SALES AND SERVICE AGREEMENT
THIS AGREEMENT made this 1st day of September, 1998 between Regal Marine
Industries Incorporated, doing business as Regal Boats, having its principal
place of business at 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as "Regal") and American Marine Recreation, Inc., doing business as
the Boattree with its principal place of business at 0000 00xx Xxxxx, Xxxxxxx,
Xxxxxxx 00000, being a corporation of the State of Delaware (hereinafter
referred to as "Dealer"), whereby in consideration of the mutual covenants
herein contained, it is agreed as follows:
1. Appointment of Dealer: Regal hereby appoints Dealer as its authorized
dealer for the retail sale, display and servicing of the following
Regal product(s) and repair parts (hereinafter "Products")*:
Product Dealer Regal
Sport Boat
Sport Cruiser
* Both parties are to initial the product descriptions to be included in
this Agreement.
The following geographic area (typically described by county) will be
the primary "Marketing Area" into which Dealer will promote, sell and
service Products (if not described, the Marketing Area is the area
local to Dealer) solely from the dealer location(s) contained in the
Marketing Area:
VOLUSIA AND FLAGLER COUNTIES
Regal agrees that it will not appoint another authorized dealer for the
retail or sale, display and service of the Products from a location
within the Marketing Area.
2. Location(s): Dealer shall sell at retail, display and service Products
only at the following locations(s) (designate if a sales only or service only
location):
FLORIDA WATERCRAFT (BOAT TREE-SUB DEALER) 000 XXXXX XXXXXXXX,
XXX XXXXXX, XX 00000
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Dealer agrees to not delete, change, or add locations nor sell from
additional location(s) without the prior written consent of Regal (which consent
shall not be unreasonably withheld), nor will Dealer sell Products
internationally or to others for the purpose of resale without the prior written
consent of Regal.
Regal may upon the giving of at least ninety (90) days prior written
notice, and provided a cure does not occur during that notice period, delete
from this Agreement any dealer location and commensurate portion of the
Marketing Area where Dealer has failed to meet the obligations, performance
standards, annual program commitment, terms, conditions, representations,
warranties and covenants applicable to that dealer location as more particularly
described in this Agreement.
3. Performance Standards: Regal, after consultation with Dealer, may
establish fair and reasonable standards of sales performance for the Dealer in
the Marketing Area Such standards are based on such factors as population, sales
potential, economic conditions in the Marketing Area, competition from other
marine dealerships in the area, and any special circumstances that may affect
the sale of Products or the Dealer. Regal may from time to time revise such
standards as conditions may require and Regal may update at least annually sales
performance under this Agreement. Initially the performance standards shall be
as follows:
Time Period Product Category Unit Commitment
4. Purchase Program Elections: Regal may establish purchase programs during
each Product model year of the Agreement term. The purchase program for the 1999
model year is as follows:
Initial your appropriate election (Interest Support or Profit Plus) for
each product category and your interest support rebate bonus election as
outlined in the 1999 programs.
Product Category Interest Support Profit Plus
Sport Boat (1700-2150)
Sport Boat (6.8-2660)
Sport Cruiser (2800-4060)
Interest Support Rebate Bonus:
I will stock the 322, 402 and 4060 models to receive the
interest rebate bonus.
I do not plan to stock each of the following models: 322,
402, and 4060.
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5. Dealer's Responsibilities: Dealer agrees to:
A. Devote its best efforts to aggressively promote, display,
advertise, sell and service Products solely from the dealer
location(s) within Dealer's Marketing Area in accordance with
the terms of the Agreement and all applicable federal, state
and local laws. Dealer will display at each dealer
location(s), a sign in good taste with Regal's current trade
designations, subject to approval by Regal.
B. Purchase and carry on hand at all times a sufficient
inventory of current Products to meet the reasonable demand
of potential customers within the Marketing Area. Dealer will
protect inventory of Product against weathering and damage
and maintain inventory in like new condition.
C. Maintain at each dealer location(s) (unless a sales
location only and then service is to be provided at another
authorized location) a service department which is staffed.,
trained and equipped to service Products; and to maintain at
the dealer location(s), parts and supplies to properly
service Products on a timely basis.
D. Promptly, courteously and professionally perform any and
all necessary rigging, installation and inspection services
prior to delivery of the Product to the purchaser, and
perform post-sale service, including warranty service, of all
Products brought to Dealer for service, in accordance with
Regal's then current warranty policies.
