EXHIBIT 10.18
HATTERAS
SALES AND SERVICE AGREEMENT
THIS AGREEMENT (which includes the attached addendum, exhibits and
attachments contained herein) made this 1st day of July, 2003 between HATTERAS
YACHTS DIVISION of Brunswick Corporation, a Delaware corporation, (hereinafter
referred to as "Hatteras"), having its principal place of business at 000 Xxxxx
Xxxxxxxxxx Xxxx, Xxx Xxxx, Xxxxx Xxxxxxxx 00000, and MarineMax Motor Yachts,
LLC, with its principal place of business at 000 XX 0xx Xxxxxx, Xxxxx, XX 00000
a Limited Liability Corporation organized and existing under the laws of the
State of Delaware (hereinafter referred to as "Dealer") and its parent
corporation, MarineMax Inc. a Delaware Corporation with its principal place of
business at 18167 XX 00 Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 (hereforth
referral to as "MarineMax"), whereby in consideration of the mutual covenants
herein contained, it is agreed as follows:
1. Appointment of Dealers: Hatteras hereby appoints Dealer as a
non-exclusive dealer for the retail sale, display, and servicing of the
following Hatteras product(s) and repair parts (hereinafter "Product" or
"Products") as specified in the Hatteras 2004 Agreement and Dealer Programs
applicable to Hatteras dealers selling comparable Products (hereinafter referred
to as "Agreement"), from the below described Dealer Location(s), which Products
shall be purchased only from Hatteras or an authorized Hatteras dealer. Hatteras
reserves the right to make sales to purchasers and to appoint other Dealers to
sell Products within the defined marketing territory set forth in Paragraph 2
below (hereinafter referred to as the "Territory"):
Dealer Hatteras
50' - 70' Convertibles, Parts and Accessories ______ ______
82' - 90' Convertibles, Parts and Accessories ______ ______
63' - 80' Motor Yachts, Parts and Accessories ______ ______
84' - 100' Motor Yachts, Parts and Accessories ______ ______
Notwithstanding the above provisions, during the term of this Agreement, and
provided that Dealer is in compliance with the material obligations, performance
standards, terms, conditions, and covenants as specified in this Agreement and
any modifications, Hatteras shall not appoint another or other dealers to sell
Product from a dealer location that is within the Territory.
Hatteras will not sell direct in the assigned Territory without prior
consultation, subject to the attached Addendum.
*Both parties must initial the product descriptions to be included in this
Agreement.
2. Location: Dealer shall sell at retail, display, and service
Products only at and from the following non-exclusive location(s) ("Dealer
Location(s)"), which Dealer Location(s) are both sales and service unless
otherwise specified hereto in writing:
Sales Location Service Location
-------------- ----------------
000 XX Xxxxxxxx Xxxx, Xxxxxx, XX 000 XX Xxxxxxxx Xxxx, Xxxxxx, XX
0000 X.X. Xxxx Xxxx Xxxx, Xxxxxx, XX 0000 X.X. Xxxx Xxxx Xxxx, Xxxxxx, XX
00000 XX 19 North, Clearwater, FL 18025 XX 00 Xxxxx, Xxxxxxxxxx, XX
00000 XxXxxxxx Blvd., Fort Xxxxx, FL 00000 XxXxxxxx Xxxx., Xxxx Xxxxx, XX
0000 0xx Xxxxxx Xxxxx, Xxxxxx, XX
0000 X Xxxxxxxx Xxxxx #0, Xxxxxxx Xxxxx, XX
Pier 66, 0000 XX 00xx Xxxxxx, Xx. Xxxxxxxxxx, XX
0000 Xxxxxxxxx Xxxx., Xxxxxxxxxxxx, XX 0000 Xxxxxxxxx Xxxx., Xxxxxxxxxxxx, XX
000 XX 0xx Xxxxxx, Xxxxx, XX
000 Xxxxxx Xxxx, Xxxxx, XX 000 Xxxxxx Xxxx, Xxxxx, XX
00 Xxxxx Xxxx Xxxxx #X-000, Xxx Xxxxx, XX
1601 Xxx Xxxxxxxx Pky., Sarasota, FL 1601 Xxx Xxxxxxxx Pky., Sarasota, FL
0000 Xxxxxxxxx Xxx Xxxx, Xxxxx Xxxxx, XX
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, XX 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, XX
0000 Xxxxxxx Xxxx, Xxxx Xxxx, XX 0000 Xxxxxxx Xxxx, Xxxx Xxxx, XX
and Dealer shall concentrate its sales and service effort to within the
following Territory:
Comprised of an area beginning at Nassau County, Florida south
through the Keys, north to the Georgian state line and west to
the Apalachicola River and including Liberty, Franklin and
Gasden County, FL, except as noted in the Addendum.
Dealer shall not delete, change or add to the above Dealer Location(s) without
the prior written consent of Hatteras, which consent shall not be unreasonably
withheld, and Hatteras may consider any relevant factors and consequences as
part of such approval process, including but limited to the Dealer's
qualifications, abilities and financial capabilities to perform the Agreement
obligations and to operate the business from the proposed Dealer location,
applicable legal restrictions, and the effect such a grant would have on the
resulting Territory configuration and adjacent Hatteras dealer sales. Dealer
will not sell Products for use by or to a purchaser located outside of the
country in which the Dealer is located, except as noted in the attached
Addendum, or to others for the purpose of resale without the prior written
consent of Hatteras. Specifically, Dealer shall not utilize the services of a
broker or similar agent to sell Product unless employed as a subcontractor of
the Dealer or working for the Dealer subject to the terms and conditions of this
Agreement and the policies of Hatteras. In addition, Dealer shall not sell,
advertise, solicit for sale, or offer for resale Products outside of the
Territory except Dealer may advertise in recognized and established marine
publications with acceptable cross-territorial distribution, subject to the
Addendum attached. Dealer agrees not to advertise price (with the exception of
the current MSRP) of Hatteras' Products in any electronic media, newspaper,
trade publications or other publication or medium that is cross territorial
and/or distributed outside of the Territory. Dealer agrees to provide
appropriate facilities and to assume full and complete managerial authority and
responsibility for the display, retail sale and service of the Products at and
from each Dealer Location, as appropriate.
3. Dealer's Responsibilities: Dealer agrees to:
A. Devote its best efforts to appropriately promote,
display, advertise and sell Products at each Dealer Location in accordance with
the terms of this Agreement and all applicable federal, state and
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local laws. Dealer shall display and utilize at each Dealer Location signs,
graphics and image elements with Hatteras' Identification, as defined herein,
subject to the requirements and approval by Hatteras, that will positively
reflect the Hatteras image and promote the retail sale of the Products.
B. Purchase and carry on hand a sufficient inventory of
current Products and parts to meet the reasonable demand of customers.
C. Maintain at each Dealer Location (unless a sales
location only and then service is to be provided at another Dealer Location or
associated and authorized Hatteras service facility) a service department that
Dealer agrees to staff, train and equip to promptly and professionally service
Products; and to maintain at said Location parts and supplies to properly
service Products on a timely basis.
D. Perform any and all necessary Product rigging,
installation, inspection and Product orientation services prior to delivery to
the purchaser as required by Hatteras and perform post-sale service of all
Products originally sold by Dealer and brought to Dealer for service. Dealer
shall advise all purchasers that dealers in other locations are not required to
provide warranty and service work for the purchaser and all such work is the
responsibility of Dealer. Dealer shall instruct the purchaser to contact it
prior to moving the Product so arrangements for warranty or service work can be
made. However, Dealer may be required to provide or arrange for warranty and
service work for Product regardless of the area or condition of sale. Dealer
will secure all Product inventory against weathering and damage and maintain
inventory at all times in a like new and unused condition.
