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.
HATTERAS
SALES AND SERVICE AGREEMENT
(Florida)
THIS AGREEMENT
made this 31 st 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 110 North Glenburnie Road, New Bern,
North Carolina and MarineMax Motor Yachts, LLC, doing business as
MarineMax, with its principal place of business at 18167 US North,
Suite 300, Clearwater, Florida 33764, 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
18167 US North, Suite 300, Clearwater, Florida 33764 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:
18167 US
Highway 19, Ste 499 Clearwater, FL
18025 US 19 North, Clearwater, FL (plus Service location)
2550 S Bayshore Dr #1, Coconut Grove, FL
490 Taylor Lane, Dania, FL (plus Service location)
Pier 66, 2301 SE 17 th St, Fort Lauderdale, FL
14070 McGregor Blvd, Fort Myers, FL (plus Service location)
31 Ocean Reef Dr #A-100, Key Largo, FL
3344 Lakeshore Blvd, Jacksonville, FL (plus Service location)
1146 6 th
Ave S, Naples, FL
7090 Placida Rd, Cape Haze, FL (plus Service location)
1601 Ken Thompson Parkway, Sarasota, FL (plus Service location)
2340 SW Palm City Road, Stuart, FL (plus Service location)
1485 Tamiami Trail South, Venice, FL (plus Service location)
139 Shore Court, North Palm Beach, FL
700 NE 79 th
Street, Miami, FL
700 S. Federal Highway, Pompano Beach, FL
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.
2
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.
3
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.
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
6
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
7
[****] —
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.
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 :
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