EXHIBIT 10.69
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Master Dealer Supply Agreement
TRACKER/TRAVIS MASTER DEALER AGREEMENT
THIS MASTER AGREEMENT, effective this ___ day of ___________, 2002, is by
and between TRACKER MARINE, L.L.C., a Missouri limited liability company
("Tracker Marine") and Travis Boats & Motors, Inc., a Texas corporation
("Travis") (the "Master Agreement").
WHEREAS, Tracker Marine is engaged in the manufacture of fishing and
recreational boats, trailers and accessories and the sale of certain
accompanying engines ("Product(s)") and desires to sell its Products to Travis,
or through or to certain of its subsidiaries and affiliated partnerships,
corporations and limited liability companies ("Travis Subs"); and
WHEREAS, Travis and Travis Subs are engaged in the sale of Products to the
retail public and desire to purchase various Products from Tracker Marine;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. Travis and Travis Subs. For purposes of this Master Agreement, the term
Travis, when used, shall be inclusive of Travis and all Travis Subs.
2. Sale of Product. Tracker Marine shall manufacture and sell to Travis or
Travis Subs those various Products ordered from time to time by Travis or Travis
Subs pursuant to this Master Agreement and Tracker Marine's standard dealer
agreement.
3. Dealer Agreements and Relationship to this Master Agreement. Each Travis
or Travis Sub retail location which purchases Tracker Marine Products shall
execute and be subject to Tracker Marine's standard dealer agreement in effect
from time to time, the Model Year 2002 form of which is attached hereto as
Exhibit A and the terms of which (including future Tracker Marine standard
dealer agreements) are incorporated herein by reference. This Master Agreement
shall supplement and amend each individual standard dealer agreement executed at
each Travis retail location which sells Tracker Marine Products. To the maximum
extent possible, this Master 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
Master Agreement, the provisions of this Master Agreement shall control.
Notwithstanding the above, Travis reserves the right to approve in writing any
changes to Exhibit A which have a material adverse impact on Travis. If the
changes are not approved by Travis, the provisions in Exhibit A will apply.
4. Term. The term of this Master Agreement shall be as follows: The Initial
Term shall commence March 1, 2002 and continue through July 31, 2003 (the
"Initial Term"). The term of this Master Agreement shall renew and continue from
model year to model year after the Initial Term unless either (i) Tracker Marine
shall fail to supply Product to Travis pursuant to the Purchase Commitment of
Section 6 on the terms of this Master Agreement ("Tracker Marine Failure"), or
(ii) Travis shall fail to purchase Product pursuant to the Purchase Commitment
of Section 6 on the terms of this Master Agreement ("Travis Failure") and, upon
the occurrence of either such failure, the other party gives notice more than
one hundred eighty (180) days before the subject model year, in which event the
term of this Master Agreement shall end as of the first day of the subject model
year following such notice. Extensions beyond the Initial Term are herein called
the "Extension Model Years".
(a) Neither a Tracker Marine Failure nor a Travis Failure shall give
rise to the right to terminate unless (i) the non-failing party shall give
the failing party written notice specifying the facts of failure (the
"Notice"), and (ii) the failing party shall fail to correct the specified
failure within ninety (90) days of receipt of the Notice.
5. Pricing of Product. Product shall be sold to Travis at the lowest price
(except freight allowance) in effect from time to time as Tracker Marine sells
Product to any dealer in the United States except for sales (a) to a dealer
purchasing a greater volume of Products from Tracker Marine than Travis, (b) to
affiliates or subsidiaries of Tracker Marine, (c) involving programs relating to
non-current model year Products, and (d) dealer demonstrator or marketing
programs. During the period commencing March 1, 2002 through July 31, 2002,
Product shall be sold to Travis at the prices set forth on Exhibit B.
In no event will the prices of Products in any Extension
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Model Year be greater than *______ per cent of prices of Products in the
immediately preceding model year. Notwithstanding the foregoing, in no event
will the prices of Products be increased within any model year during the
Initial Term or within any Extension Model Year.
All pricing of Products will be net and no other discounts, allowance,
rebates, co-op payments, interest assistance or other program or benefit will
apply.
Each year during the term of this Master Agreement, Travis and Tracker
Marine agree to meet reasonably in advance of each model year for the purpose of
reviewing requirements, specifications, anticipated pricing and forecasting for
the ensuing model year.
6. Purchase Commitment. Throughout the term of this Master Agreement,
Travis agrees to purchase, at a minimum, the following Product:
(a) During the period commencing March 1, 2002, through July 31, 2002,
Travis agrees to negotiate in good faith with Tracker Marine to purchase as
much of Travis' requirements for Product as is fair, practicable and
reasonable.
(b) During each model year (August 1 through the following July 31)
commencing August 1, 2002 and for each model year which commences during
the term of this Master Agreement, Travis agrees to purchase from Tracker
Marine the following Product:
(1) *_____ per cent of Travis' requirements for aluminum fishing
boats. All freshwater aluminum fishing boats shall be packaged with Mercury
brand outboard motors and with trailers. These boats shall bear the
"Fisher" trademark.
(2) *_____ per cent of Travis' requirements for aluminum utility/jon
and bay type boats together with Mercury brand outboard motors and trailers
on at least
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SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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*_____ per cent of such boats. These boats will bear the "Fisher" or other
Tracker Marine trademarks.
(3) *_____ per cent of Travis' requirements for fiberglass bass boats
and trailers and fish and ski boats and trailers, each with Mercury
outboard motors. These boats will bear the "ProCraft" trademark. Provided,
however, in computing the *_____ per cent purchase commitment of Travis set
forth in this section, the parties will disregard the purchases by Travis
of Ranger fiberglass bass and fish and ski boats.
(a) Tracker Marine reserves the right to approve all locations
for ProCraft Product and dealerships.
(b) Travis agrees that in all locations where ProCraft Product is
made available, along with "Ranger" brand boats, those locations shall
display a complete ProCraft model line which shall be prominent and
shall be a fair display of ProCraft Products vis-a-vis competitive
products.
(4) At least *_____ per cent of Travis' requirements in the Initial
Term,*_____ per cent of Travis' requirements in the model year August 1,
2003 through July 31, 2004 and *_____ per cent of Travis' requirements in
each Extension Model Year thereafter for pontoon and aluminum deck boats,
each with Mercury outboard motors and trailers. These boats will bear the
"Fisher" trademark.
(5) Travis and Tracker Marine agree to continue to negotiate in good
faith with the object for Travis to purchase "Astro" sport boats, "Mako"
saltwater boats and "Kenner" brand bay boats as may be reasonably required
by Travis.
(6) Tracker Marine reserves the right to approve all locations for
Fisher Product and dealerships.
7. Forecasting. Travis shall provide Tracker Marine, on or before July 31st
of each calendar year, with a Travis model year forecast which describes (i) the
number and type of Product units by month Travis expects to order and take
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SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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delivery of between August 1 and January 31 of the upcoming Travis model year
starting on August 1; and (ii) the number and type of Product units Travis
expects to order and take delivery of between January 31 and July 31 of the
upcoming Travis model year (the "Annual Model Year Forecast"). In addition to
the Annual Model Year Forecast, Travis will forecast its Product requirements on
a three-month rolling basis, updated monthly. Travis shall submit the
three-month forecast to Tracker Marine by the first day of each calendar month.
Travis shall designate a Travis representative with responsibility for
forecasting Product purchases from Tracker Marine. The three-month 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 Travis by boat brand, model, and engine
brand, model and horsepower each of the three (3) months. The first-month
forecast as set forth in the three-month forecast shall reflect a firm order
previously accepted by Tracker Marine. As a firm order, the first-month forecast
may not be changed and is non-cancelable, however, Tracker Marine reserves the
right to not accept the portions of orders in any one month that exceed
*___________ percent *(___%) of the amounts forecasted for that month in the
previous months' three-month rolling forecast. Except where Travis may have
caused a delay, Travis may cancel orders if Product has not been delivered by
Tracker Marine within ninety (90) days of Tracker Marine's acceptance of an
order for such Product from Travis.
8. Timing of Purchases, Shipping and Delivery: Tracker Marine will use its
best efforts to ship then current Tracker Marine model year Products when
forecasted. Between August 1 and January 31 of each Travis model year, Travis
shall purchase and take delivery of and Tracker Marine shall deliver *________
percent (*____%) of the Product units Travis has forecasted to purchase for such
Travis model year in its Annual Model Year Forecast. Tracker Marine's obligation
to deliver is subject to the following:
i. Tracker Marine receiving Travis' Annual Model Year Forecast on or
before July 31 of each calendar year;
ii. Tracker Marine approving the monthly schedule setting forth the
number and type of Tracker Marine product units Travis expects to order and
take delivery
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SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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of by January 31st as set forth in its Annual Model Year Forecast; and
iii. Travis submitting actual orders between August 1 and January 31st
of such model year that do not exceed in any one month *__________ percent
(*____%) of the amounts forecasted for that month in the previous months'
three- month rolling forecast.
