HATTERAS SALES AND SERVICE AGREEMENT (Florida)
Exhibit 10.18(a)
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL TREATMENT
REQUEST, AND HAVE BEEN OMITTED FROM THIS EXHIBIT. COMPLETE, UNREDACTED COPIES OF THIS EXHIBIT HAVE
BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL
TREATMENT REQUEST.
THIS AGREEMENT made this 31st day of January 2007 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 and
MarineMax Motor Yachts, LLC, doing business as MarineMax, with its principal place of business at
00000 XX Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, a limited liability corporation organized
and existing under the laws of the State of Delaware (hereinafter referred to as “Dealer”), and
Dealer’s parent corporation MarineMax, Inc., a Delaware Corporation, having its principal place of
business located at 00000 XX Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 whereby in consideration
of the mutual covenants herein contained, it is agreed as follows:
1. Appointment of Dealers: Hatteras hereby appoints Dealer as a dealer for the
retail sale, display, and servicing of all Hatteras product(s), parts and accessories (hereinafter
“Product” or “Products”) as specified in the Hatteras 2007 or then current Hatteras Dealer Programs
applicable to Hatteras dealers selling comparable Products (hereinafter referred to as the
“Agreement”), from the below described Dealer Location(s), which Products shall be purchased only
from Hatteras or an authorized Hatteras dealer located in the country in which Dealer is located.
During the term of this Agreement, Hatteras shall not appoint other dealers to sell Product from a
dealer location within the Territory set forth in Paragraph 2 so long as Dealer is in compliance
with its material obligations and performance standards under this Agreement and Hatteras’ then
current material policies and programs. Hatteras reserves the right to modify the Territory or
appoint other dealers to sell, display and service Product from dealer locations within the
Territory at any time if Hatteras determines, in its sole discretion, the Dealer is in breach of
the material obligations and performance standards of this Agreement and Hatteras’ then current
material policies and programs following notice and the expiration of any applicable cure periods
without cure. Provided that similar restrictions apply to all domestic Hatteras dealers selling
comparable Products, Dealer shall not sell, advertise, solicit for sale or offer for resale
Products outside of the Territory, provided, however, that Dealer may advertise in recognized and
established marine publications with cross-territorial distribution. However, Dealer agrees not to
advertise price of Products in any electronic media, newspaper, trade publications or other
publication or media that is cross territorial and/or distributed outside of the territory.
Hatteras reserves the right in its sole discretion to monitor or otherwise enforce its policies and
procedures applicable to all domestic Hatteras dealers and will do so on a uniform basis. There are
no third party beneficiary rights to such policies and procedures or this Agreement or other dealer
agreements.
Hatteras also reserves the right to make sales in the Territory after consultation with Dealer or
provide service in the Territory based upon legitimate business purposes, and to appoint other
dealers or service providers to sell, display, and/or service products, from any other location
outside the Territory.
Hatteras shall have the right to adopt and modify policies and programs related to the Products
from time to time in its sole discretion and in accordance with its own reasonable business
judgment and it will enforce such policies and programs on a uniform basis. Dealer agrees to
comply with such policies and programs, and understands that failure to comply with a material term
shall give Hatteras, following the expiration of applicable cure periods without cure, the right to
modify the Territory, appoint other dealers to locations within the Territory, and/or to terminate
this Agreement.
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2. Location: Dealer shall sell at retail, display, and service Products only at and
from the following location(s) (“Dealer Location(s)”). Dealer Location(s) are both sales and
service unless otherwise specified in writing:
00000 XX Xxxxxxx 00, Xxx 000 Xxxxxxxxxx, XX
00000 XX 19 North, Clearwater, FL (plus Service location)
0000 X Xxxxxxxx Xx #0, Xxxxxxx Xxxxx, XX
000 Xxxxxx Xxxx, Xxxxx, XX (plus Service location)
Pier 66, 0000 XX 00xx Xx, Xxxx Xxxxxxxxxx, XX
00000 XxXxxxxx Blvd, Fort Xxxxx, FL (plus Service location)
00 Xxxxx Xxxx Xx #X-000, Xxx Xxxxx, XX
0000 Xxxxxxxxx Xxxx, Xxxxxxxxxxxx, XX (plus Service location)
0000 0xx Xxx X, Xxxxxx, XX
0000 Xxxxxxx Xx, Xxxx Xxxx, XX (plus Service location)
0000 Xxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, XX (plus Service location)
0000 XX Xxxx Xxxx Xxxx, Xxxxxx, XX (plus Service location)
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, XX (plus Service location)
000 Xxxxx Xxxxx, Xxxxx Xxxx Xxxxx, XX
000 XX 00xx Xxxxxx, Xxxxx, XX
000 X. Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx, XX
00000 XX 19 North, Clearwater, FL (plus Service location)
0000 X Xxxxxxxx Xx #0, Xxxxxxx Xxxxx, XX
000 Xxxxxx Xxxx, Xxxxx, XX (plus Service location)
Pier 66, 0000 XX 00xx Xx, Xxxx Xxxxxxxxxx, XX
00000 XxXxxxxx Blvd, Fort Xxxxx, FL (plus Service location)
00 Xxxxx Xxxx Xx #X-000, Xxx Xxxxx, XX
0000 Xxxxxxxxx Xxxx, Xxxxxxxxxxxx, XX (plus Service location)
0000 0xx Xxx X, Xxxxxx, XX
0000 Xxxxxxx Xx, Xxxx Xxxx, XX (plus Service location)
0000 Xxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, XX (plus Service location)
0000 XX Xxxx Xxxx Xxxx, Xxxxxx, XX (plus Service location)
0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxx, XX (plus Service location)
000 Xxxxx Xxxxx, Xxxxx Xxxx Xxxxx, XX
000 XX 00xx Xxxxxx, Xxxxx, XX
000 X. Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx, XX
Dealer shall concentrate its sales, display and service effort to within the following Territory:
Florida (excluding the Panhandle).
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 the approval process including but not limited to the
Dealer’s qualifications and abilities to perform the Agreement obligations from the proposed Dealer
location, the effect such a grant would have on the resulting Territory configuration and adjacent
Hatteras dealer sales, the Dealer’s financial capabilities to successfully operate the business
from the Dealer Location, and whether the Dealer will have adequate personnel to manage the
business at the Dealer Location. Dealer shall not sell Products for use by or to a purchaser
located outside of the country in which the Dealer is located or sell to others for the purpose of
resale without the prior written consent of Hatteras. Dealer shall not utilize the services of a
broker or similar agent to sell Product unless such broker is an affiliated third party of Dealer
that is located within the Territory and such broker or agent does not consummate or sell any
Product and otherwise complies with the requirements of this Agreement. Dealer agrees to provide
appropriate facilities and to assume full and complete managerial authority and responsibility for
the service of the Products at and from those Dealer Location(s) specified in this Agreement and
for the display and retail sale of the Products at and from each Dealer Location. Additionally,
Hatteras approves of temporary off-site retail activity within the Territory. Dealer shall not
sell or offer for sale other products that are competitive with the Products sold or displayed by
Dealer pursuant to this Agreement except for those products currently sold by Dealer as of the date
of this Agreement.
3. Dealer’s Responsibilities: Dealer agrees to:
A. Devote its best efforts to aggressively 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, in accordance with Hatteras’
standards of performance subject to approval by Hatteras, that will positively reflect the Hatteras
image and promote the retail sale of the Products.
B. Purchase and carry on hand at all times a sufficient inventory of current Products to meet
the reasonable demand of customers at each Dealer Location, and Hatteras’ Minimum Stock
Requirements as outlined in Exhibit A to this Agreement.