E. Furnish each Product purchaser with Hatteras' Limited
Warranty on new Products and with information and training as to the safe and
proper operation and maintenance of the Product.
F. Complete and submit Hatteras' Warranty Registration
Card and Warranty Awareness Checklist immediately upon delivery of the Products
to the purchaser and assist Hatteras in performing Products defect and recall
campaigns. In the event Dealer fails to return said card to Hatteras as
prescribed herein, Dealer agrees to indemnify Hatteras against any liability,
loss or damage which Hatteras may sustain as a result of said failure. Hatteras
will notify Dealer if Hatteras has not received the warranty registration card.
G. Maintain complete Product sales and service records
and report to Hatteras on a regular basis the name and address of each Product
purchaser, upon request.
H. Achieve Product sales and service performance in
accordance with fair and reasonable standards and sales levels established by
Hatteras from time to time as described in paragraph 14 below.
I. (1) Submit complete and accurate annual financial
statements for MarineMax within ninety (90) days after the end of MarineMax's
fiscal or calendar year; (2) submit complete financial statements for MarineMax
based on reporting following the quarter end; and, (3) consent to full and open
disclosure of financial information concerning MarineMax and between Hatteras
and any financial institution or company which finances all or part of Dealer's
Product inventory.
J. Conduct business in manner that preserves and
enhances the reputation and goodwill of both Hatteras and Dealer for providing
quality products and services, and submit to Hatteras truthful and accurate
statements, reports and information.
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K. Maintain an ability to purchase Product inventory via
flooring and/or self-financing that is customary to the ability to carry on hand
and display Hatteras' current Product models as indicated on Exhibit A of this
Agreement, except as noted in the attached Addendum.
L. Allow the application of any rebates or account
credits owed to Dealer as an offset against any losses, debts or monies owed to
Hatteras by Dealer, including but not limited to losses or debts applicable to
open Products accounts, unpaid retail show space, and to any losses relating to
Dealer flooring or financing.
M. Indemnify and hold harmless Hatteras, its parent,
affiliates and subsidiaries who finance Dealer's Product inventory against any
and all claims or losses whatsoever as a result of Dealer's failure to meet or
comply with its obligations under this Agreement to Hatteras or to such
indemnified financial institutions.
N. Maintain a CSI rating to preserve Hatteras' image in
the market place.
O. Comply with those Dealer obligations that may be
imposed or established for similar situated Dealers by Hatteras and which are
included in this Agreement, annual Dealer Programs and policies and Hatteras'
Internet Policy to the maximum extent permitted by applicable law.
P. Maintain a financial condition which is adequate to
satisfy and perform its obligations under this Agreement, including the ability
to accept and floor plan trade-in products.
Q. Maintain in confidence all Hatteras proprietary and
confidential information which is disclosed to Dealer.
R. Provide prior written notice to Hatteras if Dealer
desires to make any change in Dealer's financing of its Product inventory or
business and give Hatteras sufficient time to discuss and review with Dealer the
effect of the proposed change.
S. Notify Hatteras of any proposed change in the control
or management of the Dealer and the addition or deletion of any Dealer
Location(s).
4. Orders: Dealer agrees to submit orders to Hatteras in a manner
and format prescribed by Hatteras, which orders shall be subject to Hatteras'
current terms and conditions of sale. Any order which does not comply with
Hatteras' terms and conditions need not be filled by Hatteras. Any additional or
different terms submitted by Dealer will be void and of no effect. Dealer
cancellation of orders will be subject to Hatteras' then current cancellation
policy. All orders submitted by Dealer are subject to acceptance by Hatteras.
5. Prices: The Products (including parts) sold to the Dealer by
Hatteras shall be on the basis of price lists published by Hatteras from time to
time, less any applicable discounts allowed by Hatteras' programs applicable to
Dealer. Hatteras shall have the right to revise the price lists or applicable
discounts on programs at any time, except for any retail contracts that may have
been approved by Hatteras or as otherwise reflected in the attached Addendums.
Hatteras shall have no obligation to reimburse Dealer for any loss which Dealer
may sustain by reason of any change in price, program, or discount. Terms of
payment will be as specified from time to time by Hatteras. Dealer will pay
Hatteras the lesser of 1.5% late charges per month on any past due invoice, or
the maximum permitted by state law, unless contested in good faith. Hatteras may
refuse shipment for any credit reason, including Dealer's failure to pay for a
prior shipment. Dealer will reimburse Hatteras for all necessary costs in
collecting past due accounts, including
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attorney fees and court costs. Hatteras retains a security interest and lien on
all Products sold to Dealer and all proceeds arising out of the sale of Products
until Products are paid for in full in cash and Dealer hereby agrees to execute
and/or file with appropriate government agencies such agreements and statements
that reasonably may be requested by Hatteras to confirm and perfect such
security interest.
6. Shipments: All shipments of Products shall be made FOB the
Hatteras factory designated by Hatteras, at which time title shall pass. Dealer
shall pay all applicable shipping, transportation, delivery and handling charges
for Products ordered. If Dealer fails to accept delivery of any Products
ordered, Dealer shall reimburse Hatteras for any costs incurred, including
inventory carrying charges and resale costs incurred by Hatteras. If Hatteras
ships Products not ordered by Dealer, Dealer shall have the right to refuse
delivery, in which event Hatteras shall pay all costs incurred in returning same
to Hatteras. Shipments shall be subject to Hatteras' production schedule and
availability of materials or transportation equipment. No liability shall be
sustained by Hatteras by reason of its not filling any order due to
circumstances beyond its reasonable control such as, but not limited to, labor
disputes, natural disasters, accidents to machinery, acts of God, acts of or
threatened acts of war or terrorism, material shortages or regulations.
7. Risk of Loss: Risk of loss for Products ordered by Dealer
shall pass to Dealer at the time the Products or part are tendered to the
designated carrier at the Hatteras factory. Hatteras will arrange for insurance
from the shipping point to the final delivery point. Dealer will be the loss
payee on any claim. Hatteras will assist Dealer in the processing and collection
of any claims against the carrier contracted by Hatteras.
8. Payment - Claims: All sales of Products to Dealer shall be
paid for in advance by Dealer, unless otherwise agreed between Hatteras and
Dealer. All claims for shortage or damages or unacceptable goods shall be made
at the time of arrival of the shipment. The failure of Dealer to give such
notification shall constitute a waiver of any such claim. Dealer shall cause to
be paid or shall make reimbursement to Hatteras in full for any and all taxes,
duties, or other charges imposed by federal, state, municipal or other
governmental authority upon any purchase or sale under this Agreement.
9. Product Modification: Hatteras shall have the right to
discontinue the sale of Products or to modify the design and components of
Products at any time; provided, however, that Hatteras shall notify Dealer,
prior to shipment, of any major design changes with respect to Products
previously ordered by Dealer, except as noted in the attached Addendum.
10. Warranties: Dealer agrees to:
A. Sell Products only on the basis of Hatteras'
published applicable Limited Warranty and make no other warranty or
representations concerning the Limited Warranty, express or implied, either
verbally or in writing.
B. Display at each Dealer Location that Product warranty
information required by applicable law and furnish and make known to the
first-use purchaser at the time of delivery the appropriate operations and
maintenance manual provided by Hatteras, the Product installation instructions,
if any, together with Hatteras' written limited warranty, including all
disclaimers and limitations thereto.
