Common use of MINIMUM ORDERS; OTHER OBLIGATIONS Clause in Contracts

MINIMUM ORDERS; OTHER OBLIGATIONS. 5.1 Minimum Product Orders/Sales and Exclusive Remedy. Subject to Section 5.2 hereof, during the Term of this Agreement, Kmart agrees to place orders for a minimum U.S. dollar amount of Products within each category specified below (each, a "Category") from Salton (the "Minimum Product Orders") at the purchase prices determined in accordance with Sections 7.1.1 and 7. 1.2 hereof during the periods (each, a "Period," and together, the "Periods") in each case as specified below ($ in millions). All Products ordered prior to the date of this Agreement shall be credited against the Minimum Product Orders for the initial Period of this Agreement. CATEGORY UP TO AND -------- --------- (IN INCLUDING 7/1/98- 7/1/99- 7/1/00- 7/1/01- 7/1/02- 7/1/03- --- --------- ------- ------- ------- ------- ------- ------- MILLIONS) 6/30/98 6/30/99 6/30/00 6/30/01 6/30/02 6/30/03 6/30/04 --------- ------- ------- ------- ------- ------- ------- ------- Kitchen Housewares: $40.0 $50.0 $52.0 $54.1 $56.2 $ 58.5 $ 60.8 Personal Care: 13.0 13.5 14.1 14.6 15.2 15.8 16.4 Heaters/Fans: 18.0 18.7 19.5 20.2 21.1 21.9 22.8 Electric Air Cleaners and Humidifiers: $ 6.0 $ 6.2 $ 6.5 $ 6.8 $ 7.0 $ 7.3 $ 7.6 ----- ----- ----- ----- ----- ------ ------ Total $77.0 $88.4 $92.1 $95.7 $99.5 $103.5 $107.6 ===== ===== ===== ===== ===== ====== ====== Specific purchase orders shall be issued by Kmart from time to time for the Products being purchased ("Specific Purchase Orders"). The Specific Purchase Orders shall be in the form and substance of the form of purchase order annexed hereto as Exhibit C for domestic orders and Exhibit D for import orders, both of which are incorporated herein by this reference ("Purchase Order Forms") and shall govern and control the terms of each purchase by Kmart of Products hereunder; provided, that in the event of a conflict between the terms set forth in a Specific Purchase Order and in this Agreement, the terms set forth in this Agreement shall be determinative of such conflict. Each Specific Purchase Order may be accepted or rejected by Salton, provided that: (i) Salton's failure to provide Kmart with written notice of rejection of any Specific Purchase Order within five (5) days of Kmart's issuance thereof shall constitute Salton's acceptance of such Specific Purchase Order; and (ii) Salton is required to accept all Specific Purchase Orders for which and all such Orders shall automatically qualify as accepted by Salton; 7 7 and (iii) Salton is required to accept all Specific Purchase Orders which Salton is to fill ("Direct Salton Orders"), provided (a) they are issued at prices negotiated by Kmart and Salton or; (b) are consistent with prices quoted by Salton to Kmart; and (c) are issued within ninety (90) days of the required delivery date and; (d) are in an order quantity which is not inconsistent with the average order quantity on Specific Purchase Orders issued by Kmart to Salton over the preceding one hundred twenty (120) days, and all such Orders placed shall automatically qualify as accepted by Salton. Notwithstanding the foregoing, Salton shall use its best efforts to fill all Specific Purchase Orders placed by Kmart in less than ninety (90) days from the required delivery date. For purposes of this Agreement, in the event that Kmart issues a Specific Purchase Order which is accepted by Salton as set forth above and Salton fails through no fault of Kmart to timely deliver conforming Products to or on behalf of Kmart by the required delivery date specified therein, or if for any reason, but through no fault of Kmart, Salton is unable to procure Products THEN the Minimum Product Orders in the applicable Category shall be reduced by the dollar amount set forth in the Specific Purchase Order(s) related thereto, whether or not such Products are ultimately purchased by Kmart. Kmart's deductions for documented claims whether under the Specific Purchase Orders or otherwise, shall not reduce Kmart's fulfillment of the Minimum Product Orders, and for purposes of determining if Kmart has issued the Minimum Product Orders, Kmart shall be deemed to have purchased all Products covered by a remittance regardless of offsets/deductions for claims. If, however, Kmart issues a Specific Purchaser Order which is accepted by Salton as set forth above and Salton timely delivers conforming Products to or on behalf of Kmart by the required delivery date specified therein, and Kmart fails to remit payment for such conforming Products so delivered, then such Products shall not be counted for purposes of determining if Kmart has issued the Minimum Product Orders, unless and until such Products are ultimately paid for by Kmart. Notwithstanding the foregoing, Kmart shall not be relieved of any obligation to pay for conforming Products timely delivered to or on behalf of Kmart in accordance with any Specific Purchase Order.

