CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT. THE OMITTED INFORMATION HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.5
STRATEGIC ALLIANCE AGREEMENT
This strategic alliance agreement ("Agreement") is made as of this 19th day of
December, 2001 ("Effective Date"), by and between WEST MARINE PRODUCTS, INC.,
with an address at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("West Marine"),
AND ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC., with an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("DWM") with the goal of forming a strategic alliance
between the two companies to increase the sales and profitability of West
Marine's apparel and related products department.
For and in consideration of the mutual covenants herein contained, and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. Term. Subject to earlier termination as set forth herein, this
Agreement shall terminate two (2) years from the Effective Date hereof ("Initial
Term"), unless extended for successive one (1) year terms by mutual, written
agreement of the Parties (each a "Renewal Term"). Notwithstanding the foregoing,
the parties will review the performance of the apparel department on an annual
basis within the period specified in achievement of the "Measurement Goals" (as
defined in Section 13), and other retail factors normally associated with retail
performance, to determine the economic viability of the venture contemplated by
this Agreement. It is agreed that West Marine shall have the sole and final
determination as to whether to renew the Agreement after the Initial Term and
for any subsequent Renewal Term. The Initial Term and all Renewal Terms
hereinafter collectively shall be referred to as the "Term."
2. Standard Vendor Agreement. DWM agrees to be bound by all of the terms
and conditions set forth in West Marine's Standard Vendor Agreement, including
the indemnification agreement contained therein (collectively, "SVA"), * *
with the exception of the following terms and conditions. West Marine agrees
that: 1) DWM is not subject to New Store Support credits; 2) DWM is not subject
to handling or chargeback fees of over-shipments or under-shipments; 3) West
Marine will ship any and all product deemed defective to DWM for inspection; DWM
will either issue credit memos to West Marine or will ship replacement product,
for all defective product after verification by DWM; 4) DWM will include all
product part numbers for a shipment on the packing slip instead of marking the
carton for enclosed product. A copy of the "SVA"), is attached hereto as Exhibit
"A" and incorporated herein by this reference. In the event of any inconsistency
between this Agreement and the SVA, this Agreement shall control, except as
otherwise expressly set forth herein.
3. Product Development and Design.
A. DWM will develop, design, manufacture (through reputable suppliers),
package, supply and deliver to West Marine for resale a line of certain casual
apparel and accessories designated by West Marine in accordance with prices,
plans, specifications, quality assurance standards, and production schedules
mutually agreed upon by the parties ("Specifications") and purchase orders
placed by West Marine and accepted by DWM ("Purchase Orders"), for retail sale
in West Marine's stores, catalogs and retail website at the URL website located
at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ under the label "West Marine" or other names or labels
chosen by West Marine (the "West Marine Brand Apparel"). All of the containers,
packaging and labels for the West Marine Brand Apparel shall include the
trademarks, trade names, trade dress, logos, designs, bar codes aid other
identifying features (collectively, "Trademarks"), as determined by West Marine.
DWM acknowledges and agrees that West Marine, at all times during and after the
Term of this Agreement, is and shall continue to be the sole and exclusive owner
of all right, title and interest in and to the West Marine Trademarks, including
those of the West Marine Brand Apparel.
B. DWM will be the primary supplier of West Marine's casual apparel
department (exclusive of foul weather gear and shoes) through the West Marine
Brand Apparel including design and development, sourcing of fabrics, trims,
packaging and cut and sew, subject to the Specifications and the terms and
conditions of this Agreement.
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C. DWM will develop at least two lines per year of the West Marine
Brand Apparel, one for Spring and one for Fall, which lines must be submitted to
and approved by West Marine * *. In this regard, DWM will design the lines
in accordance with the Specifications and forward samples of merchandise for
West Marine's final written approval within the specified time periods.
4. Production and Manufacturing: DWM represents and warrants to West
Marine that DWM:
A. Will be responsible for the timely production, manufacturing, and
quality control of all of the West Marine Brand Apparel in accordance with the
Specifications;
B. Will Manufacture the West Marine Brand Apparel in a good and
workmanlike manner and will comply with all applicable U.S. federal, state and
local laws, ordinances and regulations, as well as all laws of the country in
which the West Marine Brand Apparel will be manufactured, including all import
and export laws and regulations. In this regard, DWM will utilize its best
efforts to not use any cutting, sewing or other contractors, manufacturers or
distributors that abuse U.S. Child Labor or other employment standards or laws;
C. Will inspect and approve the finished product before shipment to the
United States or other DWM or West Marine designated locations and such approval
will be granted only if the West Marine Brand Apparel: conforms to
Specifications, including all quality assurance standards; meets the
requirements of all applicable laws and regulations; is packaged, labeled,
priced and invoiced in accordance with the Specifications (and/or as specified
in the SVA); and is executed according to the practices and regulations of the
country of exportation;
D. Will issue inspection certificates or return the West Marine Brand
Apparel and process claims against the manufacturer(s) for product that fails to
meet the Specifications. In the case of claims resulting from any defective or
rejected West Marine Brand Apparel (including, without limitation, defects
discovered after receipt and resale by West Marine), DWM will reimburse West
Marine therefore * *; and
E. Will use its best efforts to make quality products with quality
workmanship: that all materials used in the manufacturing process will be new,
in accordance with legal requirements, and of good and merchantable quality;
that each product delivered to West Marine will, at the time of delivery, be
free of defects; and that West Marine will receive good title to it free of all
liens, and encumbrances of any kind.
5. Ordering:
A. DWM will present a recommended seasonal merchandise plan based on
anticipated and projected sales prior to the manufacturing process for approval
by West Marine.
B. Purchases of the West Marine Brand Apparel under this Agreement will
be made upon delivery to DWM of West Marine's written non-cancelable approval of
the Assortment Plan. West Marine agrees to delivery Purchase Orders specifying
in reasonable detail the types, quantities, and delivery dates of the West
Marine Brand Apparel ordered. No Purchase Order or Letter of Credit is binding
upon DWM until accepted by DWM. Upon receipt and acceptance by DWM of either a
non-cancelable Purchase Order or Assortment Approval letter for units and
quantities of the West Marine Brand Apparel, DWM will immediately proceed with
the manufacturing of such units and quantities so ordered by West Marine. At
such point, the Purchase Order or Approval Letter shall be considered
non-cancelable by West Marine except to the extent that purchasing of materials
and manufacture of any particular quantity or type of West Marine Brand Apparel
has not commenced. In which event West Marine shall be free to cancel the
Purchase Order for such units upon notice to DWM. Typically, orders must be
placed four to six months in advance of delivery, depending upon the item and
country of origin.
C. Nothing In this Agreement is intended to create any duty on the part
of West Marine to place any Purchase Order or Assortment Approval letter or on
the part of DWM to accept any Purchase Order or Assortment Approval letter, it
being expressly understood that the placement of any such Purchase Order or
Assortment Approval letter may be revoked and canceled by West Marine at any
time prior to the acceptance thereof by DWM by commencement of purchasing or
manufacture.
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6. Distribution:
A. DWM will receive, ship, and warehouse all West Marine Brand Apparel
in DWM's distribution center in San Diego County, California and will be
responsible for the shipping of said product to each West Marine location as
specified in the Purchase Orders.
B. All shipments from DWM warehouse to West Marine stores (or other
specified locations) will be shipped according to West Marine's shipping
instructions. Delivery will be F.O.B. DWM's warehouse. West Marine will select
the carrier.
C. All charges pertaining to the importation and transportation of the
West Marine Brand Apparel to DWM's warehouse including, without limitation, all
costs related to customs' duties, sales, use, value added or any similar taxes,
costs for the visa, imports, freight charges, broker fees, insurance, personal
property taxes and other related charges shall be paid solely by DWM. West
Marine is responsible for all reasonable and actual shipping charges incurred to
ship the West Marine Brand Apparel from the DWM warehouse to the designated West
Marine stores, distribution centers, or other specified locations. Title and
risk of damage or loss of the West Marine Brand Apparel passes to West Marine
after possession transfers at the time of invoicing from DWM, provided however,
that DWM shall remain responsible for damage or loss to West Marine Brand
Apparel caused by its employees, agents, and subcontractors.
▇. ▇▇▇▇ Marine must inspect all West Marine Brand Apparel within * *
from date of receipt at the shipping destination, and may reject any goods that
fail to meet the Specifications or other restrictions or regulations imposed by
this Agreement or applicable law. Rejected products will be returned to DWM.
7. Web-site and Direct Orders Fulfilled by DWM:
A. DWM and West Marine may mutually develop and determine the
party(ies) responsible for the costs, operation and maintenance of an e-commerce
website which will display and offer for sale the West Marine Brand Apparel
("the Website"). Such website shall either be a separate websites, a separate
page on the DWM Website or a separate page on the West Marine website, as the
parties shall mutually determine. West Marine shall have the right to develop or
approve, at its sole discretion, the Website including, without limitation, the
design, content, functionality, and its "Look and Feel" (defined as the
distinctive and particular elements of graphics, design, organization,
presentation, layout, user interface, navigation, trade dress and stylistic
convention [including the digital implementations thereof] of a party's website,
the associated online framing areas surrounding the content thereon, and the
total appearance and impression substantially formed by the combination,
coordination and interaction of these elements). West Marine and DWM, as
applicable, will each provide links to Website from pages from their respective
websites to be mutually agreed upon. The promotional efforts of West Marine and
DWM are set forth in Section 9 below.
B. In addition, DWM offers embroidery of certain designs for a fee to
customers. DWM agrees that the sale of the West Marine Brand Apparel with
requests for such embroidery services which are fulfilled by and delivered to a
customer, directly by DWM through any DWM channels of distribution (the "DWM
Direct Orders") will generate "Net Revenue" for West Marine and will be
calculated, paid and reported to West Marine in the time and manner specified in
Section 8 below. West Marine may elect to offer the West Marine Brand Apparel
and other products supplied by DWM for sale directly on the West Marine websites
or in the West Marine shipping cart, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall have not right to
any revenue generated from such sales with the exception of any embroidery,
shipping or distribution fees
3
that may be incurred by West Marine for services performed by DWM in the process
of fulfilling the orders. Any DWM Direct Orders fulfilled by DWM on behalf of
West Marine are subject to the current standard embroidery, shipping and
fulfillment fees that ▇▇▇▇▇▇ ▇▇▇▇▇▇ would charge West Marine for sales made from
its own website and such charges will be deducted directly from the Net Revenue
to be paid to West Marine at the time specified in Section 8 below. Any increase
in such charges during the Term shall require West Marine's prior written
consent.
8. Revenue and Reporting:
A. For purposes of this Agreement the "Net Revenue" to be paid by DWM
to West Marine shall mean the actual order retail price for the DWM Direct
Orders of the West Marine Brand Apparel sold to customers and fulfilled directly
by DWM less only returns and the standard embroidery and fulfillment fees
charged by DWM to West Marine.
B. Such Net Revenue shall be due and payable within thirty (30) days
following the end of each calendar month to West Marine (or credited on account,
as West Marine shall determine), unless otherwise specified in a written program
statement provided by DWM and agreed to in writing by West Marine management.
Along with such payment or credit to West Marine, DWM will provide a summary
report to document the calculation of net revenue. Upon request, DWM shall
provide a quarterly report showing, in detail, the calculation of the Net
Revenue including dates, customer names, ship to addresses, units sold, price,
gross retail sales dollars, product type, taxes, shipping and handling charges,
refunds, and embroidery fees and fulfillment charges deducted.
C. For the Term of this Agreement and for a period of five (5) years
thereafter, DWM agrees to maintain sufficient books, records and accounts
regarding the sales activity contemplated under this Agreement, in order to
allow West Marine to calculate and confirm compliance with any and all
obligations hereunder, including payment obligations of the Net Revenue. West
Marine shall have the right to inspect, audit and copy, at its own expense, the
books and records of DWM upon notice of not less than 30 days. If a deficiency
in payment of Net Revenue of more than five percent (5%) is discovered by such
audit, then DWM shall be responsible for all audit costs incurred by West
Marine.
9. Promotion: DWM may supply promotional ideas to maximize sales of the
West Marine Brand Apparel. This includes advice on placement and display of
product, ad slicks, ad themes and other promotional ideas, provided that West
Marine shall be under no obligation to use all or any portion of such
promotional ideas. It being understood that all marketing efforts, if any, shall
be at West Marine's sole discretion and determination.
10. Pricing of Product: All prices, both wholesale and suggested retail,
will be reviewed and approved by West Marine prior to the ordering and sale of
any West Marine Brand Apparel. DWM will use its best efforts to negotiate and
obtain advantageous prices for West Marine. Moreover, DWM shall not adjust any
wholesale or retail pricing of the West Marine Brand Apparel without West
Marine's prior written consent.
11. Payment Terms.
A. The West Marine Brand Apparel will be manufactured inside and
outside of the United States and subject to the following:
(i) For West Marine Brand Apparel manufactured outside of the
United States (the "Overseas Apparel"), West Marine will provide DWM with a
transferable or standby letter of credit upon request by DWM for either a
portion or all of the product manufactured outside of the United States. The
4
letter of credit for the first Purchase Order issued by West Marine for
Overseas Apparel is attached hereto as Exhibit "B" and incorporated herein by
this reference. Any additional Purchase Orders for Overseas Apparel will require
additional Purchase Orders and letters of credit in the same form. Such letter
of credit is payable in accordance with the terms specified therein on the date
of the Overseas Apparel exits file country of origin, for all such Overseas
Apparel which is contained on the Purchase Order issued by West Marine, attached
to the letter of credit and imported into the United States for sale to West
Marine. For product manufactured outside of the United States for which a letter
of credit has not been issued, DWM will deliver to West Marine an invoice
describing the products and including the name of each product, its identifying
numbers, the place where such product was delivered and the agreed price of each
such product. West Marine will pay any undisputed invoices within forty-five
(45) days from the later of receipt of invoice or receipt of goods at the DWM
distribution centers.
(ii) For the West Marine Brand Apparel for which West Marine
has issued a Purchase Order or Assortment Approval letter and that is as a
result, manufactured within the United States and delivered to and received in
DWM's distribution center (the "Domestic Apparel"), DWM will deliver to West
Marine an invoice describing the products and including the name of each
product, its identifying numbers, the place where such product was delivered and
the agreed price of each such product. West Marine will pay any undisputed
invoices within forty-five (45) days from the later of receipt of invoice or
receipt of goods at the DWM distribution centers.
12. Confidential Information/Licenses/Ownership:
A. Confidential Information.
(i) Each party acknowledges that, in the course of business
development for the other and in performing its respective duties under this
Agreement, it may obtain certain information owned by the disclosing party
("Discloser") which the Discloser considers to be confidential (such information
shall be deemed to be "Confidential Information"). The term Confidential
Information includes all specifications, drawings, sketches, models, samples,
forecasted and current data, computer program or documentation or other
technical, business or marketing information, business strategies, financial
data, unannounced product information and/or designs, individual employee
compensation or benefits information; sales information, such as comparisons,
pricing practices and markups on merchandise; Trademarks; trade secrets,
software, inventions, proprietary information, other intellectual property,
data, graphs, graphics, pictures, diagrams, methodologies, techniques, ideas,
concepts, know-how, illustrations, pictures promotional plans and advertising;
shortage figures and methods of loss prevention; sourcing; product lines,
product ideas; price lists, customer lists, the identity of vendors and the
products they supply to Discloser lists of dealers, customer and/or prospective
dealers and customers; any proposals made to or received by from prospective
dealers and/or customers; all materials, including, but not limited to
documents, drawings, samples, sketches, designs, software programs and
information related to any color palette or color standards, furnished to
Recipient by Discloser or any of Discloser's vendors, agents or representatives;
all communications between Discloser and Recipient, and between Discloser's
vendors and Recipient where Recipient is communicating for, on behalf of, or in
connection with the business of Discloser; and any other information designated
from time to time by Discloser as confidential, or any information which
Recipient should reasonably believe to be confidential. Confidential Information
shall not include any material, data or information that is: (a) publicly
available or later becomes publicly available other than through a breach of
this Agreement; (b) known to Recipient prior to such disclosure or is
independently developed by Recipient subsequent to such disclosure; or (c)
subsequently lawfully obtained by Recipient from a third party without
obligations of confidentiality. If Recipient becomes aware of any unauthorized
use or disclosure of the Confidential Information, Recipient shall promptly and
fully notify Discloser of all facts known to Recipient concerning such
unauthorized use or disclosure of the Confidential Information. If Recipient is
requested or required by a governmental or regulatory entity to disclose any of
the Confidential Information, as soon as possible after becoming aware of such
requirement and prior to disclosing Confidential Information pursuant
5
thereto, if legally permitted based solely on the reasonable legal judgment of
Recipient's counsel, Recipient shall so notify Discloser in writing and, if
possible, Recipient shall provide Discloser notice not less than five (5)
business days prior to the required disclosure.
