EXHIBIT 10.69
TRACKER/XXXXXX MASTER DEALER AGREEMENT
THIS MASTER AGREEMENT, effective this 13th day of March, 2002, is by
and between TRACKER MARINE, L.L.C., a Missouri limited liability company
("Tracker Marine") and Xxxxxx Boats & Motors, Inc., a Texas corporation
("Xxxxxx") (the "Master Agreement").
WHEREAS, Tracker Marine is engaged in the manufacture of fishing and
recreational boats, trailers and accessories and the sale of certain
accompanying engines ("Product(s)") and desires to sell its Products to Xxxxxx,
or through or to certain of its subsidiaries and affiliated partnerships,
corporations and limited liability companies ("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 Tracker Marine;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Xxxxxx and Xxxxxx Subs. For purposes of this Master Agreement, the
term Xxxxxx, when used, shall be inclusive of Xxxxxx and all Xxxxxx Subs.
2. Sale of Product. Tracker Marine shall manufacture and sell to Xxxxxx
or Xxxxxx Subs those various Products ordered from time to time by Xxxxxx or
Xxxxxx Subs pursuant to this Master Agreement and Tracker Marine's standard
dealer agreement.
3. Dealer Agreements and Relationship to this Master Agreement. Each
Xxxxxx or Xxxxxx Sub retail location which purchases Tracker Marine Products
shall execute and be subject to Tracker Marine's standard dealer agreement in
effect from time to time, the Model Year 2002 form of which is attached hereto
as Exhibit A and the terms of which (including future Tracker Marine standard
dealer agreements) are incorporated herein by reference. This Master Agreement
shall supplement and amend each individual standard dealer agreement executed at
each Xxxxxx retail location which sells Tracker Marine Products. To the maximum
extent possible, this Master 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 Master Agreement, the
provisions of this Master Agreement shall control. Notwithstanding the above,
Xxxxxx reserves the right to approve in writing any changes to Exhibit A which
have a material adverse impact on Xxxxxx. If the changes are not approved by
Xxxxxx, the provisions in Exhibit A will apply.
4. Term. The term of this Master Agreement shall be as follows: The
Initial Term shall commence March 1, 2002 and continue through July 31, 2003
(the "Initial Term"). The term of this Master Agreement shall renew and continue
from model year to model year after the Initial Term unless either (i) Tracker
Marine shall fail to supply Product to Xxxxxx pursuant to the Purchase
Commitment of Section 6 on the terms of this Master Agreement ("Tracker Marine
Failure"), or (ii) Xxxxxx shall fail to purchase Product pursuant to the
Purchase Commitment of Section 6 on the terms of this Master Agreement ("Xxxxxx
Failure") and, upon the occurrence of either such failure, the other party gives
notice more than *___________ (____) days before the subject model year, in
which event the term of this Master Agreement shall end as of the first day of
the subject model year following such notice. Extensions beyond the Initial Term
are herein called the "Extension Model Years".
(a) Neither a Tracker Marine Failure nor a Xxxxxx Failure
shall give rise to the right to terminate unless (i) the non-failing
party shall give the failing party written notice specifying the facts
of failure (the "Notice"), and (ii) the failing party shall fail to
correct the specified failure within *____________ (____) days of
receipt of the Notice.
5. Pricing of Product. Product shall be sold to Xxxxxx at the lowest
price (except freight allowance) in effect from time to time as Tracker Marine
sells Product to any dealer in the United States except for sales (a) to a
dealer purchasing a greater volume of Products from Tracker Marine than Xxxxxx,
(b) to affiliates or subsidiaries of Tracker Marine, (c) involving programs
relating to non-current model year Products, and (d) dealer demonstrator or
marketing programs. During the period commencing March 1, 2002 through July 31,
2002, Product shall be sold to Xxxxxx at the prices set forth on Exhibit B.
In no event will the prices of Products in any Extension Model Year be
greater than *______ per cent of prices of Products in the immediately preceding
model year. Notwithstanding the foregoing, in no event will the prices of
Products be increased within any model year during the Initial Term or within
any Extension Model Year.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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All pricing of Products will be net and no other discounts, allowance,
rebates, co-op payments, interest assistance or other program or benefit will
apply.
Each year during the term of this Master Agreement, Xxxxxx and Tracker
Marine agree to meet reasonably in advance of each model year for the purpose of
reviewing requirements, specifications, anticipated pricing and forecasting for
the ensuing model year.
6. Purchase Commitment. Throughout the term of this Master Agreement,
Xxxxxx agrees to purchase, at a minimum, the following Product:
(a) During the period commencing March 1, 2002, through July
31, 2002, Xxxxxx agrees to negotiate in good faith with Tracker Marine
to purchase as much of Xxxxxx' requirements for Product as is fair,
practicable and reasonable.