MINIMUM ORDERS; OTHER OBLIGATIONS. 5.1 Minimum Product Orders/Sales and Exclusive Remedy. Subject to Section 5.2 hereof, during the Term of this Agreement, Kmart agrees to place orders for a minimum U.S. dollar amount of Products within each category specified below (each, a "Category") from Salton or an unrelated third party ("Third Party Manufacturer") (the "Minimum Product Orders") at the purchase prices determined in accordance with Sections 7.1.1 and 7. 1.2 hereof during the periods (each, a "Period," and together, the "Periods") in each case as specified below ($ in millions). All Products ordered prior to the date of this Agreement shall be credited against the Minimum Product Orders for the initial Period of this Agreement. CATEGORY UP TO AND -------- --------- (IN INCLUDING 7/1/98- 7/1/99- 7/1/00- 7/1/01- 7/1/02- 7/1/03- -------- --------- ------- ------- ------- ------- ------- ------- (IN INCLUDING 6/30/99 6/30/00 6/30/01 6/30/02 6/30/03 6/30/04 --- --------- ------- ------- ------- ------- ------- ------- MILLIONS) 6/30/98 6/30/99 6/30/00 6/30/01 6/30/02 6/30/03 6/30/04 --------- ------- ------- ------- ------- ------- ------- ------- Kitchen Housewares: $40.0 $50.0 $52.0 $54.1 $56.2 $ 58.5 $ 60.8 Housewares: Personal Care: 13.0 13.5 14.1 14.6 15.2 15.8 16.4 Care: Heaters/Fans: 18.0 18.7 19.5 20.2 21.1 21.9 22.8 Electric Air Cleaners and Humidifiers: $ 6.0 $ 6.2 $ 6.5 $ 6.8 $ 7.0 $ 7.3 $ 7.6 ----- ----- ----- ----- ----- ------ ------ Air Cleaners and Humidifiers: Total $77.0 $88.4 $92.1 $95.7 $99.5 $103.5 $107.6 ===== ===== ===== ===== ===== ====== ====== Specific purchase orders shall be issued by Kmart from time to time for the Products being purchased ("Specific Purchase Orders"). The Specific Purchase Orders shall be in the form and substance of the form of purchase order annexed hereto as Exhibit C for domestic orders and Exhibit D for import orders, both of which are incorporated herein 5 7 by this reference ("Purchase Order Forms") and shall govern and control the terms of each purchase by Kmart of Products hereunder; provided, that in the event of a conflict between the terms set forth in a Specific Purchase Order and in this Agreement, the terms set forth in this Agreement shall be determinative of such conflict. Each Specific Purchase Order may be accepted or rejected by Salton, provided that: (i) Salton's failure to provide Kmart with written notice of rejection of any Specific Purchase Order within five (5) days of Kmart's issuance thereof shall constitute Salton's acceptance of such Specific Purchase Order; and (ii) Salton is required to accept all Specific Purchase Orders for which and all such Orders shall automatically qualify as accepted by Salton; 7 7 and (iii) Salton is required to accept all Specific Purchase Orders which Salton is to fill ("Direct Salton Orders"), provided (a) they are issued at prices negotiated by Kmart and Salton or; (b) are consistent with prices quoted by Salton to Kmart; and (c) are issued within ninety (90) days of the required delivery date and; (d) are in an order quantity which is not inconsistent with the average order quantity on Specific Purchase Orders issued by Kmart to Salton over the preceding one hundred twenty (120) days, and all such Orders placed shall automatically qualify as accepted by Salton. [ ] Notwithstanding the foregoing, Salton shall use its best efforts to fill all Specific Purchase Orders placed by Kmart in less than ninety (90) days from the required delivery date. For purposes of this Agreement, in the event that Kmart issues a Specific Purchase Order which is accepted by Salton as set forth above and Salton fails through no fault of Kmart to timely deliver conforming Products to or on behalf of Kmart by the required delivery date specified therein, or if for any reason, but through no fault of Kmart, Salton is unable to procure Products THEN the Minimum Product Orders in the applicable Category shall be reduced by the dollar amount set forth in the Specific Purchase Order(s) related thereto, whether or not such Products are ultimately purchased by Kmart. Kmart's deductions for documented claims whether under the Specific