Mondelez 2012 Annual Report Download - page 241

CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE COPY FILED HEREWITH OMITS
THE INFORMATION SUBJECT TO A CONFIDENTIALITY REQUEST. OMISSIONS ARE DESIGNATED [ * * * ]. A COMPLETE
VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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11.9.2
Refunds and Credits
. If Supplier should receive a refund, credit, discount or other rebate for goods or services paid for by Kraft
and/or the Eligible Recipients on a Pass-Through Expense, Retained Expense, cost-plus or cost-reimbursement basis, then Supplier
shall (i) notify Kraft of such refund, credit, discount or rebate and (ii) pay the full amount of such refund, credit, discount or rebate to
Kraft or such Eligible Recipient.
11.9.3
Allocation of Balloon, Roll
-
Over and Similar Payments
. With respect to contracts assigned to Kraft in connection with any
Termination Assistance Services, where the costs under any such contracts entered into by Supplier, a Supplier Affiliate or
Subcontractor are to be apportioned between the Parties, Supplier shall be responsible for the payment of any costs required to be paid
by Kraft after the assignment of such contracts to Kraft, to the extent such costs are attributable to periods during the Term and the
provision of any Termination Assistance Services. Additionally, if lease, license, maintenance, service charges or other periodic
payments under any such contract increase after assignment to Kraft (other than to account for cost of living or similar increases) (e.g.,
balloon or similar payments), unless Kraft has expressly agreed to assume such increase, all such payments shall be recalculated so
that, as between the Parties, the entire cost shall be amortized evenly over the entire term of such contract. In the case of licenses, such
allocation of costs shall not apply to the initial one-time license fees paid or payable by Supplier. Supplier shall be responsible for
those back-end and recalculated costs that are attributable to periods during the Term and the provision of any Termination Assistance
Services, and, upon assignment to Kraft, Kraft shall be responsible for all other payments. Supplier shall provide a credit to Kraft for
any such back-
end costs and recalculated costs against any amounts then due and owing by Kraft or, if there are no amounts then owed
by Kraft, pay such back
-
end or recalculated amounts to Kraft within 30 days after the assignment of the applicable contract to Kraft.
11.10
Kraft Benchmarking Reviews
.
11.10.1 Benchmarking Review . Commencing eighteen (18) months after the applicable Supplement Commencement Date (or in the case of
the first Supplement, if later, following Supplier’s execution of a separate agreement, pursuant to Section 11.1.6.3 , with the second of
the two Kraft entities resulting from the Spin-Off), and with 30 days’ advance written notice to Supplier, and no more frequently than
once every 12 months thereafter for each scope of Services that is benchmarked, Kraft may, subject to this Section 11.10 , request that
a benchmarking study be performed by an independent third party with the characteristics noted in Section 11.10.2 (a “
Benchmarker
”) to compare the quality and price of all or any portion of the Services representing at least one Tower against the quality and price of
other well-managed outsourcing suppliers (not including companies who self-perform services) performing similar services to ensure
that Kraft is receiving from Supplier pricing and levels of service that are competitive with market rates, prices and service levels,
given the nature, volume and type of Services provided by Supplier hereunder (“ Benchmarking ”). The Benchmarker may be hired
and Kraft may provide the Benchmarker with instructions and information prior to the required waiting period set forth in the
preceding sentence, but the actual benchmarking study may not commence earlier than the end of such waiting period. In addition,
Kraft shall not require Benchmarking more than 3 times in any Contract Year. In making this comparison, the Benchmarker shall
consider such factors as the Benchmarker typically considers in its benchmarking methodology, including the following factors, and
adjust the prices as and to the extent appropriate: (i) any financial engineering, such