EXHIBIT 10.3
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT is made effective the 1st day of February,
2002, by and between XXXXXX XXXXXX MARINE, INC., a California corporation
("DWM"), and XXXXXX X. XXXXXXX, individually ("Xxxxxxx").
RECITALS AND REPRESENTATIONS
WHEREAS, DWM is engaged in the design, manufacture, marketing and
distribution of a line of boating apparel, accessories and decorative items
under the Xxxxxx WalkerTM brand name.
WHEREAS, Xxxxxxx is Chairman of the Board, Chief Executive Officer,
Chief Marketing Officer and a majority shareholder of DWM.
WHEREAS, the Xxxxxx WalkerTM brand name is inspired by a sixty-three
foot, wooden-hulled Nova Scotian trawler named "The Xxxxxx Xxxxxx."
WHEREAS, Xxxxxxx is the sole owner of The Xxxxxx Xxxxxx and has title
to The Xxxxxx Xxxxxx free and clear of all liens, encumbrances and claims of
others.
WHEREAS, to support and permit the development of the Xxxxxx WalkerTM
brand name, DWM desires to have available, and Xxxxxxx desires to make available
to DWM, The Xxxxxx Xxxxxx for DWM corporate events, photo shoots and other
promotional events ("DWM corporate events"), in exchange for the payment of
certain costs and expenses.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth herein, and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. Term. Unless sooner terminated in accordance with the provisions of
this Agreement, this Agreement shall remain in full force and effect for an
initial term of ninety-nine (99) years (the "Initial Term"), commencing on the
effective date of this Agreement. DWM shall be entitled to renew this Agreement,
at its option, for additional ninety-nine year terms ("Renewal Terms") by
providing notice to Xxxxxxx at least ninety (90) days prior to the expiration of
the Initial Term and each Renewal Term.
2. Availability of The Xxxxxx Xxxxxx for DWM Corporate Events and
Reimbursement of Costs. Xxxxxxx shall make The Xxxxxx Xxxxxx available for DWM
corporate events on the following basis:
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x. Xxxxxxx will make The Xxxxxx Xxxxxx available for, and DWM will
transport The Xxxxxx Xxxxxx to, DWM corporate events located anywhere in the
World, for a minimum of sixty (60) days each year, and for any additional number
of days per year by mutual written agreement executed by Xxxxxxx and DWM.
b. DWM shall give Xxxxxxx at least thirty (30) days advance written
notice of any DWM corporate event at which DWM desires to have The Xxxxxx Xxxxxx
available and the dates on which DWM desires to take and return possession of
the Xxxxxx Xxxxxx, subject to the consent of Xxxxxxx, which consent shall not be
unreasonably withheld. If Xxxxxxx does not send written notice to DWM of his
objection to such notice, Xxxxxxx'x consent thereto shall be deemed irrevocably
given by Xxxxxxx.
c. DWM shall designate where and when The Xxxxxx Xxxxxx is to be
anchored and/or docked while at the DWM corporate event, subject to the approval
of Xxxxxxx, which approval shall not be unreasonably withheld.
d. While at the DWM corporate event, The Xxxxxx Xxxxxx shall be
accessible to a reasonable number of persons for a reasonable period of time,
which persons and period of time shall be pre-approved by Xxxxxxx, which
approval shall not be unreasonably withheld.
e. At all times, The Xxxxxx Xxxxxx shall remain under the control of
the crew of the Xxxxxx Xxxxxx and such crew shall have the right to remove or
detain persons or property from or on The Xxxxxx Xxxxxx, and/or to move the
Xxxxxx Xxxxxx to another location, if there is a justifiable reason to do so.
x. Xxxxxxx and DWM shall have no obligation to transport any persons
or property on The Xxxxxx Xxxxxx at any time or to any place.
g. DWM shall reimburse Xxxxxxx for expenses associated with its use
of the vessel, including, but not limited to, the cost of crew, fuel, additional
docking, marina, or slip fees, insurance and maintenance costs incurred during,
or otherwise associated with, DWM's possession of the Xxxxxx Xxxxxx. Such
payment to be due and payable fifteen (15) days after receipt by DWM of request
for payment and supporting invoices and/or receipts from Xxxxxxx.
3. No Assumption of Liabilities or Obligations by DWM. Other than as
set forth in Section 2.g., DWM shall not assume any liabilities or obligations
whatsoever to any third parties in connection with the availability of The
Xxxxxx Xxxxxx at DWM corporate events, including, without limitation, property
damage and/or personal injury, taxes, fees, costs or expenses.
4. Insurance. Xxxxxxx will procure and maintain, at his sole cost,
adequate property and liability insurance for The Xxxxxx Xxxxxx and the
operation thereof at all times while this agreement is in effect. DWM shall
procure and maintain adequate general liability insurance for any persons or
property injured or damaged in connection with the use of The
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Xxxxxx Xxxxxx during DWM corporate events, and adequate "Trip" insurance or
other marine insurance that may be required by the coast guard or any other
governmental agency. Xxxxxxx and DWM shall provide proof of such insurance as
requested by the other party.
5. Further Cooperation. Each party, at the request of the other and
without additional consideration, shall execute and deliver or shall cause to be
executed and delivered from time to time such further documents, and shall take
such other actions as the other party may require to accomplish the purposes of,
and transactions contemplated by, this Agreement.