(ii) Recipient acknowledges that any transmission of
Confidential Information shall not create any ownership right in such
Confidential Information in the Recipient and Recipient agrees that it shall
not, directly or indirectly, disclose any Confidential Information to any other
party, corporation, affiliate, subsidiary, organization or person of any kind
without the prior express written consent of the Discloser, except that
Recipient may disclose such Confidential Information to its employees or
consultants as may be reasonably necessary for purposes of performing its
duties.
(iii) Recipient shall use such Confidential Information solely
and exclusively for the purposes set forth in this Agreement, shall hold the
Confidential Information in confidence during the Term of this Agreement and at
all times thereafter and shall advise its employees and consultants of the
proprietary nature of the Information and direct them to keep such Information
confidential. Upon termination of Agreement, all Confidential Information
(including all copies thereof) shall, upon request of Discloser, be promptly
returned or destroyed, at the option of the Discloser and Recipient shall
certify in writing to Discloser of such disposition upon written request.
B. Ownership. Recipient acknowledges and agrees that Discloser owns all
right, title and interest in and to its Confidential Information prior to and/or
during the Term of this Agreement. In this regard, West Marine agrees that all
designs for the West Marine Brand Apparel and accessories that DWM provides to
West Marine shall be owned by DWM (except that West Marine shall be the sole and
exclusive owner of the West Marine Trademarks therein). In this regard, it is
agreed that DWM is free to manufacture, market, produce, sell and distribute
(for its own account and without accounting to the other party) apparel of such
design under DWM's own or other trade names, during or after the termination of
this Agreement, provided that DWM shall not, directly or indirectly,
manufacture, market, produce or distribute such design to any other marine
supply company without West Marine's prior written consent. DWM shall retain
ownership of all fixtures it provides to West Marine for displaying said apparel
and accessories, except that upon termination of this Agreement, West Marine
shall have the right to purchase such fixtures from DWM at a mutually agreed
upon price, not to exceed the then fair market value.
C. Licenses. Subject to the terms and conditions of this Agreement,
Discloser grants to Recipient and non-exclusive, non-transferable, limited
license, without the right to sublicense, to use, reproduce, publicly perform,
distribute and display the Discloser's Trademarks solely in the form and manner
approved by the Discloser and solely during the Term for the specific and
limited purposes set forth in this Agreement. This license will terminate upon
termination of this Agreement for any reasons.
13. Intent and Measurements. It is the intention of both parties to form a
mutually beneficial relationship to improve West Marine's total sales, gross
margins and inventory; in the West Marine casual apparel department, over the
Term of this Agreement to the mutual satisfaction of the parties. In
furtherance of this intent, the parties will set mutually agreeable and
reasonable Measurement Goals prior to the start of each of West Marine's fall
and spring season.
A. The Measurement Goal for the initial term is as follows: DWM is to
be the primary source of West Marine Brand Apparel to be supplied to West
Marine. The gross margin goal is * * with department retail sales goal of
approximately * *. Both parties will use reasonable commercial efforts to
reach this goal. The parties will review sales performance no less than one
hundred eighty days (180) prior to the end of each anniversary date of the
Effective Date to determine if this Measurement Goal is anticipated to be met
(the "Projected Goal Date") and again no less than thirty (30) days prior to the
expiration of each one (1) year anniversary date of such Effective Date (the
"Actual Goal Date").
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B. The Measurement Goal for each Renewal Term shall be mutually
determined by the parties as follows: DWM and West Marine will create
merchandise and sales plans no less than * * prior to each seasons before
purchase commitments are made, to include mutually agreed upon target gross
margin, inventory levels, inventory turn and sales projections, using their best
efforts to improve West Marine's total sales and profit in the apparel
department ("Measurement Goal Standard"). The parties will also determine within
each such Renewal Term whether the Projected Goal and Actual Goal have been met
by the Projected Goal and Actual Goal Dates, respectively.
14. Termination:
A. Either party may terminate this Agreement any time after initial
term or any then current Renewal Term by delivering notice of such termination
to the other party at least 30 days prior to expiration of such Term.
B. Moreover, either party may terminate this Agreement in the event the
Measurement Goal is not anticipated to be met by the Projected Goal Date or
actually met by the Actual Goal Date during the initial term or any Renewal
Term, termination effective upon such applicable Date.
C. A party may terminate this Agreement at any time that the other
party material breaches this Agreement and fails to cure it within ten (10)
calendar days after written notice of the breach is given. Such termination
shall be effective upon the expiration of such cure period. Any non-cancelable
purchase orders or Assortment Approval Letters previously issued by West Marine
for product not yet delivered by DWM will still be in effect after the
termination of this agreement.
D. A party may terminate this Agreement upon the institution of
bankruptcy, receivership, insolvency, reorganization or other similar
proceedings by or against the other party under any section or chapter of the
United States Bankruptcy Code, as amended, or under any similar laws or statutes
of the United States or any state thereof, if such proceedings have not
dismissed or charged within thirty 30 calendar days after they are instituted;
or the insolvency or malting of an assignment for the benefit of creditors or
the admittance by such party of any involuntary debts as they mature or the
institution of any reorganization arrangement or other readjustment of debt plan
of such party not involving the United States Bankruptcy Code; or any corporate
action taken by the Board of Directors of such party in furtherance of any of
the above actions; and/or appointment of a receiver for all or substantially all
of such party's assets or any corporate action taken by the Board of Directors
of such party in furtherance of the above action.
E. Upon termination of this Agreement for any reason DWM shall
immediately deliver to West Marine all West Marine Brand Apparel and all other
property of West Marine in the possession of DWM or subject to DWM's control or
direction. No such termination shall relieve a party of the obligation to make
the payments described in this Agreement which arose prior to the effect date of
such termination (and any other rights as by their nature must survive
termination), provided, however, than DWM shall not commence manufacture of any
West Marine Brand Apparel contained in a Purchase Order or Assortment Approval
Letter previously placed by West Marine unless otherwise directed in writing by
West Marine and shall use best efforts to sell any West Marine Brand Apparel not
containing the West Marine Trademark to other customers to mitigate any damages
otherwise payable by West Marine. Any non-cancelable purchase orders or
Assortment Approval Letters previously issued by West Marine to DWM for product
where manufacturing has commenced will still be in effect after the termination
of this agreement.
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15. Time is of the Essence: Time is of the essence in order for the parties
to achieve their goal of developing the West Marine Brand Apparel, accessories
and related gift items which will increase the sales and profitability of West
Marine's casual apparel and related products department. Both parties agree to
use their reasonable commercial efforts to cooperate with each other to
accomplish the terms of this Agreement.
16. Governing Law and Equitable Relief:
A. This Agreement shall be governed and construed in accordance with
the laws of the State of California without regard to the conflict of laws
provisions thereof. Both parties consent to jurisdiction in California and
further agree that any cause of action arising out of or relating to this
Agreement may be brought in a court in Santa ▇▇▇▇ County, California. Should any
litigation or arbitration (upon mutual agreement of the parties) be commenced by
any party concerning any provision of this Agreement or the rights and duties of
any party, the prevailing party in such litigation or arbitration shall be
entitled, in addition to such other relief as may be granted, to reasonable
attorneys' fees and expenses.
17. No Assignment. Neither party can assign this Agreement or any interest
herein without express prior written consent of the other party, except that
West Marine may assign this Agreement to any affiliate.
18. Severability. If any term of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, then this Agreement,
including all of the remaining terms, will remain in full force and effect as if
such invalid or unenforceable term had never been included.
19. Notices. Any notice required by this Agreement or given in connection
with it, shall be in writing and shall be given to the appropriate party by
personal delivery or by certified mail, postage prepaid, or recognized overnight
delivery services, subject to the right of either party to change its address by
written notice.
8
If to West Marine:
West Marine Products, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(or current business address)
Attention: ▇▇▇ ▇▇▇▇▇▇, ▇▇. VP & General Merchandise Manager
If to DWM:
▇▇▇▇▇▇ ▇▇▇▇▇▇ Marine, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(or current business address)
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, CEO
20. No Implied Waiver. Either party's failure to insist in any one or more
instances upon strict performance by the other party of any of the terms of this
Agreement shall not be construed as a waiver of any continuing or subsequent
failure to perform or delay in performance of any term hereof.
21. Headings. Headings used in this Agreement are provided for convenience
only and shall not be used to construe meaning or Intent.
22. Entire Agreement/Modification. This Agreement sets forth the entire
agreement between the parties and supercedes any and all prior written and/or
oral agreements and representations and any and all contemporaneous oral
agreement with respect to the subject matter hereof. No modification, alteration
or amendment of this Agreement shall be valid or binding unless in writing and
signed by each of the parties.
23. Partly Bound. This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective heirs, executors,
administrators, affiliates, licensees, successors, assigns, representatives and
agents.
24. Counterparts. This Agreement may be executed in counterparts, all of
which when taken together, shall constitute one and the same instrument. This
Agreement shall be considered fully executed when each party delivers to the
others a facsimile counterpart of this Agreement signed by each party, followed
by a delivery of a manually subscribed counterpart of this Agreement to the
other party by mail, personal delivery or delivery by Federal Express or other
internationally recognized delivery service.
25. Press Releases. DWM shall not make any public press release regarding
time existence or content of this Agreement without West Marine's prior, written
approval. West Marine agrees to allow DWM to disclose some or all of the terms
of the agreement when required for financial documents or filings.
26. Independent Contractor. DWM is an independent contractor and not an
agent, employee or subsidiary of West Marine, and will not hold itself out as,
or give any person reason to believe that it is,
9
an agent, employee or subsidiary of DWM. As an independent contractor, West
Marine agrees to indemnify and hold DWM harmless from and against any and all
claims, liabilities, and damages arising out of breach of this provision by, or
otherwise attributable to any act or omission of, West Marine, its agents, or
employees.
27. Survival. The terms of Sections 2, 4, 8, 12, 16, 19, 20, 23 and 25
shall survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date first above written.
WEST MARINE PRODUCTS, INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.
/s/ ▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
By: ▇▇▇ ▇▇▇▇▇▇, Senior V.P. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
10
EXHIBIT A
TO THE
STRATEGIC ALLIANCE AGREEMENT
WEST MARINE VENDOR AGREEMENT
STANDARD TERMS AND CONDITIONS
EFFECTIVE ON OCTOBER 1, 1997
REVISION 4: EFFECTIVE AUGUST 15, 2000
WEST MARINE VENDOR AGREEMENT
REVISION 4: EFFECTIVE AUGUST 1, 2000
INDEX PAGE NUMBER
----- -----------
1.0 WEST MARINE ADDRESS LIST 4
1.0.1 West Marine Merchandising Contact List 5
2.0 GENERAL INFORMATION 5
2.1 Standard Policies 5
2.2 Warranties 5
2.3 Indemnification 6-7
2.4 Insurance Certificate 6
2.5 Disclosure Information 8
2.6 Gifts and Entertainment 8
2.7 New Store Support 8
2.8 Store Remodel and New Product Support 9
3.0 PURCHASE ORDER REQUIREMENTS 9
3.0.1 Standards 9
3.1 Acceptance 9
3.2 Notification 9
3.3 Delivery Date 9
3.4 New Product Delivery Date 10
3.5 Backorders 10
3.55 Expediting and Tracking 10
3.6 Ship-to Location 10
4.0 SPECIAL ORDERS AND DROP SHIPMENTS 10
4.0.1 Fulfillment Standards 11
5.0 PRICING AND PRODUCT INFORMATION REQUIREMENTS 11
5.0.1 Pricing Standards 11
5.3 Prize Protection 11
5.4 Hazardous Product 11-12
5.5 Visual Merchandising 13
5.6 New Products and Consumer Packaging Changes 13
5.8 Point of Purchase Displays and Signage (POP) 13
1
INDEX PAGE NUMBER
----- -----------
6.0 BARCODE LABELS 13
6.0.1 West Marine Barcode Standards 13
6.1 Code Management 14
6.3 U.P.C. Specifications 14
7.0 ACCOUNTS PAYABLE STANDARDS 14
7.0.1 Terms for Payment 14
7.1 Payment 15
7.2 Credit Memos 15
7.3 Shipment Discrepancies 15
7.4 Open Balances 16
7.5 Invoices 16
8.0 PRODUCT RETURN POLICY 16
8.0.1 Standards 16
8.1 Options to Handle Product Returns 17
8.3 Credit 17
8.35 Return to Vendor Specific 18
8.4 Product Return Codes 18
8.5 Defective Merchandise from Acquired Product Lines 18
8.6 Vendor Warranty Policy 18
10.0 TRANSPORTATION SERVICES 19
10.0.1 Transportation Standards 19
10.1 Transportation Freight Terms 19
10.2 Transportation Routing and Mode Selection 19
10.3 Freight Presentation 19
10.4 Shipping Hazards 20
10.5 ▇▇▇▇ of Lading Preparation 20
10.6 Master ▇▇▇▇ of Lading 20
10.7 Import Transportation 20
2
INDEX PAGE NUMBER
----- -----------
11.0 DISTRIBUTION SERVICE CENTER 21
11.0.1 Standards 21
11.1 Marking 21
11.2 Packing 22
11.3 Packing List 22
11.4 Master Carton Size and Quality 23
11.5 Pallet Size, Construction, and Wrapping 23
11.6 Appointments for Inbound Goods 23
12.0 SPECIAL HANDLING CHARGES SUMMARY 24
12.5 WEB SITES AND LINKS 24
12.5.1 Links to & from the West Marine and Port Supply Sites 25
12.5.2 Lists of Dealers in Vendor Web Sites 25
12.5.3 Selling Products Directly On-Line 25
12.5.4 Providing Product Information On-Line 25
13.0 ADDITIONAL PROVISIONS 25
13.0.1 Modification 25
13.0.2 Binding on Heirs 26
13.0.3 Rules of Construction 26
13.0.4 No Joint Venture 26
13.0.5 Integration 26
13.0.6 Gender 26
13.0.7 Time 26
13.0.8 Joint and Several Liability 26
13.0.9 Counterparts 26
13.0.10 Limitation on Authority 27
13.0.11 Assignment 27
13.0.12 Compliance with Law 27
15.0 VENDOR CONTACT SHEET 29
16.0 NEW VENDOR INFORMATION 30
16.1 New Product Worksheet 30
16.2 Vendor Set-up Form 31
16.3 W-9 IRS (reference) 32
17.0 AGREEMENT SIGNATURES 32
3
1.0 WEST MARINE CONTACTS, ADDRESSES, TELEPHONE AND FAX NUMBERS
* *
OUTSIDE AGENCIES
U.S. Dot Hotline (▇▇▇) ▇▇▇-▇▇▇▇
Uniform Code Council (▇▇▇) ▇▇▇-▇▇▇▇
California's Office of Environmental Health Hazard Assessment (▇▇▇) ▇▇▇-▇▇▇▇
4
1.01 WEST MARINE MERCHANDISING CONTACTS
* *
2.0 GENERAL INFORMATION
This agreement made as of the date specified below, by and between "West
Marine", as defined below, and the undersigned Vendor. For good and valuable
consideration and the mutual covenants herein contained, West Marine and the
undersigned Vendor agrees as follows:
2.1 STANDARD POLICES
The standards in this agreement became effective October 1, 1997 and shall
remain in effect until superseded in writing by West Marine. Revision 4 changes
become effective on August 1, 2000. For purposes of this agreement, "West
Marine" shall mean and include: West Marine, Inc., West Marine Products, Inc.,
West Marine Puerto Rico, Inc., E&B Marine, Inc., E&B Discount Marine, Goldbergs'
Marine Distributors, Inc., ▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc. or any other trade name used
by any of the foregoing, or any parent company, subsidiary successor, assign, or
other affiliate of the foregoing. The open term of this agreement does not apply
to effective dates for pricing. Vendor agrees to execute this agreement and
return the same to West Marine with thirty (30) days of receipt. Failure to
return this agreement within the specified time period will prevent West Marine
from carrying and marketing Vendor's products. By signing this agreement, the
Vendor agrees to adhere to the terms stated. Exceptions to this agreement must
be communicated to West Marine, and agreed to in writing by West Marine and the
Vendor, 30 days prior to any change becoming effective.
