IN ACCORDANCE WITH THE TERMS OF THE WFC AGREEMENT. FOR PURPOSES OF
CLARITY, RETURNS OF PURCHASED WFC PRODUCTS AND SAMPLES PURCHASED AT A DISCOUNT
DURING SUCH CALENDAR YEAR ARE EITHER DEDUCTED FROM, OR NOT INCLUDED IN, THE
DETERMINATION OF WHETHER MINIMUM TONNAGE VOLUME COMMITMENT HAS BEEN MET UNDER
THE WFC AGREEMENT, AND ACCORDINGLY SHALL NOT COUNT TOWARD THE PURCHASER MINIMUM
TONNAGE COMMITMENT.
IN THE EVENT THAT THE MINIMUM TONNAGE VOLUME COMMITMENT IS
REDUCED IN ACCORDANCE WITH THE WFC AGREEMENT AS A RESULT OF EVENTS THAT OCCUR
AFTER THE CLOSING, SUCH REDUCTION SHALL FIRST REDUCE THE CALCULATION OF THE
PURCHASER MINIMUM TONNAGE COMMITMENT FOR
60
THE APPLICABLE YEAR UNTIL FULLY SATISFIED AND IN THE EVENT OF ANY EXCESS, SHALL
THEN REDUCE SELLER'S PENALTY COMMITMENT.
(B)
QSP MAY NOT ENTER INTO ANY AMENDMENTS TO THE WFC AGREEMENT THAT INCREASE IN
ANY MANNER THE LIABILITY OF THE SELLER HEREUNDER WITHOUT THE PRIOR WRITTEN
CONSENT OF THE SELLER, IN ITS SOLE DISCRETION.
IN ADDITION, QSP SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO CONTEST INVOICES AS IF THE PURCHASERS WERE
THE PARTIES RESPONSIBLE FOR PAYMENT OF ALL SUCH PENALTIES OR AMOUNTS, IF IN
QSP'S GOOD FAITH JUDGMENT THE INVOICES ARE NOT ACCURATE AND/OR AT THE SELLER'S
REQUEST IF THE SELLER HAS A REASONABLE BASIS (AND PROVIDES REASONABLE
DOCUMENTATION TO QSP IN SUPPORT OF SUCH POSITION) FOR CONTESTING SUCH INVOICE.
IN ADDITION, WITHIN THREE MONTHS OF RECEIPT OF A DEMAND OF QSP THAT SELLER PAY
PENALTIES OR RELATED LOSSES TO OR ON BEHALF OF QSP PURSUANT TO CLAUSE (A) ABOVE,
THE SELLER SHALL HAVE THE RIGHT, AT REASONABLE TIMES AND UPON REASONABLE ADVANCE
NOTICE, TO REVIEW THE BOOKS AND RECORDS OF QSP SOLELY RELATED TO THE WFC
AGREEMENT AND SALES OF WFC PRODUCTS (INCLUDING INVOICES, PURCHASE ORDERS AND
RECEIVING DOCUMENTATION, SALES RETURNS AND DOCUMENTATION RELATED TO
REPRESENTATIVE TRANSFERS TO WFC) IN THE PERIOD TO WHICH SUCH PENALTIES OR
RELATED LOSSES RELATE, TO THE EXTENT REASONABLY NECESSARY TO VERIFY ALL
APPLICABLE PURCHASE AND TONNAGE CALCULATIONS; PROVIDED THAT THE SELLER SHALL BE
LIMITED TO ONE SUCH REVIEW PER PAYMENT DEMAND FROM THE PURCHASER.
(C)
IN FURTHERANCE AND NOT IN LIMITATION OF CLAUSE (A) ABOVE, THE SELLER SHALL
PAY TO WFC, ON BEHALF OF QSP, AS AND WHEN DUE IN ACCORDANCE WITH THE TERMS OF
THE WFC AGREEMENT, ALL PAYMENTS REQUIRED PURSUANT TO SECTION 1.3 THEREOF
(INCLUDING THE $3,000,000 PAYMENT DUE ON FEBRUARY 16, 2009 PURSUANT THERETO) AND
ANY AND ALL OTHER LOSSES INCURRED IN RESPECT OF OR OTHERWISE ATTRIBUTABLE TO
PERIODS ENDING ON OR PRIOR TO THE CLOSING DATE.
(D)
UPON MAKING ANY PAYMENTS ON BEHALF OF QSP IN ACCORDANCE WITH THIS
SECTION 5.13, THE SELLER SHALL PROMPTLY PROVIDE WRITTEN NOTICE THEREOF TO QSP.
(E)
THE SELLER SHALL USE REASONABLE EFFORTS TO OBTAIN THE WRITTEN CONSENT OF
WFC WITH RESPECT TO THE MATTERS SET FORTH ON SECTION 5.13(E) OF THE DISCLOSURE
SCHEDULE.
SECTION 5.14.
OVERDRAFTS.
PRIOR TO THE CLOSING, THE SELLER SHALL DEPOSIT WITH
THE COMPANIES AND THE COMPANY SUBSIDIARIES CASH IN AN AMOUNT SUFFICIENT SUCH
THAT THE