
product, any lack of consumer confidence, uncertainty as to petroleum supplies,
inflation, deflation, strikes, embargoes, national emergencies, fire or other
casualty, acts of nature and other like or similar causes; (iv) SUPERVALU has no
intention or obligation in any way, directly or indirectly, to provide any
additional capital to Retailer so as to refinance Retailer or to provide
operating capital to Retailer, or to assist Retailer to obtain further funds.
F. ARBITRATION:
Any controversy or claim arising between the parties, including, but not
limited to, disputes relating to this Agreement, shall be resolved by binding
arbitration. This agreement to arbitrate shall continue in full force and effect
despite the expiration, rescission or termination of this Agreement. All
arbitration shall be undertaken pursuant to the Federal Arbitration Act, and the
decision of the arbitrator(s) shall be enforceable in any court of competent
jurisdiction. The parties knowingly and voluntarily waive their rights to have
their dispute tried and adjudicated by a judge or jury. The arbitrator(s) shall
apply the Law of the State of Minnesota, except as may be modified by this
Agreement. The arbitration shall be held in Minneapolis, Minnesota.
Any party may demand arbitration by sending written notice to the other
party. The arbitration and the selection of the arbitrator(s) shall be conducted
in accordance with such rules as may be agreed upon by the parties, or, failing
agreement within thirty (30) days after arbitration is demanded under the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"), as
such rules may be modified by this agreement, in any dispute which involves more
than $100,000 in damages, three arbitrators shall be used. Unless the parties
agree otherwise, they shall be limited in their discovery to directly relevant
documents. Responses or objections to a document request shall be served twenty
(20) days after receipt of the request. The arbitrator(s) shall resolve any
discovery disputes.
The arbitrator(s) shall have the authority to award actual money damages
(with interest on unpaid amounts from the date due), specific performance, and
temporary injunctive relief, but the arbitrator(s) shall not have the authority
to award exemplary, punitive or consequential damages, and the parties expressly
waive any claimed right to such damages. The arbitration shall be of each
party's individual claims only, and no claim of any other party shall be subject
to arbitration in such proceeding. The costs of arbitration, but not the costs
and expenses of the parties, shall be shared equally by the parties. If a party
fails to proceed with arbitration, unsuccessfully challenges the arbitration
award, or fails to comply with the arbitration award, the other party is
entitled to costs, including reasonable attorney's fees, for having to compel
arbitration or defend or enforce the award. Except as otherwise required by law,
the parties and the arbitrator(s) agree to maintain as confidential all
information or documents obtained during the arbitration process, including the
resolution of the dispute.
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Notwithstanding the above, the parties recognize that certain business
relationships could give rise to the need for one or more of the parties to seek
emergency, provisional or summary relief to repossess and sell or
otherwise dispose of goods and/or fixtures, to prevent the sale or transfer of
goods and/or fixtures, to protect real or personal property from injury, or to
obtain possession of real estate and terminate leasehold interests, and for
temporary injunctive relief. The parties agree that either shall be entitled to
pursue such rights and remedies for emergency. provisional, temporary injunctive
or summary relief; however, each party agrees that, immediately following the
issuance of any emergency, provisional, temporary injunctive or summary relief,
it will consent to the stay of judicial proceedings pending arbitration of all
underlying claims between the parties.
G. MISCELLANEOUS:
This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the Retailer and SUPERVALU provided that neither this
Agreement, nor any right, title, interest or obligation hereunder may be
assigned or otherwise transferred by Retailer without the prior written consent
of SUPERVALU. Each party acknowledges that it has not been induced to enter
into this Agreement by any representations or statements, oral or written, not
expressly contained herein. This Agreement shall not be deemed or construed to
be modified, amended, rescinded, canceled or waived, in whole or in part, other
than by written instrument signed by the parties hereto. In the event that any
of the terms of this Agreement are in conflict with any rule or law or statutory
provision or otherwise unenforceable under the laws or regulations of any
government or subdivision thereof, such terms shall be deemed stricken from this
Agreement, and this Agreement shall continue in force, unless the invalidity or
unenforceability of any such provision thereof does substantial violence to, or
where the invalid or unenforceable provisions comprise an integral part of or
are otherwise inseparable from, the remainder of this Agreement. No failure by
any party to take any action or assert any right hereunder shall be deemed to be
a waiver of such right in the event of the continuation or repetition of the
circumstances giving rise to such right. In executing this agreement, Retailer
completely and unconditionally acknowledges and agrees that Retailer has had the
opportunity to consult with and receive the advice of Retailer's independent
attorney, has read and understood this Agreement and has executed this agreement
after independent investigation, voluntarily and without fraud, duress or undue
influence, and not in reliance on any inducements, promises or representations
by SUPERVALU or its attorneys. Retailer represents and warrants that the
undersigned has full power and authority to execute this Retailer's Agreement
for Retailer.
SUPERVALUE INC. STORE NAME XXXXXXXXXX.XXX, INC.
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By Store Address 0000 000xx Xxx
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XXXXXXXX, XX
Title ---------------------------------------------------------
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Date Retailer's Corporation Name (if applicable):
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By By
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(Retailer's Authorized Signature)
Title Title SENIOR VICE PRESIDENT
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Date Date DEC 10/97
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Witness /s/ Den Xxxxxxx /s/ Josh Waltri
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Vice President / SV Business Development
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