2.2 WARRANTIES
West Marine owes it to our customers to provide defect-free products that meet
acceptable quality standards. Therefore, Vendors warrant that all merchandise
delivered shall be: free from defects in workmanship, conform to applicable
samples or other descriptions furnished by the Vendor and/or agreed to by West
Marine (whichever standards result in a higher quality), are merchantable (as
defined in the applicable version of the Uniform Commercial Code), are fit and
appropriate for the purpose such merchandise was designed for and for reasonable
and foreseeable misuses of the merchandise, and comply with Vendor's published
specifications in effect as of the effective date of this agreement, (unless
superseded by new specifications agreed to by the Vendor and West Marine, in
writing). Vendor further represents and warrants, in addition to all warranties
implied by law, that each item of merchandise ordered by West Marine, together
with all labeling and packaging furnished by Vendor, shall conform in all
respects with all applicable federal, state and local laws and regulations,
including but not limited to, applicable laws and regulations related to
protection of the environment, safety, health, labeling and flammability. Vendor
agrees to take all action necessary to extend to West Marine and it's customers
product-specific warranty and time frame specified by, or granted to, the
Vendor, together with service warranties and guarantees, if any.
5
2.3 INDEMNIFICATION
West Marine requires an Indemnification Agreement ("Indemnification Agreement).
Vendor agrees to sign and return the Indemnification agreement (attached hereto
and incorporated herein by this reference):
Insurance Data Services
▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Failure to submit the Indemnification Agreement by the deadline will prevent
West Marine from carrying and marketing Vendor's products.
2.4 INSURANCE CERTIFICATE
West Marine requires that Vendor provide a certificate of insurance ("Insurance
Certificate") naming West Marine and all other entities identified in section
2.1 as additional insured. The policy should be submitted within 30 days to:
Insurance Data Services
▇▇▇ ▇. ▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Vendor agrees to provide updated Insurance Certificates on an annual basis.
6
VENDOR INDEMNIFICATION AGREEMENT
THIS AGREEMENT made as of the date hereof, by and between WEST MARINE, INC.
("West Marine") and the undersigned ("Vendor").
IN CONSIDERATION of the mutual promises contained herein and for other good and
valuable consideration Vendor hereby agrees as follows:
1. Vendor agrees to indemnify, defend (with attorneys reasonably
acceptable to WEST [as hereinafter defined]), and hold West Marine and its
subsidiaries, parents, and affiliates, and their respective associates,
employees, directors, officers, agents, and contractors (collectively "WEST")
from any and all liabilities, damages, judgments, awards, settlements, costs,
expenses, and attorney's fees (collectively, "Claims") brought against WEST
(including, without limitation, claims for personal injury or property damage)
that arise from, or relate in any way to, (i) the sale, exchange or service by
WEST of any product manufactured or distributed by Vendor, which product is
defective or otherwise deficient in any respect in its manufacture, design,
construction, distribution, assembly or otherwise; and/or (ii) any negligent act
or omission of Vendor or its employees, agents, or contractors; and/or (iii)
Vendor's failure to supply merchandise that conforms, in all respects to, and/or
to observe or comply with, all applicable federal, state and local laws, orders,
regulations, rules, ordinances, rulings and/or directives including, but not
limited to, applicable environmental, safety, health, labeling and flammability
laws; and/or (iv) Vendor's breach of any express or implied warranties or
representations made to West Marine.
THE FOREGOING INDEMNITY SHALL NOT EXTEND TO OR INCLUDE ANY CLAIMS TO THE EXTENT
CAUSED SOLELY BY THE NEGLIGENT OR WILLFUL AFFIRMATIVE ACTS OF WEST.
2. West Marine shall give written notice to Vendor at the address
specified below of any act or occurrence involving a Claim, as soon as
reasonably practicable after the occurrence of such claim shall have come to
West Marine's knowledge, provided that failure to give such notice shall not
relieve Vendor of its obligations hereunder, except to the extent of any
prejudice incurred by Vendor as a result of such delay. If an action or other
proceeding is brought or filed with respect to a claim, West Marine agrees to
cooperate with Vendor in the defense of such claims.
3. Vendor agrees to maintain insurance that provides product liability,
completed products, and contractual liability coverage, in the amount of
$2,000,000 per occurrence and in the aggregate for bodily injury and property
damage, with WEST named as ADDITIONAL INSURED. Upon WEST's request, Vendor shall
promptly furnish written evidence of such coverage.
4. This Agreement may be modified or amended only by mutual written
consent of the parties with specific reference to this Agreement, and shall not
be deemed amended by any other writing, including purchase orders, shipping
manifests, invoices and the like. Failure of West Marine to enforce any of the
provisions in this Agreement shall in no way be construed to be waiver of such
provisions.
5. In the event that any provision, or portion thereof, of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable, or void, such provision shall be deemed to be severed
from this Agreement and this Agreement shall continue in full force and effect.
6. If West Marine files an action to enforce this Agreement, the
prevailing party shall be entitled to recover all of its attorneys' fees and
costs incurred in such action.
WEST MARINE VENDOR____________________________________
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇___________________________________
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ __________________________________________
Signed:_________________________ Dated:________ Signed:____________________ Dated:________
Title: Title:
7
2.5 DISCLOSURE INFORMATION
Vendor and West Marine jointly agree to keep confidential all designs, process
drawings, specifications, reports, data, and any other technical or proprietary
information and the features of all materials furnished or disclosed to, or
developed together in the course of this agreement. Vendor acknowledges that
West Marine derives substantial economic benefit from proprietary information
not being generally known and that such proprietary information is subject to
reasonable efforts by West Marine to preserve its secrecy. Vendor agrees that
any proprietary information received or learned by Vendor during the term will
be received, preserved and protected as confidential, will not be disclosed by
Vendor to any third persons without prior written consent of West Marine, and
will not be used by Vendor in any manner reasonably calculated to deprive West
Marine of the benefits of the propriety information. Unless otherwise agreed to
in writing, both the Vendor and West Marine shall use such information provided,
or authorized, only in the performance of this agreement. Upon completion or
termination of this agreement, both the Vendor and West Marine agree to return
all written materials and any other information furnished, which is still in the
possession of such party. If requested by a party in writing, the other party
shall be required to furnish a sworn statement that no such information remains
in such party's possession.
2.6 GIFTS AND ENTERTAINMENT
West Marine has a policy to ensure consistent handling of gifts and
entertainment in an effort to avoid conflicts of interest. West Marine requests
that Vendor abide by the following guidelines:
Gifts, defined as tangible items, can only be accepted with the understanding
that they will be shared or distributed within West Marine. Personalized gifts
can be accepted only if the value is under $50.00. Personalized gifts, samples
or products that West Marine carries cannot be accepted even if the value is
less than $50.00. Anything outside of this must be approved by an officer of
West Marine.
Entertainment, defined as meals, sporting events, trips, etc., can only be
accepted if the entertainment is an integral part of conducting business. If the
entertainment is offered for pleasure only, West Marine's policy is to pay fair
market value, or with the Vendor's permission to offer it as an incentive,
award, reward, or contest prize.
2.7 NEW STORE SUPPORT
West Marine is committed to continued growth through the opening of new stores.
West Marine's new stores offer Vendor a unique, one-time opportunity to increase
sales and profits by Introducing its goods into new markets. WEST MARINE
REQUESTS VENDOR TO SUPPORT THIS GROWTH, AND REQUIRES THAT VENDOR OFFERS A CREDIT
OF 10% OF THE COST OF WEST MARINE'S INITIAL NEW STORE STOCKING INVENTORY OF
VENDOR'S PRODUCTS, WITH A MINIMUM PARTICIPATION LEVEL OF $50.00 PER STORE.
Vendor hereby specifically authorizes West Marine to credit such amount against
any amounts due to Vendor. This program is invoiced on a quarterly basis.
8
2.8 STORE REMODEL AND NEW PRODUCT SUPPORT
West Marine frequently expands distribution of a Vendor's product line
throughout the chain. This occurs when store remodels expand assortments or when
new products are rolled out to existing stores. WEST MARINE REQUESTS THAT VENDOR
SUPPORTS THE INCREASED DISTRIBUTION OF VENDOR'S PRODUCTS. ACCORDINGLY VENDOR
AGREES TO ALLOW A CREDIT OF 10% OF THE COST VALUE OF THE NEW PRODUCT ($50
MINIMUM PER EVENT). Vendor hereby specifically authorizes West Marine to credit
such amount against any amount due to Vendor. West Marine will provide a listing
of SKUs added and store locations where the inventory level changes take place.
3.0 PURCHASE ORDER REQUIREMENTS
3.0.1 STANDARDS
All goods and services purchased by West Marine require a Purchase Order. All
invoices, packages, shipping notices, and other written documents pertaining to
the Purchase Order shall contain or make reference to the Purchase Order Number.
3.1 ACCEPTANCE
Unless otherwise expressly provided on the Purchase Order, the Standard Vendor
Agreement contains the entire terms and conditions of the contract between the
Vendor named and West Marine regarding purchase of products, parts, materials
and services. No additional terms or modifications proposed by the Vendor in any
acknowledgment, sales order, or other form of communication shall be binding on
West Marine, unless specifically authorized by West Marine in writing. The price
that appears on the Purchase Order is the price West Marine will pay when
invoiced, subject to any reductions due to offsets, credits, fees or other
reductions contemplated by this Agreement. Vendor shall be bound by this
Purchase Order and its terms and conditions upon the earliest of: a) the date
Vendor acknowledges the Purchase Order or b) the first date any of the product
on the Purchase Order is shipped to West Marine or its customer.
3.2 NOTIFICATION
All West Marine Purchase Orders will be faxed directly to the Vendor when
possible. Orders placed by phone will be confirmed with hard copies, if
requested by the Vendor. IT IS THE VENDOR'S RESPONSIBILITY TO PROVIDE THE WEST
MARINE INVENTORY ANALYST WITH THE FOLLOWING INFORMATION, WITHIN 2 BUSINESS DAYS
OF RECEIPT OF THE PURCHASE ORDER.
1. CONFIRMATION OF RECEIPT OF ORDER
2. CONFIRMATION OF EXPECTED DELIVERY DATE
3. NOTIFICATION OF ANY EXPECTED BACKORDERS AND THEIR DELIVERY DATE(s)
4. RESOLUTION DISCREPANCIES (TERMS, STANDARD PACK, ETC.)
3.3 DELIVERY DATE
West Marine Purchase Orders show the expected delivery date for product to land
in its Distribution Support Centers (DSC). West Marine expects Vendor to ship so
that the merchandise arrives at West Marine's DSC at the expected delivery date.
West Marine
9
reserves the right to refuse and return with no authorization required, and at
the Vendor's expense, merchandise delivered after the delivery date on the
Purchase Order.
3.5 BACKORDERS
West Marine requires notification of product on backorder within 2 business days
of the receipt of a Purchase by the Vendor, Vendor agrees to make every effort
to deliver the entire Purchase Order in one shipment. Vendor agrees to expedited
shipping charges, to expedite delivery of all new and regularly stocked products
that are out of stock due to late (past original delivery date) or incomplete
shipment by Vendor.
3.55 EXPEDITING AND TRACKING
West Marine faxes to Vendor a Late Order Report on a weekly basis. Vendor's
agrees to provide the West Marine Inventory Analyst Pro numbers and carrier for
shipped product and to provide such analyst with the expected delivery date of
any unshipped merchandise reflected in the Late Order report to West Marine's
DSC.
3.6 SHIP-TO LOCATION
West Marine operates multiple stores and Distribution Service Centers and
frequently receives mis-ship product sent to the wrong location. It is the
Vendor's responsibility to carefully monitor the ship-to address specified on
the Purchase Order to ensure that all product reaches the appropriate
destination. As such, Vendor agrees to pay any additional freight charges
incurred by West Marine in the event of a misdirected shipment. Vendor may also
be allocated a share of costs incurred for concealed damage associated with
mis-directed freight. Vendor hereby specifically authorizes West Marine to
credit such costs against any amounts payable by West Marine to the Vendor.
4.0 SPECIAL ORDERS AND DROP SHIPMENTS
The Special Order Department exists to fulfill West Marine's commitment to
customer satisfaction and represents another opportunity for Vendor product
sales. Through West Marine's Special Order Department, Vendor can offer its
complete line of products for sale through West Marine's stores, catalog, and
wholesale divisions. Ordering accessories and replacement parts for Vendor's
products results in increased sales and promotes brand loyalty. Vendor's support
of the West Marine Special Order process is greatly appreciated by West Marine's
customers.
THE FOLLOWING INFORMATION SHOULD BE PROVIDED FOR NON-STOCKED PRODUCTS:
Vendor's Part Number, Item Description, List Price (if one is published),
Suggested Retail (if one is published), West Marine's Net Cost, Item Weight,
UPC-A Code, Standard Master Carton Quantity, Country of Origin, and whether
product is Hazardous.
The vital connection of special orders to customer service demands special
consideration from Vendor. The following standards support West Marine's ability
to manage and expand West Marine's Special Order business.
10
4.0.1 FULFILLMENT STANDARDS
1. Special Order cash terms and prices should be the best price Vendor
can offer on single product purchases.
2. Vendor agrees to waive published minimums, unless conditions are
agreed upon in writing by the Vendor and West Marine's Special Order
Department.
3. Vendor agrees to eliminate any restrictions on the number of drop ship
locations unless conditions of drop shipments are agreed upon in
writing by the Vendor and West Marine's Special Order Department.
4. Vendor agrees to ship all RUSH Purchase Orders requesting air shipment
within 24 hours following receipt of the order. Refer to the West
Marine Transportation Routing Guide for proper carrier selection.
5. West Marine agrees to adhere to Vendor lead time quoted for custom
items.
6. If product is not available, West Marine's Special Order Department is
to be notified via fax at (▇▇▇) ▇▇▇-▇▇▇▇ within 24 hours of receipt of
Purchase Order.
5.0 PRICING AND PRODUCT INFORMATION REQUIREMENTS
5.0.1 PRICING STANDARDS
In order to publish accurate pricing in West Marine's annual Master Catalog,
West Marine must receive Vendor's pricing information for the following calendar
year by SEPTEMBER 1ST of the current calendar year. The standard effective date
for these prices will be January 1st of the following year and end on December
31st of that same year. If Vendor's Category Manager is not notified of an
upcoming price change by AUGUST 1ST, Vendor agrees that the current cost in
effect at that time will be maintained. Price reduction by the Vendor on any
item at any time shall automatically and without written approval by Vendor's
Category Manager be effective with respect to all shipments shipped after the
date of the price decrease. The effect of any price decrease on West Marine's
existing inventory will be determined in accordance with the provisions of
Section 5.3 (Price Protection).
5.3 PRICE PROTECTION
In the event that a price decrease warrants price protection, the Vendor agrees
to reimburse West Marine for the amount of the decrease multiplied by the number
of units owned by West Marine at the time of the decrease. West Marine will
produce detailed inventory status reports on the day of the decrease, if
requested in writing by the Vendor. Vendor hereby specifically authorizes West
Marine to credit Price Protect dollars against any amounts due to Vendor, unless
a credit memo is received within 30 days following the completion of the price
protection.
