- 17 - open account obligation to any SUPERVALU Entity; * * * If this Note, any payment required to be made under this Note or any other obligation payable to Lender or any SUPERVALU Entity is not paid on the due date (whether at original maturity or following accel- eration), in addition to any other rights Lender may have under this Note, any related agreement or under applicable law, Lender shall have the right to set off the indebtedness evidenced by this Note against any indebtedness of Lender or any SUPERVALU Entity to any Maker or Guarantor. [Reproduced literally.] On March 9, 2001, petitioner and SUPERVALU also entered into a second amendment to the April 16, 1999 supply agreement (March 9, 2001 supply agreement second amendment). The March 9, 2001 supply agreement second amendment provided in pertinent part: 1. Purchase Requirement Effective as of the Execution Date and continuing throughout the term of the [April 16, 1999 supply] Agreement, Retailer [petitioner] shall purchase at least $21,000,000 of product from Wholesaler [Super Rite] each year of the Agreement. 2. Sales Rebate As additional consideration for Retailer’s enter- ing into this Agreement, and provided no Retailer Entity is in default under this Agreement or under any Capital Commitment or other agreement with, or obligation to, any SUPERVALU Entity, Wholesaler shall rebate to Retailer a rebate (the “Rebate”), on the terms and conditions set forth below: 2.1 The purchases on which the Rebate shall be based (the “Aggregate Purchases”) shall be the total purchases of Product from Whole- saler by Retailer for all of the Supermarkets in the Aggregate, up to a maximum total of Aggregate Purchases over the term of this Agreement of $89,250,000. 2.2 The Rebate shall be calculated annually,Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011