EXHIBIT 10.43
Confidential Treatment Requested. Confidential portions of this document have
been redacted and filed separately with the Commission
WELLCRAFT MASTER DEALER AGREEMENT
This master agreement, effective September 29, 1998, is by and between
Wellcraft Marine Corp., a Delaware corporation ("Wellcraft") and Xxxxxx Boats &
Motors, Inc., a Texas corporation ("Xxxxxx") (the "Agreement").
WHEREAS, Wellcraft is engaged in the manufacture of recreational
powerboats and accessories and the sale of certain accompanying engines
("Products") and desires to sell its Products to Xxxxxx, through or to certain
of its subsidiaries or affiliates ("Xxxxxx Subs"); and
WHEREAS, Xxxxxx and Xxxxxx Subs are engaged in the sale of Products to
the retail public and desire to purchase various Products from Wellcraft;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Xxxxxx and Xxxxxx Subs. For purposes of this Agreement, the term
Xxxxxx when used shall be inclusive of Xxxxxx Subs except where the Agreement
specifically uses Xxxxxx Subs individually.
2. Sale of Product. Wellcraft shall manufacture and sell to Xxxxxx or
Xxxxxx Subs those various Products ordered from time to time by Xxxxxx or Xxxxxx
Subs pursuant to Wellcraft's standard dealer agreement, as mutually agreed upon
and as may be amended from time to time by mutual agreement. :
3. Dealer Agreements and Relationship to this Master Agreement. Each
Xxxxxx or Xxxxxx Sub retail location which purchases Wellcraft Products shall
execute and be subject to Wellcraft's standard dealer agreement as mutually
agreed upon by the parties and as may be amended upon mutual agreement of the
parties. This Agreement shall supplement and amend each individual
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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standard dealer agreement executed at each Xxxxxx retail location which sells
Wellcraft Products. To the maximum extent possible, this Agreement and the
standard dealer agreement shall be read and interpreted to be consistent with
each other. In the event there is a conflict between the dealer agreement and
this Agreement, the provisions of this Agreement shall control.
4. Pricing.
a. *. During the term of this Agreement, Wellcraft shall sell
Wellcraft Products to Xxxxxx at all times *. In the event Wellcraft changes its
pricing structure or program discounts during the Wellcraft model year, * except
that during Wellcraft model year 1999, the pricing for Wellcraft Products
pre-rigged to receive Mercury engines shall be as described on Exhibit A hereto.
For the purposes of this Agreement, pre-rigged Products are those which are
rigged by Genmar, its divisions or subsidiaries, to receive a certain brand of
engine but that are not sold with such engine. Notwithstanding the above, from
time to time Wellcraft may sell individual Products *. For purposes of this
Agreement, the Wellcraft "model year" means the period commencing on July 1 of
any calendar year through June 30 of the following calendar year and the Xxxxxx
"model year" means the period commencing on August 1 of any calendar year
through July 31 of the following calendar year.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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b. Freight. In addition to the price of the Product described
above, Wellcraft shall charge Xxxxxx a freight charge that Wellcraft shall
incorporate into its total invoice price on the following basis:
i. For Products shipped which are 28 feet in length
or longer, Wellcraft shall charge Xxxxxx *
ii. For Products shipped which are less than 28 feet
in length, Wellcraft shall charge Xxxxxx *. Wellcraft
shall calculate the * each model year based on
Xxxxxx' annual forecast of Product to be purchased by
Xxxxxx by each retail location and the shipping
destination for Products. Wellcraft shall maintain
records on * and this information shall be reported
to Xxxxxx on a quarterly basis starting on the
quarter ending September 30 of each model year.
Xxxxxx shall report to Wellcraft any suspected
errors in the records within 30 days of receipt of
the report. At the end of each Wellcraft model year,
Wellcraft shall reconcile *
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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*
c. Engines. In the event an engine manufacturer changes its
published pricing and enacts such changes after Wellcraft has published its
engine price list, Xxxxxx, after the effective date of such change, shall pay
*.