E. Furnish purchaser with Regal's limited warranty on new
Products and with information and training as to the safe and
proper operation and maintenance of Products.
F. Complete and mail Regal's warranty registration card
immediately upon delivery of the Products to the purchaser
and assist Regal in performing Product service and recall
campaigns. In the event Dealer fails to mail the card to
Regal, Dealer agrees to indemnify Regal against any
liability, loss or damage which Regal may sustain which is
proximately caused by such failure.
G. Maintain complete sales and service records and to report
to Regal on a regular basis the name and address of
purchasers of Products, to the extent required by Regal's
then current policies and/or federal, state and local laws.
H. Achieve sales performance in accordance with the standards
described in Section 3.
I. Take steps necessary to become factory authorized to
repair power units supplied on Products, including attending
service school attendance.
J. (1) Provide complete financial statements for the Dealer
at mutually agreeable intervals, but at least on an annual
basis, and (2) consent to full and open disclosure of
financial information concerning Dealer, between Regal and
any financial institution or a company which finances Dealers
inventory of Products.
K. Conduct business in a manner that preserves and enhances
the reputation Regal, the Products and Dealer for providing
quality products and services.
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L. Maintain an ability to purchase Product inventory pursuant
to flooring and/or self financing in an amount which is
sufficient to meet the Dealer obligations described in the
Agreement.
M. Use its best efforts to maintain a CSI rating, based upon
Regal's then current CSI program, sufficient in Regal's
reasonable judgment to maintain Regal's image in the market
place, which minimum standard shall be established from time
to time by Regal and shall initially be 85 percent.
N. Maintain a financial condition which is adequate to
satisfy and perform its obligations under this Agreement.
0. Not directly or indirectly itself, or allow anyone else
to, solicit, inventory, marker or sell, from any dealer
location described in Section 2, any product which is
competitive with the Products. Such competitive products
shall include but not be limited to those products described
on Exhibit A, but shall not include those products delineated
as noncompetitive that are also described on Exhibit A.
P. Allow the application of any rebates or account credits
owed to Dealer to and as an offset against any debts or
monies owed to Regal by Dealer, including but not limited to
losses or debts applicable to open Product accounts, unpaid
retail show space, and to any losses relating to Dealer
flooring or financing;
Q. Indemnify and hold harmless Regal and its affiliated
credit agencies from any and all claims or losses whatsoever
and as a result of Dealer's failure to meet its obligations
to Regal or Regal affiliated credit agencies.
6. Order: Dealer agrees to submit orders to Regal in a manner and
format prescribed from time to time by Regal and which are applicable
to Regal's domestic dealers. Any order which does not comply with
Regal's terms and conditions need not be filled by Regal. Any
additional or different terms submitted by Dealer will be void and of
no effect. All orders are subject to acceptance by Regal. Product
availability shall be allocated on a reasonable basis established by
Regal, provided that Regal reserves the right to limit Product orders
to those based upon the previous year Product purchases made by the
Dealer and Regal's other dealers.
7. Prices: The Products (including accessories and parts) sold to the
Dealer by Regal will be on the basis of price lists published by Regal
from time to time applicable to Regal's domestic dealers selling
comparable Products. Regal will have the right to revise the price
lists or applicable discounts on programs at any time. Regal shall
have no obligation to reimburse Dealer for any loss which Dealer may
sustain by reason of any change in price, program or discount. Terms
of payment will be as specified from time to time by Regal. Dealer
will pay Regal the lesser of 1.5% late charges per month on any past
due invoice, or the maximum permitted by state law. Regal may refuse
shipment for any credit reason, including Dealer's failure to pay for
a prior shipment. Dealer will reimburse Regal for all necessary costs
and reasonable attorneys fees in collecting past due accounts. Regal
retains a security interest and lien on all Products sold to Dealer
and all proceeds arising out of the sale of Products until Products
are paid for in full in cash. The Product prices charged to Dealer
will be the lowest price then charged to other domestic dealers who
purchase, under similar programs, comparable products for at least
equal quantities of products ordered and to be delivered in the same
period as the Dealer order, provided Regal may, in good faith. charge
lesser prices to other dealers to meet competitive offer or sales by
other
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manufacturers, new dealer pricing, for unusual and nonordinary
business circumstances, or for limited duration promotional programs.
