Common use of Capital Investments Clause in Contracts

Capital Investments. (a) Seller shall be responsible at its sole cost and expense for maintaining and refurbishing [ * * * ] tooling and parts in use as of the Commencement Date to support PCAM’s Annual Forecast, including but not limited to blow molds, injection molds and labeler personal parts. (b) Seller shall be responsible for procuring [ * * * ] new tooling and parts required to support PCAM’s Annual Forecast as configured on the Commencement Date, as well as [ * * * ] new tooling and parts and other capital expenditures required to support new, incremental business, with the exception of capital required for new manufacturing lines to expand capacity which shall be subject to mutually-agreed terms. (c) Seller shall fund capital expenditures for equipment, tooling and parts required to support changes in the Annual Forecast as configured on the Commencement Date, which does not accompany incremental volume (for example, a design change to an existing package), throughout the Term (the “Equipment”). Subject to Seller’s receiving PCAM’s express written prior consent to proceed with such capital expenditures, PCAM shall [ * * * ] (“Cost of Capital” shall be defined as: compound interest at [ * * * ] plus [ * * * ] basis points for payback periods less than or equal to [ * * * ] or [ * * * ] percent for payback periods greater than [ * * * ]); however Seller’s recovery of capital expenditures shall not exceed [ * * * ] months for blow molds and labeler personal parts, and [ * * * ] months for injection tooling. Unamortized Seller capital expenditures and unrecovered Seller Cost of Capital shall be due and payable within thirty (30) days of the Expiration Date unless the Parties mutually agree otherwise. (d) If Seller should so purchase and if PCAM should so reimburse, then PCAM shall have the right to the disposition of the Equipment as follows: (i) If the Equipment does not contain Seller’s intellectual property and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, then Seller shall, upon PCAM’s written request and at PCAM’s expense, transfer title and possession of the Equipment to any entity designated by PCAM and allow PCAM, or its designee, access to the Equipment during Seller’s business hours in order for the Equipment to be removed from Seller’s premises. (ii) If the Equipment contains Seller’s intellectual property, which Seller shall have specifically described to PCAM in writing prior to placing a purchase order for the Equipment, and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, and if the Equipment may be modified to no longer contain Seller’s intellectual property, then PCAM may, at PCAM expense, so modify the Equipment, whereupon Seller shall, upon PCAM’s written request and at PCAM’s expense, transfer title and possession of the Equipment to any entity designated by PCAM and allow PCAM, or its designee, access to the Equipment during Seller’s business hours in order for the Equipment to be removed from Seller’s premises. [ * * * ] Confidential treatment requested. Supply Agreement CONFIDENTIAL (iii) If the Equipment contains Seller’s intellectual property, which Seller shall have specifically described to PCAM in writing prior to placing a purchase order for the Equipment, and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, and if the Equipment cannot be modified to no longer contain Seller’s intellectual property, then Seller shall, upon PCAM’s written request, destroy the Equipment and confirm in writing to PCAM that such destruction has taken place. Alternatively, Seller may reimburse PCAM for the greater of the salvage value, book value or the fair market value (“FMV”) of the Equipment, but in no event less than twenty five percent (25%) of the original purchase price. If the Parties cannot agree on a FMV for the Equipment, PCAM has the right to secure an independent third party valuation of the FMV and the Parties agree to use the valuation provided by such independent third party for determining reimbursement amount. (e) If requested by PCAM, Seller shall purchase blow molds required to support PCAM business from such vendor and at such pricing as may be designated by PCAM. (f) Subject to a royalty-free license to Seller, or royalty pass-through, mutually acceptable indemnification, performance and processing language, Seller agrees to execute the universal base for new molds supporting Buyers’ volume. (g) Seller shall fund capital expenditures required for the expected conversion to a short skirt finish. PCAM shall use commercially reasonable efforts to (i) implement such conversion per a schedule that coincides with Seller’s routine refurbishment schedule for impacted injection molds, and (ii) manage the conversion schedule so as to convert the majority of Seller’s impacted molds [ * * * ].