5.4 HAZARDOUS PRODUCT
West Marine requires that Vendor provide Hazardous Materials information on all
applicable products. Vendor agrees to package hazardous materials such that they
meet any packaging regulations currently in effect, see below. Vendor will be
notified in writing upon the first occurrence of a hazmat policy violation. Upon
the second occurrence, actual costs incurred by West Marine to bring the product
into regulatory compliance will be born by Vendor. Vendor hereby specifically
authorizes West Marine to credit such charges against any amounts due to
11
Vendor. The Hazardous Materials Regulations apply to any person offering a
hazardous material for transportation in commerce. When West Marine ships case
quantities of product from Vendor, West Marine is now acting as a shipper. If
the product is sent to West Marine in violation of such regulation, there is a
greater risk of West Marine violating requirements as well. These policies are
meant to protect Vendor and West Marine from facing serious legal ramifications.
Therefore, Vendor agrees to adhere to the following policies:
1) A Material Safety Data Sheet (MSDS) shall be provided for each product
requiring an MSDS by the Occupational Safety and Health Administration
(OSHA).
a) West Marine must receive MSDS information prior to the arrival
of the first shipment to its Distribution Centers.
b) Updated MSDS's shall be sent for existing products at the time
of revision.
All MSDS's shall be sent to:
Hazardous Materials Manager
West Marine Products Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
2) Each product shall be accompanied by a regulatory summary sheet
containing the following information:
a) Applicable Hazardous Materials information under the U.S.
Department of Transportation's (U.S. DOT) Regulations Title 49
Parts 170-181*, to include:
Proper shipping name
Hazard Class
United Nations Identification Number
Packing Group
Qualify for ORM-D Exception?
Vendor further agrees to provide West Marine ground and air transportation since
some materials are only regulated when shipped by air. Even though Vendor may
never ship by air, West Marine needs to be aware of all the regulations
applicable to Vendor's products.
* For any questions please contact the U.S. DOT Hotline at ▇-▇▇▇-▇▇▇-▇▇▇▇.
b) Additional Federal/State/Local regulatory information
applicable to Vendors product.
3) Each product classified as a Hazardous Material by the Department of
Transportation shall be packaged in accordance with all applicable
regulations in Title 49 Parts 170-181 to include:
a) Proper United Nations Specification packaging or "Strong Outer
Packagings" for ORM-D materials
b) Proper Hazard Communication Labels (Subpart E, Section
172.400-Section 172.450)
c) Proper Hazard Communication Markings (Subpart D, Section
172.300-Section 172.338)
12
5.5 VISUAL MERCHANDISING
West Marine is committed to the development and execution of quality visual
merchandising standards in its stores. West Marine stores are supported with
planograms and other methods of communication to assist with the execution of
the visual standards at store level.
5.6 NEW PRODUCTS SAMPLES AND CONSUMER PACKAGING CHANGES
To facilitate the development of quality store displays, the Vendor agrees to
provide West Marine, at no charge, product or package samples in the quantities
necessary to complete the sets (empty packages are acceptable). Special
arrangements may be made with the West Marine Category Manager when large or
expensive products are Involved. Samples required may include both new and
existing product that will comprise a set in a retail store. Vendor is required
to notify the Category Manager of all changes to product packaging. A sample of
the new package must be sent to the West Marine Category Manager prior to the
product's entry into the West Marine supply chain.
5.8 POINT OF PURCHASE DISPLAYS AND SIGNAGE (POP)
The West Marine Category Manager and Visual Merchandising Department must
approve Vendor's produced POP prior to installation in West Marine stores.
Vendor acknowledges and agrees that West Marine's store managers have been
specifically instructed to dispose of all POP that are delivered directly to the
store, without instruction from West Marine.
6.0 BARCODE LABELS
West Marine utilizes radio frequency scanners at West Marine's Distribution
Service Centers as well as barcode scanning at the point of sale in all West
Marine retail stores. Therefore, Vendor agrees to ship West Marine only properly
barcoded products.
6.0.1 WEST MARINE BARCODE STANDARDS
Vendor agrees to barcode each selling unit with one of the barcodes listed
below:
o U.P.C.-A (Universal Pricing Code)
o EAN 8 or 13 (European Article Number)
o ISBN (International Standard Book Number)
o UCC-128 (Uniform Code Council) Vendor may choose to barcode the West
Marine SKU number on each selling unit using a UCC-128 barcode.
13
Vendor agrees to communicate the unit level barcode # with corresponding part #
to West Marine's Merchandising Administration Department PRIOR to shipment. IF
PROPER BARCODE OR BARCODE COMMUNICATION DOES NOT OCCUR, VENDOR AGREES TO A
CHARGEBACK OF A $100 PROCESSING FEE PER PURCHASE ORDER PLUS A COST OF 25 CENTS
PER UNIT. VENDOR HEREBY SPECIFICALLY AUTHORIZES WEST MARINE TO CREDIT SUCH
CHARGES AGAINST ANY AMOUNTS DUE TO VENDOR.
6.1 CODE MANAGEMENT
The Uniform Code Council, Inc. is the central code management agency. This
agency will assign only the manufacturer identification numbers in accordance
with the U.P.C. rules. The agency will not assign the item numbers, nor will the
agency be required to maintain a listing of the second 5 digit number
assignments made by each manufacturer. Vendor will continue to assign, control
and record its own 5-digit numbers within the U.P.C. configuration. Companies
interested in obtaining their U.P.C. manufacturer identification number should
apply directly to:
Uniform Code Council, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇.▇▇-▇▇▇▇▇▇▇.▇▇▇
6.3 U.P.C. SPECIFICATIONS
Vendor agrees to follow the Uniform Council's "U.P.C. GUIDELINES MANUAL" and
"U.P.C. SYMBOL LOCATION GUIDELINES MANUAL" when affixing barcode to the unit.
These manuals can be obtained from:
Uniform Code Council, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇.▇▇-▇▇▇▇▇▇▇.▇▇▇
7.0 ACCOUNTS PAYABLE STANDARDS
7.0.1 TERMS FOR PAYMENT
1. Vendor agrees to the standard West Marine payment terms, which include
a 2% discount to the face amount of the invoice id payment is issued
within thirty (30) days after the later of the following events
("Trigger Date"): 1) The complete receipt into the correct West Marine
location of all items and quantities covered by the invoice, or, 2)
The receipt of the invoice covering all items and quantities received.
If the invoice is not paid within thirty (30) days after the "Trigger
Date," West Marine shall pay NET within 90 days after the "Trigger
Date," subject to any offsets, credits, or other reductions
contemplated by this agreement. Terms other than the West Marine
standard can be negotiated by the Vendor with the West Marine Category
Manager and will be binding on West Marine only if approved by West
Marine in writing.
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2. Payment of a Vendor's invoice will not be made until all product
listed on the invoice is delivered.
3. If shipment was made to a West Marine Distribution Service Center or
retail location, West Marine will pay only for items and quantities
confirmed in writing as received.
4. West Marine will not be required to pay from packing slips.
5. If West Marine disputes any amounts set forth on Vendor's invoice,
service charges on unpaid invoices held for discrepancies will not
be paid until such dispute is resolved in Vendor's favor.
6. Payment and freight terms as agreed upon in writing with West Marine
must be indicated on each invoice.
7. Specific terms for special shipments must be detailed on the
invoice.
7.1 PAYMENT
West Marine will remit payment to Vendor by regular mail or electronic means,
(EDI). West Marine will pay invoices based on the Purchase Order price subject
to adjustment to reflect price reductions, credits or offsets contemplated under
applicable sections of this agreement. Payments will be deemed made on the date
of the mailing or transmission, unless such check or payment is subsequently
dishonored.
7.2 CREDIT MEMOS
In order to ensure proper application, Vendor will make reference to West Marine
Purchase Order number, Invoice # or other such document number pertinent to the
credit memo. Specific unit information should be supplied on each credit memo.
7.3 SHIPMENT DISCREPANCIES
West Marine will use reasonable efforts to communicate product shipment
discrepancies in a timely manner in order to allow Vendor the time to research
and resolve these situations. West Marine has implemented the following process
to address these discrepancies:
o In the event of a product shipment shortage, West Marine will use
reasonable efforts to notify Vendor within 7 working days of receipt. All
shortages will be noted on the check stub.
o In the event of an over shipment, West Marine will use reasonable efforts
to notify the Vendor within 7 working days of receipt of shipment. West
Marine Accounts Payable Department will record the liability for the over
shipment.
West Marine's Accounts Payable Department will extend every effort to ensure
that invoices are paid to the mutual satisfaction of the Vendor and West Marine.
There will be a $100 per shipment handling charge for over/shorts, plus a $50
for Hazardous Material clean-up when appropriate. Vendor hereby specifically
authorizes West Marine to credit such charges against any amounts due to Vendor.
15
7.4 OPEN BALANCES/MONTHLY STATEMENTS
Due to the high volume of West Marine's transactions, Vendor agrees to send
monthly statements to West Marine's Accounts Payable Department regarding open
invoices which will support West Marine's goal of on-time payment. West Marine
reserves the right to clear open balances from an active Vendor's account on the
next available invoice.
7.5 INVOICES
TO ENSURE PROPER AND EXPEDITIOUS PAYMENT, VENDOR AGREES TO PROVIDE THE FOLLOWING
INFORMATION ON THE INVOICE:
1. Vendor Name
2. Vendor Number
3. Remit-to Address (if different) than business address
4. West Marine Purchase Order Number
5. Telephone number
6. Invoice Number
7. Invoice Date
8. Part Number, Quantity Shipped, Unit of Measure (e.g., each, box,
pair), Unit Cost, Extended Cost. Unit cost should be equal to net
cost and should not include deductions for freight, and, or, CO-OP
allowances or quantity or terms discounts.
9. If the West Marine SKU is known by the Vendor, it should be included
on the invoice.
10. Indicate agreed upon payment terms.
11. Deductions for allowances must be deducted from the invoice with a
specific line item for each stating the reason for the deduction.
12. When invoicing for freight, identify the name of the freight
carrier, and freight carrier terms (e.g. F.O.B., prepaid, collect).
13. Ship to Address
14. Country of Origin by item
Do not send invoices to any Distribution Center, Store, Category Manager, Port
Supply or any customer of West Marine. Send invoices to the following:
Attention: Accounts Payable Department
West Marine A/P Vendor #_____________________
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇-▇▇▇▇
8.0 PRODUCT RETURN POLICY
8.0.1 STANDARDS
Due to the high cost of handling product returns, West Marine has created, and
Vendor acknowledges and agrees to, the following procedures to manage this
process.
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o All product under $50 unit cost will be destroyed in the field, and will
not be returned to Vendor. Vendor hereby specifically authorizes West
Marine to credit such charges against any amounts due to Vendor.
o All chemicals, oils, washes, waxes and batteries will be destroyed in the
field, and will not be returned. Vendor hereby specifically authorizes
West Marine to credit such charges against any amounts due to Vendor.
o All product over $50 cost must be handled by using ONE of the three
methods described below. In the absence of a choice by the Vendor, Vendor
acknowledges and agrees that West Marine will use Option 1: List and
Destroy as the default.
8.1 OPTIONS: For items over $50 unit cost, please choose one of the following:
1. LIST AND DESTROY: Regardless of cost, product will be listed for
tracking purposes and destroyed in the field. West Marine will provide product
listing showing units and cost to Vendor, Vendor agrees to reimburse West Marine
for full cost value, based on current cost of the item, for said goods. If a
credit memo has not been received within 30 days, Vendor hereby specifically
authorizes West Marine to credit such charges against any amounts due to Vendor.
2. RETURNED AND HELD: Product over $50 unit cost will be returned to
either of West Marine's Distribution Centers and held for up to 30 days for
Vendor's inspection, after which it will be destroyed. Vendor agrees to schedule
a time with the returns warehouse for review of detective product. West Marine
will provide a product listing showing units and cost to Vendor. Vendor agrees
to reimburse West Marine for full cost value, based upon current cost of the
item. Vendor hereby specifically authorizes West Marine to credit such charges
against any amounts due to Vendor.
3. PRODUCT RETURNED TO VENDOR: Product over $50 unit cost will be
returned to a designated. West Marine return warehouse and then be shipped
freight collect - 3rd party billing to the Vendor's designated address. West
Marine will consolidate inventory to maximize shipping and handling efficiency
for West Marine and the Vendor. Vendor agrees to reimburse West Marine for full
cost value, based on current cost of the item.
8.3 CREDIT
Vendor agrees not to send West Marine any repaired or other replacement
merchandise, unless West Marine specifically asks for replacement or repair
(e.g. customer-owned units out of warranty) in form of a Purchase Order. West
Marine will not accept refurbished product in lieu of credit without a Purchase
Order from the West Marine Category Manager. Vendor agrees that West Marine has
the right to dispute any credit memo, or any particular item therein, submitted
by Vendor, and in such event West Marine agrees to send a Vendor a written
explanation detailing the reason(s) for such dispute. West Marine reserves the
right to negotiate a flat credit rate in lieu of sending product back. Such rate
shall be mutually agreed upon by the West Marine Category Manager and the Vendor
representative based on a percent of purchases and the historic return rate.
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8.35 RETURN TO VENDOR SPECIFICATIONS
To insure smooth operations with it's Vendor, West Marine has established
guidelines regarding product West Marine returns to Vendor (RTV) for credit and
the issuance of Return Authorizations (RA). West Marine will fax a RA form
requesting the Vendor to respond within 5 business days with a RA. The RA form
will include Vendor's part number, serial #, West Marine Sku, and Product Return
Code. West Marine shall employ reasonable care when packing returned goods. West
Marine cannot provide Proof of Purchase, original Purchase order number, Vendor
invoice number, or original packaging.
8.4 PRODUCT RETURN CODES
West Marine will pay for freight on returned goods when the return is due to
West Marine's error. In all other cases, freight will be shipped freight collect
- 3rd party billing. West Marine will use the return codes below as an
explanation for why products are being returned, on West Marine's return
documentation. Vendor agrees to provide West Marine with a full cost credit.
Vendor hereby specifically authorizes West Marine to credit such charges against
any amounts due to Vendor.
o Freight payment policy for each return code is listed below.
o Product Returns being shipped to Vendor will be batched and shipped by
the most economical method possible.
RETURN CODE REASON FOR RETURN FREIGHT POLICY
------------- ------------------------------------ -----------------------------------------
Return Code A Vendor Recall Shipped Freight Collect 3rd Party Billing
Return Code B Incorrect product/qty sent by Vendor Shipped Freight Collect 3rd Party Billing
Return Code C Received in unsellable condition Shipped Freight Collect 3rd Party Billing
Return Code D Vendor buy back Freight Pre Paid by West Marine
Return Code E Wrong Merchandise sent by Vendor Shipped Freight Collect 3rd Party Billing
Return Code N Overstock Freight Pre Paid by West Marine
Return Code O Defective Product Shipped Freight Collect 3rd Party Billing
Return Code P Repackage Freight Pre Paid by West Marine
Return Code Q Non - Stock product Freight Pre Paid by West Marine
Return Code R Product out of date Freight Pre Paid by West Marine
8.5 DEFECTIVE MERCHANDISE FROM ACQUIRED PRODUCT LINES
When a Vendor takes over a competitors' product line, where items are replaced
one for one, and where West Marine continues to use the same SKU number, the new
Vendor agrees to accept responsibility for defective merchandise from the prior
Vendor. In these instances, the new Vendor agrees to credit West Marine at the
current cost. Vendor hereby specifically authorizes West Marine to credit such
amount against any amounts due to Vendor.
8.6 VENDOR WARRANTY POLICY
In an effort to ensure that West Marine has up to date information regarding the
Vendor's warranty policies on file, West Marine requests that a complete copy of
all warranty-related information be forwarded to the West Marine Vendor
Relations department within 30 days. West Marine is committed to meeting
Vendor's paperwork requirements prior to returning
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product to Vendor. If Vendor requires a Return Authorization (RA) Number or
other documentation prior to shipping, these should be stated in Vendor's
requirements and be included in the information forwarded to West Marine.