8. Shipments: All shipments of Products will be made FOB Regal's
factory or distribution center 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, Dealer shall reimburse Regal for the
transportation of such Product. However, if Regal ships Products not
ordered by Dealer, and Regal cannot produce documentation to confirm
the order was placed by Dealer, Dealer will have the right to refuse
delivery. In such event, Regal will pay all costs incurred in
transportation of the Product. Shipments will be subject to Regal's
productions schedule and availability of transportation equipment. No
liability will be sustained by Regal by reason of its not filling any
order due to circumstances beyond its control such as, but not limited
to, labor disputes, natural disasters, accidents to machinery,
manufacturing delays, material shortages or regulations.
9. Risk of Loss: If Products ordered by Dealer are transported in
Regal's trucks, risk of loss shall pass to Dealer upon delivery to
Dealer. If Products are shipped by other means, risk of loss shall
pass to Dealer at the time the Products or parts are tendered to such
carrier. Regal will assist Dealer in the processing and collection of
any claims against the carrier
10. Payment - Claims: All sales to Dealer shall be paid for COD, by
cashier's check unless otherwise agreed between Regal and Dealer. All
claims for shortage or damages or unacceptable goods shall be made at
the time of arrival of the shipment. 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 Regal in full
for any and all taxes, duties. or other charges imposed by federal,
state, municipal or other governmental authority upon any purchase or
sale under Agreement.
11. Product Modification: Regal shall have the right to discontinue
the sale of Products or to modify the design and components of
Products at any time; provided, however, that Regal shall notify
Dealer prior to shipment of any major design changes with respect to
Products previously ordered by Dealer, in which event Dealer shall
have the right to cancel such order.
12. Product Warranty:
A. Regal will furnish through Dealer to first-use purchasers its then
current standard written limited warranty in effect at the time of delivery of
Product to Dealer. Dealer shall have no authority to and agrees not to make any
representations, verbally or in writing, relating to Regal's warranty other than
those made by Regal in its written warranty. Dealer agrees to provide the
Product's "Operation and Maintenance" manuals to the purchaser at time of
delivery, and make Regal warranty known to the purchaser, including all
disclaimer and limitations, and to have purchaser acknowledge receipt of
warranty by obtaining his signature on the Owner Registration and System
checklist form.
B. Dealer agrees to provide timely warranty service on all Product located
within Dealer's Marketing Area regardless of where the Product was originally
purchased, in accordance with Regal's current warranty service program. Dealer
agrees to make all claims for reimbursement under Regal's warranty service
program in the manner prescribed by Regal. Regal may revise its warranty service
program from time to
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time, providing Dealer with written notification of all revisions and those
revisions will supersede all previous programs.
C. Regal agrees to promptly approve and fully honor all
legitimate warranty claims on Product when made by purchaser
through Dealer in the manner prescribed by Regal. Regal
agrees to credit or reimburse Dealer for all approved
warranty service performed at dealership on behalf of Regal.
Regal shall respond to all properly submitted warranty claims
by Dealer within one month after receipt of such claims.
Regal agrees to pay or credit all accepted claims.
D. It is the selling dealer's (including Dealer)
responsibility to insure that the retail purchaser receive
the proper service on Product that is to be primarily used
outside of the selling dealer's Marketing Area. Product sold
and used outside of the "selling dealer's" Marketing Area and
into an area serviced by another Regal dealer, should then be
serviced by that closer dealer. It will be the responsibility
of the selling dealer to negotiate in advance of the sale, a
reasonable financial arrangement with the Regal dealer in
whose market area the boat will be primarily used to insure
that the customer receives the proper warranty and other
necessary service. Product sold into an area void of a Regal
dealer should then be serviced by the selling dealer and or
the selling dealer should seek approval from Regal to make
arrangements for service with a non-Regal dealer convenient
to the purchaser.
If the selling dealer fails to negotiate a mutually
acceptable financial arrangement with the servicing Regal
dealer, or fails to provide or make arrangements for adequate
service, the selling dealer shall be responsible for any
additional costs that may be incurred in providing warranty
service to the purchaser. In addition, such failure may be
cause for cancellation of the selling dealer's Sales and
Service Dealer Agreement.