Except where Travis may have caused a delay, Travis may cancel orders if
Product has not been delivered by Tracker Marine within ninety (90) days of
Tracker Marine's acceptance of the order for such Product from Travis.
9. Freight. Tracker Marine agrees to deliver Products to Travis or Travis
Subs as directed by Travis, freight borne by Tracker Marine. Shipments shall be
by full and not partial loads. All Product will be shipped only on Tracker
Marine transporters and no "will calls" are permitted. Travis' Winchester,
Tennessee and Hendersonville, Tennessee locations may pick up single units at
the Murfreesboro, Tennessee factory location with no freight discount.
10. Terms. Payment shall be made pursuant to floorplan arrangements
acceptable to Tracker Marine.
11. Marketing Assistance. Entirely at the discretion of Tracker Marine and
with no legal obligation or financial commitment by Tracker Marine to do so,
Tracker Marine will use reasonable efforts to assist Travis with marketing
advice with respect to product literature, in-store merchandising of Tracker
Marine products, brochure production and fishing team boat discounts according
to Tracker Marine program guidelines and tournament trail support.
12. Product Modification/Tracker Marine Brand. Travis shall meet with
Tracker Marine management and product engineers at least twice each model year
to provide input into changes for Tracker Marine Products for the next model
year. The first meeting shall primarily be to provide input on the structure and
design of the Products. The second meeting shall primarily be to
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SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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provide input on the features and accessories of the Products. Tracker Marine
will use its best efforts to incorporate the recommendations made by Travis
taking into account considerations such as cost, safety, warranty and standard
design.
Tracker Marine 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. Tracker Marine will provide Travis 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
operations of the Product. If Tracker Marine has materially increased the price
or materially changed the design of any model, Travis may add to or subtract
from previous orders for that model.
Except as specifically set forth in this Master Agreement, nothing in this
Master Agreement shall be construed to involve any "Tracker" brand products or
Tracker Marine or Nitro boat brand dealerships.
13. Warranty. Tracker Marine makes no representations or warranties as to
its Products except as may be described in the Tracker Marine standard dealer
agreement or Product materials.
14. Insurance. Each party to this Master Agreement shall maintain liability
insurance coverage and shall provide evidence of such coverage to the other
party upon such party's reasonable request. Limits of insurance will be at least
$*_____________ per occurrence and $*_____________ in the aggregate.
15. Force Majeure. The parties will not be responsible for failure to
perform any part of this Master Agreement or for any delay in the performance of
any part of this Master 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
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED
WITH RESPECT TO THE OMITTED PORTIONS.
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Section does not affect the payment obligations of either party under this
Master Agreement.
16. Assignment. Neither party shall assign or otherwise transfer this
Master Agreement, without the prior written consent of the other party, which
consent shall not be unreasonably withheld. Nothing in this Master Agreement
shall be construed to restrict assignment within each of the parties'
subsidiaries and affiliates.
17. Confidentiality. Each party agrees that the specific terms and
conditions set forth in this Master Agreement shall be kept confidential and
that neither party hereto shall make any disclosure regarding this Master
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 Master Agreement, such party shall give the other
party three (3) business days prior written notice before disclosure along with
an explanation as to why such disclosure is deemed necessary.
18. Severability. Each of the provisions contained in this Master Agreement
shall be severable, and the unenforceability of one shall not affect the
enforceability of any others or of the remainder of this Master Agreement.
19. Waiver. The failure of any party to enforce any condition or part of
this Master 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.
20. Headings. The headings and captions of the sections and subsections of
this Master Agreement are inserted for convenience only and shall not be deemed
to constitute a part hereof.
21. Counterparts. More than one counterpart of this Master Agreement may be
executed by the parties hereto, and each fully executed counterpart shall be
deemed an original.
22. 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 Master Agreement and the transactions
contemplated hereby.
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23. 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 (4) business days after being deposited in the mails,
with proper postage for first class registered or certified mail, prepaid.
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Notices shall be addressed as follows:
If to Tracker Marine:
Tracker Marine, L.L.C.
2500 East Kearney
Springfield, Missouri 65803
Attention: Mr. Ken Burroughs
Telephone: (417) 873-5900
Facsimile: (417) 873-5052
With copy to:
Greene & Curtis, L.L.P.
1340 East Woodhurst
Springfield, Missouri 65804
Attention: Chris Greene, Esq.
Telephone: (417) 883-7678
Facsimile: (417) 883-4317
If to Travis:
Travis Boats & Motors, Inc.
5000 Plaza on the Lake, Suite 250
Austin, Texas 78746
Attention: President
Telephone: (512) 347-8787
Facsimile: (512) 329-0480
provided, however, that if either party shall have designed a different address
by notice to the other, then to the last address so designated.
24. No Third Party Beneficiaries. This Master Agreement is solely for the
benefit of the parties hereto and no provision of this Master 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 Master Agreement.
25. Amendments; Entire Agreement. This Master Agreement may not be amended,
supplemented or otherwise modified except by an instrument in writing signed by
each of the parties hereto. This Master 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.
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26. Governing Law. This Master Agreement shall be construed and enforced in
accordance with and governed by the internal laws of the State of Missouri.
TRACKER MARINE, L.L.C., a Missouri
Limited Liability Company
By: THREE JOHNS COMPANY, a Missouri
Corporation, Its Sole Member
By______________________________
TRAVIS BOATS & MOTORS, INC.,
a Texas Corporation
By______________________________
Its_____________________________
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EXHIBIT A
Tracker Marine Standard Dealer Agreement
TRACKER BOATS
DEALER AGREEMENTS
COMPANY POLICIES AND PROGRAMS
INDEX
I. TRACKER BOATS DEALER AGREEMENT
II. TRACKER BOATS SIGN AGREEMENT (IF APPLICABLE)
III. ACKNOWLEDGMENT BY TRACKER BOATS DEALER
IV. STATE ADDENDUM (IF APPLICABLE)
V. TERRITORY ADDENDUM (IF APPLICABLE)
VI. TERM ADDENDUM (IF APPLICABLE)
2002
TRACKER BOATS
DEALER AGREEMENT
No. LOCATION
DEALERSHIP GRANTED TO
E-1
TRACKER BOATS
DEALER AGREEMENT
THIS TRACKER BOATS DEALER AGREEMENT (hereinafter "Agreement") is entered into
this 1st day of August, 2001, by and between TRACKER MARINE, L.L.C.., d/b/a/
TRACKER BOATS, a Missouri limited liability company, 2500 E. Kearney,
Springfield, Missouri 65803 (hereinafter "TRACKER BOATS" or "Company") and
(Dealer's Exact Legal Name)
doing business as
with a principal place of business at
being a (check one) [ ]sole proprietorship [ ]corporation
[ ]partnership [ ]limited liability company
[ ]limited partnership [ ]or limited liability partnership
of the State of (hereinafter "Dealer"). If Dealer is any type of partnership
listed above, list all partners and indicate whether the partner is a general or
limited partner _______________________________________________________________
_______________________________________________________________________________
WHEREAS, Dealer desires to purchase the Company's Products, (as hereinafter more
fully defined) for retail sale to the consuming public; and WHEREAS, Company
desires to sell such Products to Dealer: NOW, THEREFORE, in consideration of the
mutual covenants contained in this Agreement, Company and Dealer hereby agree as
follows:
ARTICLE 1: DEFINITIONS
As used in this Agreement the following terms shall have the respective
meanings set forth below:
1.1 "Dealer" shall mean a TRACKER BOATS Dealer who is entitled to purchase
the TRACKER BOATS Product Line(s) specified in Article 2.6, and who, subject to
certain requirements, is entitled to participate in the various Dealer Programs
which Company may from time to time offer to Dealer.
1.2 "Dealer Program(s)" shall mean the various programs for the sale of the
TRACKER BOATS Product Line(s) specified in Article 2.6 which Company shall from
time to time offer to Dealers, which may include, among other things, volume
discounts, rebates, delivery schedules, retail financing, wholesale financing,
credit life insurance, extended warranty service plans and advertising
opportunities as detailed in the annual Dealer Manual and supplemental Company
bulletins.
1.3 "Product(s) or Product Line(s)" shall mean the various models of boats,
outboard motors, trailers, and marine accessories in the TRACKER BOATS Product
Line specified in Article 2.6 which Company may, from time to time, make
available for purchase by Dealer. Company may add to, change or delete from its
Product Lines without prior written notice.