C. Expressly inform the purchaser in writing of the
terms of the Hatteras Limited Warranty that no Hatteras warranty applies if the
Product is "used", which includes personal or substantial demonstration
(excluding reasonable sea trials and demos for prospective customers or for
marketing purposes at Rendezvous) use by the Dealer unless Hatteras expressly
authorizes such warranty in writing.
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No Product warranty shall apply if the design or material of the Product is
substantially modified without the express authorization of Hatteras in writing.
D. Provide timely warranty service on all Product
presented to Dealer by purchasers in accordance with Hatteras' then current
warranty service program. Dealer agrees to make all claims for reimbursement
under Hatteras' warranty service program in the manner prescribed by Hatteras.
Hatteras may revise its warranty service program from time to time, providing
Dealer with written notification of all revisions and those revisions will
supersede all previous programs.
E. Provide Hatteras with access to its books and records
and provide such additional documentation which Hatteras may reasonably request
to verify the accuracy of the warranty claims submitted to Hatteras by Dealer
and the service provided by Dealer with regard to such warranty claims. In the
event Hatteras finds errors in the aggregate greater than 5% for claims
submitted by Dealer and paid by Hatteras, Hatteras may calculate the percentage
rate of error, and using that percentage rate of error, extrapolate the amount
owed to Hatteras for up to three (3) prior years of paid claims made by Hatteras
to Dealer. Within thirty (30) days of such notice, Dealer shall either pay the
extrapolated amount to Hatteras or pay the cost of a full audit by Hatteras or
Hatteras' designee and pay to Hatteras that amount, if any, found to be owing to
Hatteras as a result of such audit. If the audit is unfounded, then Hatteras
agrees to pay for the audit. Hatteras agrees to honor all legitimate warranty
claims on Products when made by purchaser through Dealer in the manner
prescribed by Hatteras. Hatteras shall respond to all proper and legitimate
warranty claims submitted by Dealer within the terms and conditions of the
Hatteras Limited Warranty. Hatteras agrees to pay or credit all accepted and
undisputed claims within thirty (30) days after receipt of all required
documentation.
11. Indemnity for Boat Show Space Obtained from Hatteras. Hatteras
on behalf of the Dealer may contract with and agree to indemnify boat show
sponsors and other related parties for boat show space, Dealer hereby agrees to
defend and indemnify Hatteras, and any boat show sponsor which Hatteras has
agreed to indemnify, from any and all claims, causes of action and suits
resulting from the acts or omissions of Dealer in setting up of boat show space
originally obtained by Hatteras.
12. Repossession or Repurchase of Product by Hatteras: Dealer
shall be liable to and reimburse Hatteras for any and all losses or deficiencies
on the sale or disposition of any merchandise (including Products) purchased by
Dealer pursuant to this Agreement which is repossessed or repurchased by
Hatteras for any reason whatsoever, except as noted in the addendum and 16G.
Dealer shall also be liable for any and all discounts, volume rebates or other
sales incentives paid to Dealer on merchandise, repurchased, all attorney's
fees, court costs and expenses incurred in connection with such repossession or
repurchase, except as noted in Addendum.
13. Trademarks and Service Marks: Dealer acknowledges that
Hatteras or its affiliated companies are the exclusive owners of various
trademarks, service marks, trade designations and trade dress (collectively
"Identification") which Hatteras uses in connection with Products and its
business. Dealer is authorized to use Identification only in the manner
prescribed by Hatteras, only in connection with the promotion and sale of
Products and only until the expiration or termination of this Agreement. Dealer
shall not use Identification in any manner that adversely reflects upon the
reputation of Hatteras or in relation to any other matter that is a breach of
this Agreement. Dealer shall not use Identification or advertise outside of the
Territory without Hatteras' express written consent, except as outlined in the
attached Addendum. Authorization shall not be interpreted as a license for use
of Identification. Dealer acquires no proprietary rights with respect to
Identification and this authorization shall terminate simultaneously with the
termination or expiration of this Agreement. In the event of expiration or
termination of this Agreement, Dealer shall immediately discontinue use of
Identification in any way whatsoever and shall thereafter not use, either
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directly or indirectly, any Identification or any confusingly similar
Identification in a manner likely to confuse, mistake or deceive the public.
14. Performance Standards: Hatteras, after consultation with
Dealer, may establish fair and reasonable standards of sales performance for the
Dealership. Such standards are based on factors such as population, sales
potential, market share percentage of the Products sold in the Territory as
compared to competitive products sold in the Territory, economic conditions at
the Dealer Location(s), competition from other marine dealerships in the area,
past sales history, number of locations, and any special circumstances that may
affect the sale of Products or the Dealer. Sales performance under this
Agreement is agreed to as shown on attached Exhibit A, the Dealer Commitment
Acknowledgment and Addendum.
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15. No Agency Created: It is understood and agreed that Dealer is
not, nor shall it at any time represent itself to be, the agent, employee,
representative or franchisee of Hatteras. Dealer shall not enter into any
contract or commitment in the name of or on behalf of Hatteras. Hatteras has no
fiduciary duty to Dealer pursuant to the Agreement or the relationship between
the parties.
16. Term of Agreement - Termination:
A. Upon execution by Hatteras, the term of this
Agreement shall be from July 1, 2003 until June 30, 2004 subject, however, to
the provisions set forth below and in Paragraph 18 that provide for earlier
termination and except as noted in the addendum.
B. Hatteras will give at least sixty (60) days notice
prior to expiration of the Agreement of its intent not to enter into a new
Agreement with Dealer unless: (1) Dealer fails or refuses to place a minimum
stocking order of the next model year's Products, or (2) Dealer fails to meet
its financial obligations as they become due to either Hatteras or lender(s)
financing Products. Dealer agrees to provide Hatteras written notice of its
intent not to enter a new Agreement at least sixty (60) days prior to expiration
of this Agreement. Neither party is under any obligation express or implied, to
renew or extend this Agreement or to enter into a new Agreement upon expiration,
except as outlined in the Addendum. Sale of Product to Dealer after termination
shall not be deemed renewal or extension of this Agreement.
C. This Agreement may be terminated at any time by the
mutual consent of the parties. Either party may, upon thirty (30) days written
notice to the other stating the reasons therefore, terminate this Agreement upon
the other party's breaching or defaulting or failing to comply with any material
obligation, covenant, representation, warranty or duty imposed herein that is
applicable to such other party and is an essential condition of this Agreement,
and provided that the breach or default has not been cured during the
notification period. If the breach or default is not subject to cure (such as
the commission of an act of bad faith), this Agreement may be terminated
immediately, effective upon notice to the breaching or defaulting party.
D. This Agreement may be immediately terminated by a
party upon written notice to the other party if any of the following occur with
regard to the other party: (1) the other party ceases to exist; (2) the other
party becomes insolvent or takes or fails to take any action which constitutes
an admission of inability to pay debts as they mature; (3) the other party makes
a general assignment for the benefit of creditors to an agent authorized to
liquidate any substantial amount of assets; (4) the other party becomes a
subject of an "order for relief" within the meaning of the United States
Bankruptcy Code; (5) the other party applies to a court for the appointment of a
receiver for any assets or properties; or, (6) the other party makes a
fraudulent misrepresentation that is material to this Agreement.
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E. This Agreement may be terminated immediately by
Hatteras upon the occurrence of those matters described in Paragraph 18.A.
below.