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C. Maintain at each Dealer Location (unless a sales location only, and then service shall
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 each Dealer Location parts and supplies to properly service
Products on a timely basis.
D. Perform any and all necessary Product rigging, installation, and inspection 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 may be required to provide or arrange for warranty and service work for Product regardless of
the selling dealer of the Product or condition of sale. Dealer will provide appropriate
instructions to purchasers on how to obtain warranty and service work from the Dealer. Dealer will
secure all Product inventory against weathering and damage, and maintain inventory 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’ Product registration information and Warranty Awareness
Checklist promptly upon delivery of the Products to the purchaser and assist Hatteras in performing
Product defect and recall campaigns. In the event Dealer fails to return the registration
information to Hatteras as required, Dealer shall indemnify Hatteras against any liability, loss,
or damage which Hatteras may sustain directly as a result of such failure. Hatteras will notify
Dealer if Hatteras has not received the registration information.
G. Maintain complete Product sales, warranty and service records, and report to Hatteras upon
request the name and address of each Product purchaser to the extent required by applicable law.
H. Achieve Product sales and service performance in accordance with fair and reasonable
standards and sales levels established by Hatteras in consultation with Dealer from time to time as
described in Paragraph 14 below.
I. Submit to Hatteras upon request any additional information or clarifying information
regarding Dealer’s financial statements and if necessary, consent to full and open disclosure of
financial information concerning Dealer between Hatteras and any financial institution or company
which may finance or propose to finance 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 refrain from using any false,
misleading or deceptive advertising. Submit truthful and accurate statements, reports and
information to Hatteras and any financial institution financing or proposing to finance Dealer’s
Product inventory or any purchaser.
K. Maintain an ability to purchase Product inventory via flooring and/or self-financing that
is customary to carry on hand and display Hatteras’ current Product models as indicated on Exhibit
A to this Agreement.
L. Allow the application of any rebates, warranty reimbursements or account credits owed to
Dealer as an offset against any losses, debts, or monies owed by Dealer to Hatteras, or any parent,
affiliate or subsidiary of Hatteras including but not limited to losses or debts applicable to open
Products accounts, unpaid retail show space, and to any Hatteras losses relating to Dealer flooring
or financing.
M. Use its best efforts to maintain a CSI rating in compliance with Hatteras’ CSI standards.
N. Comply with those Dealer obligations that may be imposed or established by Hatteras
applicable to all domestic Hatteras Dealers including but not limited to those included in the
annual Dealer Programs and Hatteras’ Internet Policy.
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O. 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.
P. 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.
Q. Notify Hatteras of the addition or deletion of any Dealer Location(s) which notification
Dealer agrees shall not be deemed a consent by Hatteras to such a proposed change.
4. Orders: Dealer agrees to submit orders to Hatteras in a manner and format
prescribed by Hatteras, applicable to all domestic Hatteras dealers which orders shall be subject
to Hatteras’ then current terms and conditions of sale which may be modified by Hatteras at any
time for all domestic dealers as deemed reasonably necessary. Any order which does not comply with
Hatteras’ terms and conditions need not be filled by Hatteras provided, however, that Hatteras
shall promptly notify Dealer of such noncompliance. 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 applicable to all domestic Hatteras dealers. All orders submitted
by Dealer are subject to acceptance by Hatteras.
5. Prices: The Products sold to the Dealer by Hatteras shall be on the basis of price
lists published by Hatteras from time to time for its domestic dealers, less any applicable
discounts allowed by Hatteras’ programs. Hatteras shall have the right to revise the price lists
or applicable discounts on programs applicable to all of its domestic dealers at any time (except
for any retail contracts submitted by Dealer that have been accepted by Hatteras) and Hatteras
agrees to promptly notify Dealer of any such change. 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 for which notice was provided in accordance herewith. 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 or the maximum permitted by applicable law on any past due invoice except as to any
specific amount of an invoice that is disputed in good faith by the Dealer. Hatteras may refuse
shipment for any credit reason, including Dealer’s failure to pay for a prior shipment and shall
immediately notify Dealer in such event. Dealer will reimburse Hatteras for all reasonable and
necessary costs in collecting past due accounts, including attorney fees and court costs. Dealer
hereby grants to Hatteras and Hatteras hereby retains a security interest in all Products sold to
Dealer and all proceeds arising out of the sale of the Products until such Products are paid for in
full. Dealer agrees to sign, file, authenticate, and authorize the signing, filing and
authenticating by Hatteras of such financing statements and other documents and do such other acts,
as Hatteras may request to establish and maintain a valid and protected security interest in the
Products.
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, other than material non-conforming Products that must be returned
to Hatteras for repair, Dealer shall reimburse Hatteras for any costs incurred, including returning
such Products to 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, regulations, demands for goods exceeding
Hatteras’ available supply or any other cause beyond Hatteras control. In the event of any delay
in delivery, failure to fill orders or other default or damage caused by any of the foregoing,
Hatteras may, at its option and without liability, cancel all or any portion of the applicable
orders to the extent affected by the event of force majeure and/or extend any date upon which
performance is due hereinunder.
7. Risk of Loss: Risk of loss for Products ordered by Dealer shall pass to Dealer at
the time the Products or parts 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.
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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 Product shall be made prior to departure from the Hatteras factory. 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 Dealer’s
purchase under this Agreement.
9. Product Modification: Hatteras shall have the right to discontinue the sale of
Products or to modify the design, specifications and components of Products at any time provided,
however, that Hatteras shall notify Dealer, prior to shipment, of any major changes with respect to
Products previously ordered by Dealer but not yet delivered, in which event Dealer shall have the
right to terminate such order within five (5) business days after such notification by providing
written notice to Hatteras. The failure to provide such timely written notification shall be
deemed acceptance by Dealer of such changes.
10. Warranties and Limitation of Warranties:
10.1 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, instructional information for the use and
operation of the Product consistent with the operations and maintenance manual the Product
installation instructions, if any, together with Hatteras’ written limited warranty, including all
disclaimers and limitations thereto.
C. Subject to the terms of the applicable limited warranty, expressly inform the purchaser in
writing that no Hatteras warranty applies if the Product is “used”, which includes personal or
substantial demonstration use (except for reasonable sea trials and demos for prospective customers
or for marketing purposes at a Dealer rendezvous) 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 applicable to all domestic Hatteras
dealers selling comparable Products. Dealer agrees to make all claims for reimbursement under
Hatteras’ warranty service program in the manner reasonably 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. 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, provide Hatteras with access to its
applicable books and records, and provide such additional documentation which Hatteras may
reasonably request. In the event Hatteras finds errors in the aggregate greater than 5% of
reviewed 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 all paid claims made by Hatteras to Dealer. Within thirty (30) days
of such notice of such amount, Dealer shall either pay the extrapolated amount to Hatteras or pay
the cost of a full audit by Hatteras or Hatteras’s designee or at Dealer’s option and expense, a
third party auditor reasonably acceptable to Hatteras and Dealer and pay to Hatteras that amount,
if any, found to be owing to Hatteras as a result of such audit. Hatteras agrees to honor all
legitimate warranty claims on Products when made by purchaser through Dealer in the manner
reasonably prescribed by Hatteras. Hatteras shall respond to all proper and legitimate warranty
claims submitted by Dealer within the time period described in the terms of the Warranty Program.
Hatteras agrees to pay or credit all accepted and undisputed claims within thirty (30) days after
receipt of all required documentation.
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10.2 Limitation of Warranties.