ARTICLE 2: GRANT OF DEALERSHIP
2.1 Subject to the conditions of this Agreement, Dealer is hereby granted
the non-exclusive right to establish, operate, and maintain one (1) TRACKER
BOATS Dealership which shall at all times be located at
(and at no other address) for purchase of Products covered hereby for resale to
the consuming public. Dealer shall not move the location of the dealer-ship
without the prior written consent of Company. Dealer agrees that this Agreement
is non-exclusive, that the Company shall have the right to appoint other dealers
in the area served by the Dealer and that no exclusive or protected sales
territory for the Dealer is agreed to or shall be implied by any pro-gram
offered by Company or any course of dealing between Company and Dealer. Company
shall at ure to supply any of all Products ordered by Dealer pursuant to this
Agreement. TRACKER BOATS reserves the right in its sole discretion to limit
distribution of its Products and allocate Products depending upon the
availability of the Products.
2.2 In fulfilling orders placed by Dealer, Company reserves the right to
arrange the Product makeup of loads of Product so as to more efficiently utilize
Company's shipping equipment.
2.3 Company reserves the right to change, modify or cancel any or all of
the Dealer Programs, which it may from time to time offer and add or delete
Dealer Programs.
2.4 The terms and conditions of all Dealer Programs shall become a part of
this Agreement as if fully set forth herein.
2.5 Dealer agrees to provide confidential treatment to price lists,
discount schedules, customer lists and other similar information provided to
Dealer by Company which Dealer acknowledges constitute trade secrets or
confidential information belonging to Company. Dealer shall return all such
infor-mation to Company immediately upon termination of this Agreement for any
reason, and thereafter shall refrain from using or disclosing such information.
2.6 The grant of dealership is limited to the Product Line(s) indicated
below and TRAILSTAR(TM) brand boat trailers.
Circle One Initials
Dealer Company
a) TRACKER(R) NITRO(R) Yes/No TRACKER Purchase Standard ______ units __________ ________________
NITRO Purchase Standard ______ units __________ ________________
b) MYACHT(R) Yes/No Purchase Standard ______ units __________ ________________
c) TAHOE(TM) Yes/No Purchase Standard ______ units __________ ________________
The Purchase Standard(s) are minimums for purchases of 2002 models of the
Product Line(s)' boat packages during the 2002 model year and do not include
utility or non-package boats. For the purposes of this Agreement, the TRACKER
(R) Product Line shall be understood to include BASS TRACKER (R) , SUN TRACKER
(R) and TRACKER (R) branded boats. Dealer agrees and acknowledges that it is
authorized to act as a TRACKER BOATS dealer only in the specific Product
Line(s) set forth in this Article 2.6 and no other. Dealer further agrees that
the failure of Dealer to achieve the minimum annual Purchase Standard for a
Product Line will constitute good cause for termination or non-renewal of that
Product Line or of the entire Agreement by Company.
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2.7 Dealer agrees that the minimum annual Purchase Standard(s) in Article
2.6 are obtainable and not in excess of what a reasonable business person in the
area served by Dealer normally would purchase by way of a starting inventory
and/or to maintain an existing inventory.
ARTICLE 3: PRICE AND PAYMENT
3.1 Company shall invoice Dealer for all Products delivered to Dealer at
prices applicable to the Dealer Program in which the Dealer is participating
at the time of acceptance by Company of Dealer's orders, which Company shall,
from time to time, establish and publish.
3.2 Company reserves the right to change the price and terms of Products
covered by this Agreement from time to time without prior notice to Dealer.
3.3 Company reserves the right to reject any order submitted by Dealer.
Orders which are accepted will be accepted at Company's home office in
Springfield, Missouri. Unless an order is specifically accepted by Company in
writing, it shall be deemed rejected.
3.4 All shipments from Company shall be made F.O.B. from one of Company's
facilities located in Nixa, Missouri; Ozark, Missouri; Bolivar, Missouri;
Lebanon, Missouri; Clinton, Missouri; Springfield, Missouri; or such other
facility which Company may from time to time establish or designate, and orders
shall be subject to Company's then current standard terms and conditions of
sales.
3.5 When shipped by Company vehicle, title to Products sold pursuant to
this Agreement shall be deemed vested in Dealer when actually delivered to the
Dealer. When shipped by means other than by Company vehicle, title to Products
sold pursuant to this Agreement shall be deemed vested in Dealer upon delivery
thereof by Company to the carrier for shipment to the Dealer or upon
commencement of shipment by the Company to the Dealer. After the vesting of
title in Dealer, all risks of loss on Products shall be that of the Dealer, it
being provided, however, that Company reserves all rights to stop transit and to
repossess goods notwithstanding delivery to the carrier, until full payment of
the purchase price is made by the Dealer therefor. Company shall have a
security interest in Products sold to Dealer until full payment is received.
3.6 In order for Company to correctly forecast production and shipping
needs concerning Product, Dealer agrees to furnish information concerning
Dealer's sales of Products to Company on a periodic basis.
3.7 Dealer agrees to pay Company a late payment charge which is the lesser
of 1.5% per month or the maximum interest rate permitted by applicable state
law on any past due amount payable to Company. Company may refuse shipment of
Product for any credit reason. Dealer will reimburse Company for all necessary
attorney fees and other costs incurred by Company in collecting past due amounts
from Dealer. Dealer agrees that any rebates, co-op advertising payments or other
amounts owed to Dealer and any expenses or losses suffered by Company due to
Dealer defaults related to Dealer's Product inventory financing may be applied
to balances in the Dealer's warranty/parts open account with Company.
3.8 In the event Company must repurchase any of Dealer's Product inventory
due to repurchase obligations owed by Company to an entity financing Dealer's
Product inventory under a Dealer Program, Dealer agrees to pay Company for any
missing parts or components and for the repair of any damaged Product inventory
repurchased. Company, at its option, may setoff any or all of such amounts due
from Dealer against any credit balance in Dealer's warranty/parts open account
with Company or against any other amount of money due to the Dealer.
3.9 In the event that Company determines in its sole discretion that Dealer
is a credit risk, Dealer agrees that it will immediately execute upon demand by
Company the Company's form Security Agreement and necessary UCC-1 Financing
Statements granting Company a security interest in any and all of Dealer's
assets including, but not limited to, inventory, equipment, real estate and bank
accounts.
3.10 At any time if the Company determines in its sole discretion that any
portion or all of Dealer's inventory of Products (whether current or non-
current model year) being financed under a Dealer Program is in disrepair, is
suffering from a lack of maintenance, is not in a new condition, is missing
parts and/or has been used, then the Dealer agrees it will make curtailment
payments on the affected inventory upon demand by Company according to the
current curtailment payment schedule in the Dealer Program.
ARTICLE 4: TERM AND TERMINATION
4.1 This Agreement shall commence on August 1, 2001 and SHALL EXPIRE by its
terms (without any notice) at 11:59 p.m. Midnight, on the 31st day of July,
2002, unless earlier terminated as herein provided. There is NO RIGHT to RENEW
or EXTEND this Agreement.
4.2 Either party to this Agreement may terminate this Agreement with or
without cause at any time upon 90 days' written notice to the other party.
4.3 Dealer shall have no claim for damages or expenses incurred by Dealer
pursuant to this Agreement or otherwise against Company as a result of such
termination. Dealer shall immediately notify Company of the occurrence of any of
the following events, which Company may regard as a material breach of this
Agreement and upon giving of notice to Dealer, Company may immediately terminate
this Agreement: a) Dealer defaults in the payment of any obligations owing to
the Company; b) Dealer sells or makes an attempted sale or other disposition of
any Products purchased under this Agreement, on which any part of the purchase
price is unpaid, other than in the ordinary course of retail trade; c) Dealer
sells or makes an attempted sale in bulk of all or a major portion of its
inventory purchased from the Company; d) Dealer becomes insolvent or takes or
fails to take any action which constitutes an admission of inability to pay its
debts as they mature; e) Dealer makes a general assignment for the benefit of
creditors or to an agent authorized to liq-uidate any substantial amounts of its
assets; f) Dealer becomes the subject of an "order for relief" within the
meaning of the United States Bankruptcy Code; g) Dealer files a petition in
bankruptcy, or for reorganization or to affect a plan or other arrangement with
creditors; h) Dealer files an answer to a creditor's petition admitting the
material allegations thereof, for an "order for relief" or for reorganization or
to affect a plan or other arrangement with creditors; i) Dealer applies to a
court for appointment of a receiver for any assets or properties or has a
receiver appointed for any assets or properties, with or without consent, and
such receiver shall not be discharged within 30 days after his appointment; j)
Dealer adopts a plan of liquidation; k) Dealer, if a corporation, limited
liability company, partnership, limited partnership or limited liability
partnership, ceases to exist; l) The death or incapacity of the Dealer, if the
Dealer is a sole proprietorship; m) Failure of the Dealer to abide by the
standards or guidelines concerning use of the Company name or Marks as specified
in Article 11 hereof; n) Dealer makes a material negligent or fraudulent
misrepresentation to Company in Dealer's application to become an authorized
TRACKER BOATS dealership, in this Agreement or in the performance of this
Agreement; o) The Dealer or one of Dealer's princi-pal officers, directors,
management, partners or members is convicted, pleads guilty, pleads nolo
contendere, enters an Alford plea or otherwise admits to criminal charges
involving fraud, theft, illegal drugs or any crime of moral turpitude which in
the sole opinion of the Company will adversely affect the business reputation of
Dealer and/or the Company; p) Dealer moves or is attempting to move the location
of its dealership set out in Article 2.1 without the prior written consent of
Company; q) Dealer's sales and service agreement with the motor company
supplying motors for the Product Line(s)' boat packages is terminated or not
renewed by the Dealer or the motor company; r) Failure of the Dealer to abide by
any material term or condition of this Agreement or failure to make any required
performance within the time specified herein.