13. Trademarks and Service Marks: Dealer acknowledges that Regal or its
affiliated companies are the exclusive owners of various trademarks, service
marks, trade designations and trade dress (collectively "Identification:) which
Regal uses in connection with Products and its business. Dealer is authorized to
use Identification in a manner acceptable to Regal within the Marketing Area
only in connection with the promotion and sale of Products and only until the
expiration or termination of this Agreement. Dealer will not use Identification
as the whole or any part of the name or title of Dealer's business. Dealer
acquires no proprietary rights to Identification and this authorization will
terminate simultaneously with the expiration or termination of this Agreement.
In the event of expiration or termination of this Agreement, Dealer shall
immediately discontinue use of Identification in any way whatsoever.
14. 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
or franchisee of Regal. Dealer shall not enter into any contract or commitment
in the name of or on behalf of Regal.
15. Term of Agreement - Termination:
A. This Agreement shall commence on the date of its execution by
Regal and Dealer and shall remain in effect until it is
terminated at the end of a Regal Product Model Year (which
currently ends at 11:59 p.m. on June 30th) by either Dealer
or Regal giving the other party at least twenty-four (24)
months prior written notice (which notice may be given for
any reason and does not require good cause, and which
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notice may be for shorter period under the circumstances more
particularly described in Section 16.C). Notwithstanding
anything to the contrary described in this paragraph, this
Agreement may be terminated earlier under any of the
circumstances described below and in this Agreement.
B. This Agreement may be terminated at any time by the mutual consent
of the parties.
C. Either party may, upon the giving of at least forty-five (45) days
written notice to the other (10 days for credit reasons or nonpayment of sums
due) stating the reasons therefore, terminate this Agreement for cause due to a
material breach or default of this Agreement and provided that such breach or
default has not been cured during such notice period. Such material breach or
default shall include but not be limited to where Dealer does not agree to or
meet the performance standards or the annual program commitment described in
Sections 3 and 4 reasonably established yearly by Regal. If the breach or
default is not subject to cure, this Agreement may be terminated immediately,
effective upon the giving of notice to the breaching or defaulting party.
D. This Agreement may be immediately terminated by either party upon
written notice to the other if any of the following occur: (1) the other party,
if a corporation, 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 to relief" within
the meaning of the United States Bankruptcy Code; (5) the other party applies to
a court for the appointment of a received for any assets or properties; or, (6)
the other party makes a fraudulent misrepresentation that is material to this
Agreement.
E. This Agreement may be terminated by Regal upon the giving of written
notice to Dealer if Dealer defaults on any obligation to third party financing
institution.
F. This Agreement may be terminated by Regal upon the giving of written
notice to Dealer if all of the following events occur: Xxxxxx X. Xxxx, Xx. is no
longer a director and the chief executive officer of the Dealer's parent, and he
no longer owns at least 10 percent of the issued and outstanding capital stock
of Dealer.
16. Conduct Upon Termination:
A. Upon termination of this Agreement, Dealer shall offer to sell to Regal,
at Dealer's purchase price (not including transportation or financing costs),
Dealer's entire stock of current, originally packaged and new condition Product,
and if such termination is of a Dealer location or locations the offer shall be
applicable to Product maintained at such location or locations. Regal shall have
the option, but no obligation, to accept such offer, which acceptance shall be
communicated to Dealer by Regal in writing within thirty (30) days after Dealer
notifies Regal of the Product and applicable purchase price of such Product
which is subject to such purchase option. Dealer will make Product available to
Regal immediately upon acceptance of offer. Regal will pay Dealer all net
amounts due within thirty (30) days of receipt of Product, and proof that
Product is being transferred to Regal with good and marketable title, free of
all liens and encumbrances. Both parties agree to
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a waiver of lost profit or consequential damages as a result of termination
of this Agreement.
B. After the termination of this Agreement for those non good
cause reasons described in Section 15.A., Regal will continue
to sell parts and accessories for Product sold by Dealer
(subject to the terms of sale herein set forth) for twelve
(12) months in order that Dealer may continue to service any
Products which Dealer may have sold to customers prior to
termination.
C. Upon receipt of a notice of termination provided under Section
15.A.
(1.) If notice is provided by Dealer, Regal may terminate
this Agreement upon the giving of at least ninety
(90) days prior written notice to Dealer.
(2.) If notice is provided by Regal, Dealer may terminate
this Agreement upon the giving of at least ninety
(90) days prior written notice to Regal.
17. Governing Law: The Agreement has been signed by Dealer on the date
reflected below, and shall become binding upon the date this Agreement
is subsequently executed by Regal at its headquarters in Florida,
U.S.A. This Agreement shall be construed and enforced in accordance
with the laws of the state of Florida.