5. Timing of Purchases, Shipping and Delivery. Wellcraft will use its
best efforts to ship then current Wellcraft model year Products at the * for all
firm orders received from and delivered to Xxxxxx by June 30 of the then current
Wellcraft model year. * Xxxxxx shall purchase and take delivery of and Wellcraft
shall deliver 40 percent of the Product units Xxxxxx has forecasted to purchase
for such Xxxxxx model year in its annual model year forecast. Wellcraft's
obligation to deliver is subject to the following:
i. Wellcraft receiving Xxxxxx' annual model year
forecast as set forth in paragraph 6 herein on or
before July 31 of each calendar year,
ii. Wellcraft approving the monthly schedule of the
number and type of Wellcraft Product units Xxxxxx ex-
pects to order and take delivery of by January 15 as
set forth in its annual model year forecast, and
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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iii. Xxxxxx submitting actual orders between August 1
and January 15 of such model year that do not exceed
the monthly schedule set forth in its annual model
year forecast by greater than 15 percent.
Except where Xxxxxx xxx have caused a delay, Xxxxxx xxx cancel orders
if Product has not been delivered by Wellcraft within 150 days of Wellcraft's
acceptance of the order for such Product from Xxxxxx.
6. Forecasting. Xxxxxx shall provide Wellcraft, on or before July 31 of
each calendar year, with a Xxxxxx model year forecast which describes (i) the
number and type of Wellcraft Product units by month Xxxxxx expects to order and
take delivery of between August 1 and January 15 of the upcoming Xxxxxx model
year starting on August 1 and (ii) the number and type of Wellcraft Product
units Xxxxxx expects to order and take delivery of between January 16 and July
31 of the upcoming Xxxxxx model year. In addition to the above annual model year
forecast, Xxxxxx will forecast its Wellcraft Product requirements on a three (3)
month rolling basis, updated monthly. Xxxxxx shall submit the forecast to
Wellcraft by the first day of each calendar month. Xxxxxx shall designate a
Xxxxxx representative with responsibility for forecasting Product purchases from
Wellcraft. The forecasts shall be in a form mutually agreed to by the parties
and shall include, at a minimum, a three-month projected schedule identifying
the number of Product units scheduled to be purchased by Xxxxxx by boat brand,
model, and engine brand, model and horsepower. The first-month forecast in the
monthly report shall reflect a firm order previously accepted by Wellcraft. As a
firm order, the first-month forecast may not be changed and is non-cancelable,
however, Wellcraft reserves the right to not accept the portions of orders in
any one month that exceed 15 percent of the amounts forecast for that month in
the previous months' 3-month rolling forecast.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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7. *
8. Product Modification. Xxxxxx shall meet with Wellcraft management
and product engineers in August and January of each year, unless mutually waived
by the parties hereto, to provide input into changes for Wellcraft Products for
the next model year. The August meeting shall primarily be to provide input on
the structure and design of the Products. The January meeting shall primarily be
to provide input on the features and accessories of the Products. Wellcraft will
use its best efforts to incorporate the recommendations made by Xxxxxx taking
into account considerations such as cost, safety, warranty and standard design.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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Wellcraft reserves the right, without notice or obligation, to change the design
of the Products to the extent that such change does not materially alter the
operation of the Boat or to the extent that such change is required due to
product safety concerns, government regulations or vendor supply shortages.
Wellcraft will provide Xxxxxx with as much notice as reasonably possible, but
not less than ninety (90) days prior notice of shipment of a Product design
change if such design change materially affects the appearance or operation of
the Product.
9. Warranty and Third Party Litigation. Wellcraft makes no
representations or warranties as to its Products except as may be described in
the Wellcraft dealer agreement or Product materials. In the event legal action
is commenced against Wellcraft and Xxxxxx related to Wellcraft Products, to the
extent possible and if no conflict exists, Wellcraft and Xxxxxx shall reasonably
agree in writing on the retention of common counsel and sharing of legal
expenses.
10. Term of the Agreement. The term of this Agreement and the dealer
agreement between the parties shall commence on the date of this Agreement and
shall terminate on July 31, 2003.
11. Insurance. Each party to this Agreement shall maintain liability
insurance coverage and shall provide evidence of such coverage to the other
party upon such party's reasonable request.