4.4 Termination by either party hereto shall not relieve Dealer of any
continuing obligation undertaken pursuant to this Agreement, including, but, not
limited to, duty to pay for Products delivered by Company, and the duty to use
or cease using Company's names and Marks as hereinafter provided.
4.5 In the event this Agreement is not renewed or terminated, Company will
have the right, but not the obligation, to repurchase all or any por-tion of
Dealer's stock of undamaged, new and unused condition boats, boat packages and
trailers purchased by Dealer from Company under this Agreement as of the
effective date of nonrenewal or termination. The repurchase price shall be the
original net invoice price paid by the Dealer less any rebates, discounts and
freight charges as well as any debts owed by Dealer to Company. The freight
charges required to carry out the repurchase will be the responsibility of the
Company. Company shall pay Dealer all net amounts due under this Article 4.5
within thirty (30) days of receipt of Product, free and clear of all liens and
encumbrances.
E-3
ARTICLE 5: PRODUCT MODIFICATION AND PREPARATION
5.1 Company reserves and shall have the right to change or alter the design
of all Products covered by this Agreement as well as to discontinue or limit the
manufacture of any Product at any time without notice to the Dealer, and such
events shall not entitle Dealer to seek any damages, reimbursement, or
compensation therefor.
5.2 Dealer agrees to not alter or change the design of the Products, make
any structural changes in or to the Products or change any cosmetic features of
the Products except as required in the normal course of providing maintenance
and repair services.
5.3 Dealer agrees that it will not remove, alter or deface the primary hull
identification number and/or the duplicate hull identification number on any
boats manufactured by Company.
5.4 Dealer agrees to comply with all of Company's specifications, which
Company may from time to time publish, regarding rigging and Product preparation
performed by Dealer on Company's Products.
ARTICLE 6: DIRECT SALES BY COMPANY/FOREIGN SALES BY DEALER
6.1 Dealer recognizes and understands that the Company reserves the right
to sell, lease or loan any of the Products covered by this Agreement to any
person, including but not limited to any consumer, customer or potential
customer of Dealer, either directly, indirectly, or in participation with any
other person, and Dealer further recognizes and agrees that no commission or
other compensation will be allowed or paid to Dealer on any such transactions.
The Company may provide special programs benefitting Dealer for sales made by
the Company or by others but such programs are terminable at the will of the
Company and Dealer shall have no vested rights with respect thereto.
6.2 Dealer agrees that it will not sell Product to agents, distributors,
retailers or customers outside of the United States for the purpose of resale to
the ultimate consumer in a foreign nation.
ARTICLE 7: OPERATING REQUIREMENTS
7.1 Dealer agrees to provide adequate facilities for the resale and timely
service of the Products covered by this Agreement so as to maintain and promote
the high degree of customer acceptance presently enjoyed by Company's Products,
names and Marks. In providing service for the Products, Dealer agrees it will
not discriminate against customers that did not buy their Product from Dealer.
7.2 Dealer shall at all times provide sufficient working capital, Product
inventory financing, credit and funds to enable it to properly fulfill all of
Dealer's responsibilities and duties under this Agreement. Dealer will, when
requested by Company, furnish to Company, upon forms furnished by Company, full,
accurate, complete and detailed financial and operating statements. Dealer
consents to full and open disclosure of financial information concerning Dealer,
between Company and the entities which finance Dealer's inventory of Product.
7.3 Dealer agrees to keep an accurate record of the names and addresses of
all purchasers of Company Products, and at all times make such record available
to Company. In the event of termination of this Agreement, the Dealer shall
furnish a complete copy thereof to Company.
7.4 Dealer shall furnish to the Company, upon request, estimates of its
future sales of Products. Such estimates shall be for information purposes only
and will not be binding on either the Dealer or Company.
7.5 Dealer agrees to maintain sufficient inventory, to meet the sales needs
of Dealer as well as the minimum annual Purchase Standard(s) established in
Article 2.6.
7.6 Dealer agrees to protect its inventory of Product against weathering
and damage and to maintain its inventory of Product in a new and unused
condition.
7.7 Dealer agrees to maintain at all times a valid sales and service
agreement with the motor company supplying motors for the Product Line(s)' boat
packages.
7.8 Dealer shall be signed up for TracNet according to the Dealer Program.
ARTICLE 8: SIGNS
8.1 The Company may from time to time offer the Dealer signs advertising
the Company and the Products. Dealer agrees to abide by the terms of sale
imposed by the Company at the time of sale of such signs and acknowledges the
applicability of the restrictions on the use of such signs and the Company marks
as set forth in Article 11 of this Agreement.
ARTICLE 9: WARRANTY
9.1 Dealer shall offer for sale Products covered by this Agreement only on
the basis of Company's published limited warranties and Dealer shall have no
authority to and shall not make any representations relating to Company's
warranties other than those therein made. COMPANY MAKES NO WARRANTY, EXPRESSED
OR IMPLIED, AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY
PRODUCTS OR GOODS SOLD PURSUANT TO THIS AGREEMENT.
9.2 Company shall furnish to Dealer and Dealer shall provide to each
purchaser of a new Product prior to time of sale all applicable Product oper-
ation and/or maintenance manuals and shall alert the purchaser to any written
limited warranties made by the Company and component suppliers. Dealer shall
also inform the purchaser if the Product sold is not new or if the Product has
been damaged. Dealer shall also inform the purchaser if the Product is sold to
the Dealer at a reduced price due to cosmetic deficiencies and notify the
purchaser of such cosmetic deficiencies.
9.3 Dealer agrees to enter the correct warranty registration information
via TracNet or complete, have the purchaser sign and then mail Company's
warranty registration card back to Company immediately upon delivery of
warranted Product to a purchaser and to reasonably assist Company in per-forming
Product defect and recall campaigns. In the event Dealer fails to complete, have
executed and/or return the Company's warranty registration card or enter the
correct warranty registration information via TracNet, Dealer agrees to
indemnify Company against any liability, loss, damage or expense (including
attorney's fees) which Company may sustain as a result of said failure.
9.4 The Company may in its sole discretion, prospectively change or
eliminate at any time its warranties which are extended on Products sold under
this Agreement.
9.5 Dealer hereby assumes sole responsibility for its workmanship in the
predelivery inspection, adjustment, rigging and preparation of Products made by
or under the direction of the Dealer, and in the maintenance or repair of
Products sold to Dealer under this Agreement or delivered to Dealer by an owner.
9.6 Dealer agrees to abide by Company service and warranty programs,
policies and procedures as established by the Company from time to time. Dealer
shall maintain a complete service shop and shall perform warranty service for
owners of the Products which qualify for service under the provi-sions of the
limited warranties issued by the Company and component suppliers. All warranty
service shall be performed by Dealer in a good and workmanlike manner and in
accordance with such recommendations, specifications and instructions relating
thereto as may be furnished to Dealer by Company and component suppliers. For
such warranty service approved by the Company, Company will reimburse Dealer for
labor performed in repair
E-4
or replacement of any defective part or parts at the current published warranty
labor rate. Dealer shall follow Company's instructions in returning to the
factory any of the Company's Products, accessories or parts which are defective.
Dealer will receive, investigate and handle all complaints received from owners
of the Products with a view of securing and maintaining the goodwill of the
public toward Dealer, the Company and the Products. Dealer agrees to provide
prompt, courteous and efficient service and warranty work on all Product,
whether or not purchased from the Dealer. All complaints received by Dealer
which cannot be readily remedied and/or cannot be remedied within 30 days of the
Dealer's receipt of the Product, shall be promptly reported in detail to
Company. Dealer will prepare, keep up to date and retain for a minimum of two
(2) years records in support of applications for payment for warranty repairs.