Capital Investments. (a) Seller Subject to clauses (b) and (c) of this Section 3.08 and Appendix D of Schedule II, Limited Brands shall have the right from time to time to make such capital investments as one or more of the Limited Brands Entities deems reasonably necessary to support performance of the Services. Costs incurred by Limited Brands in connection with such capital investments (including without limitation transportation and installation costs) (“Capital Investments”) shall be responsible at its sole cost and expense for maintaining and refurbishing [ * * * ] tooling and parts in use as part of the Commencement Date Service Costs and shall be reimbursed by Buyer pursuant to support PCAM’s Annual Forecastthe procedure set forth in Section 3.09 only (i) to the extent that Buyer is allocated a share of the depreciation expenses, including but not limited amortization expenses, and/or capitalized lease expenses as appropriately associated with such Capital Investment which share of expenses has been reasonably and fairly allocated among Limited Brands, their Affiliates, Services Entities and Buyer and its Subsidiaries in good faith based on the level, nature, quality or other appropriate measure of services provided to blow moldseach such entity for which such Capital Investment was made and (ii) in the amount of such depreciation, injection molds and labeler personal partsamortization expenses, and/or capitalized lease expense. (b) Seller Subject to Schedule IV attached hereto, Capital Investments incurred by Limited Brands on Buyer’s and any of its Subsidiaries’ behalf in connection with store design and construction shall be responsible paid for procuring [ * * * ] new tooling and parts required to support PCAM’s Annual Forecast as configured on by Buyer directly or through the Commencement Date, as well as [ * * * ] new tooling and parts and other capital expenditures required to support new, incremental business, with the exception of capital required for new manufacturing lines to expand capacity which shall be subject to mutuallyPass-agreed termsThrough Billing method. (c) Seller For specific Capital Investments that need to be acquired by Limited Brands for the sole purpose of fulfilling its obligations under this Agreement, Buyer shall fund capital expenditures reimburse Limited Brands for equipmentand shall retain title to such investments; provided that if any such Capital Investment involves the expenditure of more than $100,000, tooling then Limited Brands will consult with Buyer prior to making such investment with respect to the necessity of such Capital Investment and parts required Buyer will have the authority to support changes approve such Capital Investment, which approval will not be unreasonably withheld. If Limited Brands and Buyer reach agreement that the provision of such Services is no longer practicable without such Capital Investment, Limited Brands and Buyer will work together to reach a mutually agreeable decision as to if and how such Services will continue to be provided to Buyer and its Subsidiaries without such Capital Investment. If Limited Brands and Buyer fail to reach agreement on the necessity of such Capital Investment and Limited Brands does not reasonably believe it can practicably continue to provide the affected Services without such Capital Investment, then Limited Brands may terminate such affected Services, providing as much notice to Buyer as is reasonably possible in the Annual Forecast as configured on the Commencement Date, which does circumstances but in any event not accompany incremental volume (for example, a design change to an existing package), throughout the Term (the “Equipment”). Subject to Seller’s receiving PCAM’s express written prior consent to proceed with such capital expenditures, PCAM shall [ * * * ] (“Cost of Capital” shall be defined as: compound interest at [ * * * ] plus [ * * * ] basis points for payback periods less than or equal to [ * * * ] or [ * * * ] percent for payback periods greater than [ * * * ]); however Seller’s recovery of capital expenditures shall not exceed [ * * * ] months for blow molds and labeler personal parts, and [ * * * ] months for injection tooling. Unamortized Seller capital expenditures and unrecovered Seller Cost of Capital shall be due and payable within thirty (30) 60 days of the Expiration Date unless the Parties mutually agree otherwisenotice. (d) If Seller should so purchase The Parties hereto acknowledge and agree that if PCAM should so reimburse, then PCAM shall have Buyer or any of its Subsidiaries makes a Capital Investment in equipment or intellectual property (including any information technology systems or software) to be used by Limited Brands in connection with the right to the disposition provision of any of the Equipment Services hereunder or to be supported by Limited Brands as follows: (i) If a Service hereunder, Limited Brands shall continue to provide the Equipment does not contain Seller’s same level of service or support with respect to such Capital Investment as Limited Brands would provide or support such Capital Investment had the investment been made by Limited Brands on behalf of Buyer or any of its Subsidiaries so long as the equipment or intellectual property (including any information technology systems or software) purchased by Buyer or any of its Subsidiaries is of similar quality and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, then