EXHIBIT 10.44
Confidential Treatment Requested. Confidential portions of this document have
been redacted and filed separately with the Commission
AQUASPORT MASTER DEALER AGREEMENT
This master agreement, effective September 29, 1998, is by and between
Aquasport, a division of Wellcraft Marine Corp., a Delaware corporation
("Aquasport") and Xxxxxx Boats & Motors, Inc., a Texas corporation ("Xxxxxx")
(the "Agreement").
WHEREAS, Aquasport is engaged in the manufacture of recreational
powerboats and accessories and the sale of certain accompanying engines
("Products") and desires to sell its Products to Xxxxxx, through or to certain
of its subsidiaries or affiliates ("Xxxxxx Subs"); and
WHEREAS, Xxxxxx and Xxxxxx Subs are engaged in the sale of Products to
the retail public and desire to purchase various Products from Aquasport;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1. Xxxxxx and Xxxxxx Subs. For purposes of this Agreement, the term
Xxxxxx when used shall be inclusive of Xxxxxx Subs except where the Agreement
specifically uses Xxxxxx Subs individually.
2. Sale of Product. Aquasport shall manufacture and sell to Xxxxxx or
Xxxxxx Subs those various Products ordered from time to time by Xxxxxx or Xxxxxx
Subs pursuant to Aquasport's standard dealer agreement, as mutually agreed upon
and as may be amended from time to time by mutual agreement.
3. Dealer Agreements and Relationship to this Master Agreement. Each
Xxxxxx or Xxxxxx Sub retail location which purchases Aquasport Products shall
execute and be subject to Aquasport's standard dealer agreement as mutually
agreed upon by the parties and as may be amended upon mutual agreement of the
parties. This Agreement shall supplement and amend each individual standard
dealer agreement executed at each Xxxxxx retail location which sells Aquasport
Products. To the maximum extent possible, this Agreement and the standard dealer
agreement shall be read and interpreted to be consistent with each other. In the
event there is a conflict between the dealer agreement and this Agreement, the
provisions of this Agreement shall control.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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4. Pricing.
a. *. During the term of this Agreement, Aquasport shall sell
Aquasport Products to Xxxxxx at all times for * In the event Aquasport changes
its pricing structure or program discounts during the Aquasport model year, *
except that, during Aquasport model year 1999, the pricing for Aquasport
Products pre-rigged to receive Mercury engines shall be as described on Exhibit
A hereto. For purposes of this Agreement, pre-rigged Products are those which
are rigged by Genmar, its divisions or subsidiaries, to receive a certain brand
of engine but that are not sold with such engine. Notwithstanding the above,
from time to time Aquasport may sell individual Products *. For purposes of this
Agreement, the Aquasport is model year' means the period commencing on July 1 of
any calendar year through June 30 of the following calendar year and the Xxxxxx
"model year" means the period commencing on August 1 of any calendar year
through July 31 of the following calendar year.
b. Freight. In addition to the price of the Product described
above, Aquasport may charge Xxxxxx a freight charge that Aquasport shall
incorporate into its total invoice price equal to the average of all of the
freight rates which would be charged to Xxxxxx Stores under Aquasport's then
current published freight program for dealers.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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c. Engines. In the event an engine manufacturer changes its
published pricing and enacts such changes after Aquasport has published its
engine price list, Xxxxxx, after the effective date of such change, shall pay
*
5. Timing of Purchases, Shipping and Delivery. Aquasport will use its
best efforts to ship then current Aquasport model year Products at the * for all
firm orders received from and delivered to Xxxxxx by June 30 of the then current
Aquasport model year. * Xxxxxx shall purchase and take delivery of and Aquasport
shall deliver 40 percent of the Product units Xxxxxx has forecasted to purchase
for such model year in its annual model year forecast. Aquasport's obligation to
deliver is subject to the following:
i. Aquasport receiving Xxxxxx' annual model year
forecast as set forth in paragraph 6 herein on or
before July 31 of each calendar year,
ii. Aquasport approving the monthly schedule of the
number and type of Aquasport Product units Xxxxxx
expects to order and take delivery of by January 15
as set forth in its annual model year forecast, and
iii. Xxxxxx submitting actual orders between August
1 and January 15 of such model year that do not
exceed the monthly schedule set forth in its annual
model year forecast by greater than 15 percent.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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Except where Xxxxxx xxx have caused a delay, Xxxxxx xxx cancel orders if Product
has not been delivered by Aquasport within 150 days of Aquasport's acceptance of
the order for such Product from Xxxxxx.