Dealer will permit any employees or designated representative of Company to
make, at any reasonable time during regular business hours, examinations and
audits, and to reproduce and to take copies of any of the accounts and records
required to be kept and maintained by Dealer.
ARTICLE 10: GENERAL PROVISIONS
10.1 This Agreement is made and entered into and is to be substantially
performed in Greene County, Missouri, and shall be governed by the laws of the
State of Missouri. The Dealer consents to the exclusive jurisdiction and venue
of the state or federal courts in Greene County, Missouri, for any lawsuit
arising from this Agreement, and hereby waives any objections Dealer may have to
the jurisdiction and venue of the lawsuit.IF A DISPUTE ARISES OUT OF OR RELATES
TO THIS AGREEMENT, OR THE BREACH THEREOF, AND IF THE DISPUTE CANNOT BE SETTLED
THROUGH NEGOTIATION, THE PARTIES AGREE FIRST TO TRY IN GOOD FAITH TO SETTLE EACH
DISPUTE BY MEDIATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER
ITS COMMERCIAL MEDIATION RULES BEFORE RESORTING TO LITIGATION. The mediation
shall occur at a mutually agreeable location in the State in which the Dealer is
located. The mediation process shall be initiated by the complaining party
sending to the other party a "Notice of Intent to Sue" (hereinafter "Notice").
The Notice shall state the subject of the claim or dispute, the names and
addresses of three proposed neutral mediators sanctioned by recognized dispute
resolution organizations and proposed dates for the mediation. The parties shall
each be responsible for payment of one-half of the mediator's fee. The mediation
proceedings shall be regarded as settlement negotiations and thus no admission,
representation, statement or other communication made by the parties, their
representatives or the mediator in setting up or conducting the mediation shall
be admissible as evidence or subject to discovery unless otherwise discoverable
or obtainable. In the event that a mutually agreeable mediation cannot be
scheduled with-in 45 days of the receiving party's receipt of the Notice, then
the complaining party may proceed with a lawsuit. In the event a complaining
party breaches this Agreement by filing a lawsuit without having first pursued
mediation according to this Article 10.1 then the other party shall be entitled
to a recov-ery of all its attorney fees, expenses and costs involved in
enforcing the mediation provisions of this Article 10.1 and/or the complaining
party shall be responsible for payment of all the mediator's fee involved in any
subsequent mediation of the lawsuit.Notwithstanding the above, a complaining
party will not be in breach of the mediation provisions of this Article 10.1 if
it serves a Notice contemporaneously with initial lawsuit pleadings seeking
imme-diate temporary injunctive relief.
10.2 This Agreement and those documents incorporated by reference
constitute the entire agreement between the parties concerning the dealer- ship
granted in Article 2.1 and Dealer acknowledges that neither the Company nor
anyone on behalf of the Company have made any representations inconsistent with
this Agreement, that this Agreement supersedes all previous TRACKER BOATS Dealer
Agreements concerning the dealership, whether written or oral, between the
parties, and that this Agreement may not be modified or any provision hereof
waived, unless agreed to by both parties in writing (except as provided in
Articles 2.4, 3.2, 3.4, 5.3, 6.1, 9.6 and 11.1).
10.3 Any notice required to be given pursuant to this Agreement by either
party shall be made at the address first written above for each party and shall
be deemed sufficient and complete upon hand delivery (including, without
limitation, delivery by a receipted overnight courier service) or deposit in the
Mail, Postage Prepaid, by either certified or registered mail to the other party
at such address, or to such party or other address as may be designated in
writing.
10.4 This Agreement shall be binding upon the parties hereto and their
respective heirs, administrators, executors, successors and permitted assigns,
as may be applicable, but shall not be assignable in whole or in part by the
Dealer without the prior written consent of Company.
10.5 Dealer represents and warrants by the making of the Agreement that
Dealer is authorized to carry on the business described herein. Dealer further
represents and warrants that it currently possesses any and all permits or
licenses required to do business, and any required active registration for
retailer's occupancy tax for the sale of Products at retail and will pay any
required tax thereon. Dealer further represents that all Products purchased by
Dealer hereunder will be purchased only for retail sale by Dealer to the public.
10.6 Under no circumstances shall the Dealer, its agents, representatives
or employees, be deemed to be the agent, employee or representative of Company.
Dealer shall not enter into any contract or commitment in the name or on behalf
of Company or attempt to bind Company or represent or hold itself out as agent,
employee or representative of Company in any respect whatsoever. Dealer shall in
all signs, advertising, promotions, letterhead, and other documents bearing
Dealer's name or marks, take care to advise the reader, viewer and/or listener
that Dealer is an independent business and is separate and distinct from the
Company. The relationship hereunder shall be deemed to be that of buyer and
seller, with Dealer purchasing Products at wholesale for resale at retail under
the provisions hereof but for Dealer's own account.
10.7 In the event of litigation or legal proceedings (other than the
mandatory mediation set out in Article 10.1) to interpret or enforce the terms
of this Agreement by either Dealer or Company, the prevailing party in such
proceedings submitted to a judge, jury or arbiter for decision shall be
enti-tled to recover from the non-prevailing party reasonable attorneys' fees,
costs and expenses.
10.8 Any provision of this Agreement which in any way contravenes or in
unenforceable under the law shall be deemed separable and not a part of this
Agreement, and such provision shall not effect the validity of the remaining
provisions hereof.
10.9 If the performance of this Agreement or any obligation hereunder is
prevented, restricted or interfered with by reason of fire or other casual-ty or
accident, acts of God, severe weather conditions, year 2000 computer software or
hardware failure, strikes or labor disputes, war or other violence, any law,
order, proclamation, regulation, ordinance, demand or requirement of any
governmental agency, or any other act or condition whatsoever beyond the
reasonable control of the parties hereto ("Force Majeure"), the party whose
performance is so affected, upon giving prompt notice to the other party, shall
be temporarily excused from such performance. In the event such Force Majeure
condition continues for ninety (90) days, then, the party whose performance is
not affected by such condition may, at its option and without liability to the
other party, terminate this Agreement effective immediately upon written notice
to the other party. Notwithstanding the above, should this Agreement be
terminated due to a Force Majeure condi- tion, in no event will Dealer be
excused from paying Company for Product delivered to Dealer.
10.10 This Agreement may be supplemented by a State Addendum, Territory
Addendum and/or a Term Addendum. The terms of said State Addendum, Territory
Addendum and/or Term Addendum are incorporated herein by reference and though
set forth fully herein, and in the event of con-flict between the Agreement and
the State Addendum, Territory Addendum and/or Term Addendum the provisions of
the said Addendums shall control.
ARTICLE 11: USE OF NAME, TRADEMARK AND SERVICE MARKS
11.1 Dealer acknowledges that the Company is the owner or licensee of such
trade names, trademarks and service marks as Company now, or in the future, uses
(hereinafter collectively referred to as "Marks"), and that during the term of
this Agreement, Dealer shall be entitled to use the Marks only in connection
with the advertisement of the Products and identification of Dealer's status as
an independent dealer selling the Products, which use shall be strictly in
accordance with the policies and standards established from time to time by the
Company for the protection, goodwill and customer
E-5
acceptance of the Company's Products, names and Marks. Dealer understands and
agrees that the only Marks that it is authorized to use under this Agreement are
those Marks associated with the Product Line(s) indicated in Article 2.6 and
that under no circumstances is Dealer authorized under this Agreement to use the
marks TRACKER (R) , TRACKER MARINE (R) or TRACKER MARINE, L.L.C. unless the
TRACKER (R) Product Line has been indicated in Article 2.6.
11.2 Company retains the right to compel discontinuance by Dealer of any
authorized or unauthorized use of the Company name or Marks at any time.
11.3 The Dealer shall not display the Company's name or Marks on any
Products not purchased from Company, nor shall Dealer use the name or the Marks
of the Company as part of Dealer's name, trademark, service mark or other
designation, or utilize the name or Marks of the Company in such a manner as to
indicate that the Dealer is other than an independent contractor, as
distinguished from an employee or agent of the Company.
11.4 The Dealer shall not use the Marks or any confusingly similar names as
a domain name or as a meta- tag on the Internet.
11.5 Upon termination or non-renewal of this Agreement for any reason,
Dealer shall immediately discontinue use of all names and Marks of the Company,
shall remove all signs and other advertising material in and about the Dealer's
place of business which refer to or identify the Dealer as a Dealer of the
Company's Products and/or services, whether such signs and advertising material
were acquired at the Dealer's expense or otherwise, and Dealer shall comply with
all requirements of any TRACKER BOATS Sign Agreement which agreement is
incorporated herein for all purposes by this reference.