Seller shall, upon PCAM’s written request and at PCAM’s expense, transfer title and possession of the Equipment to any entity designated compatible with equipment or intellectual property used by PCAM and allow PCAM, or its designee, access to the Equipment during Seller’s business hours in order for the Equipment to be removed from Seller’s premisesLimited Brands Entities generally. (ii) If the Equipment contains Seller’s intellectual property, which Seller shall have specifically described to PCAM in writing prior to placing a purchase order for the Equipment, and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, and if the Equipment may be modified to no longer contain Seller’s intellectual property, then PCAM may, at PCAM expense, so modify the Equipment, whereupon Seller shall, upon PCAM’s written request and at PCAM’s expense, transfer title and possession of the Equipment to any entity designated by PCAM and allow PCAM, or its designee, access to the Equipment during Seller’s business hours in order for the Equipment to be removed from Seller’s premises. [ * * * ] Confidential treatment requested. Supply Agreement CONFIDENTIAL (iii) If the Equipment contains Seller’s intellectual property, which Seller shall have specifically described to PCAM in writing prior to placing a purchase order for the Equipment, and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, and if the Equipment cannot be modified to no longer contain Seller’s intellectual property, then Seller shall, upon PCAM’s written request, destroy the Equipment and confirm in writing to PCAM that such destruction has taken place. Alternatively, Seller may reimburse PCAM for the greater of the salvage value, book value or the fair market value (“FMV”) of the Equipment, but in no event less than twenty five percent (25%) of the original purchase price. If the Parties cannot agree on a FMV for the Equipment, PCAM has the right to secure an independent third party valuation of the FMV and the Parties agree to use the valuation provided by such independent third party for determining reimbursement amount. (e) If requested by PCAM, Seller shall purchase blow molds required to support PCAM business from such vendor and at such pricing as may be designated by PCAM. (f) Subject to a royalty-free license to Seller, or royalty pass-through, mutually acceptable indemnification, performance and processing language, Seller agrees to execute the universal base for new molds supporting Buyers’ volume. (g) Seller shall fund capital expenditures required for the expected conversion to a short skirt finish. PCAM shall use commercially reasonable efforts to (i) implement such conversion per a schedule that coincides with Seller’s routine refurbishment schedule for impacted injection molds, and (ii) manage the conversion schedule so as to convert the majority of Seller’s impacted molds [ * * * ].

Capital Investments. (a) Seller Subject to the provisions of this Section 5.2, Visteon shall be responsible at its sole cost and expense for maintaining and refurbishing [ * * * ] tooling and parts in use have the right but not the obligation to make such capital investments as it deems reasonably necessary to support provision of the Commencement Date Services to support PCAM’s Annual ForecastACH ("Qualifying Capital Investments"). Visteon shall provide advance written notice to ACH, including but not limited a description in reasonable detail of the nature and estimated amount of the cost, of any such Qualifying Capital Investments that Visteon proposes to blow molds, injection molds and labeler personal partsmake (each such notice a "Capital Investment Notice"). (b) Seller shall be responsible for procuring [ * * * ] new tooling and parts required to support PCAM’s Annual Forecast as configured on the Commencement Date, as well as [ * * * ] new tooling and parts and other capital expenditures required to support new, incremental business, with the exception of capital required for new manufacturing lines to expand capacity which shall be subject to mutually-agreed terms. (c) Seller shall fund capital expenditures for equipment, tooling and parts required to support changes in the Annual Forecast as configured on the Commencement Date, which does not accompany incremental volume (for example, a design change to an existing package), throughout the Term (the “Equipment”). Subject to Seller’s receiving PCAM’s express written prior consent to proceed with such capital expenditures, PCAM shall [ * * * ] (“Cost of Capital” shall be defined as: compound interest at [ * * * ] plus [ * * * ] basis points for payback periods less than or equal to [ * * * ] or [ * * * ] percent for payback periods greater than [ * * * ]); however Seller’s recovery of capital expenditures shall not exceed [ * * * ] months for blow molds and labeler personal parts, and [ * * * ] months for injection tooling. Unamortized Seller capital expenditures and unrecovered Seller Cost of Capital shall be due and payable within thirty (30) days of the Expiration Date unless the Parties mutually agree otherwise. (d) If Seller should so purchase and if PCAM should so reimburse, then PCAM ACH shall have the right but not the obligation to the disposition request such capital investments as it deems reasonably necessary to support provision of the Equipment as follows: Services to ACH (i) If the Equipment does not contain Seller’s intellectual property