{"id":42438,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/letter-agreement-windmere-corp-and-salton-maxim-housewares2.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"letter-agreement-windmere-corp-and-salton-maxim-housewares2","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/letter-agreement-windmere-corp-and-salton-maxim-housewares2.html","title":{"rendered":"Letter Agreement &#8211; Windmere Corp. and Salton\/Maxim Housewares Inc."},"content":{"rendered":"<pre>\n                     Letter Agreement dated April 30, 1997\n                                    between\n                       Windmere Corporation ('Windmere')\n                                      and\n                    Salton\/Maxim Housewares, Inc. ('Salton')\n                     as amended and restated July 27, 1998\n \n\nWHEREAS, Windmere, with its main office in Miami Lakes, Florida, and Salton,\nwith its main office in Mt. Prospect, Illinois, have worked together to obtain\nthe benefits of significant sales of products under the White-Westinghouse\nbrand to K-Mart Corporation ('K-Mart'); and\n\nWHEREAS, the distribution profits on the sales to K-Mart of the\nWhite-Westinghouse brand of appliances will all be received and recorded on the\nbooks of Salton (the 'White-Westinghouse Profits'); and\n\nWHEREAS, the parties wish to provide explicitly for the calculation of the\nWhite-Westinghouse Profits, recognizing that Salton is presently warehousing\nWhite-Westinghouse product in the United States to facilitate their sale;\n\nNOW, THEREFORE, in consideration of Windmere's marketing cooperation efforts,\nthis Letter Agreement documents the obligation of Salton to pay a fee as\ndescribed herein to Windmere as compensation for its efforts on Salton's behalf\nin obtaining said White-Westinghouse Profits.\n\n1.01 Fees.\n\n             (a) Salton shall pay Windmere a fee equal to fifty percent (50%) of\nsaid White-Westinghouse Profits (as such term is hereinafter defined) earned by\nSalton on the sale of any White-Westinghouse Product to K-Mart.  The fee shall\nbe paid, by wire transfer to Windmere's bank account, not later than the\nforty-fifth (45th) day after the end of each calendar quarter on the\ntransactions occurring within said quarter.\n\n             (b) Not later than the 25th day of each calendar month, Salton\nshall provide to Windmere a report of Sales (as such term is defined below)\nduring the prior month, together with a calculation of said White-Westinghouse\nProfits, all in such detail as may reasonably be requested by Windmere (each a\n'Salton Report').\n\n             (c) White-Westinghouse Profits earned by Salton on the sale of\nWhite-Westinghouse Products shall be determined by subtracting from Sales (x)\nthe Cost of Sales on First Party Sales (as such terms are defined below) of the\nrelated products and (y) the Direct Expenses on First Party Sales and Third\nParty Sales (as such terms are defined below) relating thereto.\n\n                 (i) For the purposes of this Agreement, 'Sales' shall mean the\namount invoiced by Salton to K-Mart for the White-Westinghouse Products net of\naccepted returns and\n\n\nexcluding all freight charges ('First Party Sales'); provided, however, in those\ncases in which K-Mart elects, pursuant to Section 7.1.2 of the K-Mart Agreement,\nto purchase K-Mart Products from 'Third Party Manufacturers' on behalf of\nSalton, Sales shall be deemed to be equal to the difference between the Salton\nPayment and the TPM Payment (as each of such terms are defined in Section 7.1.3\nof the K-Mart Agreement). \n\n                (ii) For the purposes of this Agreement, Cost of Sales shall\nmean the FOB point of shipment invoice amount from the applicable vendor, plus,\nto the extent applicable, freight charges and duties.\n\n                (iii)  For the purposes of this Agreement:  (A) Direct Expenses\non First Party Sales shall be the total of: (x) three and one half percent\n(3.5%) of Sales plus (y) the sum of: (1) royalties owing on such Sales plus the\nminimum royalty owing, if any, regardless of Sales and (2) Detroit office\nselling expenses, provided, however, that if 75% or more of Salton's First Party\nSales are FOB Hong Kong, said three-and-one half percent (3.5%) figure shall be\nreduced to two percent (2%); and (B) Direct Expenses on Third Party Sales shall\nconsist only of royalties owing on such sales.\n\n1.02    Right of Audit.  