11.6 Dealer recognizes that the Company reserves the right to enter onto
the premises of the Dealer at all reasonable times in order to inspect the
nature and quality of the products being offered under or in connection with the
Company names or Marks.
IN WITNESS WHEREOF, the parties have caused this Agreement to be entered into as
of the date and year first above written.
THIS AGREEMENT CONTAINS A MEDIATION PROVISION WHICH MAY BE ENFORCED BY THE
PARTIES.
DATE: __________________________ DEALER ____________________________________
DEALER NUMBER___________________ BY: _______________________________________
TITLE: ____________________________________
ACCEPTED in Springfield, Missouri COMPANY: TRACKER MARINE, L.L.C.
A Missouri Limited Liability Company
BY: THREE JOHNS COMPANY,
Its Sole Member
DATE:___________________________ By:________________________________________
PERSONAL GUARANTEE
I (we) the undersigned, do hereby unconditionally guarantee the obligations,
financial and otherwise, of the Dealer as described in the foregoing TRACKER
BOATS Dealer Agreement, and it is agreed that the Company shall not be obligated
to proceed first against the Dealer, but may proceed directly against the
undersigned guarantors in order to enforce any provision of the foregoing
Agreement. The undersigned guarantors hereby accept all terms and con-ditions of
the TRACKER BOATS Dealer Agreement and hereby severally waive presentment for
payment, protest, notice of protest, non-payment, or dishonor, and agree that
the Agreement may be extended, modified or terminated without notice to
guarantors, and such action shall in no event release guarantors from the duty
to guarantee all obligations of the Dealer as set forth herein. The guarantors
consent to the exclusive jurisdiction and venue of the state or federal courts
in Greene County, Missouri, for any lawsuit arising under this Agreement or
Personal Guarantee and hereby waive any objections they may have as to
jurisdiction and venue.
GUARANTOR _______________________________ GUARANTOR ___________________________
GUARANTOR _______________________________ GUARANTOR ___________________________
E-6
TRACKER
boats
STATE ADDENDUM TO
DEALER AGREEMENT
(TEXAS)
This State Addendum to Dealer Agreement (State Addendum) is made this the 1st
day of August, 2001 between TRACKER MARINE, L.L.C. d/b/a. TRACKER BOATS
(Company) and __________________________________________________________________
________________________________________________________________________________
______________________________________, Texas (Dealer) and is made and entered
into concurrently with the execution of a 2002 model year TRACKER BOATS Dealer
Agreement between Company and Dealer (the Dealer Agreement).
In consideration of the mutual covenants herein contained as well as other good
and valuable con-sideration, the receipt of which is hereby acknowledged,
Company and Dealer agree as follows:
1. Construction: This State Addendum is part of the Dealer Agreement. In the
event of conflict between the State Addendum and the Dealer Agreement, the
terms, provisions and conditions of this State Addendum shall prevail.
Except as specifically changed by this State Addendum, the terms,
provisions and conditions of the Dealer Agreement shall be in full force
and effect. All terms of this State Addendum shall have the meaning defined
and used in the Dealer Agreement.
2. Location: The Dealer location is described in Article 2.1 of the Dealer
Agreement.
3. Capital, etc.: The Dealer shall maintain such capital, funds, credit,
inventory, facility, equipment and tools so as to fairly and completely
perform its function of sales and service as is provided in the Dealer
Agreement.
4. Termination and Non-Renewal: The Agreement may not be terminated by Company
unless: (i) Company has given Dealer written notice in clear concise terms,
(ii) the notice sets forth reasons for the termination of the Agreement,
(iii) the Dealer has been given thirty (30) days within which to exert good
faith efforts to cure the causes listed in the notice and (iv) there is
good cause for termination. Good cause shall consist of, among other
things, (i) the failure to achieve the minimum annual Purchase Standard(s),
(ii) material breach of any provision of the Dealer Agreement (iii) a
continuing condition of Force Majeure. Notwithstanding the fore-going,
inasmuch as the original term of this Agreement is one year, good cause is
not required for Company to refuse to renew the term of the Agreement. The
Agreement can be immediately terminated by Company upon written notice if
any of the events described in Article 4.3 of the Dealer Agreement occur or
if any event occurs which is described in Texas Revised Civil Statutes,
Art. 8911, Sec. 3(e).
5. Successor Dealer: In the event Dealer is an individual, the following is
designated as a successor dealer in the event of the death or disability of
Dealer:
Name:
Address:
Appointment of a successor dealer is subject to the conditions and requirements
of Section 8 of this State Addendum.
6. Preparation: The Dealer is obligated to provide the ordinary preparation of
the Product upon delivery to Dealer.
7. Warranty Service: The Dealer is obligated to provide the warranty service
described in Article 9 of the Dealer Agreement. Dealer will be fairly
compensated for work and services required to perform and other expenses
incurred by Dealer to comply with the warranty issued by Company. Company
shall pay a labor rate for warranty work equal to that charged by Dealer to
its customers for non-warranty work of the same kind by similar
technicians.
8. Sale, Transfer, etc.: Notwithstanding any contrary terms of the Dealer
Agreement, Company will not unreasonably withhold approval of any sale,
transfer or passage of title of a Dealer, or designation of a successor
dealer provided that Dealer (a) shall not owe Company any money or
otherwise be obligated, directly or contingently to Company, (b) shall be
in compliance in all material respects with the Dealer Agreement and this
State Addendum, (c) shall submit to Company more than ninety (90) days in
advance of the transfer full financial information and business history of
the proposed transferee and provided further that the proposed transferee
(i) meets the criteria generally applied by Company for appointment of
dealers in similar situations, (ii) is of good and sound financial
condition, (ii) is experienced in the business, (iv) possesses a dealer
agreement with the outboard motor manufacturer supplying outboard motors to
Company for inclusion in the Product, (v) is of good moral character and
enjoys good community standing and respect, and (vi) agrees to become a
party to all of the terms and conditions of Companys standard dealer
agreements.
9. Repurchase of Inventory and Parts: Upon termination of the Dealer Agreement
by Company, Company shall, upon written demand by Dealer within thirty (30)
days of termination by Company, repurchase the new, unsold, retailable,
undamaged and complete boats (with accessories and packaged trailers sold
with boats by the Company) or outboard motors purchased within one year of
termination from the Company as well as new, current, unsold, undamaged and
unused parts or accessories for boats, trailers or outboard motors, in the
original resalable merchandising package and purchased by Dealer from
Company, all at Dealers invoiced cost, less allowances paid to Dealer. In
addition, Company will reimburse the cost incurred by Dealer, if any, to
transport the repurchased items to Company. At the time of demand, Dealer
will provide Company with a complete and detailed list of all items
proposed to be repurchased and the Company will have a reasonable time to
complete the repurchase. Company shall have no duty to repurchase property
hereunder unless it is free and clear of all liens and encumbrances and
Dealer can deliver good and clear title to the property to be repurchased.
IN WITNESS WHEREOF, the parties have hereunto set their hands the day and date
first above written.
TRACKER MARINE, L.P.
By: Three Johns Company
Its: Sole Member
By _________________________________________________
(Print Dealer Name)
__________________________________________________
(Dealer Signature)
__________________________________________________
(Guarantor Signature)
__________________________________________________
(Guarantor Signature)
TRACKER
boats
TEXAS
ACKNOWLEDGMENT OF TRACKER BOATS POLICY, PRINCIPLES
AND RULES BY TRACKER BOATS DEALER
Date: August 1, 2001
----------------------
The Dealer acknowledges having been informed of the following principles,
policies and rules of TRACKER BOATS ("TRACKER") in the appointment of dealers:
1. Except for the President or the Vice President of Sales, each officer,
employee and representa-tive of TRACKER is absolutely and expressly
prohibited by TRACKER from making any alter-ations, additions, deletions,
amendments or changes, orally or in writing, to any of the printed
provisions of the TRACKER Dealer Agreement.
2. Except for the President or Vice President of Sales via a form TRACKER
Territory Addendum with a TRACKER Loyal (as defined in Territory Addendum)
dealer, each officer, employee and representative of TRACKER is absolutely
and expressly prohibited from making any oral or written agreement,
warranty or representation to any dealer which is contrary to the following
principles and policies:
(a) Dealer is not granted any protected or exclusive sales territory.
(b) TRACKER has the absolute right to appoint one or more dealers in any
sales area, whether or not there are existing TRACKER dealers in the
same sales area.
(c) TRACKER itself, its affiliates and its subsidiaries reserve the
absolute right to establish their own company-owned and operated
dealerships in any sales area, including in sales areas served by
dealers operating under TRACKER Dealer Agreements and includ-ing the
sales area served by the Dealer.