and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, then Seller shall, upon PCAM’s written request and at PCAM’s expense, transfer title and possession of the Equipment to any entity designated by PCAM and allow PCAM, or its designee, access to the Equipment during Seller’s business hours in order for the Equipment to be removed from Seller’s premises. (ii) If the Equipment contains Seller’s intellectual property, which Seller shall have specifically described to PCAM in writing prior to placing a purchase order for the Equipment, and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, and if the Equipment may be modified to no longer contain Seller’s intellectual property, then PCAM may, at PCAM expense, so modify the Equipment, whereupon Seller shall, upon PCAM’s written request and at PCAM’s expense, transfer title and possession of the Equipment to any entity designated by PCAM and allow PCAM, or its designee, access to the Equipment during Seller’s business hours in order for the Equipment to be removed from Seller’s premises"Qualifying Capital Investments"). [ * * * ] Confidential treatment requested. Supply Agreement CONFIDENTIAL (iii) If the Equipment contains Seller’s intellectual property, which Seller shall have specifically described to PCAM in writing prior to placing a purchase order for the Equipment, and if Seller no longer requires the Equipment to fulfill its supply obligations to the Buyers under this Agreement, and if the Equipment cannot be modified to no longer contain Seller’s intellectual property, then Seller shall, upon PCAM’s written request, destroy the Equipment and confirm in writing to PCAM that such destruction has taken place. Alternatively, Seller may reimburse PCAM for the greater of the salvage value, book value or the fair market value (“FMV”) of the Equipment, but in no event less than twenty five percent (25%) of the original purchase price. If the Parties cannot agree on a FMV for the Equipment, PCAM has the right to secure an independent third party valuation of the FMV and the Parties agree to use the valuation provided by such independent third party for determining reimbursement amount. (e) If requested by PCAM, Seller shall purchase blow molds required to support PCAM business from such vendor and at such pricing as may be designated by PCAM. (f) Subject to a royalty-free license to Seller, or royalty pass-through, mutually acceptable indemnification, performance and processing language, Seller agrees to execute the universal base for new molds supporting Buyers’ volume. (g) Seller shall fund capital expenditures required for the expected conversion to a short skirt finish. PCAM Visteon shall use commercially reasonable efforts to accommodate Qualifying Capital Investments requested by ACH. (c) Notwithstanding Section 5.2(a), ACH shall have the right in its sole discretion to accept or reject participation in any and all Qualifying Capital Investments proposed by Visteon. Within a reasonable time after receiving a Capital Investment Notice, ACH shall provide notice to Visteon of its acceptance or rejection of participation in the proposed Qualifying Capital Investment. ACH acknowledges that its rejection of participation in a proposed Qualifying Capital Investment may constitute a Service Level Exclusion Event. (d) In the event that ACH elects to accept participation in a Qualifying Capital Investment proposed by Visteon, (i) implement where the Qualifying Capital Investment relates exclusively to the provision of Service(s) to ACH, ACH shall, subject to Visteon's contractual obligations with Visteon Third Party Service Providers, purchase and acquire title to, depreciate and amortize, the asset funded by such conversion per a schedule Qualifying Capital Investment; and (ii) where the Qualifying Capital Investment relates to the provision of Service(s) that coincides with Seller’s routine refurbishment schedule are shared by Visteon and ACH, (A) Visteon shall pay for impacted injection moldsthe entire purchase price of, and acquire title to, the asset funded by such Qualifying Capital Investment, and (iiB) manage Visteon shall include as a pass-through expense in Visteon's Cost for the conversion schedule so affected Service(s) an amount equivalent to the amount of Visteon's depreciation/amortization and Visteon's (I) expenses to operate and maintain the asset, and/or (II) reductions in Visteon's Cost resulting from the Qualifying Capital Investment, in each case in proportion to ACH's use of such asset for the duration of such use. In the event that ACH terminates the applicable Service(s) before the asset funded by such Qualifying Capital Investment is fully depreciated/amortized, Visteon and ACH shall cooperate to mitigate any stranded costs associated with such asset. (e) In the event that ACH elects to reject participation in a Qualifying Capital Investment proposed by Visteon, ACH shall not be required to reimburse Visteon for any portion of the purchase price of the asset or to pay any amount relating thereto as a pass through expense included in Visteon's Cost (including depreciation, amortization and other expenses), without regard to convert the majority whether such Qualifying Capital Investment relates to Services that are provided exclusively to ACH or shared by ACH and Visteon. ACH acknowledges that its rejection of Seller’s impacted molds [ * * * ]participation in a proposed Qualifying Capital Investment may constitute a Service Level Exclusion Event.