6. Forecasting. Xxxxxx shall provide Aquasport, on or before July 31 of
each calendar year, with a Xxxxxx model year forecast which describes (i) the
number and type of Aquasport Product units by month Xxxxxx expects to order and
take delivery between August 1 and January 15 of the upcoming Xxxxxx model year
starting August 1 and (ii) the number and type of Aquasport Product units Xxxxxx
expects to order and take delivery between January 16 and July 31 of the
upcoming Xxxxxx model year. In addition to the above annual model year forecast,
Xxxxxx will forecast its Aquasport Product requirements on a three (3) month
rolling basis, updated monthly. Xxxxxx shall submit the forecast to Aquasport by
the first day of each calendar month. Xxxxxx shall designate a Xxxxxx
representative with responsibility for forecasting Product purchases from
Aquasport. The forecasts shall be in a form mutually agreed to by the parties -
and shall include, at a minimum, a three-month projected schedule identifying
the number of Product units scheduled to be purchased by Xxxxxx by boat brand,
model, and engine brand, model and horsepower. The first-month forecast in the
monthly report shall reflect a firm order previously accepted by Aquasport. As a
firm order, the first-month forecast may not be changed and is noncancelable,
however, Aquasport reserves the right to not accept the portions of orders in
any one month that exceed 15 percent of the amounts forecast for that month in
the previous months' 3-month rolling forecast.
7. *
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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*
8. Product Modification. Xxxxxx shall meet with Aquasport management
and product engineers in August and January of each year, unless mutually waived
by the parties hereto, to provide input into changes for Aquasport Products for
the next model year. The August meeting shall primarily be to provide input on
the structure and design of the Products. The January meeting shall primarily be
to provide input on the features and accessories of the Products. Aquasport will
use its best efforts to incorporate the recommendations made by Xxxxxx taking
into account considerations such as cost, safety, warranty and standard design.
Aquasport reserves the right, without notice or obligation, to change the design
of the Products to the extent that such change does not materially alter the
operation of the Boat or to the extent that such change is required due to
product safety concerns, government regulations or vendor supply shortages.
Aquasport will provide Xxxxxx with as much notice as reasonably possible, but
not less than ninety (90) days prior notice of shipment of a Product design
change if such design change materially affects the appearance or operation of
the Product.
9. Warranty and Third Party Litigation. Aquasport makes no
representations or warranties as to its Products except as may be described in
-the Aquasport dealer agreement or Product materials. In the event legal action
is commenced against Aquasport and Xxxxxx related to
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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Aquasport Products, to the extent possible and if no conflict exists, Aquasport
and Xxxxxx shall reasonably agree in writing on the retention of common counsel
and sharing of legal expenses.
10. Term of the Agreement. The term of this Agreement and the dealer
agreement between the parties shall commence on the date of this Agreement, and
shall terminate on July 31, 2001.
11. Insurance. Each party to this Agreement shall maintain liability
insurance coverage and shall provide evidence of such coverage to the other
party upon such party's reasonable request.
12. Force Majeure. The parties will not be responsible for failure to
perform any part of this Agreement or for any delay in the performance of any
part of this Agreement, directly or indirectly resulting from or contributed to
by any foreign or domestic embargoes, seizures, acts of God, strikes, labor
disputes, vendor problems, insurrections, wars and/or continuance of war, or the
adoption or enactment of any law, ordinance, regulation, ruling or order
directly or indirectly interfering with production, delivery or other
contingencies beyond their control. This Section does not affect the payment
obligations of either party under this Agreement.