EXCEPT AS SPECIFICALLY PROVIDED IN HATTERAS’ PUBLISHED APPLICABLE LIMITED WARRANTY, HATTERAS
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Indemnification.
A. In order to obtain preferred boat show space at discounted rates for Dealers, Hatteras may
contract with and agree to indemnify boat show sponsors and other related parties. Accordingly,
Dealer shall defend, indemnify and hold harmless Hatteras, and any boat show sponsor which Hatteras
has agreed to indemnify, from any and all claims, causes of action, and suits, including claims of
negligence arising either directly or indirectly out of Dealer’s use of boat show space originally
obtained by Hatteras.
B. Hatteras agrees to indemnify and hold harmless Dealer for losses, cost and expense to the
extent such losses, cost or expense result from any third party claim related to its negligent acts
or omissions involving the original design or manufacture of any Product at the time it left
Hatteras’ possession or control, the repair of any Product performed by Hatteras or any breach of
this Agreement. Hatteras, at its expense and through counsel of its own choosing, may defend any
litigation that may arise out of any claims covered hereby, and Dealer agrees to cooperate at its
own expense and provide Hatteras with any available information as may be reasonably necessary to
such defense. In the event Hatteras elects not to defend any litigation that may arise out of any
claims covered hereby, Hatteras will be responsible for Dealer’s reasonable attorney fees on a
pro-rated basis to the extent such losses are subject to indemnification pursuant to this
Agreement. These obligations shall survive the expiration or termination of this Agreement.
C. Dealer agrees to indemnify and hold harmless Hatteras for losses, cost and expense to the
extent such losses, cost or expense result from any third party claim related to its negligent acts
or omissions involving Dealer’s improper application, use or repair of the Products, statements or
representations not specifically authorized by Hatteras, including warranties inconsistent with
Hatteras’ standard limited warranty, and the installation of any after market components or any
other modification or alteration to the Product, or any breach of this Agreement. Dealer, at its
expense and through counsel of its own choosing, may defend any litigation that may arise out of
any claims covered hereby, and Hatteras agrees to cooperate at its own expense and provide Dealer
with any available information as may be reasonably necessary to such defense. In the event Dealer
elects not to defend any litigation that may arise out of any claims covered hereby, Dealer will be
responsible for Hatteras’ reasonable attorney fees on a pro-rated basis to the extent such losses
are subject to indemnification pursuant to this Agreement. These obligations shall survive the
expiration or termination of this Agreement.
D. The provisions in this Paragraph 11 regarding indemnification do not apply to claims by
third parties in which there has been a judicial determination the indemnifying party does not have
liability to the third party.
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 Product
purchased by Dealer pursuant to this Agreement which is repossessed or repurchased by Hatteras for
any reason whatsoever, except as contemplated in 16G hereof. Dealer shall also be liable for any
and all discounts, volume rebates, or other sales incentives paid to Dealer on Product repurchased,
and all reasonable attorney’s fees, court costs, and expenses incurred in connection with such
repossession or repurchase. Dealer agrees to provide Hatteras, upon request, guarantees or other
adequate security to cover any repurchase or financial obligations that Hatteras may assume in
connection with Dealer’s flooring or financing.
13. Trademarks and Service Marks: Dealer acknowledges that Hatteras or its affiliated
companies are the exclusive owners of various trademarks, service marks, trade designations, logos
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 Hatteras or other
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identification in the name of the Dealer’s business or any other trade name of the Dealer. Dealer
shall not use Identification in any unauthorized manner or 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 intentionally advertise outside of the Territory
to the extent prohibited by the terms of this Agreement, without Hatteras’ express written consent
and shall comply with Hatteras’ announced Internet Policy. 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. Dealer may continue to use
Identification for a reasonable period of time in the event Hatteras does not repurchase Dealer
Product inventory as long as such Identification use remains subject to the terms of this
Agreement.
14. Performance Standards: Hatteras, after consultation with Dealer, will 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 for the Product model year indicated is agreed to as
shown on attached Exhibit B, the Dealer Commitment Acknowledgment.
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, partner, or franchisee of
Hatteras for any purpose. 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 this Agreement or the
relationship between the parties. Dealer is not required to pay, and shall not pay, to Hatteras
any fee for the right to purchase the Products.
16. Term of Agreement — Termination:
A. Upon execution by Hatteras, the term of this Agreement shall be from August 1, 2006 until
July 31, 2010 (hereinafter the “Term”) subject, however, to the provisions set forth below and in
Paragraph 18 that provide for earlier termination.
B. This Agreement may be terminated by Hatteras upon the giving of at least sixty (60) days
prior written notice to Dealer when: (1) Dealer fails or refuses to place a minimum stocking order
of Products, as outlined in the then current Agreement applicable to all domestic Hatteras dealers
or (2) Dealer fails to meet its financial obligations as they become due to either Hatteras or
lender(s) financing Products. 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.
D. Either party may, upon sixty (60) days written notice to the other stating the reasons
therefore, terminate this Agreement upon the other party’s breach or default in any of the material
obligations, performance standards, covenants, representations, warranties, or duties imposed
herein or in the Dealer Programs and provided that the breach or default has not been cured during
the notification period. For those matters in which a cure cannot be completed within the
notification period, Dealer must begin good faith efforts to cure within the notification period
and there must be complete cure within a reasonable period of time. 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.
E. 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
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[****] — CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
receiver for any assets or properties; (6) the other party makes a fraudulent misrepresentation
that is material to this Agreement; This Agreement may be terminated immediately by Hatteras upon
the occurrence of a prohibited assignment, delegation or subcontracting without consent as
described in Paragraph 18A below or the commission by Dealer of any act of fraud upon Hatteras,
which is material to this Agreement.
F. This Agreement may be terminated by Hatteras (notwithstanding and in addition to the
provisions of subparagraph D and other subparagraphs) upon the giving of at least fifteen (15) 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 Products subject to possible repurchase by Hatteras, including Product serial
numbers and the Dealer’s net purchase price for each Product. Upon the termination of this
Agreement (including expiration and failure to extend the Agreement or 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, sales
incentives or rebates previously paid by Hatteras’ program and a 10% restocking fee (“Dealer
Purchase Price”), Dealer’s entire stock of Products in a new, unused and undamaged condition.
Hatteras shall have thirty (30) days after the termination of this Agreement to inspect the
Products and determine if it will purchase at its option, any or all of the Products of Dealer,
which election shall be provided by a written notice given to Dealer. If Hatteras terminates this
Agreement prior to its expiration date without cause, Hatteras will
[****].
Except as expressly described herein, Hatteras shall not be obligated to repurchase Products if
this Agreement is terminated or expires or is not renewed. Notwithstanding the above, if Hatteras
[****] where Dealer
terminates the Agreement for cause or the Agreement expires and the parties fail to extend or enter
into a new agreement, and [****] where Hatteras
terminates the Agreement for cause. 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, and in the condition that such
Products were at the time of Hatteras’ inspection, if applicable. Dealer shall deliver all title
documentation reasonably 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 or as otherwise
agreed.
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 warranty service, fraud, bad
faith, 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 in order that Dealer may continue to provide warranty service on Products
which have outstanding warranties subject to Dealer’s compliance with the terms and conditions of
Hatteras’ warranty and parts program applicable to all domestic Hatteras dealers. The performance
of any warranty work after termination of this Agreement shall not be construed as a continuation
of this Agreement, the commencement of a new agreement, or a waiver of the termination.
I. Prior to the expiration of the Term, either party may terminate this Agreement upon the
giving of at least ninety (90) days prior written notice to the other party (which notice may be
given prior to the end of the Term) of its intent not to enter into a new Agreement.
