EXHIBIT 10.47
Confidential Treatment Requested.
Confidential portions of this document have been redacted
and have been filed separately with the Commission.
XXXXXX MASTER DEALER AGREEMENT
This master agreement, effective September 29, 1998, is by and between
Xxxxxx/Glastron Boats, Inc., a Delaware corporation ("Xxxxxx") and Xxxxxx Boats
& Motors, Inc., a Texas corporation ("Xxxxxx") (the "Agreement").
WHEREAS, Xxxxxx 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, or 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 Xxxxxx;
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. Xxxxxx shall manufacture and sell to Xxxxxx or
Xxxxxx Subs those various Products ordered from time to time by Xxxxxx or Xxxxxx
Subs pursuant to Xxxxxx'x 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 Xxxxxx Products shall
execute and be subject to Xxxxxx'x standard dealer agreement as mutually agreed
upon by the parties and as may be amended upon mutual
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* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
agreement of the parties. This Agreement shall supplement and amend each
individual standard dealer agreement executed at each Xxxxxx retail location
which sells Xxxxxx Products. To the maximum extent possible, this Agreement and
the standard dealer agreement shall be read and interpreted to be consistent
with each other. In the event there is a conflict between the dealer agreement
and this Agreement, the provisions of this Agreement shall control.
4. Pricing. During the term of this Agreement Xxxxxx shall sell Xxxxxx
Products to Xxxxxx at all times for *. For purposes of this Agreement, Xxxxxx
"model year" means the period commencing on July 1 of any calendar year through
June 30 of the following calendar year. Xxxxxx may increase or decrease prices
as follows:
x. Xxxxxx may increase prices each Xxxxxx model year and
Xxxxxx shall pay such increases in any Xxxxxx model year *:
i. *; or
ii. *; or
iii. *.
b. *
* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
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*.
c. Notwithstanding the above, during Xxxxxx model year 1999,
the pricing for Xxxxxx Products pre-rigged to receive Mercury engines shall be
as described on Exhibit A hereto.
5. Forecasting. Xxxxxx shall provide Xxxxxx, on or before July 31 of
each calendar year, with a Xxxxxx model year forecast which describes (i) the
number and type of Xxxxxx Product units by month Xxxxxx expects to order and
take delivery of between August 1 and January 15 of the upcoming Xxxxxx model
year starting on August 1 and (ii) the number and type of Xxxxxx Product units
Xxxxxx expects to order and take delivery of between January 16 and July 31 of
the upcoming Xxxxxx model year. In addition to the above annual model year
forecast, Xxxxxx will forecast its Xxxxxx Product requirements on a three (3)
month rolling basis, updated monthly. Xxxxxx shall submit the forecast to Xxxxxx
by the first day of each calendar month. Xxxxxx shall designate a Xxxxxx
representative with responsibility for forecasting Product purchases from
Xxxxxx. 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 each of the three months. The
first-month forecast in the monthly report shall reflect a firm order previously
accepted by Xxxxxx. As a firm order, the first-month forecast may not be changed
and is non-cancelable, however, Xxxxxx 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. Except
where Xxxxxx xxx have caused a delay, Xxxxxx xxx cancel orders if Product has
not been delivered by Xxxxxx within 150 days of Xxxxxx'x acceptance of an order
for such Product from Xxxxxx.
* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
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6. Timing of Purchases, Shipping and Delivery. Xxxxxx will use its best
efforts to ship then current Xxxxxx model year Products *. Between August 1 and
January 15 of each Xxxxxx model year, Xxxxxx shall purchase and take delivery of
and Xxxxxx shall deliver 40 percent of the Product units Xxxxxx has forecasted
to purchase for such Xxxxxx model year in its annual model year forecast.
Xxxxxx'x obligation to deliver is subject to the following:
x. Xxxxxx receiving Xxxxxx' annual model year
forecast as set forth in paragraph 5 herein on or before July
31 of each calendar year,
ii. Xxxxxx approving the monthly schedule of the
number and type of Xxxxxx 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.
Except where Xxxxxx xxx have caused a delay, Xxxxxx xxx cancel orders
if Product has not been delivered by Xxxxxx within 150 days of Xxxxxx'x
acceptance of the order for such Product from Xxxxxx.
7. Product Modification. Xxxxxx shall meet with Xxxxxx management and
product engineers in August and January of each year, unless mutually waived by
the parties hereto, to
* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
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provide input into changes for Xxxxxx 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. Xxxxxx will use its best efforts to
incorporate the recommendations made by Xxxxxx taking into account
considerations such as cost, safety, warranty and standard design.
Xxxxxx reserves the right, without notice or obligation, to change the
design of the Products to the extent that such change does not materially alter
the operation of the Products or to the extent that such change is required due
to product safety concerns, government regulations or vendor supply shortages.
Xxxxxx 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.
8. *
* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
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*.
9. Warranty. Xxxxxx makes no representations or warranties as to its
Products except as may be described in the Xxxxxx dealer agreement or Product
materials. In the event legal action is commenced against Xxxxxx and Xxxxxx
related to Xxxxxx Products, to the extent possible and if no conflict exists,
Xxxxxx 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
* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
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regarding this Agreement or its terms except as may be required by law or with
the consent of the other party. In the event either party concludes that it is
obligated by law to disclose the terms of this Agreement, such party shall give
the other party 3 business days prior written notice before disclosure along
with an explanation as to why such disclosure is deemed necessary.
15. Disputes. All disputes arising out of or in connection with this
Agreement shall be resolved by binding arbitration as set forth in Xxxxxx'x
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.
* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
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21. Notices. All communications, notices and consents provided for
herein shall be in writing and be given in person or by means of telex, telecopy
or other wire transmission (with request for assurance of receipt in a manner
typical with respect to communications of that type) or by mail, and shall
become effective (x) on the delivery if given in person, (y) on the date of
transmission if sent by telex, telecopy or other wire transmission (receipt
confirmed), or (z) four business days after being deposited in the mails, with
proper postage for first class registered or certified mail, prepaid.
Notices shall be addressed as follows:
If to Xxxxxx:
Xxxx Xxxxxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxx, Xxxxxxxxx 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 Lake, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: 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.
* INDICATES CONFIDENTIAL TREATMENT REQUESTED. THE REDACTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE COMMISSION.
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22. No Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto and no provision of this Agreement shall be deemed
to confer upon third parties any remedy, claim, liability, reimbursement, cause
of action or other right in excess of those existing without reference to this
Agreement.
23. Amendments; Entire Agreement. This Agreement may not be amended,
supplemented or otherwise modified except by an instrument in writing signed by
each of the parties hereto. This Agreement contains the entire agreement of the
parties hereto with respect to the transactions covered hereby, superseding all
negotiations, prior discussions and preliminary agreements made prior to the
date hereof.
24. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Minnesota.
XXXXXX/GLASTRON BOATS, INC. XXXXXX BOATS & MOTORS, INC.
By: /s/ Grant E. Oppeguard By: /s/ Xxxx Xxxxxx
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Its: Vice President 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
Xxxxxx Master Dealer Agreement
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Xxxxxx Mercury Price ($)
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Flyer 166 *
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SEI 186 *
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SEI 186 SF *
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SEI 206 *
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* Indicates Confidential Treatment Requested. The redacted material has been
filed separately with the Commission.
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