10.0 TRANSPORTATION SERVICES
10.0.1 STANDARDS
West Marine has a Transportation Services Department that will manage the
transportation of goods from Vendor to West Marine's Distribution Service
Centers. West Marine's goal is to move these goods in a cost-effective, timely,
and disruption-free manner.
10.1 TRANSPORTATION FREIGHT TERMS
West Marine Transportation Services reviews all freight terms negotiated with
each Vendor. Upon review West Marine may determine that alternate freight
methods are more desirable. West Marine's preferred method in most situations is
to have product shipped collect. Unless changed, Vendor agrees to continue to
adhere to current agreed-upon freight terms.
If the Vendor is "Freight Collect," the following terms will apply. Vendor is
expected to ship to all West Marine Distribution Service Centers "Freight
Collect" utilizing the West Marine Transportation Routing Guide. Freight Collect
terms state that West Marine pays freight charges and bears freight charges. Any
deviation in shipping methods must be approved in writing by the West Marine
Transportation Services Department prior to shipment.
10.2 TRANSPORTATION ROUTING AND MODE SELECTION
Vendor will ship Freight collect in accordance with the West Marine
Transportation Routing Guide using the West Marine assigned carrier. Freight
management is a major focus for West Marine, therefore utilizing agreed-upon
carriers is critical. Failure by Vendor to adhere to routing and mode
requirements will result in a charge of the dollar difference between Vendor's
chosen transportation method and that of West Marine. Vendor specifically
authorizes West Marine to credit such amounts against any payments due to
Vendor.
To obtain a Vendor specific West Marine Routing Guide, Vendor must contact
Transportation Services at (▇▇▇) ▇▇▇-▇▇▇▇. Vendor will be sent with a Routing
Guide Verification Form along with a respective routing guide. Upon receipt,
Vendor agrees to comply with all of the terms and conditions contained in the
West Marine Routing Guide.
10.3 FREIGHT PRESENTATION
Vendor agrees to follow procedures to expedite processing. When shipping
multiple Purchase Orders, pack all of one Purchase Order together, with SKUs for
each Purchase Order kept together. Vendor should pack on pallets whenever
possible to reduce handling time and expedite the shipment of products out to
selling locations.
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10.4 SHIPPING HAZARDS
Vendor agrees to conform to the carrier's requirements to withstand normal
transportation hazards. Vendor agrees to package hazardous materials such that
they meet any packaging regulations currently in effect. Hazards are to be
marked with proper hazardous shipping labels and packaged separately. All
liquids are to be palletized, shrink wrapped, and marked Fragile. See section
5.4 for more information on hazardous product.
10.5 ▇▇▇▇ OF LADING PREPARATION
A ▇▇▇▇ of Lading consigning a shipment to the proper West Marine location must
contain the following information and be provided to the West Marine selected
carrier for each shipment. This information will allow the carrier to make an
appointment at a West Marine Distribution Service Center.
1. Vendor Name and address
2. West Marine Purchase Order Number
3. Number of pieces
4. Number of pallets
5. Number of floor loaded cartons
6. Total weight
7. Hazardous Materials documentation and UN#, if required
8. For a delivery appointment call Hollister (▇▇▇) ▇▇▇-▇▇▇▇ or Rock
Hill (▇▇▇) ▇▇▇-▇▇▇▇
9. Ship date
10. West Marine destination address (store / Distribution Service
Center)
11. NMFC Classification #
Under no circumstances should the value of the purchased merchandise be shown on
the ▇▇▇▇ of Lading.
10.6 MASTER ▇▇▇▇ OF LADING
All Purchase Orders being shipped to the same West Marine destination location
on the same day must be consolidated under one master ▇▇▇▇ of Lading. In an
effort to reduce instances where this consolidation does not occur, West Marine
will track and communicate these instances to the Vendor when this happens.
10.7 IMPORT TRANSPORTATION
If the Vendor originates a shipment from Canada, Mexico or off shore, proper
import documentation is required. One set of the documents must be attached to
the ▇▇▇▇ of Lading in an envelope clearly marked "CUSTOMS DOCUMENTS ENCLOSED"
and one set of documents should be sent directly to:
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Import Department
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
These documents bearing the carriers pro # should also be faxed to the West
Marine Import Coordinator. If there are any questions as to the import documents
required or how to fill them out, contact West Marine Import Department. Port of
entry must be determined by West Marine Transportation Services prior to
landing. All product must be marked with Country of Origin if not manufactured
in the USA.
11.0 DISTRIBUTION SERVICE CENTER
11.01.1 STANDARDS
Vendor agrees to comply with the following:
1. All products must be received against a West Marine Purchase Order.
2. In order to improve efficiency at West Marine's Distribution Service
Centers, West Marine requires Vendor to ship products in master
carton quantities, whenever possible. If West Marine's orders
support shipment in mutually agreed upon master carton quantities,
Vendor agrees to adhere to this standard. Once established, a master
carton quantity cannot be changed on subsequent orders or receipts.
3. Vendor will not ship substitutions without prior approval by the
West Marine Category Manager.
4. Ship-to locations must be carefully monitored by the Vendor. West
Marine reserves the right to refuse shipments destined for incorrect
West Marine locations.
5. No cash collect or COD shipments will be accepted.
11.1 MARKING
Vendor agrees to adhere to the following marking requirements for all inbound
goods and materials. The outside of each shipping carton or pallet must be
marked with the following information:
1. Shipper's name and address
2. West Marine's name and Ship-To address
3. West Marine Purchase Order number
4. Product Description (optional, not preferred on high value product)
5. Mfg. Part Number
6. The number of the box or pallet in the shipment ( i.e. 1 of 2, 2 of
2, etc.)
7. All pallets must be marked with the total number of cartons
contained in the pallet.
8. All master cartons and inner packs must be clearly marked with the
number of units inside.
21
If the above requirements are not met, a $100 handling charge will be assessed.
Vendor hereby specifically authorizes West Marine to credit such charges against
any amounts due to Vendor. Any exception to this policy must be approved by West
Marine's Vice President of Merchandising, prior to shipment.
11.2 PACKING
Vendor agrees to adhere to the following packing requirements for all inbound
goods and materials:
1. Vendor will pack only one (1) SKU per master carton. No mixed SKUs
in one box.
==> It is understood that products West Marine order in small
quantifies, or that have no standard master pack quantity may
need to be combined in shipping cartons to maximize efficiency.
When this occurs West Marine expects the following:
[ ] Same SKUs are bagged or boxed together or clearly separated
from each other.
[ ] If a carton contains multiple SKUs, the full quantity to
each SKU is kept together.
[ ] If a carton contains multiple SKUs, the carton must clearly
state "mixed skus" on the outside.
2. Vendor will pack only one ( 1 ) Purchase Order per carton or box.
3. Quantities of the same part number must be kept together for ease of
quantity verification.
4. Cartons for a single Purchase Order shall be placed on the same
pallet, whenever possible.
5. Individual shipping cartons must be packaged to meet UPC test
strengths and shipping specifications.
6. Hazardous materials must meet packaging rules currently in effect
and be marked with proper hazardous shipping labels and packaged
separately.
11.3 PACKING LIST
Vendor agrees to provide a packing list with each shipment against a West Marine
Purchase Order Number. The packing list must be complete for all items in the
shipment and must be clear, concise and easy to read. The packing list must be
taped to a box or pallet in an obvious manner and must contain the following
information:
1. West Marine Purchase Order Number
2. Vendor's full Name
3. Product Description and Country of Origin
4. The part number with which each product is actually marked
5. Specify if the product shipped an agreed upon substitution
6. Quantity of each item shipped
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7. Quantity back ordered, Unit of measure, (e.g. case, each, pair)
8. The actual number of boxes/pallets shipped
9. The total weight of the shipment
10. U.N. numbers and full descriptions of any hazardous materials and
applicable MSDS sheets
If the above requirements are not met, there will be a handling charge of $100
per shipment. Vendor specifically authorizes West Marine to credit such amounts
against any payments due to Vendor.
11.4 MASTER CARTON SIZE AND QUALITY
1. Master Cartons must be constructed of a minimum 150 lb. PSI test
weight or 32 ECT.
2. Master cartons must be constructed of corrugated cardboard or fiber.
3. Cartons must be closed using an adhesive tape at least 2 inches
wide.
4. Staples, stitches, strapping, and metal banding are not to be used
to close cartons unless required by International regulations, or
considered to be necessary by the Vendor.
5. Carton weight should not exceed 50 lb., unless the single item
weight exceeds 50 lb.
6. Master cartons should not exceed a maximum of 24" (inches) length X
20" (inches) width and 30" (inches) height. This standard should be
followed unless a single unit exceeds the stated dimensions.
7. Master cartons should not be smaller than 9" (inches) length X 6"
(inches) width X 3" (inches) height.
11.5 PALLET SIZE, CONSTRUCTION AND WRAPPING
1. Shipments utilizing common or contract carriers and exceeding 8O
cubic feet must be palletized.
2. The size of the pallet base should be 40" X 48" inches GMA four-way.
3. Hardwood pallets are expected for safety purposes.
4. All pallet loads must be shrink-wrapped or banded securely by
strapping to the pallet itself.
There will be a handling fee of $100 for every shipment not to specification.
Vendor specifically authorizes West Marine to credit such amounts against any
payments due to Vendor.
11.6 APPOINTMENTS FOR INBOUND GOODS
Vendor agrees to make an advance appointment for delivery of goods. Vendor
agrees to supply the following information to the carrier on the ▇▇▇▇ of Lading
or West Marine staff at the time the appointment is made.
1. Vendor Name and address
2. West Marine Purchase Order Number and Ship Date
3. Number of pieces, pallets and floor loaded cartons
23
4. Total weight
5. Hazardous Materials documentation, if required
6. For a delivery appointment call Hollister (▇▇▇) ▇▇▇-▇▇▇▇ or Rock
Hill (▇▇▇) ▇▇▇-▇▇▇▇
7. West Marine destination address (Store / Distribution Service
Center)
12.0 SPECIAL HANDLING CHARGES SUMMARY
EFFECTIVE
DATE FOR FEES CATEGORY HANDLING CHARGE PROCESSING REFERENCE
-------------- -------------------------- ----------------- -------------------- ---------------------
May 1, 1998 Barcode Labeling $100.00 per P.O. 25 cents per unit U.P.C. Codes Section
6.0.1., Page 14
Sept. 1, 1999 Marking/Labeling $100 per shipment Marking, Section
11.1, Page 21
Sept. 1, 1999 Freight Discrepancies $100 per shipment $50 for Hazardous Shipment
(over/shorts) Materials clean-up Discrepancies,
Section 7.3, Page 15
Sept. 1, 1999 Packing List $100 per shipment Packing List, Section
Documentation 11.3, Page 22
Sept. 1, 1999 Packing List specifications $100 per shipment Packing List, Section
11.3, Page 22
Sept. 1, 1999 Pallet Specifications $100 per shipment Pallet Size, Section
11.5, Page 22
Nov. 1, 2000 Failure for "Freight Dollar difference Transportation
Collect" Vendor to use between ▇▇ ▇▇▇▇▇▇▇ Routing and Mode
assigned Routing Guide and Vendor carrier Section 10.2, Page 19
Nov. 1, 2000 Mis-directed Purchase Freight charges Ship-to Location
Orders consigned to the incurred Section 3.6
wrong DSC facility. Page 11
Nov. 1, 2000 Hazardous Product Costs incurred by Hazardous Product
Regulatory Compliance West Marine to Section 5.4
bring product into Page 12-13
compliance
12.5 WEB SITE AND LINKS GUIDELINES
West Marine operates a retail web site under the domain name ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇
and a wholesale site under the domain name ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇. West Marine
offers all active items from Vendors for sale on these sites, as well as some
discontinued products, unless a Vendor has specifically requested their products
not be included, West Marine's goal is to provide an additional way for West
Marine's customers to shop for Vendor's products, and to provide an entertaining
and informative marine web site. To this end, West Marine requests Vendor's
compliance the below sections. Any questions should be directed to ▇▇▇▇
▇▇▇▇▇▇▇▇▇ at: (▇▇▇) ▇▇▇-▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇ at: (▇▇▇) ▇▇▇-▇▇▇▇.
24
12.5.1 LINKS TO AND FROM THE WEST MARINE AND PORT SUPPLY SITES
If Vendor has product information on a web site, West Marine would like to
establish a link for West Marine's customers' convenience. In return, West
Marine requests Vendor to list West Marine's site as a place where customers can
buy Vendor's products on-line. If Vendor's site offers the ability to "Buy Now"
when a customer views a particular item, West Marine requests Vendor's link to
the appropriate page on the West Marine site to facilitate the transaction.
12.5.2 LISTS OF DEALERS IN VENDOR WEB SITES
If Vendors site contains a list of Vendor's dealers, West Marine requests that
Vendor list all West Marine stores in addition to the company headquarters in
Watsonville. Please contact Vendor Relations Department for a list of store
locations if required.
Another solution is to link to the West Marine Store Finder page on West
Marine's web site. This page will allow Vendor's customers to enter their zip
code and find the store closest to their home.
12.5.3 SELLING PRODUCTS DIRECTLY ON-LINE
West Marine requests that Vendor refrain from selling its products directly to
consumers on-line. This practice will provide a strong disincentive to continue
vendor-distributor relationship.
12.5.4 PROVIDING PRODUCT INFORMATION ON-LINE
West Marine's goal is to provide the highest quality marine product information
available anywhere on the Web. West Marine intend to facilitate this by
promoting Vendor's current products, and by offering information on discontinued
items, so that West Marine's mutual customers can repair products, reinstall
them, and find out about accessories. To this end, Vendor hereby authorizes West
Marine to reproduce Vendor's product information so that customers can obtain
access to it. West Marine's product specialists will be contacting Vendor for
information on how Vendor's product information is stored so that West Marine
can republish it on the web. Vendor agrees to use its best efforts to work with
West Marine's staff to ensure accurate and complete dissemination of Vendor's
product information.
13.0 ADDITIONAL PROVISIONS
13.0.1 MODIFICATION
This agreement may be modified at any time by West Marine. No waiver of any of
the provisions in this agreement shall be deemed, or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any waiver constitute
a continuing waiver. No waiver shall be binding unless executed in writing by
the party making the waiver.
25
13.0.2 BINDING ON HEIRS
Each and all of the provisions in this agreement to be performed by, or on the
part of, Vendor shall bind Vendor, its successors, and assigns and shall benefit
West Marine, its successors, and assigns.
13.0.3 RULES OF CONSTRUCTION
Both parties certify to their full familiarity with the provisions of this
agreement and agree that the provisions stated are not to be construed either
for or against either party. The parties agree that any deletion of language
from this agreement prior to its mutual execution by Vendor and West Marine
shall not be construed to have any particular meaning or to raise any
presumption, or construction or implication, including, without limitation, any
implication that the parties intended to state the converse, observe or opposite
of the deleted language.
13.0.4 NO JOINT VENTURE
Nothing contained in this agreement shall be deemed for any purpose as creating
any relation between the parties involved other than the relationship of
vendor/supplier/manufacturer/ customer and West Marine.
13.0.5 INTEGRATION
This agreement contains all terms and conditions between Vendor and West Marine
relating to matters set forth in this agreement.
13.0.6 GENDER
As used in this agreement and when required by the context, each number
(singular or plural) shall include all numbers, and each gender shall include
all genders.
13.0.7 TIME
Time is and shall be of the essence of this agreement and of each term or
provision hereof.
13.0.8 JOINT AND SEVERAL LIABILITY
To the extent Vendor consists of more than one party, entity, or person, the
obligations imposed by this agreement shall be joint and several.
13.0.9 COUNTERPARTS
This agreement may be executed in counterparts, each of which, when so executed
shall be deemed to be an original, and such counterparts together shall
constitute one in the same instrument.