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.
K. In the event of termination of this Agreement by either party, Hatteras is relieved from
any obligation to make any further Product shipments under this Agreement, and may cancel all of
Dealer’s unshipped orders for Products, irrespective of previous acceptance by Dealer, except those
which are proved to Hatteras’ reasonable satisfaction to have been the subject of a binding
customer order to Dealer prior to the receipt of any notice of termination. The acceptance of
orders from Dealer for the continuous sale of Products to Dealer or any other act after termination
of this Agreement shall not be construed as a continuation of this Agreement, the
8
commencement of a new agreement, or a waiver of the termination. Upon the termination of this
Agreement, all obligations owed by Dealer to Hatteras shall become immediately due and payable on
the effective date of the termination, whether otherwise then due or not (without presentment,
demand, protest or notice of any kind, all of which are waived by Dealer); and Hatteras may offset
or deduct from any and all sums owed to Dealer any and all sums owed by Dealer to Hatteras, or any
parent, affiliate or subsidiary of Hatteras, returning to Dealer the excess, if any.
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 the Dealer 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 the Agreement to a
subsidiary or affiliate without consent. Unless first approved by Hatteras in writing, any
purported assignment, delegation or subcontracting of Dealer’s rights and obligations under this
Agreement by Dealer (other than to a subsidiary or affiliate) may immediately render this Agreement
terminated in Hatteras’ sole discretion.
B. Hatteras may not assign this Agreement without the prior written consent of Dealer, except
that no such consent is necessary with respect to assignment of this Agreement to any Hatteras
subsidiary or affiliate. An assignment by Hatteras to any subsidiary or affiliate shall not
relieve Hatteras from any obligation or responsibility provided for under the terms of this
Agreement. Upon any sale of the business or the assets of Hatteras to a nonaffiliated third party,
and where Dealer does not agree to the assignment, this Agreement shall be terminated. Hatteras
shall be released from any further obligations and liabilities to supply Products to Dealer under
this Agreement.
19. Notices, Communications:
A. 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 identified below at the respective address listed below. 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.
| To Hatteras: Xxx Xxxxx | To Dealer: Xxxxxxx X. XxXxxx, Xx. | |||
| VICE PRESIDENT SALES | PRESIDENT | |||
| Hatteras Division of Brunswick Corp. | MarineMax, Inc. | |||
| 000 Xxxxx Xxxxxxxxxx Xxxx | 18167 US Xxxxxxx 00 Xxxxx, Xxxxx 000 | |||
| Xxx Xxxx, Xxxxx Xxxxxxxx 00000 | Xxxxxxxxxx, Xxxxxxx 00000 | |||
| With a copy to: | With a copy to: | |||
| Brunswick Boat Group Legal Department | MarineMax, Inc. | |||
| Attention: H. Xxxxxxx Xxxxx | Legal Department | |||
| 000 X. Xxx Xxxxxx, Xxxxx 0000 | Attention: Paulee Day | |||
| Xxxxxxxxx, Xxxxxxxxx 00000 | 00000 XX Xxxxxxx 00 Xxxxx, Xxxxx 000 | |||
| Tel: (000) 000-0000 | Xxxxxxxxxx, Xxxxxxx 00000 | |||
| Fax: (000) 000-0000 | Tel: (000) 000-0000 | |||
| Fax: (000) 000-0000 |
9
B. Dealer hereby grants permission and consent to Hatteras and to those entities who are
authorized by Hatteras to send or transmit communications (including but not limited to facsimiles,
wireless communications, and e-mails) to Dealer and Dealer’s officers, directors, employees,
subsidiaries and affiliates, and their permitted successors and assigns. Such communications are
not limited in content and may include advertisements, and Dealer understands that by providing
such consent it may incur costs that are related to the receipt of such communications. Dealer
further agrees that such communications may be sent to any telephone number or electronic media
address applicable to those who have herein granted consent.
20. Entire Agreement — Non-Waiver: This Agreement contains the entire agreement
between the parties with respect to the matters set forth herein and may not be amended or modified
except by a written instrument signed by Hatteras and Dealer that expressly states that the writing
constitutes a rider or modification to this Agreement, provided that, subject to the provisions of
this Agreement, Hatteras may in its sole discretion and from time to time make changes in
accordance with its own reasonable business judgment to Dealer Programs, policies, programs and
Hatteras’s Internet Policy applicable to all domestic Hatteras dealers upon the giving of notice to
Dealer. This Agreement 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 or claims of third
parties, 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. The Dealer Programs
and its content as well as the Hatteras Internet Policy is incorporated herein by reference.
21. Severability – Existing Claims: Whenever possible, each paragraph of this
Agreement shall be interpreted in such manner as to be effective and valid under applicable law,
but if any portion of this Agreement is deemed invalid or unenforceable, the remaining sections
shall still be enforceable unless removal of that portion so materially alters the risks and
benefits to either party that enforcement would be substantially unfair. In such a case, the
parties agree to immediately negotiate a substitute clause to restore each party as closely as
possible to the risks and benefits originally assumed. 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 it has not breached or otherwise violated any term or condition of any
previous Agreement with Hatteras.
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 of 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. § 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 the 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 ban to the institution of any
proceedings and a waiver and relinquishment of all such claims.
10
23. Guarantee: As a condition for Hatteras’ entering into this Agreement, the parent
of Dealer 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.
24. Reservation of Rights: Hatteras grants to Dealer only those rights expressly
stated in this Agreement. Except to the extent otherwise expressly provided in this Agreement,
Hatteras retains all rights. This Agreement does not concern any other brands or products, except
the Hatteras Products defined in Paragraph 1. Hatteras and/or its affiliates reserve the right to
own, acquire, manage, sell, display or service other products and other brands in any area
(including the Territory) including those that may compete with Products.
25. Confidentiality. Each party shall maintain as confidential all proprietary
business information, trade secrets and all materials containing confidential business information
provided by such party to the other party, including but not limited to customers, vendors,
inventions, concepts, designs, structures, formulas, processes, financial information, employees,
strategic plans, acquisition plans or other business affairs of the disclosing party. Dealer
acknowledges that Hatteras is a division of Brunswick Corporation, and accordingly subsidiaries,
affiliates and other divisions of Brunswick Corporation may be given access or have access to
confidential business information received in connection with this Agreement, and such disclosure
does not constitute a breach of this Paragraph. Each party, on behalf of its directors, officers,
employees and agents to whom such information and materials are disclosed, agree that it shall keep
such information and materials confidential both during and after the term of this Agreement for a
period of three (3) years provided that if any such information or material is a trade secret, then
the obligations under this Paragraph shall survive the termination of this Agreement for the longer
of five (5) years or the length of time such information remains a trade secret.
These obligations of confidentiality do not apply to any information which (1) was known to
the receiving party prior to receipt from the disclosing party; (2) is independently developed by
the receiving party, provided that the burden of proof of such independent development shall be on
the receiving party; (3) is or becomes publicly known without the fault of the receiving party; (4)
is or becomes rightfully available to the receiving party without confidential restriction from a
source not bound by a confidentiality obligation to the disclosing party; (5) is required by law to
be disclosed or pursuant to court or government action provided, the disclosing party is given
reasonable prior notice of such disclosure; or (6) is disclosed pursuant to agreement of the
parties.
