continue to purchase and/or Transfer
any products, including Products, or use the Trademarks other than with respect
to products sold and delivered by HBC to Distributor, and (iii) shall constitute
a separate transaction for each shipment of products actually delivered by HBC
to Distributor and/or sub-distributor(s), in HBC's sole and absolute discretion,
which HBC shall be entitled to exercise, vary, withdraw and/or cease, on a case
by case basis, at any time in HBC's sole and absolute discretion.
Distributor
irrevocably waives, releases and discharges any claims, liabilities, actions and
rights, in law or in equity, against HBC including without limitation for
damages (including without limitation, consequential, special or punitive
damages), compensation or severance payments or any other claims of whatsoever
nature by Distributor arising from or in connection with the matters referred to
in this Section 2.c. and/or any acts, omissions or conduct of HBC with regard to
such matters.
d.
Distributor has agreed to acquire certain distribution rights
held by prior HBC distributors ("Prior Distributor Rights") for the Territory by
paying an amount which Distributor and HBC have agreed shall be calculated in
accordance with the formula set forth in Exhibit E hereto.
As soon as
practicable after the Effective Date, HBC shall calculate the estimated amount
payable by Distributor in accordance with the formula agreed to between
Distributor and HBC as set forth in Exhibit E hereto, which shall be calculated
based upon the estimated Sale Volume (as defined below) for the Territory for
the period ended October 31, 2008 (the "Estimated Buy-Out Contribution").
No
later than fifteen (15) days prior to the Commencement Date, Distributor shall
deliver to HBC an irrevocable stand-by letter of credit ("LOC") in favor of HBC
in an amount equal to the Estimated Buy-Out Contribution.
The LOC shall be
issued by a bank acceptable to HBC, shall be in a form and substance acceptable
to HBC, and shall otherwise be in the form of attached
2
Exhibit H.
As soon as practicable after October 31, 2008, HBC shall determine
the actual Sale Volume for the Territory for the period ended October 31, 2008
in order to calculate the final amount due by Distributor in accordance with the
formula set forth in Exhibit E (the "Final Buy-Out Contribution").
As soon as
practicable after Distributor's receipt of the amount of the Final Buy-Out
Contribution, the parties shall cause the available amount of the LOC to be
increased or decreased, as the case may be, to equal the amount of the Final
Buy-Out Contribution.
From time to time, as and when HBC determines the various
applicable amounts due by HBC to acquire the Prior Distribution Rights, HBC may
give one or more written notice/s (the "Payment Notice/s") to Distributor
specifying the amount/s to be paid by Distributor to HBC from time to time.
The
aggregate amount due under all Payment Notices shall not exceed the Estimated
Buy-Out Contribution initially, and then the Final Buy-Out Contribution, when
that amount has been determined.
If Distributor fails to