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13.0.10 LIMITATION ON AUTHORITY
West Marine reserves the right, from time to time, to designate certain
financial and other limitations on the authority employees and associates have
to bind West Marine, which limitation may include (without limitation)
employment and officer level limitations, financial commitment limitations and
specific parties limitations. Upon service of written notice to Vendor of such
limitations, Vendor agrees that no contracts, agreements, waivers or other
commitments made by such employees or associates in violation of such
limitations will be binding on West Marine regardless of the reasonableness of
any reliance by Vendor in connection with same or any implied ratification by
West Marine through silence or acceptance of benefits.
13.0.11 ASSIGNMENT
Notwithstanding any provision in this agreement to the contrary, West Marine
shall have the right to assign, license, sublicense, pledge, hypothecate,
encumber or otherwise transfer this agreement, or any portion of West Marine's
interests herein (the "Exempt Transfer"), without Vendor's consent, whether or
not such Exempt Transfer in made to an "Affiliated Party". For purpose of this
section, the term Affiliated Party shall mean: (1) any parent, subsidiary, or
affiliated corporation or other legal entity of West Marine; (ii) any
corporation or other legal entity resulting from any merger of other
reorganization of West Marine; or (iii) to any successor acquiring all or
substantially all of West Marine's assets or business. Vendor agrees to execute
any other and further instruments required by West Marine to give effect to such
Exempt Transfer. If Vendor shall fail to so execute and deliver, or cause to be
executed and delivered, the assignments or other instruments herein referred to,
West Marine is hereby irrevocably granted the power coupled with an interest to
execute such assignments and instruments in the name of Vendor as, Vendor
attorney-in-fact.
Vendor shall not assign this agreement without West Marine's prior written
consent. Any such purported assignment without such consent shall be void and
have no legal effect.
13.0.12 COMPLIANCE WITH LAW
a. Vendor, at its sole cost, agrees to obey, observe and promptly
comply with all Federal, State and/or local orders, regulations, rules,
ordinances, rulings, laws and/or directives (collectively, "Laws") applicable
now or at any time during the term of this agreement to Vendor and/or Vendor's
products, including, without limitation, all applicable environmental, safety,
health, labeling and flammability Laws. Vendor shall promptly supply West Marine
with a copy of any notice of violation, complaint, investigation or other action
concerning any such Laws received by Vendor upon receipt. Vendor shall also
promptly provide West Marine with notice of the enactment or promulgation of any
Laws of which Vendor becomes or is made aware.
b. Without limiting the generality of the foregoing, Vendor
specifically agrees to comply with all applicable provisions of the
California
Safe Drinking Water and Toxic Enforcement Act of 1986 (also known as
"Proposition 65" or the "Act"), which requires, among other things, clear and
reasonable warning materials, such as signs notices, menu stickers, or labels,
to be provided on products which contain chemicals which are known to the State
of
California to cause cancer or other reproductive harm (the "Prop 65
Chemicals"). In connection
27
therewith, Vendor agrees to determine whether or not any products which Vendor
supplies to West Marine contain any of the Prop 65 Chemicals and to send written
notice to:
West Marine
Attn. Vendor Relations
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(within thirty (30) days of the execution of this agreement for those products
already distributed by West Marine or immediately prior to West Marine's
distribution of any future products) of the following:
1. The name of the Prop 65 Chemical(s) which are contained in the
product;
2. The percentage amount of such Prop 65 Chemical in each product in
relation to the overall size/quantity packaged; and
3. Whether or not Vendor's product contains a Prop 65 warning label;
and
4. If Vendors product does contain a Prop 65 Chemical, but does not
contain a Prop 65 warning label, the reason(s) or information on
which Vendor is relying to support its decision not to include a
Prop 65 warning label (ex., the product does not contain any Prop 65
Chemical or the product was tested in a laboratory and the Prop 65
Chemical contained in the product did not reach the threshold level
required for a Prop 65 warning label).
Moreover, if Vendor's product(s) contains a Prop 65 Chemical, Vendor agrees to
include and/or provide on such product, at Vendor's sole expense, the warning
label required by the Act and further Vendor agrees to review the Prop 65 list
quarterly and to comply with the foregoing provisions concerning any products
which may contain an added Prop 65 Chemical.
c. In addition to the foregoing, for and in consideration of West
Marine's purchase of Vendor's product, Vendor agrees to indemnify and hold West
Marine, its affiliates, parents, subsidiaries, officers, directors,
shareholders, employees, agents, representatives, heirs and assigns harmless
from and against any claims, liabilities, demands, causes of action, judgements,
settlements and expenses (including, without limitation, actual attorneys' fees
and costs) arising out of Vendor's failure, for any reason, to supply
merchandise that conforms in all respects to, and/or to observe or comply with,
all applicable federal, state and local laws, orders, regulations, rules,
ordinances, rulings and/or directives including, but not limited to, applicable
environmental, safety, health, labeling and flammability laws, inclusive of the
Act; and/or Vendor's breach of any express or implied warranties or
representations made to West Marine or other agreements made by Vendor herein.
For more information on Proposition 65, please contact
California's Office of
Environmental Health Hazard Assessment at (▇▇▇) ▇▇▇-▇▇▇▇ or
▇▇▇.▇▇▇▇▇.▇▇.▇▇▇/▇▇▇▇▇▇.▇▇▇▇.
28
15.0 VENDOR CONTACT SHEET
WEST MARINE
Vendor Name Vendor #
--------------------------- ---------------------------------
Vendor Contact Sheet
Company Website Address:
---------------------------------------
VIV
Name: Phone:
----------------------------------- -------------------------------
Mailing Address: Fax:
------------------------ ---------------------------------
City, State & Zip: Email:
---------------------- -------------------------------
Physical Address:
-----------------------
City, State & Zip:
----------------------
PRESIDENT
Name: Phone:
----------------------------------- -------------------------------
Mailing Address: Fax:
------------------------ ---------------------------------
City, State & Zip: Email:
---------------------- -------------------------------
Physical Address:
-----------------------
City, State & Zip:
----------------------
CO-OP
Name: Phone:
----------------------------------- -------------------------------
Mailing Address: Fax:
------------------------ ---------------------------------
City, State & Zip: Email:
---------------------- -------------------------------
Physical Address:
-----------------------
City, State & Zip:
----------------------
REPRESENTATIVE
Name: Phone:
----------------------------------- -------------------------------
Mailing Address: Fax:
------------------------ ---------------------------------
City, State & Zip: Email:
---------------------- -------------------------------
Physical Address:
-----------------------
City, State & Zip:
----------------------
LOGISTICS
Name: Phone:
----------------------------------- -------------------------------
Mailing Address: Fax:
------------------------ ---------------------------------
City, State & Zip: Email:
---------------------- -------------------------------
Physical Address:
-----------------------
City, State & Zip:
----------------------
29
16.0 NEW VENDOR INFORMATION
For new vendors, please complete and return the following information to
accurately set Vendor up in West Marine's system.
16.1 NEW PRODUCT WORKSHEET
New Product Worksheet: Please complete the following fields
SUGGESTED UPC
MANUFACTURER'S LIST RETAIL NET UNITS OF CASE COUNTRY CODE
PART # DESCRIPTION PRICE (OPTIONAL) PRICE MEASURE PACK OF ORIGIN HAZARDOUS? (UNIT)
-------------- ----------- ----- ---------- ----- -------- ---- --------- ---------- -------
Contact Name:
----------------------------------------
Contact Phone:
---------------------------------------
Contact email:
---------------------------------------
30
16.2 VENDOR SET-UP FORM
Vendor Name Vendor Number
Attention: Street/Box/Suite
City
State Zip Code Phone
Country Mnemonic Fax
Person/Corp (P/C) Other Name
Contact Name, Order Vendor Type 1-trade, 2-expense, 3-freight
Clerk Number Terms Code Date Calc From
Push Discount Days: Always take Disc: (Y/N)
Freight Policy Code: 4 - Freight Prepaid Vendor Frt Allow pct Frt Allow Amount:
pays freight
5 - Freight Collect WM Vendors Cust No.
pays freight
1099 Tax ID Number: Telex:
Default Account No.: Default Store No
Factor/Agent
Purchase Order Notes:
Receiving Notes
Buyer Notes
Backorders (N/Y) Plan Lead Time
Currency Code Buyer
Auto Dist. Code FOB Code 1-WM owns goods in transit
Min. Ship Code 2-Vendor owns goods in transit *preferred
Print R/A (Y/N) Min. Ship Amount
Send to Store (Y/N) Returns Policy Code
Vendor tax code (1099)
Ship Via 1 Does vendor ship Int'l Yes_____ No____
Ship Via 2 Does vendor ship exclusively Yes_____ No____
UPS, RPS, FedEx
Shipping Origin Address(1) Shipping Origin Address(2)
Use Matching N Inbound Freight Manager
Require Credit Authorization (Y/N) Date
Always ▇▇▇▇ for Freight (Y/N)
Vendor Part # (1-SKU, 2-VPN)
Requested By Date
Approved By Date
A/P Manager Date
A/P Set Up Date
31
16.3 IRS W-9 FORM
Vendor must obtain and complete and return an IRS W-9 form.
W-9 FORM
Go to the IRS's website to obtain a W-9 Form. Complete the form and return with
the signed Standard Vendor Agreement.
▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇_▇▇▇▇/
17.0 AGREEMENT SIGNATURES
By signing this document, Vendor agrees to the terms and conditions stated
herein. West Marine reserves the right at any time and from time to time to
modify this agreement as business needs dictate. Please return one fully
executed copy of this agreement to Vendor Relations within 60 days.
In an effort to develop a longer term focus on the business, this agreement
became effective on October 1, 1997. Revision 4: becomes effective on August 1,
2000 and shall continue in full force and effect until further modified by the
parties in writing.
-------------------------------
Vendor Name
-------------------------------
Vendor Number
By: /s/ ▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CEO
--------------------------------- -------------------------------
By: By:
--------------------------------- -------------------------------
Printed Name Printed Name
Title: Title:
------------------------------- -----------------------------
Date: Date:
-------------------------------- ------------------------------
32
EXHIBIT B
TO THE
STRATEGIC ALLIANCE AGREEMENT
Operations Group ▇▇▇▇▇ FARGO HSBC
Southern
California TRADE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Page 1
DATE OF ADVICE: OCTOBER 22, 2001 ADVICE OF CORRESPONDENT'S
IRREVOCABLE DOCUMENTARY CREDIT
OPENING BANK: NUMBER: ▇▇▇▇▇▇▇
BANK OF AMERICA NT & SA DATED: OCTOBER 22, 2001
NC1-005-21-01, INTL L/C DEPT. OUR ADVICE NUMBER: SBE415673
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ DATE OF EXPIRY : JUNE 30, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇: ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
APPLICANT: BENEFICIARY:
WEST MARINE FINANCE COMPANY INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AMOUNT: USD 1,041,949.30 +/- 5%
ONE MILLION FORTY ONE THOUSAND NINE
HUNDRED FORTY NINE AND 30/100'S US
DOLLARS PLUS OR MINUS 5 PERCENT
AT THE REQUEST OF THE ABOVE MENTIONED BANK(S), WE ENCLOSE AN EXACT COPY OF THE
ABOVE LETTER OF CREDIT OPENED IN YOUR FAVOR. PLEASE NOTE THAT FOR YOUR
CONVENIENCE WE WILL RETAIN THE ORIGINAL LETTER OF CREDIT SO THAT IT IS READILY
AVAILABLE AT THE TIME YOU PRESENT DOCUMENTS TO US FOR NEGOTIATION/COLLECTION. IF
YOU DO NOT INTEND TO PRESENT DOCUMENTS TO US FOR NEGOTIATION/COLLECTION, WE WILL
HAVE THE ORIGINAL LETTER OF CREDIT RELEASED TO YOU AGAINST PAYMENT OF OUR
OUTSTANDING CHARGES.
WHEN PRESENTING DRAFT(S) AND THE SPECIFIED DOCUMENTS PLEASE SUBMIT AN ADDITIONAL
COPY OF THE COMMERCIAL INVOICE(S) FOR OUR FILE.
THIS CREDIT IS TRANSFERABLE AND TRANSFER MAY ONLY BE EFFECTED BY ▇▇▇▇▇ FARGO
HSBC TRADE BANK, N.A., PROVIDED THAT YOU DELIVER TO US YOUR WRITTEN TRANSFER
REQUEST IN FORM AND SUBSTANCE SATISFACTORY TO US WITH YOUR SIGNATURE
AUTHENTICATED BY A BANKING INSTITUTION. THE TRANSFER REQUEST MUST BE ACCOMPANIED
BY THE ORIGINAL OF THIS CREDIT AND ANY AMENDMENTS TOGETHER WITH PAYMENT OF OUR
CUSTOMARY CHARGES OF 1/4 OF ONE PERCENT OF THE AMOUNT TO BE TRANSFERRED (MINIMUM
USD 175.00) PLUS OUR OUT-OF-POCKET EXPENSES, IF ANY.
TO AVOID DELAYS IN OBTAINING PAYMENT(S) UNDER THIS CREDIT, STRICT COMPLIANCE
WITH ITS TERMS IS REQUIRED. IF YOU ARE UNABLE TO COMPLY WITH THOSE TERMS, WE
SUGGEST THAT YOU COMMUNICATE WITH YOUR BUYER IMMEDIATELY TO ARRANGE FOR ANY
AMENDMENTS.
Operations Group ▇▇▇▇▇ FARGO HSBC
Southern
California TRADE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Page 2
NO TRANSFER MAY BE MADE TO A PERSON OR ENTITY (TRANSFEREE) WHO IS (1) A
SPECIALLY DESIGNATED NATIONAL, TERRORIST OR NARCOTICS TRAFFICKER, A BLOCKED
ENTITY, OR A PERSON OR ENTITY WITH RESPECT TO WHICH TRANSACTIONS ARE PROHIBITED
OR OTHERWISE RESTRICTED PURSUANT TO THE FOREIGN ASSETS CONTROL REGULATIONS OF
THE UNITED STATES TREASURY DEPARTMENT, OR (2) SUBJECT TO A DENIAL ORDER OF THE
U.S. DEPARTMENT OF COMMERCE, BUREAU OF EXPORT ADMINISTRATION, OR (3) LOCATED IN,
OR A NATIONAL OF, TALIBAN CONTROLLED AREA AFGHANISTAN, CUBA, IRAN, IRAQ, LIBYA,
NORTH KOREA, SUDAN AND UNITA CONTROLLED AREA OF ANGOLA.
PLEASE NOTE BENEFICIARY'S NAME AND ADDRESS IN ALL DOCUMENTS MUST APPEAR EXACTLY
AS PER THE ATTACHED LETTER OF CREDIT.
PLEASE NOTE THAT THE TERMS OF THIS LETTER OF CREDIT PROVIDE THAT DRAWINGS ARE
PAYABLE FOR FACE AMOUNT ONLY AT THE OFFICE OF THE OPENING BANK WHICH HAS
UNDERTAKEN TO EFFECT PAYMENT UPON ITS RECEIPT OF CONFORMING DOCUMENTS.
THEREFORE, DOCUMENTS PRESENTED TO US WILL, AFTER PRELIMINARY EXAMINATION BY US,
BE FORWARDED BY US TO THE OPENING BANK FOR FINAL APPROVAL AND PAYMENT WILL BE
MADE TO YOU ONLY UPON OUR RECEIPT OF AVAILABLE FUNDS FROM THE OPENING BANK.
IF THE CREDIT REQUIRES PRESENTATION OF MARINE OR OCEAN BILLS OF LADING AND IF,
UNLESS PROHIBITED BY THE TERMS OF THE CREDIT, YOU PRESENT TRANSPORT DOCUMENTS
INDICATING A PLACE OF RECEIPT OR TAKING IN CHARGE DIFFERENT FROM THE PORT OF
LOADING THE ON BOARD NOTATION MUST ALSO INCLUDE THE NAME OF THE VESSEL ON WHICH
THE GOODS HAVE BEEN LOADED AND THE NAME OF THE PORT STIPULATED IN THE CREDIT.
THIS PROVISION ALSO APPLIES WHENEVER LOADING ON BOARD THE VESSEL IS INDICATED BY
PRE-PRINTED WORDING ON THE ▇▇▇▇ OF LADING.