F. This Agreement may be terminated by Hatteras
(notwithstanding and in addition to the provisions of subparagraph C and other
subparagraphs) upon the giving of at least ten (10) days prior written notice to
Dealer where there are unpaid sums due and owing to Hatteras that remain unpaid,
in whole or part, at the end of such notice period, unless such amount is
disputed in good faith by Dealer.
G. On or before the termination of this Agreement,
Dealer shall provide written notice to Hatteras of all unsold Products subject
to possible repurchase by Hatteras or appropriate financial institution who
financed Dealer's Product inventory, including Product serial numbers and the
Dealer's net purchase price for each Product, except as outlined in the
Addendum. Upon the termination of this agreement, except as noted in the
Addendum, (including expiration and failure to enter into a new agreement),
Dealer shall offer to sell to Hatteras or Hatteras' designee, at Dealer's net
purchase price (not including transportation, insurance, freight or financing
costs), less any discounts or rebates previously paid by Hatteras' program
("Dealer Purchase Price"), Dealer's entire stock of Products in a new and unused
(non demo as described in paragraph 10 c) condition. Hatteras shall have thirty
(30) days after the termination of this Agreement to accept Dealer's offer of
sale, which acceptance shall be provided by a written notice given to dealer. If
Hatteras terminates this Agreement prior to its expiration date without cause,
Hatteras will offer to purchase Dealer's entire unsold stock of Products in a
new and unused (non demo as described in paragraph 10c) condition at the Dealer
Purchase Price, which offer must be accepted by a written notice provided to
Hatteras within ten (10) days after termination of this Agreement. Except as
expressly described herein, Hatteras shall not be obligated to repurchase
Products if this Agreement is terminated or expires or is not renewed, except as
noted in the attached Addendum. Dealer shall sell such Products to Hatteras or
its designee, and such repurchase is conditional upon Dealer's ability to sell
such Products, with good and merchantable title, free and clear of all liens and
encumbrances. Dealer shall deliver all title documentation requested by Hatteras
and Dealer shall execute a limited power of attorney on behalf of Hatteras for
purposes of executing all necessary title documentation. Payment for purchased
Product shall be, at Hatteras' option, by credit, offset or payment made to
dealer within ten (10) days after Hatteras' acceptance of the purchased Product,
subject as where noted with specific side agreements.
H. If Hatteras terminates or Hatteras and Dealer
mutually terminate this Agreement prior to its expiration date, provided the
termination is not for quality of service, fraud, or financial instability or
insolvency of Dealer, Hatteras will nevertheless continue to sell warranty parts
and accessories for Products on a cash on delivery basis for a period not to
exceed twelve (12) months from the warranty activation period of the last
Hatteras Product delivered by the Dealer in order that Dealer may continue to
provide warranty service on Products which have outstanding warranties.
J. Any period of time described in the Agreement shall
be modified to include such different period of time that may be required by
applicable law.
17. Governing Law: This Agreement has been signed by Dealer on the
date reflected below, and shall become binding upon the execution by Hatteras at
its headquarters in North Carolina, U.S.A. This Agreement shall be governed,
interpreted and construed according to the laws of the State of North Carolina,
U.S.A., without regard to applicable conflicts of law.
18. Assignability:
A. This appointment and Agreement is made and entered
into with the distinct understanding that it is personal with Dealer and
Dealer's affiliates and is not, whether by operation of law or
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otherwise, assignable or in any part delegable or transferable unless the
express written consent of Hatteras is obtained provided, however, that Dealer
may assign the appointment and this Agreement to a subsidiary or affiliate
without consent, by informing the assignment in writing to Hatteras. Unless
first approved by Hatteras in writing, any purported assignment, delegation or
subcontracting of Dealer's rights and obligations under this Agreement in
contravention of this Agreement or any change in control in contravention of
this Agreement may immediately render this Agreement, at Hatteras' option,
terminated. Any unconsented to assignment in contravention of this Agreement
shall, at Hatteras' option, be deemed void.
19. Notices: Any written notice given pursuant to this Agreement
shall be either hand delivered (by courier or otherwise), or mailed, postage
prepaid, by Registered or Certified Mail, return receipt requested, to the party
at the respective principal place of business first above written. Notice may
also be given by fax if a copy is also mailed in the manner described herein.
Such notice shall be deemed to be given upon first receipt. A change of address
may be given by such notice.
20. Entire Agreement - Non-Waiver - Separability: This Agreement
and the attached Addendum contains the entire agreement between the parties with
respect to the matters set forth herein and may not be amended or modified
except by written instrument signed by Hatteras and Dealer that expressly states
that the writing constitutes a rider or modification to this Agreement, provided
that Hatteras may at its sole discretion and from time to time make changes to
Dealer Programs and Hatteras' Internet Policy upon the giving of notice to
Dealer. This Agreement and the Addendum attached hereto terminates and replaces
all prior agreements made between the parties and there are no other agreements
regarding the matters herein provided that each party shall remain obligated to
the other for any monies owed under such prior agreements between the parties,
and except for payments to be made to Dealer in the ordinary course of business
there are no other monies, claims or actions which may give rise to or result in
any compensation or monies being owed to Dealer by Hatteras. Failure on the part
of Hatteras or Dealer to enforce any term of this Agreement shall not constitute
a waiver thereof. Any provision of this Agreement which in any way contravenes
or is unenforceable under applicable law shall not apply and shall be deemed
separable and not to be a part of this Agreement without affecting the validity
of the remaining provisions. The Hatteras Dealer Programs and Policies and their
content as well as the Hatteras Internet Policy is incorporated herein by
reference. Dealer represents to Hatteras that it is not aware of any claims,
causes of action or disputes that it has or may assert against Hatteras that
arise out of or have accrued prior to the effective date of this Agreement.
Dealer further represents to Hatteras that Dealer has not breached or otherwise
violated any material term or condition of any previous Agreement with Hatteras.
21. Guarantee: As a condition for Hatteras' entering into this
Agreement, MarineMax has signed this document as evidence of its irrevocable
guarantee of the Dealer's performance of all the financial duties and financial
obligations provided for in this Agreement.
22. Disputes. All disputes, controversies or claims connected
with, arising out of, or relating to this Agreement, or any modification,
extension or renewal thereof, or to any causes of action that result from such
relationship, shall be subject exclusively to the remedy of arbitration
described herein, including but not limited to sums due under this Agreement,
the interpretation, performance or nonperformance of this Agreement, and claim
for damages or rescission, a breach or default of this Agreement, the creation,
termination or nonrenewal of this Agreement (such as a dispute regarding the
causes, validity or circumstances of the termination, nonextension, or
nonrenewal), and trade regulations or antitrust claims, whether such
controversies or claims are in law or equity or include claims based upon
contract, statute, tort or otherwise. All controversies shall be conducted in
accordance with the American Arbitration Association Commercial Arbitration
Rules.
9
The arbitration shall be governed by the United States Arbitration Act,
9 U.S.C. Section 1-16, as amended, and judgment upon the award rendered by the
arbitrator may be entered by any court having jurisdiction thereof. The place of
the arbitration shall be at Raleigh, North Carolina. Dealer consents to personal
jurisdiction of such court, including the federal and state courts located in
the State of North Carolina. The arbitrator is not empowered to and shall not
award damages in excess of actual damages and in no event shall the arbitrator
award punitive, special or consequential damages, or prejudgment interest.
This Paragraph shall survive the expiration or termination of this
Agreement.
Except for sums owing to Hatteras all arbitration claims and
proceedings must be instituted within one (1) year after the cause of action
arises, and the failure to institute arbitration proceedings within such period
shall constitute an absolute bar to the institution of any proceedings and a
waiver and relinquishment of all such claims.