Purchase Orders or otherwise, shall not reduce Kmart's fulfillment of the Minimum Product Orders, and for purposes of determining if Kmart has issued the Minimum Product Orders, Kmart shall be deemed to have purchased all Products covered by a remittance regardless of offsets/deductions for claims. If, however, Kmart issues a Specific Purchaser Order which is accepted by Salton as set forth above and Salton timely delivers conforming Products to or on behalf of Kmart by the required delivery date specified therein, and Kmart fails to remit payment for such conforming Products so delivered, then such Products shall not be counted for purposes of determining if Kmart has issued the Minimum Product Orders, unless and until such Products are ultimately paid for by Kmart. [ ] Notwithstanding the foregoing, Kmart shall not be relieved of any obligation to pay for conforming Products timely delivered to or on behalf of Kmart in accordance with any Specific Purchase Order.

MINIMUM ORDERS; OTHER OBLIGATIONS. 5.1 Minimum Product Orders/Sales and Exclusive Remedy. Subject to Section 5.2 hereof, during the Term of this Agreement, Kmart agrees to place orders for a minimum U.S. dollar amount of Products within each category specified below (each, a "Category") from Salton (the Salton**(the "Minimum Product Orders") at the purchase prices determined in accordance with Sections 7.1.1 and 7. 1.2 hereof during the periods (each, a "Period," and together, the "Periods") in each case as specified below ($ in millions). All Products ordered prior to the date of this Agreement shall be credited against the Minimum Product Orders for the initial Period of this Agreement. CATEGORY UP TO AND -------- --------- (IN INCLUDING 7/1/98- 7/1/99- 7/1/00- 7/1/01- 7/1/02- 7/1/03- --- --------- ------- ------- ------- ------- ------- ------- MILLIONS) 6/30/98 6/30/99 6/30/00 6/30/01 6/30/02 6/30/03 6/30/04 --------- ------- ------- ------- ------- ------- ------- ------- Kitchen Housewares: $40.0 $50.0 $52.0 $54.1 $56.2 $ 58.5 $ 60.8 Personal Care: 13.0 13.5 14.1 14.6 15.2 15.8 16.4 Heaters/Fans: 18.0 18.7 19.5 20.2 21.1 21.9 22.8 Electric Air Cleaners and Humidifiers: $ 6.0 $ 6.2 $ 6.5 $ 6.8 $ 7.0 $ 7.3 $ 7.6 ----- ----- ----- ----- ----- ------ ------ Total $77.0 $88.4 $92.1 $95.7 $99.5 $103.5 $107.6 ===== ===== ===== ===== ===== ====== ====== Specific purchase orders shall be issued by Kmart from time to time for the Products being purchased ("Specific Purchase Orders"). The Specific Purchase Orders shall be in the form and substance of the form of purchase order annexed hereto as Exhibit C for domestic orders and Exhibit D for import orders, both of which are incorporated herein by this reference ("Purchase Order Forms") and shall govern and control the terms of each purchase by Kmart of Products hereunder; provided, that in the event of a conflict between the terms set forth in a Specific Purchase Order and in this Agreement, the terms set forth in this Agreement shall be determinative of such conflict. Each Specific Purchase Order may be accepted or rejected by Salton, provided that: (i) Salton's failure to provide Kmart with written notice of rejection of any Specific Purchase Order within five (5) days of Kmart's issuance thereof shall constitute Salton's acceptance of such Specific Purchase Order; and (ii) Salton is required to accept all Specific Purchase Orders for which and which**and all such Orders shall automatically qualify as accepted by Salton; 7 7 and (iii) Salton is required to accept all Specific Purchase Orders which Salton is to fill ("Direct Salton Orders"), provided (a) they are issued at prices negotiated by Kmart and Salton or; (b) are consistent with prices quoted by Salton to Kmart; and (c) are issued within ninety (90) days of the required delivery date and; (d) are * Text from this document has been redacted in an order quantity which is not inconsistent connection with the average order quantity on Specific Purchase Orders issued by Kmart to Salton over the preceding one hundred twenty (120) days, and all Company's confidential filing of such Orders placed shall automatically qualify as accepted by