NO BANKING CHARGES ARE FOR YOUR ACCOUNT. THE FOLLOWING WILL APPLY AT TIME OF
PAYMENT, ADVISING COMMISSION USD 100.00 AMENDMENT COMMISSION, IF ANY, USD 75.00;
NEGOTIATION/PAYMENT EXAMINATION COMMISSION 1/8 OF 1% WITH A MINIMUM USD 125.00;
POSTAGE AND/OR HANDLING, AND/OR OUT-OF-POCKET EXPENSES, IF ANY AS APPROPRIATE,
DECODING IF ANY, USD 100.00, CHECK FEE USD 40.00 OR FEDWIRE FEE USD 5.00. ALL
FEES SUBJECT TO CHANGE WITHOUT NOTIFICATION.
WHETHER OR NOT THE LETTER OF CREDIT OR ANY AMENDMENT SPECIFIES THAT BANK CHARGES
ARE FOR APPLICANT'S ACCOUNT, IF DOCUMENTS PRESENTED TO US CONTAIN DISCREPANCIES,
A HANDLING CHARGE OF USD 75.00 TOGETHER WITH OUR RELATED OUT-OF-POCKET EXPENSES,
IF ANY, AND ANY EXPENSES AND/OR CHARGES CLAIMED BY THE ISSUING BANK ARE FOR YOUR
ACCOUNT.
IF ANY INSTRUCTIONS ACCOMPANYING A DRAWING UNDER THIS LETTER OF CREDIT REQUEST
THAT PAYMENT IS TO BE MADE BY TRANSFER TO AN ACCOUNT WITH US OR AT ANOTHER BANK,
WE AND/OR SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN SUCH
INSTRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE
INTENDED PAYEE.
DOCUMENTS MUST BE PRESENTED TO US NO LATER THAN 5:00 P.M.
Operations Group ▇▇▇▇▇ FARGO HSBC
Southern California TRADE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Page 3
THIS IS AN INTEGRAL PART OF ADVICE NUMBER: SBE415673
THIS LETTER IS SOLELY AN ADVICE OF A LETTER OF CREDIT ISSUED BY THE
ABOVE-MENTIONED OPENING BANK AND CONVEYS NO ENGAGEMENT BY US.
THIS CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY
CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NUMBER
500.
THE DOCUMENTS MUST BE FORWARDED TO ▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A., TRADE
SERVICE OPERATIONS-SOUTH, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇: ▇▇▇▇▇-▇▇▇, ▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇, VIA COURIER IN ONE PARCEL.
/s/ ▇. ▇▇▇▇▇
--------------------------------------
AUTHORIZED SIGNATURE
PLEASE CONTACT ▇▇▇▇▇ ▇▇▇▇▇▇ BY TELEPHONE AT ▇▇▇-▇▇▇-▇▇▇▇ OR BY FAX AT (626)
▇▇▇-▇▇▇▇ REGARDING ANY INQUIRIES.
INCOMING SWIFT MESSAGE 10/22/01
SENDER RECEIVER SWFT MSG L/C ID DOC TRACK STATUS ERROR
SWFT ADDRESS ADDRESS TYPE ID FOUND
700 000000000415673 00000001117860 UPL NO
MESSAGE RECEIVED FROM:
BANK OF AMERICA NT & SA
NC1-005-21-01, INTL L/C DEPT.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
27 SEQUENCE OF TOTAL THIS CABLE COPY HAS BEEN
1/2 AUTHENTICATED BY US AND
IS TO BE CONSIDERED THE
OPERATIVE INSTRUMENT.
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
OUR REF. SBE 415673
----------
40A FORM OF DOCUMENTARY CREDIT IRREVOCABLE Please note: documents will not be
TRANSFERABLE honored when not accompanied by this
letter of credit
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
/s/ ▇. ▇▇▇▇▇
----------------------------
Authorized Signature
20 DOCUMENTARY CREDIT NUMBER
5040815
31C DATE OF ISSUE
011022
31D DATE AND PLACE OF EXPIRY
(CANNOT READ THIS NUMBER)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
50 APPLICANT
WEST MARINE FINANCE COMPANY, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
59 BENEFICIARY
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
32B CURRENCY CODE, AMOUNT
USD 1,041,949.30
39A PERCENTAGE CREDIT AMOUNT TOLERANCE
05/05
41D AVAILABLE WITH ... BY ...
▇▇▇▇▇ FARGO BANK, HEAD ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
BY NEGOTIATION
42C DRAFTS AT...SIGHT
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇, ▇▇
43P PARTIAL SHIPMENTS
ALLOWED
43T TRANSHIPMENT
ALLOWED
[unreadable]
-------------------------------
HONG KONG OR ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ FOR TRANSPORTATION TO...
SEE ADDITIONAL CONDITIONS
44O LATEST DATE OF SHIPMENT
020601
45A DESCRIPTION OF GOODS AND/OR SERVICES & GARMENTS
SPECIFIED ON ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. PROFORMA
INVOICE DATED OCTOBER 11, 2001 - SP02-10112001 WITH A
QUANTITY OF 61,042 HAVING A VALUE OF 1,041,949.30 USD.
FOB HONG KONG OR SHANGHAI, CHINA
71B CHARGES
ALL BANK CHARGES, OTHER THAN THOSE OF THE ISSUING BANK, ARE
FOR THE ACCOUNT OF THE BENEFICIARY.
40 PERIOD FOR PRESENTATION DOCUMENTS TO BE PRESENTED AT
PLACE OF EXPIRY WITHIN 30 DAYS AFTER SHIPMENT BUT
WITHIN VALIDITY OF CREDIT.
49 CONFIRMATION INSTRUCTIONS WITHOUT
57D "ADVISE THROUGH" BANK ▇▇▇▇▇ FARGO HSBC TRADE BANK,
N.A. OPERATIONS - SOUTHERN CALIFORNIA ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
27 SEQUENCE OF TOTAL
2/2
20 DOCUMENTARY CREDIT NUMBER
5040815
46B DOCUMENTS REQUIRED
3 COPIES OF ORIGINAL
COMMERCIAL INVOICE.
3 COPIES OF THE PACKING LIST
3 ORIGINAL CLEAN ON BOARD ▇▇▇▇ OF LADING TO THE ORDER
OF ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. MARKED FREIGHT COLLECT
ISSUED BY EXPEDITORS INTERNATIONAL OCEAN, WITH A
NOTIFY PART OF EXPEDITORS INTERNATIONAL, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
PHONE (▇▇▇) ▇▇▇-▇▇▇▇
1 ORIGINAL, EXPORT VISA AND 2 COPIES COVERING THE
SHIPMENT VALUE, WEIGHT AND QUANTITY.
1 ORIGINAL QUOTA CHARGE STATEMENT AND 2 COPIES.
1 COUNTRY OF DECLARATION CERTIFICATE AND 2 COPIES.
1 CERTIFICATE ON WEST MARINE PRODUCTS, INC.'S LETTERHEAD,
STATING THE FOLLOWING: "I, ▇▇▇ ▇▇▇▇▇▇, SENIOR VICE PRESIDENT
OF MERCHANDISING OF WEST MARINE PRODUCTS, INC., DO HEREBY
CERTIFY THAT WEST MARINE APPROVED THE ASSORTMENT CONTAINED IN
THE ATTACHED NON-CANCELLABLE PROFORMA INVOICE SP02-10112001
IN THE AGGREGATE AMOUNT OF 1,041,949.30 USD, SUBJECT TO THE
TERMS AND CONDITIONS SET FORTH IN THE LETTER OF CREDIT OF
EVEN AMOUNT. IT IS UNDERSTOOD THAT ADDITIONAL ITEMS, IF ANY,
TO BE ORDERED BY ▇▇▇▇▇▇ ▇▇▇▇▇▇ UNDER THE ASSORTMENT PLAN
OUTLINED IN THE ATTACHED PROFORMA INVOICE SP02-10112001 WILL
REQUIRE ADDITIONAL LETTERS OF CREDIT AND PROFORMA INVOICE
DOCUMENTS TO BE ISSUED BY WEST MARINE IF AND AS NEEDED,
PROVIDED THAT PLACEMENT OF ADDITIONAL ORDERS IF ANY, SHALL BE
AT WEST MARINE'S SOLE DISCRETION. 1 ORIGINAL CERTIFICATE OF
INSPECTION SIGNED BY ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC., CERTIFYING
THAT GOODS ARE IN ACCORDANCE WITH QUALITY AND SAMPLES AND
SPECIFICATIONS ORDERED AND STATING THAT IN THE EVENT THAT
GOODS RECEIVED ARE DAMAGED OR NOT MEETING QUALITY STANDARDS,
A REFUND OF ALL COSTS INCURRED WILL BE MADE WITHIN 60 DAYS OF
DATE OF CLAIM AND SUBMISSION OF SUPPORTING DOCUMENTATION. ALL
CHARGES PERTAINING TO THE IMPORTATION AND TRANSPORTATION OF
THE SHIPMENT TO ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE'S WAREHOUSE, INCLUDING,
BUT NOT LIMITED TO, ALL COSTS FOR ALL CUSTOMS DUTIES, COST OF
THE VISA, FREIGHT CHARGES FROM HONG KONG TO ▇▇▇▇▇▇ ▇▇▇▇▇▇'▇
WAREHOUSE AS NOTED BELOW, HANDLING CHARGES, BROKER FEE, CARGO
INSURANCE AND ANY OTHER CHARGES SHALL BE PAID SOLELY BY
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.
CERTIFICATE STATING THAT ONE FULL SET OF COPIES OF DOCUMENTS
WILL BE AIR-MAILED DIRECTLY TO ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, WITHIN 10
DAYS OF ARRIVAL AT ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.
4/B ADDITIONAL CONDITIONS
PLUS INSURANCE COVERED BY ▇▇▇▇▇▇ ▇▇▇▇▇▇.
PLUS ALL BANKING CHARGES OUTSIDE THE
ISSUING BANK ARE FOR THE ACCOUNT OF THE
BENEFICIARY.
PLUS L/C IS TRANSFERABLE THROUGH ANY BRANCH OF ▇▇▇▇▇
FARGO HSBC TRADE BANK, N.A.
PLUS ALL CHARGES FOR AMENDMENTS WILL BE CHARGED TO
APPLICANT.
IN THE EVENT THE L/C DOCUMENTS ARE CLEAN WITHOUT
DISCREPANCIES, (I.E., THEY CONFORM TO THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS APPROVED BY THE ADVISING
BANK), THEN THE ADVISING BANK IS TO RELEASE 1 SET OF ORIGINAL
DOCUMENTS TO ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. AND PRESENT A
DOCUMENT STATING THAT 1 SET OF ORIGINAL DOCUMENTS HAS BEEN
SENT TO ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. AND 2/3 ORIGINAL BILLS OF
LADING PLUS OTHER DOCUMENTS HAVE BEEN SENT TO THE ISSUING
BANK. IN THE EVENT THE DOCUMENTS ARE DISCREPANT, THE ADVISING
BANK IS AUTHORIZED TO WITHHOLD ONE SET OF ORIGINAL DOCUMENTS
TO AWAIT APPROVAL OF DISCREPANCIES BY WEST MARINE. UPON
ACCEPTANCE OF THE DISCREPANCIES IN WRITING BY WEST MARINE,
THE ADVISING BANK IS AUTHORIZED TO RELEASE ONE SET OF
ORIGINAL DOCUMENTS TO ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. PLUS
TRANSHIPMENTS ARE ALLOWED.
SHIP TO: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS LETTER OF CREDIT IS TRANSFERABLE BY THE ADVISING
BANK.
ADVICE OF ANY TRANSFER OF THIS CREDIT MUST BE PROMPTLY
COMMUNICATED TO US BY THE BANK EFFECTING TRANSFER. AS A
MATTER OF U.S. LAW, PLEASE BE AWARE THAT U.S. BANKS CANNOT
PAY LETTERS OF CREDIT IN FAVOR OF OR TRANSFERRED TO PARTIES
LOCATED IN, OR CONSIDERED NATIONALS OF OR CONTROLLED BY
ENTITIES LOCATED IN ANY COUNTRY SUBJECT TO FOREIGN ASSET
CONTROL REGULATIONS OF THE U.S. DEPARTMENT OF THE TREASURY.
NEITHER MAY ANY PARTY BE IN THE UNITED STATES AND SUBJECT TO
DENIAL OF EXPORT PRIVILEGES PURSUANT TO SANCTIONS ISSUED BY
THE U.S. DEPARTMENT OF COMMERCE. WE ARE OBLIGATED TO CHECK
THE NAME OF THE SECOND BENEFICIARY AT THE TIME WE RECEIVE
DOCUMENTS AND WILL GLADLY CHECK ON YOUR BEHALF, AT YOUR
REQUEST, AT THE TIME YOU ARE ASKED TO TRANSFER THIS CREDIT OR
WHEN YOU RECEIVE DOCUMENTS. THIS LETTER OF CREDIT COVERS 100
PERCENT OF INVOICE VALUE. DOCUMENTS MUST BE FORWARDED TO BANK
OF AMERICA, N.A. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ATTN TRADE BANK SECTION IN
ONE LOT BY COURIER. THE AMOUNT OF EACH DRAWING MUST BE
ENDORSED ON THE REVERSE OF THIS DOCUMENTARY CREDIT BY THE
NEGOTIATING BANK. AN ADDITIONAL HANDLING FEE OF USD 75.00
WILL BE DEDUCTED FROM PROCEEDS FOR EACH SET OF DOCUMENTS
PRESENTED WITH DISCREPANCIES. SHOULD PAYMENT BE EFFECTED BY
WIRE TRANSFER OR CHECK, A USD 35.00 HANDLING FEE WILL BE
DEDUCTED FROM PROCEEDS. THIS FEE DOES NOT APPLY WHEN YOU
MAINTAIN AN ACCOUNT WITH US AND PAYMENT IS CREDITED TO THIS
ACCOUNT. SUBJECT TO UCP500.
Operations Group ▇▇▇▇▇ FARGO HSBC
Southern California TRADE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Page 1
DATE: DECEMBER 3, 2001 AMENDMENT TO OUR ADVICE NO.
SBE415673
AMENDMENT NUMBER : 1
OPENING BANK: APPLICANT:
BANK OF AMERICA NT & ▇▇ ▇▇▇▇ MARINE FINANCE COMPANY INC.
NC1-005-21-01, INTL L/C DEPT. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5040815
BENEFICIARY:
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS AMENDMENT IS TO BE CONSIDERED AS PART OF THE ABOVE CREDIT AND MUST BE
ATTACHED THERETO.
THE ABOVE MENTIONED CREDIT IS AMENDED AS FOLLOWS:
SHIPMENT NOW TO READ FROM : SEE ADDITIONAL CONDITIONS
THE FOLLOWING ADDITIONAL CONDITION HAS BEEN ADDED:
PLEASE SEE ATTACHED AMENDMENT.
ALL OTHER TERMS UNCHANGED.
/s/ ▇. ▇▇▇▇▇
---------------------------------
AUTHORIZED SIGNATURE
PLEASE CONTACT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BY TELEPHONE AT ▇▇▇-▇▇▇-▇▇▇▇ OR BY FAX AT (626)
▇▇▇-▇▇▇▇ REGARDING ANY INQUIRIES.
INCOMING SWIFT MESSAGE 10/22/01
SENDER RECEIVER SWFT MSG L/C ID DOC TRACK STATUS ERROR
SWFT ADDRESS ADDRESS TYPE ID FOUND
BOFAUS6SAXXX WFBIUS6SASF0 707 00000000415673 00000001138992 UPL NO
MESSAGE RECEIVED FROM:
BANK OF AMERICA NT & SA
333 SO. ▇▇▇▇▇▇▇ AVE., 19TH FLR THIS CABLE COPY HAS BEEN
INTERNATIONAL TRADE AUTHENTICATED BY US AND
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ IS TO BE CONSIDERED THE
OPERATIVE INSTRUMENT.