23. Miscellaneous: Except as expressly described to the contrary
in this Agreement, the rights and remedies of each party are not exclusive and
where consent or approval is to be given that party may withhold such consent or
approval for any reason.
24. Confidentiality: Hatteras shall maintain in confidence all
Dealer proprietary and confidential information which is disclosed to Hatteras.
IN WITNESS WHEREOF, Hatteras and Dealer have executed this Agreement as
of the date first above written.
HATTERAS YACHTS DIVISION OF MarineMax Motor Yachts, LLC
BRUNSWICK CORPORATION
By: __________________________ By: _____________________________
Title: __________________________ Title: _____________________________
Date: __________________________
MarineMax, Inc.
By: __________________________
Title: __________________________
Date: __________________________
10
HATTERAS
SALES AND SERVICE AGREEMENT
THIS AGREEMENT (which includes the attached addendum, exhibits and
attachments contained herein) made this 1st day of July, 2003 between HATTERAS
YACHTS DIVISION of Brunswick Corporation, a Delaware corporation, (hereinafter
referred to as "Hatteras"), having its principal place of business at 000 Xxxxx
Xxxxxxxxxx Xxxx, Xxx Xxxx, Xxxxx Xxxxxxxx 00000, and MarineMax Motor Yachts,
LLC, with its principal place of business at 0000 Xxxxx Xxxxx Xxxxxx, Xxxx 00,
Xxxxxx Xxxx, XX, 00000 a Limited Liability Corporation organized and existing
under the laws of the State of Delaware (hereinafter referred to as "Dealer")
and its parent corporation, MarineMax Inc. a Delaware Corporation with its
principal place of business at 18167 XX 00 Xxxxx, Xxxxx 000, Xxxxxxxxxx, XX
00000 (hereforth referral to as "MarineMax"), whereby in consideration of the
mutual covenants herein contained, it is agreed as follows:
1. Appointment of Dealers: Hatteras hereby appoints Dealer as a
non-exclusive dealer for the retail sale, display, and servicing of the
following Hatteras product(s) and repair parts (hereinafter "Product" or
"Products") as specified in the Hatteras 2004 Agreement and Dealer Programs
applicable to Hatteras dealers selling comparable Products (hereinafter referred
to as "Agreement"), from the below described Dealer Location(s), which Products
shall be purchased only from Hatteras or an authorized Hatteras dealer. Hatteras
reserves the right to make sales to purchasers and to appoint other Dealers to
sell Products within the defined marketing territory set forth in Paragraph 2
below (hereinafter referred to as the "Territory"):
Dealer Hatteras
50' - 70' Convertibles, Parts and Accessories ______ ______
82' - 90' Convertibles, Parts and Accessories ______ ______
63' - 80' Motor Yachts, Parts and Accessories ______ ______
84' - 100' Motor Yachts, Parts and Accessories ______ ______
Notwithstanding the above provisions, during the term of this Agreement, and
provided that Dealer is in compliance with the material obligations, performance
standards, terms, conditions, and covenants as specified in this Agreement and
any modifications, Hatteras shall not appoint another or other dealers to sell
Product from a dealer location that is within the Territory.
Hatteras will not sell direct in the assigned Territory without prior
consultation, subject to the attached Addendum.
*Both parties must initial the product descriptions to be included in this
Agreement.
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2. Location: Dealer shall sell at retail, display, and service
Products only at and from the following non-exclusive location(s) ("Dealer
Location(s)"), which Dealer Location(s) are both sales and service unless
otherwise specified hereto in writing:
Sales Location Service Location
-------------- ----------------
0000 Xxxxx Xxxxx Xxxxxx, Xxxx 00, Xxxxxx Xxxx, XX 0000 Xxxxx Xxxxx Xxxxxx, Xxxx 00, Xxxxxx
Xxxx, XX
0000 Xxxx Xxxx Xxx, Xxxxxxxx, XX
and Dealer shall concentrate its sales and service effort to within the
following Territory:
Texas
Dealer shall not delete, change or add to the above Dealer Location(s) without
the prior written consent of Hatteras, which consent shall not be unreasonably
withheld, and Hatteras may consider any relevant factors and consequences as
part of such approval process, including but limited to the Dealer's
qualifications, abilities and financial capabilities to perform the Agreement
obligations and to operate the business from the proposed Dealer location,
applicable legal restrictions, and the effect such a grant would have on the
resulting Territory configuration and adjacent Hatteras dealer sales. Dealer
will not sell Products for use by or to a purchaser located outside of the
country in which the Dealer is located, except as noted in the attached
Addendum, or to others for the purpose of resale without the prior written
consent of Hatteras. Specifically, Dealer shall not utilize the services of a
broker or similar agent to sell Product unless employed as a subcontractor of
the Dealer or working for the Dealer subject to the terms and conditions of this
Agreement and the policies of Hatteras. In addition, Dealer shall not sell,
advertise, solicit for sale, or offer for resale Products outside of the
Territory except Dealer may advertise in recognized and established marine
publications with acceptable cross-territorial distribution, subject to the
Addendum attached. Dealer agrees not to advertise price (with the exception of
the current MSRP) of Hatteras' Products in any electronic media, newspaper,
trade publications or other publication or medium that is cross territorial
and/or distributed outside of the Territory. Dealer agrees to provide
appropriate facilities and to assume full and complete managerial authority and
responsibility for the display, retail sale and service of the Products at and
from each Dealer Location, as appropriate.
3. Dealer's Responsibilities: Dealer agrees to:
A. Devote its best efforts to appropriately promote,
display, advertise and sell Products at each Dealer Location in accordance with
the terms of this Agreement and all applicable federal, state and local laws.
Dealer shall display and utilize at each Dealer Location signs, graphics and
image elements with Hatteras' Identification, as defined herein, subject to the
requirements and approval by Hatteras, that will positively reflect the Hatteras
image and promote the retail sale of the Products.
B. Purchase and carry on hand a sufficient inventory of
current Products and parts to meet the reasonable demand of customers.
C. Maintain at each Dealer Location (unless a sales
location only and then service is to be provided at another Dealer Location or
associated and authorized Hatteras service facility) a service department that
Dealer agrees to staff, train and equip to promptly and professionally service
Products; and to maintain at said Location parts and supplies to properly
service Products on a timely basis.
D. Perform any and all necessary Product rigging,
installation, inspection and Product orientation services prior to delivery to
the purchaser as required by Hatteras and perform post-sale service
12
of all Products originally sold by Dealer and brought to Dealer for service.
Dealer shall advise all purchasers that dealers in other locations are not
required to provide warranty and service work for the purchaser and all such
work is the responsibility of Dealer. Dealer shall instruct the purchaser to
contact it prior to moving the Product so arrangements for warranty or service
work can be made. However, Dealer may be required to provide or arrange for
warranty and service work for Product regardless of the area or condition of
sale. Dealer will secure all Product inventory against weathering and damage and
maintain inventory at all times in a like new and unused condition.
E. Furnish each Product purchaser with Hatteras' Limited
Warranty on new Products and with information and training as to the safe and
proper operation and maintenance of the Product.
F. Complete and submit Hatteras' Warranty Registration
Card and Warranty Awareness Checklist immediately upon delivery of the Products
to the purchaser and assist Hatteras in performing Products defect and recall
campaigns. In the event Dealer fails to return said card to Hatteras as
prescribed herein, Dealer agrees to indemnify Hatteras against any liability,
loss or damage which Hatteras may sustain as a result of said failure. Hatteras
will notify Dealer if Hatteras has not received the warranty registration card.