26. Miscellaneous: In case of any dispute relating to the rights and duties imposed
by this Agreement, both parties will openly discuss and make reasonable efforts at amicable
resolution. Except as expressly described to the contrary in this Agreement, the rights and
remedies of each party are not exclusive. Unless otherwise provided, where either party has a
right to make a determination or pursue or not pursue a particular course of action under the terms
of this Agreement, such as, for example granting consent or approval, such determinations and
decisions shall be made by such party in its sole discretion. As defined herein, a domestic
Hatteras dealer shall be an authorized Hatteras dealer whose territory is located solely within the
continental Unites States.
IN WITNESS WHEREOF, Hatteras and Dealer have executed this Agreement as of the date first
above written.
| HATTERAS YACHTS DIVISION OF BRUNSWICK CORPORATION |
MARINEMAX MOTOR YACHTS, LLC | |||||||||
BY: NAME: |
/s/ Xxx Xxxxx
|
BY: NAME: |
/s/ Xxxxxxx X. XxXxxx
|
|||||||
TITLE:
|
Vice President – Sales | TITLE: | Secretary | |||||||
DATE:
|
February 2, 2007 | DATE: | January 29, 2007 | |||||||
| MARINEMAX, INC. | ||||||||||
| BY: | /s/ Xxxxxxx X. XxXxxx | |||||||||
| NAME: | Xxxxxxx X. XxXxxx | |||||||||
| TITLE: | Secretary | |||||||||
| DATE: | January 29, 2007 | |||||||||
11
THIS AGREEMENT made this 31st day of January, 2007 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 and
MarineMax Motor Yachts, LLC, doing business as MarineMax, with its principal place of business at
00000 XX Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, a limited liability corporation organized
and existing under the laws of the State of Delaware (hereinafter referred to as “Dealer”), and
Dealer’s parent corporation MarineMax, Inc., a Delaware Corporation, having its principal place of
business located at 00000 XX Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000 whereby in consideration
of the mutual covenants herein contained, it is agreed as follows:
1. Appointment of Dealers: Hatteras hereby appoints Dealer as a dealer for the
retail sale, display, and servicing of all Hatteras product(s), parts and accessories (hereinafter
“Product” or “Products”) as specified in the Hatteras 2007 or then current Hatteras Dealer Programs
applicable to Hatteras dealers selling comparable Products (hereinafter referred to as the
“Agreement”), from the below described Dealer Location(s), which Products shall be purchased only
from Hatteras or an authorized Hatteras dealer located in the country in which Dealer is located.
During the term of this Agreement, Hatteras shall not appoint other dealers to sell Product from a
dealer location within the Territory set forth in Paragraph 2 so long as Dealer is in compliance
with its material obligations and performance standards under this Agreement and Hatteras’ then
current material policies and programs. Hatteras reserves the right to modify the Territory or
appoint other dealers to sell, display and service Product from dealer locations within the
Territory at any time if Hatteras determines, in its sole discretion, the Dealer is in breach of
the material obligations and performance standards of this Agreement and Hatteras’ then current
material policies and programs following notice and the expiration of any applicable cure periods
without cure. Provided that similar restrictions apply to all domestic Hatteras dealers selling
comparable Products, Dealer shall not sell, advertise, solicit for sale or offer for resale
Products outside of the Territory, provided, however, that Dealer may advertise in recognized and
established marine publications with cross-territorial distribution. However, Dealer agrees not to
advertise price of Products in any electronic media, newspaper, trade publications or other
publication or media that is cross territorial and/or distributed outside of the territory.
Hatteras reserves the right in its sole discretion to monitor or otherwise enforce its policies and
procedures applicable to all domestic Hatteras dealers and will do so on a uniform basis. There are
no third party beneficiary rights to such policies and procedures or this Agreement or other dealer
agreements.
Hatteras also reserves the right to make sales in the Territory after consultation with Dealer or
provide service in the Territory based upon legitimate business purposes, and to appoint other
dealers or service providers to sell, display, and/or service products, from any other location
outside the Territory.
Hatteras shall have the right to adopt and modify policies and programs related to the Products
from time to time in its sole discretion and in accordance with its own reasonable business
judgment and it will enforce such policies and programs on a uniform basis. Dealer agrees to
comply with such policies and programs, and understands that failure to comply with a material term
shall give Hatteras, following the expiration of applicable cure periods without cure, the right to
modify the Territory, appoint other dealers to locations within the Territory, and/or to terminate
this Agreement.
2. Location: Dealer shall sell at retail, display, and service Products only at and
from the following location(s) (“Dealer Location(s)”). Dealer Location(s) are both sales and
service unless otherwise specified in writing:
0000 Xxxx Xxxx Xxx, Xxxxxxxx, Xxxxx 00000
Dealer shall concentrate its sales, display and service effort to within the following Territory:
Texas
12
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 the approval process including but not limited to the
Dealer’s qualifications and abilities to perform the Agreement obligations from the proposed Dealer
location, the effect such a grant would have on the resulting Territory configuration and adjacent
Hatteras dealer sales, the Dealer’s financial capabilities to successfully operate the business
from the Dealer Location, and whether the Dealer will have adequate personnel to manage the
business at the Dealer Location. Dealer shall not sell Products for use by or to a purchaser
located outside of the country in which the Dealer is located or sell to others for the purpose of
resale without the prior written consent of Hatteras. Dealer shall not utilize the services of a
broker or similar agent to sell Product unless such broker is an affiliated third party of Dealer
that is located within the Territory and such broker or agent does not consummate or sell any
Product and otherwise complies with the requirements of this Agreement. Dealer agrees to provide
appropriate facilities and to assume full and complete managerial authority and responsibility for
the service of the Products at and from those Dealer Location(s) specified in this Agreement and
for the display and retail sale of the Products at and from each Dealer Location. Additionally,
Hatteras approves of temporary off-site retail activity within the Territory. Dealer shall not
sell or offer for sale other products that are competitive with the Products sold or displayed by
Dealer pursuant to this Agreement except for those products currently sold by Dealer as of the date
of this Agreement.
3. Dealer’s Responsibilities: Dealer agrees to:
A. Devote its best efforts to aggressively 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, in accordance with Hatteras’
standards of performance subject to approval by Hatteras, that will positively reflect the Hatteras
image and promote the retail sale of the Products.
B. Purchase and carry on hand at all times a sufficient inventory of current Products to meet
the reasonable demand of customers at each Dealer Location, and Hatteras’ Minimum Stock
Requirements as outlined in Exhibit A to this Agreement.
C. Maintain at each Dealer Location (unless a sales location only, and then service shall
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 each Dealer Location parts and supplies to properly service
Products on a timely basis.
D. Perform any and all necessary Product rigging, installation, and inspection 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 may be required to provide or arrange for warranty and service work for Product regardless of
the selling dealer of the Product or condition of sale. Dealer will provide appropriate
instructions to purchasers on how to obtain warranty and service work from the Dealer. Dealer will
secure all Product inventory against weathering and damage, and maintain inventory 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’ Product registration information and Warranty Awareness
Checklist promptly upon delivery of the Products to the purchaser and assist Hatteras in performing
Product defect and recall campaigns. In the event Dealer fails to return the registration
information to Hatteras as required, Dealer shall indemnify Hatteras against any liability, loss,
or damage which Hatteras may sustain directly as a result of such failure. Hatteras will notify
Dealer if Hatteras has not received the registration information.
G. Maintain complete Product sales, warranty and service records, and report to Hatteras upon
request the name and address of each Product purchaser to the extent required by applicable law.
13
H. Achieve Product sales and service performance in accordance with fair and reasonable
standards and sales levels established by Hatteras in consultation with Dealer from time to time as
described in Paragraph 14 below.