18. Assignment: This Agreement may not be assigned or transferred by
Dealer without prior written consent of Regal. Any assignment of this
Agreement without such consent, shall, at Regal's option,
automatically terminate this Agreement.
19. Notices: Any written notice given pursuant to this Agreement shall be
either hand delivered, sent by facsimile or mailed by Registered or
Certified Mail, return receipt requested, to the party at the
respective principal place of business first above written. If time
periods or methods of notice included in this Agreement are not in
compliance with applicable state law, then such periods contained in
the applicable state law will apply. Such notice shall be deemed to be
given upon first receipt. A change of address may be given by such
notice.
20. Entire Agreement - Non Waiver - Separability: This Agreement contains
the entire agreement and replaces all prior agreements between the parties
(provided that each party shall remain obligated to pay to the other any monies
owed under the ordinary course of business under such prior agreements) and may
be amended or modified only by written instrument signed by Regal and Dealer,
Failure on the part of Regal or Dealer to enforce any term of this Agreement
shall not constitute a waiver thereof. Any provision of this Agreement which in
any way contravenes or is unenforceable under applicable law shall not apply and
shall be deemed separable and not to be a part of this Agreement without
affecting the validity of the remaining provisions.
21. Binding Arbitration: 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, any claim
for damages or rescission, a breach or 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
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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. ss.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
Orlando, Florida. Dealer consents to personal jurisdiction of such
court, including the federal and state courts located in the State of
Florida. 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 this
Agreement.
Except for sums owing to Regal, 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 bar to the institution of any
proceedings and a waiver and relinquishment of all such claims.
22. Fees: If arbitration is instituted and Dealer prevails in an amount
which exceeds Dealer's most recent written demand prior to decision,
then Dealer shall be reimbursed its reasonable legal fees and
arbitration costs by Regal; otherwise, Regal shall be reimbursed its
reasonable legal fees and arbitration costs by Dealer.
23. Miscellaneous: Except as expressly described to the contrary in this
Agreement, the rights and remedies of each party are not exclusive.
Dealer hereby agrees to maintain in confidence all of the terms and
conditions of this Agreement.
IN WITNESS WHEREOF, Regal and Dealer have executed this Agreement as of the date
first written above.
REGAL MARINE INDUSTRIES AMERICAN MARINE RECREATION, INC.
INCORPORATED (Dealer)
By:____________________________ By:_____________________________
(Signature) (Signature)
Name:__________________________ Name:___________________________
Date:_________________ Date:_________________
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Competitive Products
Following are examples of competitive product categories and
companies:
Sportboats in bow rider and cuddy cabin configurations.
Deck Boats Express cruisers and or mid cabin cruisers.
Donzi-except fish models Baja-except High Performance
Maxum-except Flybridge Xxxxxx Cobalt Cruisers Inc.-
except Flybridge Invader Excel Xxxxxx Wellcraft - except
Fish & High Performance Mainship - except Fly Bridge
Monterey Four Winns Penn Yan Powerquest Formula - except
High Performance Stingray Xxxxxx-except Fish models VIP
Baha Cruisers Bayliner - except fish models and Fly
Bridge Sea Ray Chaparral Crown line Doral Galaxie
Glastron Trojan Kal Kustom Xxxxxx Xxxxx Xxxxx
Sunbird-except Fish/Ski Outboards Power Play Xxxxxx
Silverton-except Flybridge Xxxxxxxx Sea Sprite
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Non Competitive Products
Following are examples of non-competitive product categories and companies:
Outboard Motor Boats, Fish N Ski Boats (Inboard Powered)
Offshore fishing boats: Pro-line, Mako, Xxxxx Xxxxx
Bass fishing boats: Ranger, Gambler
Aluminum boats: Smokercraft, Sylvan
House boats: Xxxxxx, Harbor Master
Inboard tournament ski boats: Tige', Mastercraft, Malibu
Personal watercraft: Sea Doo, Yamaha jet ski
High Performance: Cigarette, Fountain
Sailboats: Xxxxxx, Xxxxxxxx
Flats & bay fishing boats: Xxxxxxxx xxxxx, Key West
Motor Yachts: Hatteras, Navigator, Xxxxxx*
Trawlers: Grand Banks
Pontoon Boats: Playbuoy Pontoon
Hurrican Deck Boats
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