G. Maintain complete Product sales and service records
and report to Hatteras on a regular basis the name and address of each Product
purchaser, upon request.
H. Achieve Product sales and service performance in
accordance with fair and reasonable standards and sales levels established by
Hatteras from time to time as described in paragraph 14 below.
I. (1) Submit complete and accurate annual financial
statements for MarineMax within ninety (90) days after the end of MarineMax's
fiscal or calendar year; (2) submit complete financial statements for MarineMax
based on reporting following the quarter end; and, (3) consent to full and open
disclosure of financial information concerning MarineMax and between Hatteras
and any financial institution or company which finances all or part of Dealer's
Product inventory.
J. Conduct business in manner that preserves and
enhances the reputation and goodwill of both Hatteras and Dealer for providing
quality products and services, and submit to Hatteras truthful and accurate
statements, reports and information.
K. Maintain an ability to purchase Product inventory via
flooring and/or self-financing that is customary to the ability to carry on hand
and display Hatteras' current Product models as indicated on Exhibit A of this
Agreement, except as noted in the attached Addendum.
L. Allow the application of any rebates or account
credits owed to Dealer as an offset against any losses, debts or monies owed to
Hatteras by Dealer, including but not limited to losses or debts applicable to
open Products accounts, unpaid retail show space, and to any losses relating to
Dealer flooring or financing.
M. Indemnify and hold harmless Hatteras, its parent,
affiliates and subsidiaries who finance Dealer's Product inventory against any
and all claims or losses whatsoever as a result of Dealer's failure to meet or
comply with its obligations under this Agreement to Hatteras or to such
indemnified financial institutions.
N. Maintain a CSI rating to preserve Hatteras' image in
the market place.
13
O. Comply with those Dealer obligations that may be
imposed or established for similar situated Dealers by Hatteras and which are
included in this Agreement, annual Dealer Programs and policies and Hatteras'
Internet Policy to the maximum extent permitted by applicable law.
P. Maintain a financial condition which is adequate to
satisfy and perform its obligations under this Agreement, including the ability
to accept and floor plan trade-in products.
Q. Maintain in confidence all Hatteras proprietary and
confidential information which is disclosed to Dealer.
R. Provide prior written notice to Hatteras if Dealer
desires to make any change in Dealer's financing of its Product inventory or
business and give Hatteras sufficient time to discuss and review with Dealer the
effect of the proposed change.
S. Notify Hatteras of any proposed change in the control
or management of the Dealer and the addition or deletion of any Dealer
Location(s).
4. Orders: Dealer agrees to submit orders to Hatteras in a manner
and format prescribed by Hatteras, which orders shall be subject to Hatteras'
current terms and conditions of sale. Any order which does not comply with
Hatteras' terms and conditions need not be filled by Hatteras. Any additional or
different terms submitted by Dealer will be void and of no effect. Dealer
cancellation of orders will be subject to Hatteras' then current cancellation
policy. All orders submitted by Dealer are subject to acceptance by Hatteras.
5. Prices: The Products (including parts) sold to the Dealer by
Hatteras shall be on the basis of price lists published by Hatteras from time to
time, less any applicable discounts allowed by Hatteras' programs applicable to
Dealer. Hatteras shall have the right to revise the price lists or applicable
discounts on programs at any time, except for any retail contracts that may have
been approved by Hatteras or as otherwise reflected in the attached Addendums.
Hatteras shall have no obligation to reimburse Dealer for any loss which Dealer
may sustain by reason of any change in price, program, or discount. Terms of
payment will be as specified from time to time by Hatteras. Dealer will pay
Hatteras the lesser of 1.5% late charges per month on any past due invoice, or
the maximum permitted by state law, unless contested in good faith. Hatteras may
refuse shipment for any credit reason, including Dealer's failure to pay for a
prior shipment. Dealer will reimburse Hatteras for all necessary costs in
collecting past due accounts, including attorney fees and court costs. Hatteras
retains a security interest and lien on all Products sold to Dealer and all
proceeds arising out of the sale of Products until Products are paid for in full
in cash and Dealer hereby agrees to execute and/or file with appropriate
government agencies such agreements and statements that reasonably may be
requested by Hatteras to confirm and perfect such security interest.
6. Shipments: All shipments of Products shall be made FOB the
Hatteras factory designated by Hatteras, at which time title shall pass. Dealer
shall pay all applicable shipping, transportation, delivery and handling charges
for Products ordered. If Dealer fails to accept delivery of any Products
ordered, Dealer shall reimburse Hatteras for any costs incurred, including
inventory carrying charges and resale costs incurred by Hatteras. If Hatteras
ships Products not ordered by Dealer, Dealer shall have the right to refuse
delivery, in which event Hatteras shall pay all costs incurred in returning same
to Hatteras. Shipments shall be subject to Hatteras' production schedule and
availability of materials or transportation equipment. No liability shall be
sustained by Hatteras by reason of its not filling any order due to
circumstances beyond its reasonable control such as, but not limited to, labor
disputes, natural disasters, accidents to machinery, acts of God, acts of or
threatened acts of war or terrorism, material shortages or regulations.
14
7. Risk of Loss: Risk of loss for Products ordered by Dealer
shall pass to Dealer at the time the Products or part are tendered to the
designated carrier at the Hatteras factory. Hatteras will arrange for insurance
from the shipping point to the final delivery point. Dealer will be the loss
payee on any claim. Hatteras will assist Dealer in the processing and collection
of any claims against the carrier contracted by Hatteras.
8. Payment - Claims: All sales of Products to Dealer shall be
paid for in advance by Dealer, unless otherwise agreed between Hatteras and
Dealer. All claims for shortage or damages or unacceptable goods shall be made
at the time of arrival of the shipment. The failure of Dealer to give such
notification shall constitute a waiver of any such claim. Dealer shall cause to
be paid or shall make reimbursement to Hatteras in full for any and all taxes,
duties, or other charges imposed by federal, state, municipal or other
governmental authority upon any purchase or sale under this Agreement.
9. Product Modification: Hatteras shall have the right to
discontinue the sale of Products or to modify the design and components of
Products at any time; provided, however, that Hatteras shall notify Dealer,
prior to shipment, of any major design changes with respect to Products
previously ordered by Dealer, except as noted in the attached Addendum.
10. Warranties: Dealer agrees to:
A. Sell Products only on the basis of Hatteras'
published applicable Limited Warranty and make no other warranty or
representations concerning the Limited Warranty, express or implied, either
verbally or in writing.
B. Display at each Dealer Location that Product warranty
information required by applicable law and furnish and make known to the
first-use purchaser at the time of delivery the appropriate operations and
maintenance manual provided by Hatteras, the Product installation instructions,
if any, together with Hatteras' written limited warranty, including all
disclaimers and limitations thereto.
C. Expressly inform the purchaser in writing of the
terms of the Hatteras Limited Warranty that no Hatteras warranty applies if the
Product is "used", which includes personal or substantial demonstration
(excluding reasonable sea trials and demos for prospective customers or for
marketing purposes at Rendezvous) use by the Dealer unless Hatteras expressly
authorizes such warranty in writing. No Product warranty shall apply if the
design or material of the Product is substantially modified without the express
authorization of Hatteras in writing.
D. Provide timely warranty service on all Product
presented to Dealer by purchasers in accordance with Hatteras' then current
warranty service program. Dealer agrees to make all claims for reimbursement
under Hatteras' warranty service program in the manner prescribed by Hatteras.