13. Assignment. Neither party shall assign or otherwise transfer this
Agreement, without the prior written consent of the other party, which consent
shall not be unreasonably withheld.
14. Confidentiality. Each party agrees that the specific terms and
conditions set forth in this Agreement shall be kept confidential and that
neither party hereto shall make any disclosure regarding this Agreement or its
terms except as may be required by law or with the consent of the other party.
In the event either party concludes that it is obligated by law to disclose the
terms of this Agreement, such party shall give the other party 3 business days
prior written notice before disclosure along with an explanation as to why such
disclosure is deemed necessary.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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15. Disputes. All disputes arising out of or in connection with this
Agreement shall be resolved by binding arbitration as set forth in Aquasport's
standard dealer agreement as mutually agreed upon and amended from time to time.
16. Severability. Each of the provisions contained in this Agreement
shall be severable, and the unenforceability of one shall not affect the
enforceability of any others or of the remainder of this Agreement.
17. Waiver. The failure of any party to enforce any condition or part
of this Agreement at any time shall not be construed as a waiver of that
condition or part, nor shall such party forfeit any rights to future enforcement
thereof. The parties waive presentment for payment, protest, and notice of
dishonor.
18. Headings. The headings and captions of the sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part hereof.
19. Counterparts. More than one counterpart of this Agreement may be
executed by the parties hereto, and each fully executed counterpart shall be
deemed an original.
20. Further Assurances. Each party will, at the reasonable request of
the other, execute and deliver to the other all such further instruments,
assignments, assurances and other documents as the other may request in
connection with the carrying out of this Agreement and the transactions
contemplated hereby.
21. Notices. All communications, notices and consents provided for
herein shall be in writing and be given in person or by means of telex, telecopy
or other wire transmission (with request for assurance of receipt in a manner
typical with respect to communications of that type) or by mail, and shall
become effective (x) on the delivery if given in person, (y) on the date of
transmission if sent
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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by telex, telecopy or other wire transmission (receipt confirmed), or (z) four
business days after being deposited in the mails, with proper postage for first
class registered or certified mail, prepaid.
Notices shall be addressed as follows:
If to Aquasport:
Wellcraft Marine Corp.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: President
Telephone: 000-000-0000
Telecopy: 000-000-0000
With copy to:
Genmar Holdings, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
If to Xxxxxx:
Xxxxxx Boats & Motors, Inc.
5000 Plaza on the Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: President
Telephone: 000-000-0000
Telecopy: 000-000-0000
Provided, however, that if either party shall have designed a different address
by notice to the other, then to the last address so designated.
22. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and no provision of this Agreement shall be deemed
to confer upon third parties any remedy, claim, liability, reimbursement, cause
of action or other right in excess of those existing without reference to this
Agreement.
*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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23. Amendments; Entire Agreement. This Agreement may not be amended,
supplemented or otherwise modified except by an instrument in writing signed by
each of the parties hereto. This Agreement contains the entire agreement of the
parties hereto with respect to the transactions covered hereby, superseding all
negotiations, prior discussions and preliminary agreements made prior to the
date hereof.
24. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Minnesota.
AQUASPORT, a division of XXXXXX BOATS & MOTORS, INC.
WELLCRAFT MARINE CORP.
By: /s/ Grant E Oppeguard By: /s/ Xxxx Xxxxxx
-------------------------- --------------------------------
Its: VP Its: President
------------------------- --------------------------------
Date: 10-7-98 Date: 10-8-98
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*Indicates confidential treatment requested. The redacted material has been
filed separately with the Commission.
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Exhibit A
Aquasport Master Dealer Agreement
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Aquasport Mercury Price ($)
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165 Striper *
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175 Osprey *
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200 Osprey *
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205 Osprey *
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215 Dual Console *
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215 Explorer *
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225 Explorer *
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225 Osprey *
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225 Explorer-twin *
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225 Osprey-twin *
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245 Explorer *
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245 Osprey *
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245 Explorer-twin *
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245 Osprey-twin *
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* Indicates Confidential Treatment requested. The redacted material has been
filed separately with the Commission.
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