(b) During each model year (August 1 through the following
July 31) commencing August 1, 2002 and for each model year which
commences during the term of this Master Agreement, Xxxxxx agrees to
purchase from Tracker Marine the following Product:
(1) *_____ per cent of Xxxxxx' requirements for aluminum
fishing boats. All freshwater aluminum fishing boats shall be packaged
with Mercury brand outboard motors and with trailers. These boats shall
bear the "Xxxxxx" trademark.
(2) *_____ per cent of Xxxxxx' requirements for aluminum
utility/xxx and bay type boats together with Mercury brand outboard
motors and trailers on at least *_____ per cent of such boats. These
boats will bear the "Xxxxxx" or other Tracker Marine trademarks.
(3) *_____ per cent of Xxxxxx' requirements for fiberglass
bass boats and trailers and fish and ski boats and trailers, each with
Mercury outboard motors. These boats will bear the "ProCraft"
trademark. Provided, however, in computing the *____ per cent purchase
commitment of Xxxxxx set forth in this section, the parties will
disregard the purchases by Xxxxxx of Ranger fiberglass bass and fish
and ski boats.
(a) Tracker Marine reserves the right to
approve all locations for ProCraft Product and
dealerships.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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(b) Xxxxxx agrees that in all locations where
ProCraft Product is made available, along with "Ranger" brand
boats, those locations shall display a complete ProCraft model
line which shall be prominent and shall be a fair display of
ProCraft Products vis- a-vis competitive products.
(4) At least *_____ per cent of Xxxxxx' requirements in the
Initial Term, *_____ per cent of Xxxxxx' requirements in the model year
August 1, 2003 through July 31, 2004 and *_____ per cent of Xxxxxx'
requirements in each Extension Model Year thereafter for pontoon and
aluminum deck boats, each with Mercury outboard motors and trailers.
These boats will bear the "Xxxxxx" trademark.
(5) Xxxxxx and Tracker Marine agree to continue to negotiate
in good faith with the object for Xxxxxx to purchase "Astro" sport
boats, "Mako" saltwater boats and "Kenner" brand bay boats as may be
reasonably required by Xxxxxx.
(6) Tracker Marine reserves the right to approve all locations
for Xxxxxx Product and dealerships.
7. Forecasting. Xxxxxx shall provide Tracker Marine, on or before July
31st of each calendar year, with a Xxxxxx model year forecast which describes
(i) the number and type of Product units by month Xxxxxx expects to order and
take delivery of between August 1 and January 31 of the upcoming Xxxxxx model
year starting on August 1; and (ii) the number and type of Product units Xxxxxx
expects to order and take delivery of between January 31 and July 31 of the
upcoming Xxxxxx model year (the "Annual Model Year Forecast"). In addition to
the Annual Model Year Forecast, Xxxxxx will forecast its Product requirements on
a three-month rolling basis, updated monthly. Xxxxxx shall submit the
three-month forecast to Tracker Marine by the first day of each calendar month.
Xxxxxx shall designate a Xxxxxx representative with responsibility for
forecasting Product purchases from Tracker Marine. The three-month 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 each of the three (3) months. The first-month
forecast as set forth in the three-month forecast shall reflect a firm order
previously accepted by Tracker Marine. As a firm order, the first-month forecast
may not be changed and is non-cancelable, however, Tracker Marine reserves the
right to not accept the portions of orders in any one month that exceed
*___________ percent (___%) of the amounts forecasted for that month in the
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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previous months' three-month rolling forecast. Except where Xxxxxx xxx have
caused a delay, Xxxxxx xxx cancel orders if Product has not been delivered by
Tracker Marine within *_________ (_____) days of Tracker Marine's acceptance of
an order for such Product from Xxxxxx.
8. Timing of Purchases, Shipping and Delivery: Tracker Marine will use
its best efforts to ship then current Tracker Marine model year Products when
forecasted. Between August 1 and January 31 of each Xxxxxx model year, Xxxxxx
shall purchase and take delivery of and Tracker Marine shall deliver *________
percent (____%) of the Product units Xxxxxx has forecasted to purchase for such
Xxxxxx model year in its Annual Model Year Forecast. Tracker Marine's obligation
to deliver is subject to the following:
i. Tracker Marine receiving Xxxxxx' Annual Model
Year Forecast on or before July 31 of each calendar year;
ii. Tracker Marine approving the monthly schedule setting
forth the number and type of Tracker Marine product units Xxxxxx
expects to order and take delivery of by January 31st as set forth in
its Annual Model Year Forecast; and
iii. Xxxxxx submitting actual orders between August 1 and
January 31st of such model year that do not exceed in any one month
*_________ percent (____%) of the amounts forecasted for that month in
the previous months' three- month rolling forecast.
Except where Xxxxxx xxx have caused a delay, Xxxxxx xxx cancel orders
if Product has not been delivered by Tracker Marine within *__________(_____)
days of Tracker Marine's acceptance of the order for such Product from Xxxxxx.
