PERFORMANCE OF ANY
OF THE TERMS OR CONDITIONS OF THIS AGREEMENT WHICH DEFAULT SHALL NOT HAVE BEEN
REMEDIED WITHIN SIXTY (60) DAYS AFTER NOTICE OF DEFAULT HAS BEEN DELIVERED IN
WRITING TO THE DEFAULTING PARTY, THE NON-DEFAULTING PARTY MAY, IN ADDITION TO
ANY OTHER REMEDIES WHICH MAY BE AVAILABLE AT LAW OR EQUITY, BY NOTICE OF
TERMINATION DELIVERED TO SUCH DEFAULTING PARTY, TERMINATE THIS AGREEMENT
EFFECTIVE NINETY (90) DAYS FOLLOWING SUCH NOTICE OF DEFAULT UNLESS THE DEFAULT
HAS BEEN CURED.
THE FOLLOWING ITEMS SHALL CONSTITUTE A BASIS FOR IMMEDIATE
TERMINATION FOR CAUSE FOR PURPOSES OF THIS AGREEMENT:
I.
A SUBSTANTIAL AND CONTINUING BREACH OF THE OBLIGATIONS OF THIS
AGREEMENT BY THE OTHER PARTY WHICH CONTINUES AFTER NOTICE AND AN OPPORTUNITY TO
CURE IN ACCORDANCE WITH SUB-PARAGRAPH 7A. CONTINUING FAILURE TO MEET PRESTIGE
BRANDS MINIMUM SERVICE REQUIREMENTS (ADDENDUM B) WOULD CONSTITUTE A SUBSTANTIAL
BREACH OF THIS AGREEMENT.
II.
A DECLARATION OR ADMISSION OF BANKRUPTCY OR INSOLVENCY BY THE
OTHER PARTY.
6
III.
INITIATION OF ANY LEGAL PROCEEDING AGAINST THE OTHER PARTY TO
DECLARE SUCH PARTY INSOLVENT OR TO SEEK ANY REORGANIZATION.
IV.
A TERMINATION OF THAT CERTAIN STORAGE AND HANDLING AGREEMENT
BETWEEN PRESTIGE BRANDS, INC. AND WAREHOUSING SPECIALISTS, INC. DATED APRIL
,
2005.
IT IS FURTHER UNDERSTOOD AND AGREED THAT ITEMS (II), (III) AND (IV), ABOVE
REQUIRE NO ADDITIOANL OPPORTUNITY TO CURE AND ARE THE BASIS FOR A TERMINATION
FOR CAUSE WITH IMMEDIATE EFFECT.
B.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IF NLI SHALL NOT
MAKE ANY PAYMENT AND PERFORM OBLIGATION OF NLI UNDER THIS AGREEMENT, PRESTIGE
BRANDS SHALL HAVE THE RIGHT TO CURE SUCH DEFAULT AND TO DEDUCT THE COST THEREOF
AND INTEREST THEREON FROM ANY PAYMENTS DUE NLI UNDER SECTION 3 OF THIS
AGREEMENT, AND SHALL HAVE ALL OTHER RIGHTS TO DAMAGES AVAILABLE TO PRESTIGE
BRANDS BY LAW OR EQUITY IN CONNECTION WITH SUCH BREACH.
C.
IN THE EVENT EITHER PARTY MAKES A CLAIM FOR DAMAGES UNDER THIS
AGREEMENT, DAMAGES SHALL BE LIMITED TO ACTUAL DAMAGES TO SUCH PARTY AND UNDER NO
CIRCUMSTANCES WILL EITHER PARTY BE LIABILE TO THE OTHER PARTY FOR PUNITIVE OR
CONSEQUENTIAL DAMAGES.
D.
IN THE EVENT OF TERMINATION, NLI SHALL PROVIDE ANY RECORDS THAT
ARE NECESSARY OR REQUIRED FOR PRESTIGE BRANDS TO CARRY ON ITS NORMAL BUSINESS
ACTIVITIES AT LEAST ONE WEEK PRIOR TO THE EFFECTIVE DATE OF THE TERMINATION.
8.
Notices
Any notices, reports and other communications under this Agreement shall be in
writing and shall be deemed sufficiently given if and when received by the party
to be notified at its address below or three (3) days after mailing by mail,
return receipt requested, whichever is sooner, addressed as follows (or to such
other address as may be designated subsequently in writing):
If to NLI:
If to PRESTIGE BRANDS:
Nationwide Logistics, Inc.
PRESTIGE BRANDS Inc.
7140 N. Broadway Avenue
90 North Broadway
St. Louis, Missouri 63147
Irvington, NY 10533
Attn: Steve Weise
Attn: Eric Millar
9.
Startup Costs/Initial Management Reports
A
EACH PARTY WILL BE RESPONSIBLE FOR PAYMENT OF ITS OWN