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
OUR REF. SBE 415673
----------
Please note: documents will not be
honored when not accompanied by this
letter of credit
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
/s/ ▇. ▇▇▇▇▇
--------------------
Authorized Signature
20 SENDER'S REFERENCE
5040815
21 RECEIVER'S REFERENCE
▇▇▇▇▇▇
▇▇▇ DATE OF ISSUE
011022
30 DATE OF AMENDMENT
011303
26E NUMBER OF AMENDMENT
01
BENEFICIARY (BEFORE AMENDMENT)
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
44A LOADING ON BOARD/DISPATCH/TAKING IN CHARGE
AT/FROM...SEE ADDITIONAL CONDITIONS
79 NARRATIVE
45A: FOB HONG KONG OR SHANGHAI, CHINA
46A: (FAX COPY OF 1 CERTIFICATE ON ▇▇▇▇▇▇ ▇▇▇▇▇▇
LETTERHEAD AND SIGNED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, STATING
THE FOLLOWING: ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. CERTIFIES THAT
▇▇▇▇▇▇ ▇▇▇▇▇▇ IS IN RECEIPT OF 1 ORIGINAL EXPORT VISA AND 2
COPIES COVERING THE SHIPMENT VALUE, WEIGHT, AND QUANTITY).
FAX COPY OF 1 CERTIFICATE OF INSPECTION ON ▇▇▇▇▇▇ ▇▇▇▇▇▇
LETTERHEAD SIGNED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ MARINE, INC., CERTIFYING THAT GOODS ARE IN
ACCORDANCE WITH THE QUALITY AND SAMPLES AND
SPECIFICATIONS ORDERED AND STATING THAT IN THE EVENT
THAT GOODS RECEIVED ARE DAMAGED OR NOT MEETING QUALITY
STANDARDS, A REFUND OF ALL COSTS INCURRED WILL BE MADE
WITHIN 60 DAYS OF DATE OF CLAIM AND SUBMISSION OF
SUPPORTING DOCUMENTATION. ALL CHARGES PERTAINING TO THE
IMPORTATION AND WAREHOUSE, INCLUDING, BUT NOT LIMITED
TO, ALL COSTS FOR ALL CUSTOMS DUTIES, COST OF THE VISA,
FREIGHT, CHARGES FROM HONG KONG TO ▇▇▇▇▇▇ WALKERS
WAREHOUSE AS NOTED BELOW, HANDLING CHARGES, BROKER FEE,
CARGO INSURANCE AND ANY OTHER CHARGES, SHALL BE PAID
SOLELY BY ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. COPY OF VISA TO BE
PRESENTED.
SHIP FROM: HONG KONG OR SHANGHAI, CHINA
ALL OTHER TERMS AND CONDITIONS REMAIN UNCHANGED.
Operations Group ▇▇▇▇▇ FARGO HSBC
Southern California TRADE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Page 1
DATE: DECEMBER 12, 2001 AMENDMENT TO OUR ADVICE NO.
SBE415673
AMENDMENT NUMBER: 2
OPENING BANK: APPLICANT:
BANK OF AMERICA NT & ▇▇ ▇▇▇▇ MARINE FINANCE COMPANY, INC.
NC1-005-21-01, INTL L/C DEPT. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5040815
BENEFICIARY:
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS AMENDMENT IS TO BE CONSIDERED AS PART OF THE ABOVE CREDIT AND MUST BE
ATTACHED THERETO.
THE ABOVE MENTIONED CREDIT IS AMENDED AS FOLLOWS:
THE FOLLOWING ADDITIONAL CONDITION HAS BEEN ADDED:
PLEASE SEE ATTACHED AMENDMENT.
ALL OTHER TERMS UNCHANGED.
/s/ ▇. ▇▇▇▇▇
---------------------------------
AUTHORIZED SIGNATURE
PLEASE CONTACT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BY TELEPHONE AT ▇▇▇-▇▇▇-▇▇▇▇ OR BY FAX AT (626)
▇▇▇-▇▇▇▇ REGARDING ANY INQUIRIES.
20 SENDER'S REFERENCE
5040815
21 RECEIVER'S REFERENCE THIS CABLE COPY HAS BEEN
NONREF AUTHENTICATED BY US AND
IS TO BE CONSIDERED THE
31C DATE OF ISSUE OPERATIVE INSTRUMENT.
011022 ▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
OUR REF. SBE 415673
----------
30 DATE OF AMENDMENT
011204 Please note: documents will not be
honored when not accompanied by this
letter of credit
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
/s/ ▇. ▇▇▇▇▇
--------------------
Authorized Signature
26E NUMBER OF AMENDMENT
02
59 BENEFICIARY (BEFORE THIS AMENDMENT)
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
79 NARRATIVE
RE: AMENDMENT NO. 01
UNDER DOCUMENTS REQUIRED, PLEASE ADD:
FAX COPY OF 1 CERTIFICATE ON ▇▇▇▇▇▇ ▇▇▇▇▇▇ LETTERHEAD
AND SIGNED BY ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, STATING THE
FOLLOWING: ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. CERTIFIES THAT
▇▇▇▇▇▇ ▇▇▇▇▇▇ IS IN RECEIPT OF 1 ORIGINAL EXPORT VISA
AND 2 COPIES COVERING THE SHIPMENT VALUE, WEIGHT, AND
QUANTITY. PLEASE DELETE 1 ORIGINAL CERTIFICATE OF
INSPECTION...AND ADD FAXED COPY OF 1 CERTIFICATE OF
INSPECTION ON ▇▇▇▇▇▇ ▇▇▇▇▇▇ LETTERHEAD SIGNED BY ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC., CERTIFYING
THAT GOODS ARE IN ACCORDANCE WITH QUALITY AND SAMPLES
AND SPECIFICATIONS ORDERED AND STATING THAT IN THE EVENT
THAT GOODS RECEIVED ARE DAMAGED OR NOT MEETING QUALITY
STANDARDS, A REFUND OF ALL COSTS INCURRED WILL BE MADE
WITHIN 60 DAYS OF DATE OF CLAIM AND SUBMISSION OF
SUPPORTING DOCUMENTATION. ALL CHARGES PERTAINING TO THE
IMPORTATION AND WAREHOUSE, INCLUDING, BUT NOT LIMITED
TO, ALL COSTS FOR ALL CUSTOMS DUTIES, COST OF THE VISA,
FREIGHT, CHARGES FROM HONG KONG TO ▇▇▇▇▇▇ ▇▇▇▇▇▇'▇
WAREHOUSE, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇. HANDLING CHARGES, BROKER FEE, CARGO INSURANCE AND
ANY OTHER CHARGES SHALL BE PAID SOLELY BY ▇▇▇▇▇▇ ▇▇▇▇▇▇
MARINE, INC. ALL OTHER TERMS AND CONDITIONS REMAIN
UNCHANGED.
Operations Group ▇▇▇▇▇ FARGO HSBC
Southern California TRADE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Page 1
DATE: DECEMBER 12, 2001 AMENDMENT TO OUR ADVICE NO.
SBE415673
AMENDMENT NUMBER: 3
OPENING BANK: APPLICANT:
BANK OF AMERICA NT & ▇▇ ▇▇▇▇ MARINE FINANCE COMPANY, INC.
NC1-005-21-01, INTL L/C DEPT. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ , ▇▇ ▇▇▇▇▇
5040815
BENEFICIARY:
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS AMENDMENT IS TO BE CONSIDERED AS PART OF THE ABOVE CREDIT AND MUST BE
ATTACHED THERETO.
THE ABOVE MENTIONED CREDIT IS AMENDED AS FOLLOWS:
THE FOLLOWING ADDITIONAL CONDITION HAS BEEN ADDED:
PLEASE SEE ATTACHED AMENDMENT.
ALL OTHER TERMS UNCHANGED.
/s/ ▇. ▇▇▇▇▇
-----------------------------------
AUTHORIZED SIGNATURE
PLEASE CONTACT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BY TELEPHONE AT ▇▇▇-▇▇▇-▇▇▇▇ OR BY FAX AT
(▇▇▇)▇▇▇-▇▇▇▇ REGARDING ANY INQUIRIES.
INCOMING SWIFT MESSAGE 10/22/01
SENDER RECEIVER SWFT MSG L/C ID DOC TRACK STATUS ERROR
SWFT ADDRESS ADDRESS TYPE ID FOUND
BOFAUS3NACHA WFBIUS6SASFO 707 00000000415673 00000001146108 PND NO
MESSAGE RECEIVED FROM:
BANK OF AMERICA NT & SA
NC1-005-21-01, INTL L/C DEPT. THIS CABLE COPY HAS BEEN
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 21ST FL- AUTHENTICATED BY US AND
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ IS TO BE CONSIDERED THE
OPERATIVE INSTRUMENT.
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
OUR REF. SBE 415673
----------
Please note: documents will not be
honored when not accompanied by this
letter of credit
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
/s/ ▇. ▇▇▇▇▇
--------------------
Authorized Signature
20 SENDER'S REFERENCE
5040815
21 RECEIVER'S REFERENCE
▇▇▇▇▇▇
▇▇▇ DATE OF ISSUE
011022
30 DATE OF AMENDMENT
011211
26E NUMBER OF AMENDMENT
03
59 BENEFICIARY (BEFORE THIS AMENDMENT)
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
79 NARRATIVE
COPY OF VISA AS REFERENCED IN AMENDMENT 1 DATED 011203 AND 1 ORIGINAL
EXPORT VISA AND 2 COPIES COVERING THE SHIPMENT VALUE, WEIGHT AND
QUANTITY AS REFERENCED IN THE ORIGINAL LETTER OF CREDIT ARE NOT
REQUIRED FOR BANK NEGOTIATION. ALL OTHER TERMS AND CONDITIONS REMAIN
UNCHANGED.
Operations Group ▇▇▇▇▇ FARGO HSBC
Southern California TRADE BANK, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Page 1
DATE: DECEMBER 14, 2001 AMENDMENT TO OUR ADVICE NO.
SBE415673
AMENDMENT NUMBER:
OPENING BANK: APPLICANT:
BANK OF AMERICA NT & ▇▇ ▇▇▇▇ MARINE FINANCE COMPANY INC.
NC1-005-21-01, INTL L/C DEPT. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
5040815
BENEFICIARY:
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS AMENDMENT IS TO BE CONSIDERED AS PART OF THE ABOVE CREDIT AND MUST BE
ATTACHED THERETO.
THE ABOVE MENTIONED CREDIT IS AMENDED AS FOLLOWS:
THE FOLLOWING ADDITIONAL CONDITION HAS BEEN ADDED:
PLEASE SEE ATTACHED AMENDMENT.
ALL OTHER TERMS UNCHANGED.
/s/
------------------------------
AUTHORIZED SIGNATURE
PLEASE CONTACT ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BY TELEPHONE AT ▇▇▇-▇▇▇-▇▇▇▇ OR BY FAX AT (626)
▇▇▇-▇▇▇▇ REGARDING ANY INQUIRIES.
INCOMING SWIFT MESSAGE 10/22/01
SENDER RECEIVER SWFT MSG L/C ID DOC TRACK STATUS ERROR
SWFT ADDRESS ADDRESS TYPE ID FOUND
BOFAUS3NACHA WFBIUS6SASFO 707 000000000415673 00000001148121 UPL NO
MESSAGE RECEIVED FROM:
BANK OF AMERICA NT & SA
NC1-005-21-01, INTL L/C DEPT.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
20 SENDER'S REFERENCE THIS CABLE COPY HAS BEEN
5040815 AUTHENTICATED BY US AND
IS TO BE CONSIDERED THE
OPERATIVE INSTRUMENT.
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
OUR REF. SBE 415673
----------
Please note: documents will not be
honored when not accompanied by this
letter of credit
▇▇▇▇▇ FARGO HSBC TRADE BANK, N.A.
/s/ ▇. ▇▇▇▇▇
--------------------
Authorized Signature
21 RECEIVER'S REFERENCE
▇▇▇▇▇▇
▇▇▇ DATE OF ISSUE
011022
30 DATE OF AMENDMENT
011214
26E NUMBER OF AMENDMENT
04
59 BENEFICIARY (BEFORE THIS AMENDMENT)
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
79 NARRATIVE
PLUS COPY OF VISA AS REFERENCED IN AMENDMENT 1 DATED 011203 AND 1
ORIGINAL EXPORT VISA AND 2 COPIES COVERING THE SHIPMENT VALUE, WEIGHT
AND QUANTITY AS REFERENCED IN THE ORIGINAL LETTER OF CREDIT ARE NOT
REQUIRED FOR BANK NEGOTIATION. ALL OTHER TERMS AND CONDITIONS REMAIN
UNCHANGED.
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PHONE ▇▇▇-▇▇▇-▇▇▇▇ FAX ▇▇▇-▇▇▇-▇▇▇▇
PROFORMA INVOICE
-------------------------------------------------------------------------------------------------------------------------------
DATE: 10/11/01 WEST MARINE PRIVATE LABEL PAYMENT TERMS: TRANSFERABLE LETTER OF CREDIT
SPRING 2002 SHIP WINDOW: Dec 1 - May 30
VENDOR: SHIP TO:
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARINE, INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
U.S.A.
ATTENTION: WEST MARINE RECEIVING
STYLE CLR S M L XL XXL QTY COST TOTAL SPECIAL
# CODE PRODUCT DESIGN INSTRUCTIONS
*W1001 WHITE/NVL NAUTICAL POLO *
W1001 MAPLE/NVL NAUTICAL POLO
W1001 NAVAL/WHT NAUTICAL POLO
W2002 TAUPE/OCNBLU WOVEN SHIRT-COMPETITION PRINT
W2002 NAVAL/BRNT WOVEN SHIRT-COMPETITION PRINT
SUN
W2003 MAPLE WOVEN SHIRT-SAILFISH PRINT
W2003 NAUTICAL WOVEN SHIRT-SAILFISH PRINT
BLUE *
W2004 TAUPE WOVEN SHIRT-SPIRIT PRINT
W2004 TURTLE GRN WOVEN SHIRT-SPIRIT PRINT
W2007 GRANITE WOVEN SHIRT-VINTAGE PRINT
W2007 NAVAL BLUE WOVEN SHIRT-VINTAGE PRINT
W2009 MAPLE WOVEN SHIRT-BOMBAY PRINT
W2009 STORM GREY WOVEN SHIRT-BOMBAY PRINT
W2011 ASST WOVEN SHIRT-TBD PRINT
W2011 ASST WOVEN SHIRT-TBD PRINT
W6001 BRIGHT SUN SWIM ▇▇▇▇▇▇ SHORT
W6001 FLAME RED SWIM ▇▇▇▇▇▇ SHORT
W6001 CARRIBEAN SWIM ▇▇▇▇▇▇ SHORT
BLUE
W6001 NAVAL BLUE SWIM ▇▇▇▇▇▇ SHORT
W6001 ASST SWIM ▇▇▇▇▇▇ SHORT
W6003 BRIGHT SPORT SHORT
▇▇▇/▇▇▇
▇▇▇▇▇ ▇▇▇▇▇/▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇ WHITE BEDFORD CORD SHORT *
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ CORD SHORT
W6010 MIDNIGHT BEDFORD CORD SHORT
NAVY
W6010 GRANITE BEDFORD CORD SHORT
W6011 CEMENT COTTON BRUSHED TWILL SHORT
W6011 SAND COTTON BRUSHED TWILL SHORT
W6011 SAGE COTTON BRUSHED TWILL SHORT
W6011 CHARCOAL COTTON BRUSHED TWILL SHORT
W6013 MAPLE POLY/CTN PEBBLE FLEECE SHORT
W6013 STORM GREY POLY/CTN PEBBLE FLEECE SHORT
W6013 NAVAL BLUE POLY/CTN PEBBLE FLEECH ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ NAVAL BLUE SAIL ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ STORM BLUE BRUSHED RIB PULLOVER
W4001 NAVAL BRUSHED RIB PULLOVER
W4002 GREY ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ NAVAL BLUE BASIC CREW SWEATSHIRT
W4003 GREY HTHR HOODED PULLOVER
W4003 NAVAL BLUE HOODED PULLOVER