9. Freight. Tracker Marine agrees to deliver Products to Xxxxxx or
Xxxxxx Subs as directed by Xxxxxx, freight borne by Tracker Marine. Shipments
shall be by full and not partial loads. All Product will be shipped only on
Tracker Marine transporters and no "will calls" are permitted. Xxxxxx'
Winchester, Tennessee and Hendersonville, Tennessee locations may pick up single
units at the Murfreesboro, Tennessee factory location with no freight discount.
10. Terms. Payment shall be made pursuant to floorplan arrangements
acceptable to Tracker Marine.
11. Marketing Assistance. Entirely at the discretion of Tracker Marine
and with no legal obligation or financial commitment by Tracker Marine to do so,
Tracker Marine will use
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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reasonable efforts to assist Xxxxxx with marketing advice with respect to
product literature, in-store merchandising of Tracker Marine products, brochure
production and fishing team boat discounts according to Tracker Marine program
guidelines and tournament trail support.
12. Product Modification/Tracker Marine Brand. Xxxxxx shall meet with
Tracker Marine management and product engineers at least twice each model year
to provide input into changes for Tracker Marine Products for the next model
year. The first meeting shall primarily be to provide input on the structure and
design of the Products. The second meeting shall primarily be to provide input
on the features and accessories of the Products. Tracker Marine will use its
best efforts to incorporate the recommendations made by Xxxxxx taking into
account considerations such as cost, safety, warranty and standard design.
Tracker Marine 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 Products or to the extent that such change
is required due to product safety concerns, government regulations or vendor
supply shortages. Tracker Marine will provide Xxxxxx with as much notice as
reasonably possible, but not less than *__________(_____) days prior notice of
shipment of a Product design change if such design change materially affects the
appearance or operations of the Product. If Tracker Marine has materially
increased the price or materially changed the design of any model, Xxxxxx xxx
add to or subtract from previous orders for that model.
Except as specifically set forth in this Master Agreement, nothing in
this Master Agreement shall be construed to involve any "Tracker" brand products
or Tracker Marine or Nitro boat brand dealerships.
13. Warranty. Tracker Marine makes no representations or warranties as
to its Products except as may be described in the Tracker Marine standard dealer
agreement or Product materials.
14. Insurance. Each party to this Master Agreement shall maintain
liability insurance coverage and shall provide evidence of such coverage to the
other party upon such party's reasonable request. Limits of insurance will be at
least *$_____________ per occurrence and *$_____________ in the aggregate.
15. Force Majeure. The parties will not be responsible for failure to
perform any part of this Master Agreement or
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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for any delay in the performance of any part of this Master 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 Master Agreement.
16. Assignment. Neither party shall assign or otherwise transfer this
Master Agreement, without the prior written consent of the other party, which
consent shall not be unreasonably withheld. Nothing in this Master Agreement
shall be construed to restrict assignment within each of the parties'
subsidiaries and affiliates.
17. Confidentiality. Each party agrees that the specific terms and
conditions set forth in this Master Agreement shall be kept confidential and
that neither party hereto shall make any disclosure regarding this Master
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 Master Agreement, such party shall give the other
party three (3) business days prior written notice before disclosure along with
an explanation as to why such disclosure is deemed necessary.
18. Severability. Each of the provisions contained in this Master
Agreement shall be severable, and the unenforceability of one shall not affect
the enforceability of any others or of the remainder of this Master Agreement.
19. Waiver. The failure of any party to enforce any condition or part
of this Master 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.
20. Headings. The headings and captions of the sections and subsections
of this Master Agreement are inserted for convenience only and shall not be
deemed to constitute a part hereof.
21. Counterparts. More than one counterpart of this Master Agreement
may be executed by the parties hereto, and each fully executed counterpart shall
be deemed an original.
22. Further Assurances. Each party will, at the reasonable request of
the other, execute and deliver to the
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other all such further instruments, assignments, assurances and other documents
as the other may request in connection with the carrying out of this Master
Agreement and the transactions contemplated hereby.
23. 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 (4) 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 Tracker Marine:
Tracker Marine, L.L.C.
0000 Xxxx Xxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to:
Xxxxxx & Xxxxxx, L.L.P.
0000 Xxxx Xxxxxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxxx:
Xxxxxx Boats & Motors, Inc.
5000 Plaza on the Lake, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (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.
24. No Third Party Beneficiaries. This Master Agreement is solely for
the benefit of the parties hereto and no
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provision of this Master 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 Master Agreement.
25. Amendments; Entire Agreement. This Master Agreement may not be
amended, supplemented or otherwise modified except by an instrument in writing
signed by each of the parties hereto. This Master 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.
26. Governing Law. This Master Agreement shall be construed and
enforced in accordance with and governed by the internal laws of the State of
Missouri.
TRACKER MARINE, L.L.C., a Missouri
Limited Liability Company
By: THREE XXXXX COMPANY, a Missouri
Corporation, Its Sole Member
By______________________________
XXXXXX BOATS & MOTORS, INC.,
a Texas Corporation
By______________________________
Its_____________________________
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EXHIBIT A
Tracker Marine Standard Dealer Agreement
EXHIBIT B
Product Pricing*
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