Hatteras may revise its warranty service program from time to time, providing
Dealer with written notification of all revisions and those revisions will
supersede all previous programs.
E. Provide Hatteras with access to its books and records
and provide such additional documentation which Hatteras may reasonably request
to verify the accuracy of the warranty claims submitted to Hatteras by Dealer
and the service provided by Dealer with regard to such warranty claims. In the
event Hatteras finds errors in the aggregate greater than 5% for claims
submitted by Dealer and paid by Hatteras, Hatteras may calculate the percentage
rate of error, and using that percentage rate of error, extrapolate the amount
owed to Hatteras for up to three (3) prior years of paid claims made by Hatteras
to Dealer. Within thirty (30) days of such notice, Dealer shall either pay the
extrapolated amount to Hatteras or
15
pay the cost of a full audit by Hatteras or Hatteras' designee and pay to
Hatteras that amount, if any, found to be owing to Hatteras as a result of such
audit. If the audit is unfounded, then Hatteras agrees to pay for the audit.
Hatteras agrees to honor all legitimate warranty claims on Products when made by
purchaser through Dealer in the manner prescribed by Hatteras. Hatteras shall
respond to all proper and legitimate warranty claims submitted by Dealer within
the terms and conditions of the Hatteras Limited Warranty. Hatteras agrees to
pay or credit all accepted and undisputed claims within thirty (30) days after
receipt of all required documentation.
11. Indemnity for Boat Show Space Obtained from Hatteras. Hatteras
on behalf of the Dealer may contract with and agree to indemnify boat show
sponsors and other related parties for boat show space, Dealer hereby agrees to
defend and indemnify Hatteras, and any boat show sponsor which Hatteras has
agreed to indemnify, from any and all claims, causes of action and suits
resulting from the acts or omissions of Dealer in setting up of boat show space
originally obtained by Hatteras.
13. Repossession or Repurchase of Product by Hatteras: Dealer
shall be liable to and reimburse Hatteras for any and all losses or deficiencies
on the sale or disposition of any merchandise (including Products) purchased by
Dealer pursuant to this Agreement which is repossessed or repurchased by
Hatteras for any reason whatsoever, except as noted in the addendum and 16G.
Dealer shall also be liable for any and all discounts, volume rebates or other
sales incentives paid to Dealer on merchandise, repurchased, all attorney's
fees, court costs and expenses incurred in connection with such repossession or
repurchase, except as noted in Addendum.
13. Trademarks and Service Marks: Dealer acknowledges that
Hatteras or its affiliated companies are the exclusive owners of various
trademarks, service marks, trade designations and trade dress (collectively
"Identification") which Hatteras uses in connection with Products and its
business. Dealer is authorized to use Identification only in the manner
prescribed by Hatteras, only in connection with the promotion and sale of
Products and only until the expiration or termination of this Agreement. Dealer
shall not use Identification in any manner that adversely reflects upon the
reputation of Hatteras or in relation to any other matter that is a breach of
this Agreement. Dealer shall not use Identification or advertise outside of the
Territory without Hatteras' express written consent, except as outlined in the
attached Addendum. Authorization shall not be interpreted as a license for use
of Identification. Dealer acquires no proprietary rights with respect to
Identification and this authorization shall terminate simultaneously with the
termination or expiration of this Agreement. In the event of expiration or
termination of this Agreement, Dealer shall immediately discontinue use of
Identification in any way whatsoever and shall thereafter not use, either
directly or indirectly, any Identification or any confusingly similar
Identification in a manner likely to confuse, mistake or deceive the public.
14. Performance Standards: Hatteras, after consultation with
Dealer, may establish fair and reasonable standards of sales performance for the
Dealership. Such standards are based on factors such as population, sales
potential, market share percentage of the Products sold in the Territory as
compared to competitive products sold in the Territory, economic conditions at
the Dealer Location(s), competition from other marine dealerships in the area,
past sales history, number of locations, and any special circumstances that may
affect the sale of Products or the Dealer. Sales performance under this
Agreement is agreed to as shown on attached Exhibit A, the Dealer Commitment
Acknowledgment and Addendum.
15. No Agency Created: It is understood and agreed that Dealer is
not, nor shall it at any time represent itself to be, the agent, employee,
representative or franchisee of Hatteras. Dealer shall not enter into any
contract or commitment in the name of or on behalf of Hatteras. Hatteras has no
fiduciary duty to Dealer pursuant to the Agreement or the relationship between
the parties.
16
16. Term of Agreement - Termination:
A. Upon execution by Hatteras, the term of this
Agreement shall be from July 1, 2003 until June 30, 2004 subject, however, to
the provisions set forth below and in Paragraph 18 that provide for earlier
termination and except as noted in the addendum.
B. Hatteras will give at least sixty (60) days notice
prior to expiration of the Agreement of its intent not to enter into a new
Agreement with Dealer unless: (1) Dealer fails or refuses to place a minimum
stocking order of the next model year's Products, or (2) Dealer fails to meet
its financial obligations as they become due to either Hatteras or lender(s)
financing Products. Dealer agrees to provide Hatteras written notice of its
intent not to enter a new Agreement at least sixty (60) days prior to expiration
of this Agreement. Neither party is under any obligation express or implied, to
renew or extend this Agreement or to enter into a new Agreement upon expiration,
except as outlined in the Addendum. Sale of Product to Dealer after termination
shall not be deemed renewal or extension of this Agreement.
C. This Agreement may be terminated at any time by the
mutual consent of the parties. Either party may, upon thirty (30) days written
notice to the other stating the reasons therefore, terminate this Agreement upon
the other party's breaching or defaulting or failing to comply with any material
obligation, covenant, representation, warranty or duty imposed herein that is
applicable to such other party and is an essential condition of this Agreement,
and provided that the breach or default has not been cured during the
notification period. If the breach or default is not subject to cure (such as
the commission of an act of bad faith), this Agreement may be terminated
immediately, effective upon notice to the breaching or defaulting party.
D. This Agreement may be immediately terminated by a
party upon written notice to the other party if any of the following occur with
regard to the other party: (1) the other party ceases to exist; (2) the other
party becomes insolvent or takes or fails to take any action which constitutes
an admission of inability to pay debts as they mature; (3) the other party makes
a general assignment for the benefit of creditors to an agent authorized to
liquidate any substantial amount of assets; (4) the other party becomes a
subject of an "order for relief" within the meaning of the United States
Bankruptcy Code; (5) the other party applies to a court for the appointment of a
receiver for any assets or properties; or, (6) the other party makes a
fraudulent misrepresentation that is material to this Agreement.
E. This Agreement may be terminated immediately by
Hatteras upon the occurrence of those matters described in Paragraph 18.A.
below.
F. This Agreement may be terminated by Hatteras
(notwithstanding and in addition to the provisions of subparagraph C and other
subparagraphs) upon the giving of at least ten (10) days prior written notice to
Dealer where there are unpaid sums due and owing to Hatteras that remain unpaid,
in whole or part, at the end of such notice period, unless such amount is
disputed in good faith by Dealer.
