Karns Prime & Fancy Food, Ltd. - Page 17

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               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,                      

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Last modified: May 25, 2011