Salton. Notwithstanding the foregoing, Salton shall use its best efforts to fill all Specific Purchase Orders placed by Kmart in less than ninety (90) days from the required delivery date. For purposes of this Agreement, in the event that Kmart issues a Specific Purchase Order which is accepted by Salton as set forth above and Salton fails through no fault of Kmart to timely deliver conforming Products to or on behalf of Kmart by the required delivery date specified therein, or if for any reason, but through no fault of Kmart, Salton is unable to procure Products THEN the Minimum Product Orders in the applicable Category shall be reduced by the dollar amount set forth in the Specific Purchase Order(s) related thereto, whether or not such Products are ultimately purchased by Kmart. Kmart's deductions for documented claims whether under the Specific Purchase Orders or otherwise, shall not reduce Kmart's fulfillment of the Minimum Product Orders, and for purposes of determining if Kmart has issued the Minimum Product Orders, Kmart shall be deemed to have purchased all Products covered by a remittance regardless of offsets/deductions for claims. If, however, Kmart issues a Specific Purchaser Order which is accepted by Salton as set forth above and Salton timely delivers conforming Products to or on behalf of Kmart by the required delivery date specified therein, and Kmart fails to remit payment for such conforming Products so delivered, then such Products shall not be counted for purposes of determining if Kmart has issued the Minimum Product Orders, unless and until such Products are ultimately paid for by Kmart. Notwithstanding the foregoing, Kmart shall not be relieved of any obligation to pay for conforming Products timely delivered to or on behalf of Kmart in accordance with any Specific Purchase Orderdocument.

MINIMUM ORDERS; OTHER OBLIGATIONS. 5.1 Minimum Product Orders/Sales and Exclusive Remedy. Subject to Section 5.2 hereof, during the Term of this Agreement, Kmart agrees to place orders for a minimum U.S. dollar amount of Products within each category specified below (each, a "Category") from Salton [**] (the "Minimum Product Orders") at the purchase prices determined in accordance with Sections 7.1.1 and 7. 1.2 hereof during the periods (each, a "Period," and together, the "Periods") in each case as specified below ($ in millions). All Products ordered prior to the date of this Agreement shall be credited against the Minimum Product Orders for the initial Period of this Agreement. CATEGORY UP TO AND -------- --------- (IN INCLUDING 7/1/98- 7/1/99- 7/1/00- 7/1/01- 7/1/02- 7/1/03- --- --------- ------- ------- ------- ------- ------- ------- MILLIONS) 6/30/98 6/30/99 6/30/00 6/30/01 6/30/02 6/30/03 6/30/04 --------- ------- ------- ------- ------- ------- ------- ------- Kitchen Housewares: $40.0 $50.0 $52.0 $54.1 $56.2 $ 58.5 $ 60.8 Personal Care: 13.0 13.5 14.1 14.6 15.2 15.8 16.4 Heaters/Fans: 18.0 18.7 19.5 20.2 21.1 21.9 22.8 Electric Air Cleaners and Humidifiers: $ 6.0 $ 6.2 $ 6.5 $ 6.8 $ 7.0 $ 7.3 $ 7.6 ----- ----- ----- ----- ----- ------ ------ Total $77.0 $88.4 $92.1 $95.7 $99.5 $103.5 $107.6 ===== ===== ===== ===== ===== ====== ====== Specific purchase orders shall be issued by Kmart from time to time for the Products being purchased ("Specific Purchase Orders"). The Specific Purchase Orders shall be in the form and substance of the form of purchase order annexed hereto as Exhibit C for domestic orders and Exhibit D for import orders, both of which are incorporated herein by this reference ("Purchase Order Forms") and shall govern and control the terms of each purchase by Kmart of Products hereunder; provided, that in the event of a conflict between the terms set forth in a Specific Purchase Order and in this Agreement, the terms set forth in this Agreement shall be determinative of such conflict. Each Specific Purchase Order may be accepted or rejected by Salton, provided that: (i) Salton's failure to provide Kmart with written notice of rejection of any Specific Purchase Order within five (5) days of Kmart's issuance thereof shall constitute Salton's acceptance of such Specific Purchase Order; and (ii) Salton is required to accept all Specific Purchase Orders for which [**] and all such Orders shall automatically qualify as accepted by Salton; 7 7 and (iii) Salton is required to accept all Specific Purchase Orders which Salton is to fill ("Direct Salton Orders"), provided (a) they are issued at prices negotiated by Kmart and Salton or; (b) are consistent with prices quoted by Salton to Kmart; and (c) are issued within ninety (90) days of the required delivery date and; (d) are ------------------------------- [**] Text from this document has been redacted in an order quantity which is not inconsistent connection with the average order quantity on Specific Purchase Orders issued by Kmart to Salton over the preceding one hundred twenty (120) days, and all Company's confidential filing of such Orders placed shall automatically qualify as accepted by Salton. Notwithstanding the foregoing, Salton shall use its best efforts to fill all Specific Purchase Orders placed by Kmart in less than ninety (90) days from the required delivery date. For purposes of this Agreement, in the event that Kmart issues a Specific Purchase Order which is accepted by Salton as set forth above and Salton fails through no fault of Kmart to timely deliver conforming Products to or on behalf of Kmart by the required delivery date specified therein, or if for any reason, but through no fault of Kmart, Salton is unable to procure Products THEN the Minimum Product Orders in the applicable Category shall be reduced by the dollar amount set forth in the Specific Purchase Order(s) related thereto, whether or not such Products are ultimately purchased by Kmart. Kmart's deductions for documented claims whether under the Specific Purchase Orders or otherwise, shall not reduce Kmart's fulfillment of the Minimum Product Orders, and for purposes of determining if Kmart has issued the Minimum Product Orders, Kmart shall be deemed to have purchased all Products covered by a remittance regardless of offsets/deductions for claims. If, however, Kmart issues a Specific Purchaser Order which is accepted by Salton as set forth above and Salton timely delivers conforming Products to or on behalf of Kmart by the required delivery date specified therein, and Kmart fails to remit payment for such conforming Products so delivered, then such Products shall not be counted for purposes of determining if Kmart has issued the Minimum Product Orders, unless and until such Products are ultimately paid for by Kmart. Notwithstanding the foregoing, Kmart shall not be relieved of any obligation to pay for conforming Products timely delivered to or on behalf of Kmart in accordance with any Specific Purchase Orderdocument.

MINIMUM ORDERS; OTHER OBLIGATIONS. 5.1 Minimum Product Orders/Sales and Exclusive Remedy. Subject to Section 5.2 hereof, during the Term of this Agreement, Kmart agrees to place orders for a minimum U.S. dollar amount of Products within each category specified below (each, a "Category") from Salton NewTech or an unrelated third party ("Third Party Manufacturer") (the "Minimum Product Orders") at the purchase prices determined in accordance with Sections 7.1.1 and 7. 1.2 hereof during the periods (each, a "Period," and together, the "Periods") in each case as specified below ($ in millions). All Products ordered prior to the date of this Agreement shall be credited against the Minimum Product Orders for the initial Period of this Agreement. CATEGORY UP TO AND -------- --------- (IN INCLUDING 7/1/98- 7/1/99- 7/1/00- 7/1/01- 7/1/02- 7/1/03- -------- --------- ------- ------- ------- ------- ------- ------- (IN INCLUDING 6/30/99 6/30/00 6/30/01 6/30/02 6/30/03 6/30/04 --- --------- ------- ------- ------- ------- ------- ------- MILLIONS) 6/30/98 6/30/99 6/30/00 6/30/01 6/30/02 6/30/03 6/30/04 --------- ------- Video: $55.0 $57.2 $59.5 $61.9 $64.3 $66.9 $69.6 Audio: 60.0 62.4 64.9 67.5 70.2 73.0 75.9 Telephones $20.0 $20.8 $21.6 $22.5 $23.4 $24.3 $25.3 and ------- ------- ------- ------- ------- ------- ------- Kitchen Housewares: $40.0 $50.0 $52.0 $54.1 $56.2 $ 58.5 $ 60.8 Personal Care: 13.0 13.5 14.1 14.6 15.2 15.8 16.4 Heaters/Fans: 18.0 18.7 19.5 