12. Force Majeure. The parties will not be responsible for failure to
perform any part of this Agreement or for any delay in the performance of any
part of this Agreement, directly or indirectly resulting from or contributed to
by any foreign or domestic embargoes, seizures, acts of God, strikes, labor
disputes, vendor problems, insurrections, wars and/or continuance of war, or the
adoption or enactment of any law, ordinance, regulation, ruling or order
directly or indirectly interfering with production, delivery or other
contingencies beyond their control. This Section does not affect the payment
obligations of either party under this Agreement.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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13. Assignment. Neither party shall assign or otherwise transfer this
Agreement, without the prior written consent of the other party, which consent
shall not be unreasonably withheld.
14. Confidentiality. Each party agrees that the specific terms and
conditions set forth in this Agreement shall be kept confidential and that
neither party hereto shall make any disclosure regarding this Agreement or its
terms except as may be required by law or with the consent of the other party.
In the event either party concludes that it is obligated by law to disclose the
terms of this Agreement, such party shall give the other party 3 business days
prior written notice before disclosure along with an explanation as to why such
disclosure is deemed necessary.
15. Disputes. All disputes arising out of or in connection with this
Agreement shall be resolved by binding arbitration as set forth in Wellcraft's
standard dealer agreements as mutually agreed upon and amended from time to
time.
16. Severability. Each of the provisions contained in this Agreement
shall be severable, and the unenforceability of one shall not affect the
enforceability of any others or of the remainder of this Agreement.
17. Waiver. The failure of any party to enforce any condition or part
of this Agreement at any time shall not be construed as a waiver of that
condition or part, nor shall such party forfeit any rights to future enforcement
thereof. The parties waive presentment for payment, protest, and notice of
dishonor.
18. Headings. The headings and captions of the sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part hereof.
19. Counterparts. More than one counterpart of this Agreement may be
executed by the parties hereto, and each fully executed counterpart shall be
deemed an original.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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20. Further Assurances. Each party will, at the reasonable request of
the other, execute and deliver to the other all such further instruments,
assignments, assurances and other documents as the other may request in
connection with the carrying out of this Agreement and the transactions
contemplated hereby.
21. Notices. All communications, notices and consents provided for
herein shall be in writing and be given in person or by means of telex, telecopy
or other wire transmission (with request for assurance of receipt in a manner
typical with respect to communications of that type) or by mail, and shall
become effective (x) on the delivery if given in person, (y) on the date of
transmission if sent by telex, telecopy or other wire transmission (receipt
confirmed), or (z) four business days after being deposited in the mails, with
proper postage for first class registered or certified mail, prepaid.
Notices shall be addressed as follows:
IF TO WELLCRAFT:
Wellcraft Marine Corp.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
Telephone: 000-000-0000
Telecopy: 000-000-0000
WITH COPY TO:
Genmar Holdings, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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IF TO XXXXXX:
Xxxxxx Boats & Motors, Inc.
5000 Plaza on the Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: President
Telephone: 000-000-0000
Telecopy: 000-000-0000
provided, however, that if either party shall have designed a different address
by notice to the other, then to the last address so designated.
22. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and no provision of this Agreement shall be deemed
to confer upon third parties any remedy, claim, liability, reimbursement, cause
of action or other right in excess of those existing without reference to this
Agreement.
23. Amendments: Entire Agreement. This Agreement may not be amended,
supplemented or otherwise modified except by an instrument in writing signed by
each of the parties hereto. This Agreement contains the entire agreement of the
parties hereto with respect to the transactions covered hereby, superseding all
negotiations, prior discussions and preliminary agreements made prior to the
date hereof.
24. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Minnesota.
WELLCRAFT MARINE CORP. XXXXXX BOATS & MOTORS, INC.
By: /s/ Grant E. Oppeguard By: /s/ Xxxx Xxxxxx
------------------------ -------------------------------
Its: VP Its: President
---------------------- ------------------------------
Date: 10-7-98 Date: 10-8-98
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*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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EXHIBIT A
WELLCRAFT MASTER DEALER AGREEMENT
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WELLCRAFT MERCURY PRICE ($)
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160 FISHERMAN *
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180 FISHERMAN *
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180 SPORTSMAN *
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190 FISHERMAN *
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210 FISHERMAN *
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210 SPORTSMAN *
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22 WALKAROUND *
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230 FISHERMAN *
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230 COASTAL *
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230 FISHERMAN-TWIN *
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230 COASTAL-TWIN *
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24 WALKAROUND *
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270 COASTAL *
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290 COASTAL *
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302 SCARAB SPORT *
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* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
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