Windmere shall have the right, upon reasonable notice\nand at reasonable times, within six (6) months following its receipt of any\nSalton Report to have a review of the books and records of Salton with respect\nto the payments to be made for the period covered by such Salton Report, to\nconfirm the accuracy of the Salton Report, provided, however, that such right of\nreview shall not be exercisable more than two times per calendar year and\nprovided further that if such review reveals an underpayment of more than 3.0%\nof the amount to which Windmere is entitled hereunder, then Windmere may have\nsuch review as often as it may reasonably deem necessary. Costs and expenses of\nsuch examinations shall be paid solely by Windmere; provided, however, that if\nan examination reveals an underpayment to Windmere of more than 3.0% of the\namount to which Windmere is entitled hereunder, then the reasonable costs and\nexpenses of such examination shall be paid by Salton upon receiving an invoice\ntherefor, with supporting documentation attached.  It is specifically agreed\nthat Windmere may conduct such an examination only through a firm of nationally\nrecognized independent accountants not regularly retained by Salton or Windmere\nor their respective affiliates and mutually agreed on by Windmere and Salton. If\nSalton and Windmere cannot agree upon a firm of nationally recognized\nindependent accountants, the firm shall be Price Waterhouse &amp; Co., or any\nsuccessor to Price Waterhouse &amp; Co. If Price Waterhouse &amp; Co. shall be acquired\nby, merge into or otherwise cease to be independent of a firm that is regularly\nretained by Salton or Windmere, then, unless Windmere and Salton mutually agree\nupon a successor independent firm, at the written request of either Windmere or\nSalton made to the other, another national recognized firm that is not regularly\nretained by Salton or Windmere shall be selected by the head of the Miami,\nFlorida office of the American Arbitration Association. Such independent\naccountants shall: (i) confirm the First Party Sales and Third Party Sales and\nthe Cost of Sales and (ii) shall have access to the books and records of Salton,\nbut shall be obligated to keep confidential from Windmere and its affiliates and\nall third parties, the names of Salton's \n\n\n                                       2\n\nmanufacturing sources, the terms of purchase, unit prices and all other details\navailable to such independent accountants concerning the Cost of Sales.  The\ndetermination of such independent accounting firm shall be binding on both\nWindmere and Salton.\n \n1.03    Non-Compete.  Neither Windmere nor any Affiliate of Windmere, including\nbut not limited to Durable Electrical Metal Factory, Ltd., and any partnership\nor joint venture to which Windmere is a party shall compete with Salton in\nselling White-Westinghouse Trademarked Products to K-Mart covered by the\nSalton\/K-Mart Agreement.  Any such competition shall be a breach of the\nSalton\/Windmere K-Mart Letter Agreement which shall entitle Salton to terminate\nthe Salton\/Windmere K-Mart Letter Agreement by notice to Windmere.\n\n1.04    Term.  The provisions of this Agreement with regard to sales to K-Mart\nshall not be cancelable during the term of that existing contract between Salton\nand K-Mart, including any extensions or modifications thereof.  The term of the\nprovisions of this Agreement with regard to sales to K-Mart shall coincide with\nthe contract term as specified in said contract between Salton and K-Mart.\n\n1.05    Jurisdiction.  This Agreement shall be interpreted under the laws of the\nState of Delaware, without regard to its conflict of laws provisions.\n\n\n\n    Windmere Corporation                Salton\/Maxim Housewares, Inc.\n\n\n    By:______________________           By:______________________________\n\n\n                                       3\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6726,7994,8750],"corporate_contracts_industries":[9495,9393],"corporate_contracts_types":[9613,9619],"class_list":["post-42438","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-applica-inc","corporate_contracts_companies-kmart-corp","corporate_contracts_companies-salton-inc","corporate_contracts_industries-retail__department","corporate_contracts_industries-consumer__appliances","corporate_contracts_types-operations","corporate_contracts_types-operations__sales"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42438","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42438"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42438"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42438"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42438"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}