The Dealer hereby acknowledges and agrees that no officer, employee or
representative of TRACKER has made any agreement, warranty or representation,
orally or in writing, contrary to the policies, principles and rules set forth
in this document.
_______________________________________
(Print Dealer Name)
_______________________________________
(Dealer Signature)
_______________________________________
(Guarantor Signature)
_______________________________________
(Guarantor Signature)
Subscribed and sworn to before me this ______ day of ______________________
20_____.
__________________________________ My Commission expires: ____________________
Notary Public
EXHIBIT B
Tracker Marine/Travis Boats Pricing Guide
PROCraft
- --------
Boats
2002 Dealer Manual
========================================================================================================================
Travis - Fiberglass Bass Boats Effective July 16, 2001
========================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------
Model Engine Dir. Net Model Engine Dir. Net
- ------------------------------------------------------------------------------------------------------------------------
Pro 165 50 ELPTO * 170 Combo 75 ELPTO *
50 ELPT 4-STR EFI * 75 ELPT 4-STR *
75 ELPTO * 90 ELPTO *
75 ELPT 4-STR * 90 ELPT 4-STR *
90 ELPTO * 115 ELPTO *
- ------------------------------------------------ 115 EFI 4-STR *
Pro 175 75 ELPTO * ------------------------------------------------
75 ELPT 4-STR * 125 ELPTO *
90 ELPTO * ------------------------------------------------
90 ELPT 4-STR * 180 Combo 115 ELPTO *
115 ELPTO * 115 EFI 4S *
115 EFI 4-STR * 125 ELPTO *
125 ELPTO * 135 Optimax *
- ------------------------------------------------ 150 XR6 *
DC Upgrade * 150 EFI *
- ------------------------------------------------ 150 Optimax *
Pro 185 115 ELPTO * 175 EFI *
115 EFI 4S * 175 Optimax *
125 ELPTO * 200 XR6 *
135 Optimax * 200 EFI *
150 XR6 * 200 Optimax *
150 EFI * ------------------------------------------------
150 Optimax * 200 Combo 150 XR6 *
175 EFI * 150 EFI *
175 Optimax * 150 Optimax *
- ------------------------------------------------ 175 EFI *
DC Upgrade 200 XR6 *
- ------------------------------------------------ 200 EFI *
Pro 205 150 XR6 * 200 Optimax *
150 EFI * ------------------------------------------------
150 Optimax * 215 Combo 150 XR6 *
175 EFI * 150 EFI *
175 Optimax * 150 Optimax *
200 XR6 * 175 EFI *
200 EFI * 175 Optimax *
200 Optimax * 200 XR6 *
225 EFI * 200 EFI *
225 Optimax * 200 Optimax *
- ------------------------------------------------ 225 EFI *
DC Upgrade * 225 Optimax *
- ------------------------------------------------ ------------------------------------------------
- ------------------------------------------------
Model Engine Dir. Net
- ------------------------------------------------
Super Pro 190 150 XR6 *
150 EFI *
150 Optimax *
175 EFI *
175 Optimax *
- ------------------------------------------------
DC Upgrade *
- ------------------------------------------------
Super Pro 200 150 XR6 *
150 EFI *
150 Optimax *
175 EFI *
175 Optimax *
200 XR6 *
200 EFI *
200 Optimax *
- ------------------------------------------------
DC Upgrade *
- ------------------------------------------------
Super Pro 210 200 EFI *
200 Optimax *
225 EFI *
225 Optimax *
250 XB *
- ------------------------------------------------
DC Upgrade *
- ------------------------------------------------
Prices Are Net Prices, No Rebates, Discounts or Co-Op Allowances Apply.
Prices and specifications subject to change without notice.
All prices are stated in USD.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
PROCRAFT 2002 OPTION LIST - TRAVIS
165P 175P 185P 205P 190SP 200SP 210SP 170FS 180FS 200FS 215FS
& DC & DC & DC & DC & DC & DC
---------------------------------------------------------------------------------
1 Full Flake Bottom N/A N/A N/A N/A * * * N/A N/A N/A *
2 Rod Organizer N/A * * * * * * N/A N/A N/A N/A
3 Quick Draw Rod Organizer N/A N/A N/A N/A N/A * * N/A N/A N/A N/A
BATTERY/CHARGER
4 Battery Maintenance System N/A * * * * * * N/A N/A N/A N/A
5 Trolling Motor Battery * * * * * * * * * * *
6 Dual Pro 3-bank Charger N/A N/A * * * * * N/A * * *
7 Dual Pro 10-2 Charger w/A.C.
Plug * * * * * STD STD * * * STD
8 Motorguide 2-bank Charger * * * * * * * * * * *
9 Motorguide 3-bank Charger N/A N/A * * * * * N/A * * *
TROLLING MOTOR/MOUNT
10 Motorguide 543 12V HC
Trolling Motor (exch) * * N/A N/A N/A N/A N/A * N/A N/A N/A
11 Motorguide 567 12/24V
HCTrolling Motor (exch) N/A * * * * * * N/A * * *
12 Motorguide 667 HCBM
Trolling Motor (exch) N/A N/A N/A N/A * * * N/A N/A N/A N/A
13 Motorguide 680V HCBM
Trolling Motor (exch) N/A N/A N/A N/A * * * N/A N/A N/A N/A
14 Motorguide TE 782 V 45
(exch) N/A N/A * * * * * N/A N/A N/A *
15 Motorguide TE 7109
V 45 (exch) N/A N/A * * * * * N/A N/A N/A N/A
16 Motorguide TE 782
VP 45 (exch) N/A N/A * * * * * N/A N/A N/A N/A
17 Motorguide TE 7109
VP 45 (exch) N/A N/A * * * * * N/A N/A N/A N/A
18 Motorguide TE 7109
V 50 (exch) N/A N/A * * * * * N/A N/A N/A N/A
19 Motorguide TE 109
50" HCTM (exch) N/A N/A N/A N/A * * * N/A N/A N/A N/A
20 Detachable Trolling
Motor Bracket (exch) N/A N/A N/A N/A N/A N/A N/A STD STD STD STD
21 Recessed Flat Foot Pedal
(Installed) N/A N/A N/A N/A * * * N/A N/A N/A N/A
22 XP6000 45" 12/24V
w/Gator Mount (exch) N/A * STD STD STD STD STD N/A * STD STD
SPECIAL PACKAGES
23 Bill Dance Tournament
Package N/A STD N/A N/A N/A N/A N/A N/A N/A N/A N/A
-Deluxe Paint Scheme
& Bill Dance Decal
-Guest 2 X 5 Charger
-Additional Aerator
Pump
-XP6000 12/24V
Trolling Motor
24-A 185/205 Tournament
Package N/A N/A * * N/A N/A N/A N/A N/A N/A N/A
-Foot Throttle w/Pro Trim
-6" Manual Jack Plate
-Dual Pro 10-2 Battery
Charger
-Water Pressure Guage
24-B 185/205 Jack Plate Package N/A N/A * STD N/A N/A N/A N/A N/A N/A N/A
-6" Manual Jack Plate
-Water Pressure Guage
STEERING
25 Single Anti-Feedback
Steering STD STD N/A N/A N/A N/A N/A STD N/A N/A N/A
26 Dual Anti-Feedback
Steering N/A * STD STD N/A N/A N/A * STD STD N/A
27 Mechanical/Tilt Steering N/A * * * STD N/A N/A * * * N/A
28 Hydraulic / Tilt Steering N/A N/A * * * STD STD N/A * * STD
ELECTRONICS
29 Lowrance X 65 (Dealer
Installed Console) N/A N/A * * * * * N/A N/A N/A N/A
30 Lowrance X 85 (Dealer
Installed Console) N/A N/A * * * * * N/A N/A N/A N/A
31 Lowrance X 65 (Dealer
Installed Bow) N/A N/A * * * * * * * * *
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
32 Lowrance X 85 (Dealer
Installed Bow) N/A N/A * * * * * * * * *
33 Lowrance LMS 160 Map
(Dealer Installed
Consol N/A N/A * * * * * N/A N/A N/A N/A
34 Lowrance 15 CG Console N/A N/A * * * * * N/A N/A N/A N/A
35 Lowrance 15 CT Console N/A N/A * * * * * N/A N/A N/A N/A
36 Lowrance 15 CT Bow N/A N/A * * * * * N/A N/A N/A N/A