20.2 21.1 21.9 22.8 Electric Air Cleaners and Humidifiers: $ 6.0 $ 6.2 $ 6.5 $ 6.8 $ 7.0 $ 7.3 $ 7.6 ----- ----- ----- ----- ----- ------ ------ ------ ------ Telephone Answering Machines: Total $77.0 135.0 $88.4 140.4 $92.1 146.0 $95.7 151.9 $99.5 157.9 $103.5 164.2 $107.6 170.8 ====== ====== ====== ====== ====== ====== ====== Specific purchase orders shall be issued by Kmart from time to time for the Products being purchased ("Specific Purchase Orders"). The Specific Purchase Orders shall be in the form and substance of the form of purchase order annexed hereto as Exhibit C for domestic orders and Exhibit D for import orders, both of which are incorporated herein by this reference ("Purchase Order Forms") and shall govern and control the terms of each purchase by Kmart of Products hereunder; provided, that in the event of a conflict between the terms set forth in a Specific Purchase Order and in this Agreement, the terms set forth in this Agreement shall be determinative of such conflict. Each Specific Purchase Order may be accepted or rejected by SaltonNewTech, provided that: (i) SaltonNewTech's failure to provide Kmart with written notice of rejection of any Specific Purchase Order within five (5) days of Kmart's issuance thereof shall constitute SaltonNewTech's acceptance of such Specific Purchase Order; and (ii) Salton is required to accept all Specific Purchase Orders for which and all such Orders shall automatically qualify as accepted by Salton; 7 7 and (iii) Salton is required to accept all Specific Purchase Orders which Salton is to fill ("Direct Salton Orders"), provided (a) they are issued at prices negotiated by Kmart and Salton or; (b) are consistent with prices quoted by Salton to Kmart; and (c) are issued within ninety (90) days of the required delivery date and; (d) are in an order quantity which is not inconsistent with the average order quantity on Specific Purchase Orders issued by Kmart to Salton over the preceding one hundred twenty (120) days, and all such Orders placed shall automatically qualify as accepted by Salton. [ ] Notwithstanding the foregoing, Salton NewTech shall use its best efforts to fill all Specific Purchase Orders placed by Kmart in less than ninety (90) days from the required delivery date. For purposes of this Agreement, in the event that Kmart issues a Specific Purchase Order which is accepted by Salton as set forth above and Salton fails through no fault of Kmart to timely deliver conforming Products to or on behalf of Kmart by the required delivery date specified therein, or if for any reason, but through no fault of Kmart, Salton is unable to procure Products THEN the Minimum Product Orders in the applicable Category shall be reduced by the dollar amount set forth in the Specific Purchase Order(s) related thereto, whether or not such Products are ultimately purchased by Kmart. Kmart's deductions for documented claims whether under the Specific Purchase Orders or otherwise, shall not reduce Kmart's fulfillment of the Minimum Product Orders, and for purposes of determining if Kmart has issued the Minimum Product Orders, Kmart shall be deemed to have purchased all Products covered by a remittance regardless of offsets/deductions for claims. If, however, Kmart issues a Specific Purchaser Order which is accepted by Salton as set forth above and Salton timely delivers conforming Products to or on behalf of Kmart by the required delivery date specified therein, and Kmart fails to remit payment for such conforming Products so delivered, then such Products shall not be counted for purposes of determining if Kmart has issued the Minimum Product Orders, unless and until such Products are ultimately paid for by Kmart. [ ] Notwithstanding the foregoing, Kmart shall not be relieved of any obligation to pay for conforming Products timely delivered to or on behalf of Kmart in accordance with any Specific Purchase Order.. Subject to Sections 5.1 above and 5.2 below, in the event that Kmart fails to place the Minimum Product Orders in any of the Categories specified above within any of the periods specified above, then Kmart shall be required to pay NewTech within thirty (30)