I. Submit to Hatteras upon request any additional information or clarifying information
regarding Dealer’s financial statements and if necessary, consent to full and open disclosure of
financial information concerning Dealer between Hatteras and any financial institution or company
which may finance or propose to finance 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 refrain from using any false,
misleading or deceptive advertising. Submit truthful and accurate statements, reports and
information to Hatteras and any financial institution financing or proposing to finance Dealer’s
Product inventory or any purchaser.
K. Maintain an ability to purchase Product inventory via flooring and/or self-financing that
is customary to carry on hand and display Hatteras’ current Product models as indicated on Exhibit
A to this Agreement.
L. Allow the application of any rebates, warranty reimbursements or account credits owed to
Dealer as an offset against any losses, debts, or monies owed by Dealer to Hatteras, or any parent,
affiliate or subsidiary of Hatteras including but not limited to losses or debts applicable to open
Products accounts, unpaid retail show space, and to any Hatteras losses relating to Dealer flooring
or financing.
M. Use its best efforts to maintain a CSI rating in compliance with Hatteras’ CSI standards.
N. Comply with those Dealer obligations that may be imposed or established by Hatteras
applicable to all domestic Hatteras Dealers including but not limited to those included in the
annual Dealer Programs and Hatteras’ Internet Policy.
O. 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.
P. 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.
Q. Notify Hatteras of the addition or deletion of any Dealer Location(s) which notification
Dealer agrees shall not be deemed a consent by Hatteras to such a proposed change.
4. Orders: Dealer agrees to submit orders to Hatteras in a manner and format
prescribed by Hatteras, applicable to all domestic Hatteras dealers which orders shall be subject
to Hatteras’ then current terms and conditions of sale which may be modified by Hatteras at any
time for all domestic dealers as deemed reasonably necessary. Any order which does not comply with
Hatteras’ terms and conditions need not be filled by Hatteras provided, however, that Hatteras
shall promptly notify Dealer of such noncompliance. 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 applicable to all domestic Hatteras dealers. All orders submitted
by Dealer are subject to acceptance by Hatteras.
5. Prices: The Products sold to the Dealer by Hatteras shall be on the basis of price
lists published by Hatteras from time to time for its domestic dealers, less any applicable
discounts allowed by Hatteras’ programs. Hatteras shall have the right to revise the price lists
or applicable discounts on programs applicable to all of its domestic dealers at any time (except
for any retail contracts submitted by Dealer that have been accepted by Hatteras) and Hatteras
agrees to promptly notify Dealer of any such change. 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 for which notice was provided in accordance herewith. 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 or the maximum permitted by
14
applicable law on any past due invoice except as to any specific amount of an invoice that is
disputed in good faith by the Dealer. Hatteras may refuse shipment for any credit reason,
including Dealer’s failure to pay for a prior shipment and shall immediately notify Dealer in such
event. Dealer will reimburse Hatteras for all reasonable and necessary costs in collecting past
due accounts, including attorney fees and court costs. Dealer hereby grants to Hatteras and
Hatteras hereby retains a security interest in all Products sold to Dealer and all proceeds arising
out of the sale of the Products until such Products are paid for in full. Dealer agrees to sign,
file, authenticate, and authorize the signing, filing and authenticating by Hatteras of such
financing statements and other documents and do such other acts, as Hatteras may request to
establish and maintain a valid and protected security interest in the Products.
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, other than material non-conforming Products that must be returned
to Hatteras for repair, Dealer shall reimburse Hatteras for any costs incurred, including returning
such Products to 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, regulations, demands for goods exceeding
Hatteras’ available supply or any other cause beyond Hatteras control. In the event of any delay
in delivery, failure to fill orders or other default or damage caused by any of the foregoing,
Hatteras may, at its option and without liability, cancel all or any portion of the applicable
orders to the extent affected by the event of force majeure and/or extend any date upon which
performance is due hereinunder.
7. Risk of Loss: Risk of loss for Products ordered by Dealer shall pass to Dealer at
the time the Products or parts 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 Product shall be made prior to departure from the Hatteras factory. 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 Dealer’s
purchase under this Agreement.
9. Product Modification: Hatteras shall have the right to discontinue the sale of
Products or to modify the design, specifications and components of Products at any time provided,
however, that Hatteras shall notify Dealer, prior to shipment, of any major changes with respect to
Products previously ordered by Dealer but not yet delivered, in which event Dealer shall have the
right to terminate such order within five (5) business days after such notification by providing
written notice to Hatteras. The failure to provide such timely written notification shall be
deemed acceptance by Dealer of such changes.
10. Warranties and Limitation of Warranties:
10.1 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, instructional information for the use and
operation of the Product
15
consistent with the operations and maintenance manual, the Product installation instructions, if
any, together with Hatteras’ written limited warranty, including all disclaimers and limitations
thereto.
C. Subject to the terms of the applicable limited warranty, expressly inform the purchaser in
writing that no Hatteras warranty applies if the Product is “used”, which includes personal or
substantial demonstration use (except for reasonable sea trials and demos for prospective customers
or for marketing purposes at a Dealer rendezvous) 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 applicable to all domestic Hatteras
dealers selling comparable Products. Dealer agrees to make all claims for reimbursement under
Hatteras’ warranty service program in the manner reasonably 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. 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, provide Hatteras with access to its
applicable books and records, and provide such additional documentation which Hatteras may
reasonably request. In the event Hatteras finds errors in the aggregate greater than 5% of
reviewed 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 all paid claims made by Hatteras to Dealer. Within thirty (30) days
of such notice of such amount, Dealer shall either pay the extrapolated amount to Hatteras or pay
the cost of a full audit by Hatteras or Hatteras’s designee or at Dealer’s option and expense, a
third party auditor reasonably acceptable to Hatteras and Dealer and pay to Hatteras that amount,
if any, found to be owing to Hatteras as a result of such audit. Hatteras agrees to honor all
legitimate warranty claims on Products when made by purchaser through Dealer in the manner
reasonably prescribed by Hatteras. Hatteras shall respond to all proper and legitimate warranty
claims submitted by Dealer within the time period described in the terms of the Warranty Program.
Hatteras agrees to pay or credit all accepted and undisputed claims within thirty (30) days after
receipt of all required documentation.
10.2 Limitation of Warranties.
EXCEPT AS SPECIFICALLY PROVIDED IN HATTERAS’ PUBLISHED APPLICABLE LIMITED WARRANTY, HATTERAS
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Indemnification.
A. In order to obtain preferred boat show space at discounted rates for Dealers, Hatteras may
contract with and agree to indemnify boat show sponsors and other related parties. Accordingly,
Dealer shall defend, indemnify and hold harmless Hatteras, and any boat show sponsor which Hatteras
has agreed to indemnify, from any and all claims, causes of action, and suits, including claims of
negligence arising either directly or indirectly out of Dealer’s use of boat show space originally
obtained by Hatteras.
B. Hatteras agrees to indemnify and hold harmless Dealer for losses, cost and expense to the
extent such losses, cost or expense result from any third party claim related to its negligent acts
or omissions involving the original design or manufacture of any Product at the time it left
Hatteras’ possession or control, the repair of any Product performed by Hatteras or any breach of
this Agreement. Hatteras, at its expense and through counsel of its own choosing, may defend any
litigation that may arise out of any claims covered hereby, and Dealer agrees to cooperate at its
own expense and provide Hatteras with any available information as may be reasonably necessary to
such defense. In the event Hatteras elects not to defend any litigation that may arise out of any
claims covered hereby, Hatteras will be responsible for Dealer’s reasonable attorney fees on a
pro-rated basis to the extent
16
such losses are subject to indemnification pursuant to this Agreement. These obligations shall
survive the expiration or termination of this Agreement.