G. On or before the termination of this Agreement,
Dealer shall provide written notice to Hatteras of all unsold Products subject
to possible repurchase by Hatteras or appropriate financial institution who
financed Dealer's Product inventory, including Product serial numbers and the
Dealer's net purchase price for each Product, except as outlined in the
Addendum. Upon the termination of this agreement, except as noted in the
Addendum, (including expiration and failure to enter into a new agreement),
Dealer shall offer to sell to Hatteras or Hatteras' designee, at Dealer's net
purchase price (not including transportation, insurance, freight or financing
costs), less any discounts or rebates previously paid by Hatteras' program
("Dealer Purchase Price"), Dealer's entire stock of Products in a new and unused
(non demo as described in paragraph 10 c) condition. Hatteras shall have thirty
(30) days after the termination of this Agreement to
17
accept Dealer's offer of sale, which acceptance shall be provided by a written
notice given to dealer. If Hatteras terminates this Agreement prior to its
expiration date without cause, Hatteras will offer to purchase Dealer's entire
unsold stock of Products in a new and unused (non demo as described in paragraph
10c) condition at the Dealer Purchase Price, which offer must be accepted by a
written notice provided to Hatteras within ten (10) days after termination of
this Agreement. Except as expressly described herein, Hatteras shall not be
obligated to repurchase Products if this Agreement is terminated or expires or
is not renewed, except as noted in the attached Addendum. Dealer shall sell such
Products to Hatteras or its designee, and such repurchase is conditional upon
Dealer's ability to sell such Products, with good and merchantable title, free
and clear of all liens and encumbrances. Dealer shall deliver all title
documentation requested by Hatteras and Dealer shall execute a limited power of
attorney on behalf of Hatteras for purposes of executing all necessary title
documentation. Payment for purchased Product shall be, at Hatteras' option, by
credit, offset or payment made to dealer within ten (10) days after Hatteras'
acceptance of the purchased Product, subject as where noted with specific side
agreements.
H. If Hatteras terminates or Hatteras and Dealer
mutually terminate this Agreement prior to its expiration date, provided the
termination is not for quality of service, fraud, or financial instability or
insolvency of Dealer, Hatteras will nevertheless continue to sell warranty parts
and accessories for Products on a cash on delivery basis for a period not to
exceed twelve (12) months from the warranty activation period of the last
Hatteras Product delivered by the Dealer in order that Dealer may continue to
provide warranty service on Products which have outstanding warranties.
J. Any period of time described in the Agreement shall
be modified to include such different period of time that may be required by
applicable law.
17. Governing Law: This Agreement has been signed by Dealer on the
date reflected below, and shall become binding upon the execution by Hatteras at
its headquarters in North Carolina, U.S.A. This Agreement shall be governed,
interpreted and construed according to the laws of the State of North Carolina,
U.S.A., without regard to applicable conflicts of law.
18. Assignability:
A. This appointment and Agreement is made and entered
into with the distinct understanding that it is personal with Dealer and
Dealer's affiliates and is not, whether by operation of law or otherwise,
assignable or in any part delegable or transferable unless the express written
consent of Hatteras is obtained provided, however, that Dealer may assign the
appointment and this Agreement to a subsidiary or affiliate without consent, by
informing the assignment in writing to Hatteras. Unless first approved by
Hatteras in writing, any purported assignment, delegation or subcontracting of
Dealer's rights and obligations under this Agreement in contravention of this
Agreement or any change in control in contravention of this Agreement may
immediately render this Agreement, at Hatteras' option, terminated. Any
unconsented to assignment in contravention of this Agreement shall, at Hatteras'
option, be deemed void.
19. Notices: Any written notice given pursuant to this Agreement
shall be either hand delivered (by courier or otherwise), or mailed, postage
prepaid, by Registered or Certified Mail, return receipt requested, to the party
at the respective principal place of business first above written. Notice may
also be given by fax if a copy is also mailed in the manner described herein.
Such notice shall be deemed to be given upon first receipt. A change of address
may be given by such notice.
20. Entire Agreement - Non-Waiver - Separability: This Agreement
and the attached Addendum contains the entire agreement between the parties with
respect to the matters set forth herein and may not be
18
amended or modified except by written instrument signed by Hatteras and Dealer
that expressly states that the writing constitutes a rider or modification to
this Agreement, provided that Hatteras may at its sole discretion and from time
to time make changes to Dealer Programs and Hatteras' Internet Policy upon the
giving of notice to Dealer. This Agreement and the Addendum attached hereto
terminates and replaces all prior agreements made between the parties and there
are no other agreements regarding the matters herein provided that each party
shall remain obligated to the other for any monies owed under such prior
agreements between the parties, and except for payments to be made to Dealer in
the ordinary course of business there are no other monies, claims or actions
which may give rise to or result in any compensation or monies being owed to
Dealer by Hatteras. Failure on the part of Hatteras or Dealer to enforce any
term of this Agreement shall not constitute a waiver thereof. Any provision of
this Agreement which in any way contravenes or is unenforceable under applicable
law shall not apply and shall be deemed separable and not to be a part of this
Agreement without affecting the validity of the remaining provisions. The
Hatteras Dealer Programs and Policies and their content as well as the Hatteras
Internet Policy is incorporated herein by reference. Dealer represents to
Hatteras that it is not aware of any claims, causes of action or disputes that
it has or may assert against Hatteras that arise out of or have accrued prior to
the effective date of this Agreement. Dealer further represents to Hatteras that
Dealer has not breached or otherwise violated any material term or condition of
any previous Agreement with Hatteras.
21. Guarantee: As a condition for Hatteras' entering into this
Agreement, MarineMax has signed this document as evidence of its irrevocable
guarantee of the Dealer's performance of all the financial duties and financial
obligations provided for in this Agreement.
22. Disputes. All disputes, controversies or claims connected
with, arising out of, or relating to this Agreement, or any modification,
extension or renewal thereof, or to any causes of action that result from such
relationship, shall be subject exclusively to the remedy of arbitration
described herein, including but not limited to sums due under this Agreement,
the interpretation, performance or nonperformance of this Agreement, and claim
for damages or rescission, a breach or default of this Agreement, the creation,
termination or nonrenewal of this Agreement (such as a dispute regarding the
causes, validity or circumstances of the termination, nonextension, or
nonrenewal), and trade regulations or antitrust claims, whether such
controversies or claims are in law or equity or include claims based upon
contract, statute, tort or otherwise. All controversies shall be conducted in
accordance with the American Arbitration Association Commercial Arbitration
Rules.
The arbitration shall be governed by the United States Arbitration Act,
9 U.S.C. Section 1-16, as amended, and judgment upon the award rendered by the
arbitrator may be entered by any court having jurisdiction thereof. The place of
the arbitration shall be at Raleigh, North Carolina. Dealer consents to personal
jurisdiction of such court, including the federal and state courts located in
the State of North Carolina. The arbitrator is not empowered to and shall not
award damages in excess of actual damages and in no event shall the arbitrator
award punitive, special or consequential damages, or prejudgment interest.
This Paragraph shall survive the expiration or termination of this
Agreement.
Except for sums owing to Hatteras all arbitration claims and
proceedings must be instituted within one (1) year after the cause of action
arises, and the failure to institute arbitration proceedings within such period
shall constitute an absolute bar to the institution of any proceedings and a
waiver and relinquishment of all such claims.
23. Miscellaneous: Except as expressly described to the contrary
in this Agreement, the rights and remedies of each party are not exclusive and
where consent or approval is to be given that party may withhold such consent or
approval for any reason.
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24. Confidentiality: Hatteras shall maintain in confidence all
Dealer proprietary and confidential information which is disclosed to Hatteras.
IN WITNESS WHEREOF, Hatteras and Dealer have executed this Agreement as
of the date first above written.
HATTERAS YACHTS DIVISION OF MarineMax Motor Yachts, LLC
BRUNSWICK CORPORATION
By: __________________________ By: _____________________________
Title: __________________________ Title: _____________________________
Date: __________________________
MarineMax, Inc.
By: __________________________
Title: __________________________
Date: __________________________
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