Distributor
fails to substantially perform the approved Plan or any material part thereof;
provided, however, that any such failure by Distributor shall be waived if such
failure results directly from failure on the part of Company to perform
Company's obligations under this subparagraph 7(a) or any material part thereof.
Failure by Distributor to prepare a Plan in accordance with this subparagraph
7(a) or to perform substantially in accordance with the Plan or any material
part thereof will demonstrate Distributor's unwillingness to develop, stimulate
and satisfy fully the demand for the Beverages in the Territory. Company
recognizes that circumstances may occur during the relevant Plan year, which
circumstances could not be anticipated and are beyond the control of Company
and/or Distributor. If such circumstances occur, Company and Distributor shall
meet together and modify the Plan as appropriate to such circumstances.
(b)
Distributor shall report to Company periodically, but not less than
quarterly, as to its implementation of the Annual Plan. Distributor shall also
provide information relating to Distributor's sales of the Beverages and any
extensions thereof in the Territory by volume and package. Distributor also
agrees to provide information by volume and package for Beverages and any
extensions thereof sold by Distributor to each outlet of a customer with which
Company has a national account agreement or program.
8. (a)
Except as may be authorized specifically by Company in accordance with
the Agreement, Distributor shall not sell, distribute or otherwise transfer any
Beverages to any person under circumstances in which Distributor knows, should
know or has been informed by Company that such person will redistribute the
Beverages for ultimate sale outside the Territory. If any Beverages originating
7
with Distributor are found outside the Territory, Distributor shall be
deemed to have transshipped such Beverages and shall be deemed to be a
"Transshipping Distributor" for purposes hereof. The presumption of the
foregoing sentence, however, shall not apply with respect to Beverages in
Authorized Containers sold to a Commissary Exception Account if Distributor can
demonstrate by its business records that any such Beverages were either (i) not
received by Distributor from an Approved Processor or (ii) if Distributor did
receive such Beverages, they were delivered by Distributor to a Commissary
Exception Account. In addition to any other remedies Company may have a right to
assert against a Transshipping Distributor for violation of this paragraph,
Company may impose upon a Transshipping Distributor a charge for each case of
Beverages transshipped by such Distributor. The per case amount of such charge
shall be determined by Company in its sole discretion and may be an amount not
to exceed three times Offended Distributor's (as such term is hereinafter
defined) most current average gross margin per case of the Beverages
transshipped, as reasonably estimated by Company. Company and Distributor agree
that the amount of any such charge shall be deemed to reflect the damages to
Company, the Offended Distributor (if any) and the distribution system. If
Beverages are transshipped into the territory of an Offended Distributor,