C. Dealer agrees to indemnify and hold harmless Hatteras for losses, cost and expense to the
extent such losses, cost or expense result from any third party claim related to its negligent acts
or omissions involving Dealer’s improper application, use or repair of the Products, statements or
representations not specifically authorized by Hatteras, including warranties inconsistent with
Hatteras’ standard limited warranty, and the installation of any after market components or any
other modification or alteration to the Product, or any breach of this Agreement. Dealer, at its
expense and through counsel of its own choosing, may defend any litigation that may arise out of
any claims covered hereby, and Hatteras agrees to cooperate at its own expense and provide Dealer
with any available information as may be reasonably necessary to such defense. In the event Dealer
elects not to defend any litigation that may arise out of any claims covered hereby, Dealer will be
responsible for Hatteras’ reasonable attorney fees on a pro-rated basis to the extent such losses
are subject to indemnification pursuant to this Agreement. These obligations shall survive the
expiration or termination of this Agreement.
D. The provisions in this Paragraph 11 regarding indemnification do not apply to claims by
third parties in which there has been a judicial determination the indemnifying party does not have
liability to the third party.
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 Product
purchased by Dealer pursuant to this Agreement which is repossessed or repurchased by Hatteras for
any reason whatsoever, except as contemplated in 16G hereof. Dealer shall also be liable for any
and all discounts, volume rebates, or other sales incentives paid to Dealer on Product repurchased,
and all reasonable attorney’s fees, court costs, and expenses incurred in connection with such
repossession or repurchase. Dealer agrees to provide Hatteras, upon request, guarantees or other
adequate security to cover any repurchase or financial obligations that Hatteras may assume in
connection with Dealer’s flooring or financing.
13. Trademarks and Service Marks: Dealer acknowledges that Hatteras or its affiliated
companies are the exclusive owners of various trademarks, service marks, trade designations, logos
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 Hatteras or other identification in the
name of the Dealer’s business or any other trade name of the Dealer. Dealer shall not use
Identification in any unauthorized manner or 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 intentionally advertise outside of the Territory to the
extent prohibited by the terms of this Agreement, without Hatteras’ express written consent and
shall comply with Hatteras’ announced Internet Policy. 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. Dealer may continue to use
Identification for a reasonable period of time in the event Hatteras does not repurchase Dealer
Product inventory as long as such Identification use remains subject to the terms of this
Agreement.
14. Performance Standards: Hatteras, after consultation with Dealer, will 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 for the Product model year indicated is agreed to as
shown on attached Exhibit B, the Dealer Commitment Acknowledgment.
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[****] — CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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, partner, or franchisee of
Hatteras for any purpose. 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 this Agreement or the
relationship between the parties. Dealer is not required to pay, and shall not pay, to Hatteras
any fee for the right to purchase the Products.
16. Term of Agreement — Termination:
A. Upon execution by Hatteras, the term of this Agreement shall be from August 1, 2006 until
July 31, 2007 (hereinafter the “Term”) subject, however, to the provisions set forth below and in
Paragraph 18 that provide for earlier termination.
B. This Agreement may be terminated by Hatteras upon the giving of at least sixty (60) days
prior written notice to Dealer when: (1) Dealer fails or refuses to place a minimum stocking order
of Products, as outlined in the then current Agreement applicable to all domestic Hatteras dealers
or (2) Dealer fails to meet its financial obligations as they become due to either Hatteras or
lender(s) financing Products. 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.
D. Either party may, upon sixty (60) days written notice to the other stating the reasons
therefore, terminate this Agreement upon the other party’s breach or default in any of the material
obligations, performance standards, covenants, representations, warranties, or duties imposed
herein or in the Dealer Programs and provided that the breach or default has not been cured during
the notification period. For those matters in which a cure cannot be completed within the
notification period, Dealer must begin good faith efforts to cure within the notification period
and there must be complete cure within a reasonable period of time. 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.
E. 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; (6) the other party makes a fraudulent misrepresentation
that is material to this Agreement; This Agreement may be terminated immediately by Hatteras upon
the occurrence of a prohibited assignment, delegation or subcontracting without consent as
described in Paragraph 18A below or the commission by Dealer of any act of fraud upon Hatteras,
which is material to this Agreement.
F. This Agreement may be terminated by Hatteras (notwithstanding and in addition to the
provisions of subparagraph D and other subparagraphs) upon the giving of at least fifteen (15) 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 Products subject to possible repurchase by Hatteras, including Product serial
numbers and the Dealer’s net purchase price for each Product. Upon the termination of this
Agreement (including expiration and failure to extend this Agreement or 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,
sales incentives or rebates previously paid by Hatteras’ program and a 10% restocking fee (“Dealer
Purchase Price”), Dealer’s entire stock of Products in a new, unused and undamaged condition.
Hatteras shall have thirty (30) days after the termination of this Agreement to inspect the
Products and determine if it will purchase at its option, any or all of the Products of Dealer,
which election shall be provided by a written notice given to Dealer. If Hatteras terminates this
Agreement prior to its expiration date without cause, Hatteras will
[****].
18
[****] — CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Except
as expressly described herein, Hatteras shall not be obligated to repurchase Products if this
Agreement is terminated or expires or is not renewed. Notwithstanding
the above, if Hatteras [****] where Dealer terminates
the Agreement for cause or this Agreement expires and the parties fail to extend this Agreement or
enter into a new agreement, and [****] where Hatteras
terminates this Agreement for cause. 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, and in the condition that such
Products were at the time of Hatteras’ inspection, if applicable. Dealer shall deliver all title
documentation reasonably 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 or as otherwise
agreed.
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 warranty service, fraud, bad
faith, 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 in order that Dealer may continue to provide warranty service on Products
which have outstanding warranties subject to Dealer’s compliance with the terms and conditions of
Hatteras’ warranty and parts program applicable to all domestic Hatteras dealers. The performance
of any warranty work after termination of this Agreement shall not be construed as a continuation
of this Agreement, the commencement of a new agreement, or a waiver of the termination.
I. Prior to the expiration of the Term, either party may terminate this Agreement upon the
giving of at least ninety (90) days prior written notice to the other party (which notice may be
given prior to the end of the Term) of its intent not to enter into a new Agreement.
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.
K. In the event of termination of this Agreement by either party, Hatteras is relieved from
any obligation to make any further Product shipments under this Agreement, and may cancel all of
Dealer’s unshipped orders for Products, irrespective of previous acceptance by Dealer, except those
which are proved to Hatteras’ reasonable satisfaction to have been the subject of a binding
customer order to Dealer prior to the receipt of any notice of termination. The acceptance of
orders from Dealer for the continuous sale of Products to Dealer or any other act after termination
of this Agreement shall not be construed as a continuation of this Agreement, the commencement of a
new agreement, or a waiver of the termination. Upon the termination of this Agreement, all
obligations owed by Dealer to Hatteras shall become immediately due and payable on the effective
date of the termination, whether otherwise then due or not (without presentment, demand, protest or
notice of any kind, all of which are waived by Dealer); and Hatteras may offset or deduct from any
and all sums owed to Dealer any and all sums owed by Dealer to Hatteras, or any parent, affiliate
or subsidiary of Hatteras, returning to Dealer the excess, if any.
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 the Dealer 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 the Agreement to a
subsidiary or affiliate without consent. Unless first approved by Hatteras in writing, any
purported assignment, delegation or subcontracting of Dealer’s rights and obligations under this
Agreement by Dealer (other than to a subsidiary or affiliate) may immediately render this Agreement
terminated in Hatteras’ sole discretion.