37 Lowrance 15 MG Console N/A N/A * * * * * N/A N/A N/A N/A
38 Lowrance 15 MT Console N/A N/A * * * * * N/A N/A N/A N/A
39 Lowrance 15 MT Bow N/A N/A * * * * * N/A N/A N/A N/A
40 Lowrance 16 CG Console N/A N/A * * * * * N/A N/A N/A N/A
41 Lowrance 16 CI Console N/A N/A * * * * * N/A N/A N/A N/A
42 Lowrance 16 CI Bow N/A N/A * * * * * N/A N/A N/A N/A
43 Pinpoint 7320 N/A N/A * * * * * N/A N/A N/A N/A
44 Pinpoint 7420 N/A N/A * * * * * N/A N/A N/A N/A
45 Pinpoint 7520 N/A N/A * * * * * N/A N/A N/A N/A
46 Humminbird In-Dash Digital N/A N/A N/A N/A N/A N/A N/A N/A STD STD N/A
47 Humminbird Pro View (Dealer
Installed Console STD STD * * * * * N/A N/A N/A N/A
48 Humminbird Pro View (Dealer
Installed Bow) N/A N/A * * * * * N/A N/A N/A N/A
49 Zercom LPG2000 (Dealer
Installed Console) N/A N/A * * * * * N/A N/A N/A N/A
50 Zercom LPG2000 (Dealer
Installed Bow) N/A N/A * * * * * N/A N/A N/A N/A
51 Zercom Z160 (Dealer
Installed Console) N/A N/A * * * * * N/A N/A N/A N/A
52 Zercom Z160 (Dealer
Installed Bow) N/A N/A * * * * * N/A * * *
CANVAS
53 Convertable Top w/Hatch
Flap N/A N/A N/A N/A N/A N/A N/A * STD STD STD
54 Side & Aft Curtains
(dealer installed) N/A N/A N/A N/A N/A N/A N/A * * * *
55 Bimini Top (exchange) N/A N/A N/A N/A N/A N/A N/A N/A * * *
56 Bimini Top (option) N/A N/A N/A N/A N/A N/A N/A * N/A N/A N/A
57 Mooring Cover (through
DOWCO) Dowco Dowco Dowco Dowco Dowco Dowco Dowco Dowco Dowco Dowco Dowco
58 Color-matched Cover
(through DOWCO) Dowco Dowco Dowco Dowco Dowco Dowco Dowco Dowco Dowco Dowco Dowco
PERFORMANCE
59 Stainless Steel Prop
(exchange) * * STD STD STD STD STD * STD STD STD
60 Foot Throttle Pkg w/
"Pro Trim" (V-6 only) N/A N/A * * * * * N/A * * *
61 Hydraulic Jack Plate - 10" N/A N/A N/A N/A * * * N/A N/A N/A N/A
UPHOLSTERY/MISCELLANEOUS
62 Bike Seat and Pole
(exchange) N/C N/C N/C N/C N/C N/C N/C N/A N/A N/A N/A
63 Bike Seat and Hydraulic
Pole (exchange) * * * * * * * N/A N/A N/A N/A
64 Fishing Chair and Pole
(exchange) N/A N/A * * * * * N/A N/A N/A N/A
65 Fishing Chair and Hydraulic
Pole (exchange) N/A N/A * * * * * N/A N/A N/A N/A
66 Hydraulic Pro Pole
(exchange) N/A N/A * * * * * N/A N/A N/A N/A
67 Hydraulic Fishing Pedestal
(exchange) * * * * * * * * * * *
68 Bow Cushion (set of 2) N/A N/A N/A N/A N/A N/A N/A STD STD N/A N/A
69 Loc-r-Bar * * * * * * * N/A N/A N/A N/A
70 Tournament Ruler N/A N/A N/A N/A * * * N/A N/A N/A N/A
71 Ski Tow Bar N/A N/A N/A N/A N/A N/A N/A * STD STD STD
72 Front Deck Extension N/A N/A N/A N/A N/A N/A N/A * * * STD
73 Keel Guard by Tech 5 * * * * * * * * * * *
74 CD Player (exchange) N/A N/A N/A N/A N/A N/A N/A * STD STD STD
75 Wake Board Tower N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A *
76 Custom Two-Color Option
(Ice/White Base & Flake) * * N/A N/A N/C N/C N/C * N/A N/A N/A
77 Custom Three-Color Option N/A N/A * * N/C N/C N/C N/A * * N/A
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
78 Carpet Color Exchange * * * * N/C N/C N/C * * * N/A
79 Upholstry Color Exchange * * * * N/C N/C N/C * * * N/A
PROCRAFT TRAILERS
80 Spare Tire and Wheel
(powder coated) * * N/A N/A N/A N/A N/A * N/A N/A N/A
81 Spare Tire and Galvanized
Wheel * * * * * * * * * * *
82 Spare Tire and 13" Chrome
Wheel * * N/A N/A N/A N/A N/A * N/A N/A N/A
83 Spare Tire and 14" Chrome
Wheel (modular) N/A N/A * * * N/A N/A N/A * * N/A
84 Spare Tire and Wheel (alloy) N/A N/A * * * * * N/A * * *
85 Spare Tire Carrier * * * * * * * * * * *
86 Fiberglass Fenders N/A N/A N/A N/A STD STD STD N/A N/A N/A N/A
87 Alloy Wheel 14" (exchange) N/A N/A * * * STD STD N/A * * STD
88 Chrome Wheel 13" (exchange) * * N/A N/A N/A N/A N/A N/A N/A N/A N/A
89 Surge Disc Brakes/Single
Axle (factory installed) N/A N/A * * * N/A N/A N/A * N/A N/A
90 Surge Drum Brakes/Single
Axle (factory installed) * * N/A N/A N/A N/A N/A * N/A N/A N/A
91 Surge Brakes/Second Axle
(factory installed) N/A N/A N/A * * * * N/A N/A * *
92 Galvanized Trailer
w/Galvanized Wheels * * * * * * * * * * *
93 Tandem Trailer w/Disc
Brakes One Axle N/A N/A N/A * * STD STD N/A N/A STD STD
94 Swing-Away Tongue * * * * STD STD STD * STD STD STD
95 Bac-Jacks (two, factory
installed) * * * * * * * * * * *
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Fisher
2002 Dealer Manual
========================================================================================================================
Travis - Aluminum Bass Boats Pricing Effective July 16, 2001
========================================================================================================================
- ------------------------------------------------------------------------------------------------------------------------
Model Engine Dir. Net Model Engine Dir. Net
- ------------------------------------------------------------------------------------------------------------------------
1610 SS 9.9 EL * Marsh Hawk 175V 40 ELPTO (2C) *
9.9 EL 4-STR * 40 ELPT 4-STR EFI *
15 EL * 50 ELPTO *
25 EL * 50 ELPT 4-STR EFI *
25 EL 4-STR BF * 60 EO (Jet 40) *
25 ELPT 4-STR BF * 60 ELPTO *
40 ELPTO (2C) * 60 ELPT 4-STR EFI *
40 ELPT 4-STR EFI * 75 ELPTO *
- ------------------------------------------------ 75 ELPT 4-STR *
1600 9.9 EL * 90 ELPTO *
9.9 EL 4-STR * 90 ELPTO 4-STR *
15 EL * 115 ELPTO *
25 EL * 115 EFI 4-STR *
25 EL 4-STR BF * 125 ELPTO *
25 ELPT 4-STR BF * ---------------------------------------------------
40 ELPTO (2C) * Pro Hawk 1860 V 115 ELPTO *
40 ELPT 4-STR EFI * 115 EFI 4-STR *
- ------------------------------------------------ 125 ELPTO *
1710 9.9 EL * 135 Optimax *
9.9 EL 4-STR * 150 XR6 *
15 EL * 150 EFI *
25 EL * 150 Optimax *
25 EL 4-STR BF * ---------------------------------------------------
25 ELPT 4-STR BF *
40 ELPTO (2C) *
40 ELPT 4-STR EFI *
50 ELPTO *
50 ELPT 4-STR EFI *
60 EO (Jet 40) *
60 ELPTO *
60 ELPT 4-STR EFI *
75 ELPTO *
- ------------------------------------------------
1700 9.9 EL *
9.9 EL 4-STR *
15 EL *
25 EL *
25 EL 4-STR BF *
25 ELPT 4-STR BF *
40 ELPTO (2C) *
40 ELPT 4-STR EFI *
50 ELPTO *
50 ELPT 4-STR EFI *
60 EO (Jet 40) *
60 ELPTO *
60 ELPT 4-STR EFI *
75 ELPTO *
- ------------------------------------------------
2002 Aluminum Bass Boat Option List
- --------------------------------------------------------------------------------
Description Available For Dealer Net
- --------------------------------------------------------------------------------
Brake Trailer Upgrade All *
Galvanized Trailer Upgrade All *
FX6000 42" Trolling Motor (exchange) Marsh Hawk 175 V *
All Florida Locations All *
- --------------------------------------------------------------------------------
Prices Are Net Prices, No Rebates, Discounts or Co-Op Allowances Apply.
Prices and specifications subject to change without notice.
All prices are stated in USD.
*CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.