6. Indemnification. Xxxxxxx shall indemnify, save and hold DWM harmless
and defend DWM against all claims, costs, expenses, liabilities or litigation,
including reasonable attorney's fees, which arise as a result of any breach of
this Agreement by Xxxxxxx. DWM shall indemnify, save and hold Xxxxxxx harmless
and defend Xxxxxxx against all claims, costs, expenses, liabilities or
litigation, including reasonable attorney's fees, which arise as a result of any
breach of this Agreement by DWM.
7. Termination. This Agreement and the transactions contemplated herein
may be terminated in the following instances:
a. By mutual consent of the parties;
b. By DWM in the event of a Casualty Loss as provided by Section 13
hereof;
c. By DWM if any condition or covenant set forth herein applying to
Xxxxxxx shall not be satisfied and is not waived; or
d. By DWM upon thirty (30) days written notice given to Xxxxxxx.
In the event of termination as provided in this Section 0, XXX shall be
responsible for all payments due and payable pursuant to Section 2 up to the
effective date of such termination.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof, and supersedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties pertaining to the subject matter hereof. There are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof, except as specifically set forth
herein or in the documents delivered pursuant hereto. No supplement, amendment,
alteration, modification, waiver or termination of this Agreement shall be
binding unless executed in writing by the parties hereto.
9. Waiver. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision hereof, nor shall
any waiver constitute a continuing waiver unless otherwise expressly provided.
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10. Captions. The captions in this Agreement are for convenience only,
and shall not be considered a part of, or affect the construction or
interpretation, of any provision of this Agreement.
11. No Third-party Rights. Nothing in this agreement shall be deemed to
create any right on the part of any person or entity not a party to this
Agreement.
12. Governing Law, Jurisdiction and Venue. This Agreement and other
documents delivered pursuant hereto and the legal relations between the parties
shall be governed and construed in accordance with the law of the State of
California. Any dispute or litigation with respect to the representations,
warranties, terms and conditions of this Agreement, shall be litigated in the
any court of competent jurisdiction within the State of California and Xxxxxxx
and DWM hereby expressly consent to subject matter and personal jurisdiction and
venue in said courts.
13. Casualty Loss. If all or a substantial portion of The Xxxxxx Xxxxxx
shall be destroyed by casualty, or if all or a substantial portion of The Xxxxxx
Xxxxxx shall be taken in condemnation or eminent domain, or if the proceedings
for such purposes shall be pending or threatened, or if The Xxxxxx Xxxxxx shall
otherwise become unsuitable to fulfill the purposes of this Agreement (a
"Casualty Loss"), either party may elect to terminate this Agreement effective
immediately upon written notice to either party. If the Agreement is not so
terminated, then the Agreement shall remain in full force and effect.
14. Notices. Any notice, communication, request, instruction or other
document required or permitted hereunder shall be given in writing by certified
mail, return receipt requested or courier mail, as follows:
If to Xxxxxxx:
0000 Xxxxxxx Xxxxxx
Xx Xxxxx, XX 00000
If to DWM:
Xxxxxx Xxxxxx Marine, Inc.
0000 X. Xxxxxxx Xx.
Xxxxxxxxx, XX 00000
Attn: President
Either party may, by written notice, delivered to the other, change the
address to which delivery shall thereafter be made.
15. Assignment; No Change of Name; No Encumbrances; Right of First
Refusal. This Agreement may not be assigned without the written consent of the
other party, which consent shall not be unreasonably withheld, and any
assignment without such consent shall be
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void. Provided, however, while this Agreement remains in effect, (i) no vessel
may be substituted for The Xxxxxx Xxxxxx under this Agreement, (ii) Xxxxxxx
shall not change the name of The Xxxxxx Xxxxxx, (iii) Xxxxxxx shall not pledge
or otherwise encumber The Xxxxxx Xxxxxx and (iv) DWM will have a right of first
refusal to purchase The Xxxxxx Xxxxxx at fair market value as determined by a
qualified appraiser.
16. Specific Performance. The parties recognize that irreparable injury
will result from a breach of any provision of this Agreement and that money
damages will be inadequate to fully remedy the injury. Accordingly, in the event
of a breach or threatened breach of one or more of the provisions of this
Agreement, any party who may be injured (in addition to any other remedies which
may be available to that party) shall be entitled to one or more preliminary or
permanent orders (i) restraining and enjoining any act which would constitute a
breach or (ii) compelling the performance of any obligation which, if not
performed, would constitute a breach.
17. Binding Provisions. This Agreement is binding upon, and inures to
the benefit of, the parties hereto and their respective heirs, executors,
administrators, personal and legal representatives, successors, and permitted
assigns.
18. Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby. In the event that any such provision is deemed to
be invalid, the parties agree that a court making such judgement shall have the
ability to interpret and apply such provision to the fullest extent permitted by
law, within such provision's original intent.
19. Attorney's Fees. In the event of any litigation between the parties
to declare or enforce any provision of this Agreement, the prevailing party or
parties shall be entitled to recover from the losing party or parties, in
addition to any other recovery and costs, reasonable expenses, attorney's fees,
and costs associated with such litigation, in both the trial and in all
appellate courts.
20. Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
21. Counterparts. This Agreement may be executed in several
counterparts and all so executed shall constitute one Agreement, binding on all
the parties hereto even though all the parties are not signatories to the
original or the same counterpart.
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IN WITNESS WHEREOF, DWM and Xxxxxxx have executed and delivered this
Reimbursement Agreement effective as of the date first set forth above.
XXXXXXX:
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Xxxxxx X. Xxxxxxx
DWM:
XXXXXX XXXXXX MARINE, INC.
By:
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Name: Xxxxx Xxxxxxx Xxxxxxx
Title: President
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