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B. Hatteras may not assign this Agreement without the prior written consent of Dealer, except
that no such consent is necessary with respect to assignment of this Agreement to any Hatteras
subsidiary or affiliate. An assignment by Hatteras to any subsidiary or affiliate shall not
relieve Hatteras from any obligation or responsibility provided for under the terms of this
Agreement. Upon any sale of the business or the assets of Hatteras to a nonaffiliated third party,
and where Dealer does not agree to the assignment, this Agreement shall be terminated. Hatteras
shall be released from any further obligations and liabilities to supply Products to Dealer under
this Agreement.
19. Notices, Communications:
A. 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 identified below at the respective address listed below. 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.
| To Hatteras: Xxx Xxxxx | To Dealer: Xxxxxxx X. XxXxxx, Xx. | |||
| VICE PRESIDENT SALES | PRESIDENT | |||
| Hatteras Division of Brunswick Corp. | MarineMax, Inc. | |||
| 000 Xxxxx Xxxxxxxxxx Xxxx | 18167 US Xxxxxxx 00 Xxxxx, Xxxxx 000 | |||
| Xxx Xxxx, Xxxxx Xxxxxxxx 00000 | Xxxxxxxxxx, Xxxxxxx 00000 | |||
| With a copy to: | With a copy to: | |||
| Brunswick Boat Group Legal Department | MarineMax, Inc. | |||
| Attention: H. Xxxxxxx Xxxxx | Legal Department | |||
| 000 X. Xxx Xxxxxx, Xxxxx 0000 | Attention: Paulee Day | |||
| Xxxxxxxxx, Xxxxxxxxx 00000 | 00000 XX Xxxxxxx 00 Xxxxx, Xxxxx 000 | |||
| Tel: (000) 000-0000 | Xxxxxxxxxx, Xxxxxxx 00000 | |||
| Fax: (000) 000-0000 | Tel: (000) 000-0000 | |||
| Fax: (000) 000-0000 |
B. Dealer hereby grants permission and consent to Hatteras and to those entities who are
authorized by Hatteras to send or transmit communications (including but not limited to facsimiles,
wireless communications, and e-mails) to Dealer and Dealer’s officers, directors, employees,
subsidiaries and affiliates, and their permitted successors and assigns. Such communications are
not limited in content and may include advertisements, and Dealer understands that by providing
such consent it may incur costs that are related to the receipt of such communications. Dealer
further agrees that such communications may be sent to any telephone number or electronic media
address applicable to those who have herein granted consent.
20. Entire Agreement — Non-Waiver: This Agreement contains the entire agreement
between the parties with respect to the matters set forth herein and may not be amended or modified
except by a written instrument signed by Hatteras and Dealer that expressly states that the writing
constitutes a rider or modification to this Agreement, provided that, subject to the provisions of
this Agreement, Hatteras may in its sole discretion and from time to time make changes in
accordance with its own reasonable business judgment to Dealer Programs, policies, programs and
Hatteras’s Internet Policy applicable to all domestic Hatteras dealers upon the giving of notice to
Dealer. This Agreement 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 or claims of third
parties, 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. The Dealer Programs
and its content as well as the Hatteras Internet Policy is incorporated herein by reference.
20
21. Severability – Existing Claims: Whenever possible, each paragraph of this
Agreement shall be interpreted in such manner as to be effective and valid under applicable law,
but if any portion of this Agreement is deemed invalid or unenforceable, the remaining sections
shall still be enforceable unless removal of that portion so materially alters the risks and
benefits to either party that enforcement would be substantially unfair. In such a case, the
parties agree to immediately negotiate a substitute clause to restore each party as closely as
possible to the risks and benefits originally assumed. 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 it has not breached or otherwise violated any term or condition of any
previous Agreement with Hatteras.
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 of 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. § 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 the 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 ban to the institution of any
proceedings and a waiver and relinquishment of all such claims.
23. Guarantee: As a condition for Hatteras’ entering into this Agreement, the parent
of Dealer 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.
24. Reservation of Rights: Hatteras grants to Dealer only those rights expressly
stated in this Agreement. Except to the extent otherwise expressly provided in this Agreement,
Hatteras retains all rights. This Agreement does not concern any other brands or products, except
the Hatteras Products defined in Paragraph 1. Hatteras and/or its affiliates reserve the right to
own, acquire, manage, sell, display or service other products and other brands in any area
(including the Territory) including those that may compete with Products.
25. Confidentiality. Each party shall maintain as confidential all proprietary
business information, trade secrets and all materials containing confidential business information
provided by such party to the other party, including but not limited to customers, vendors,
inventions, concepts, designs, structures, formulas, processes, financial information, employees,
strategic plans, acquisition plans or other business affairs of the disclosing party. Dealer
acknowledges that Hatteras is a division of Brunswick Corporation, and accordingly subsidiaries,
affiliates and other divisions of Brunswick Corporation may be given access or have access to
confidential business information received in connection with this Agreement, and such disclosure
does not constitute a breach of this Paragraph. Each party, on behalf of its directors, officers,
employees and agents to whom such information and materials are disclosed, agree that it shall keep
such information and materials confidential both during and after the term of this Agreement for a
period of three (3) years provided that if any such information or material is a trade secret, then
the obligations under this Paragraph shall survive the termination of this Agreement for the longer
of five (5) years or the length of time such information remains a trade secret.
21
These obligations of confidentiality do not apply to any information which (1) was known to
the receiving party prior to receipt from the disclosing party; (2) is independently developed by
the receiving party, provided that the burden of proof of such independent development shall be on
the receiving party; (3) is or becomes publicly known without the fault of the receiving party; (4)
is or becomes rightfully available to the receiving party without confidential restriction from a
source not bound by a confidentiality obligation to the disclosing party; (5) is required by law to
be disclosed or pursuant to court or government action provided, the disclosing party is given
reasonable prior notice of such disclosure; or (6) is disclosed pursuant to agreement of the
parties.
26. Miscellaneous: In case of any dispute relating to the rights and duties imposed
by this Agreement, both parties will openly discuss and make reasonable efforts at amicable
resolution. Except as expressly described to the contrary in this Agreement, the rights and
remedies of each party are not exclusive. Unless otherwise provided, where either party has a
right to make a determination or pursue or not pursue a particular course of action under the terms
of this Agreement, such as, for example granting consent or approval, such determinations and
decisions shall be made by such party in its sole discretion. As defined herein, a domestic
Hatteras dealer shall be an authorized Hatteras dealer whose territory is located solely within the
continental Unites States.
IN WITNESS WHEREOF, Hatteras and Dealer have executed this Agreement as of the date first
above written.
| HATTERAS YACHTS DIVISION OF BRUNSWICK CORPORATION |
MARINEMAX MOTOR YACHTS, LLC | |||||||||
BY: NAME: |
/s/ Xxx Xxxxx
|
BY: NAME: |
/s/ Xxxxxxx X. XxXxxx
|
|||||||
TITLE:
|
Vice President – Sales | TITLE: | Secretary | |||||||
DATE:
|
February 2, 2007 | DATE: | January 29, 2007 | |||||||
| MARINEMAX, INC. | ||||||||||
| BY: | /s/ Xxxxxxx X. XxXxxx | |||||||||
| NAME: | Xxxxxxx X. XxXxxx | |||||||||
| TITLE: | Secretary | |||||||||
| DATE: | January 29, 2007 | |||||||||
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