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Exhibit 10.6
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SETTLEMENT AGREEMENT
between
MARINEMAX, INC.
and
BRUNSWICK CORPORATION
March 12, 1998
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SETTLEMENT AGREEMENT
AGREEMENT dated as of the 12th day of March 1998 by and among
MARINEMAX, INC., a Delaware corporation ("MarineMax"); and BRUNSWICK
CORPORATION, a Delaware corporation for itself and on behalf of the subsidiaries
set forth on the signature page hereof and the Sea Ray Division of Brunswick
("Brunswick").
R E C I T A L S
A. MarineMax has completed merger transactions (the "Mergers")
involving Xxxxxxx Boat Company of Florida, Xxxxx XxxXxxxx Marine, Gulfwind
Marine, USA, Gulfwind Marine South, and Xxxxxxxx'x Marine Centers as well as
their affiliated and subsidiary companies (collectively, the "Merged Companies")
as a result of which the Merged Companies became wholly owned subsidiaries of
MarineMax.
B. The Merged Companies sell and service various boats manufactured
by Brunswick or division or subsidiaries of Brunswick ("Brunswick Affiliates,"
which includes the Sea Ray Division of Brunswick), including Sea Ray pleasure
boats, Boston Whaler fishing boats, and Baja high-performance boats, pursuant to
various dealer agreements (the "Dealer Agreements") between the Merged Companies
and the relevant Brunswick Affiliates as set forth in Schedule A to this
Agreement.
C. Brunswick believes that the Dealer Agreements require the consent
of Brunswick and the applicable Brunswick Affiliates to any changes in the
ownership of the Merged Companies as a result of the Mergers or otherwise (the
"Ownership Changes").
D. MarineMax does not believe that the Dealer Agreements require the
consent of Brunswick or the Brunswick Affiliates to the Ownership Changes, but
desires to avoid a long, costly, and disruptive dispute with the principal
supplier of boats and related boating products sold by the Merged Companies in
order to protect the business of the Merged Companies.
E. MarineMax and Brunswick have agreed to resolve their disputes as
provided herein.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. PAYMENT TO BRUNSWICK. MarineMax shall pay to the order of
Brunswick an amount equal to $15.0 million (the "MarineMax Settlement Amount"),
payable on December 31, 1998 (the "Due Date"), together with interest on the
unpaid principal balance at a rate equal
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to LIBOR plus 125 basis points. The obligation of MarineMax is evidenced by a
promissory note in the form of Exhibit A to this Agreement.
2. CONSENT OF BRUNSWICK. Brunswick consents to the Ownership
Changes. Brunswick shall cause each Brunswick Affiliate to consent to the
Ownership Changes.
3. GENERAL.
(a) NOTICES. All notices required or permitted to be given
hereunder shall be in writing and shall be deemed given when delivered against
receipt, or upon the receipt of a facsimile copy, or three days after being
deposited in the United States mail, postage prepaid, registered, or certified
mail, addressed as follows:
If to the Company, to: With a copy to:
MarineMax, Inc. X'Xxxxxx, Cavanagh, Anderson,
Attn: Xx. Xxxxxxx X. XxXxxx Xx. Xxxxxxxxxxxxx & Xxxxxxxx P.A.
00000 XX Xxxxx #000 Xxxx: Xxxxxx X. Xxxx, Esq.
Xxxxxxxxxx, Xxxxxxx 00000 One East Camelback Road, Suite 1100
Tel: 000-000-0000 Xxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000 Tel: 000-000-0000
Fax: 000-000-0000
If to Brunswick, to: With a copy to:
Brunswick Corporation Brunswick Corporation
Attn: Mr. Xxxxx Xxxxxx Attn: General Counsel
0 Xxxxx Xxxxx Xxxxx 0 Xxxxx Xxxxx Xxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000 Xxxx Xxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
and/or to such other respective addresses and/or addressees as may be designated
by notice given in accordance with the provisions of this Section.
(b) SUCCESSORS AND ASSIGNS; THIRD-PARTY BENEFICIARIES. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective assigns, legal representatives, executors, heirs and
successors (including any party that acquires any Brunswick Affiliate);
provided, however, that no party hereto shall have the right to assign any right
hereunder or delegate any obligation hereunder, in whole or in part, without the
prior written consent of the other parties hereto, and any attempt to do so
shall be void. The Merged Companies shall be deemed to be third-party
beneficiaries of this Agreement.
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(c) AMENDMENT, MODIFICATION, OR WAIVER. No amendment,
modification, or waiver of any condition, provision, or term of this Agreement
shall be valid or of any effect unless made in writing, signed by the party or
parties to be bound, and specifying with particularity the nature and extent of
such amendment, modification, or waiver. Failure on the part of any party to
complain of any act or failure to act of another party or to declare another
party in default, irrespective of how long such failure continues, shall not
constitute a waiver by such party of its rights hereunder. Any waiver by any
party of any default of another party shall not affect or impair any right
arising from any other or subsequent default. Nothing herein shall limit the
remedies and rights of the parties hereto under and pursuant to this Agreement.
(d) SEVERABLE PROVISIONS; ENFORCEABILITY. Each provision of
this Agreement is intended to be severable. If any provision hereof shall be
declared by a court of competent jurisdiction to be illegal, unenforceable, or
invalid for any reason whatsoever, such illegality, unenforceability, or
invalidity shall not affect the validity of the remainder of this Agreement.
(e) ENTIRE AGREEMENT. This Agreement, including the exhibits
and schedules hereto, contains the entire understanding and agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, express or implied, oral or written, among
the parties with respect to such subject matter. The express terms of this
Agreement shall control and supersede any course of performance or usage of the
trade inconsistent with any of the terms hereof. Each of the exhibits and
schedules hereto is incorporated herein by this reference and constitutes a part
of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original as against
any party whose signature appears thereon, and all of which together shall
constitute one and the same agreement. This Agreement shall become binding when
one or more counterparts have been signed by each of the parties hereto and
delivered to the other parties hereto.
(g) GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the law of the state of Delaware,
regardless of any applicable conflict-of-law rules to the contrary.
(h) CONSTRUCTION. The parties hereto acknowledge that each
party was represented by legal counsel (or had the opportunity to be represented
by legal counsel) in connection with this Agreement and that each of them and
their counsel have reviewed and revised this Agreement, or have had an
opportunity to do so, and that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any amendments or any exhibits hereto
or thereto.
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(i) ADDITIONAL ACTIONS. Each party hereto agrees to do all
acts and things and to make, execute, and deliver such written instruments and
documents as shall from time to time be reasonably required to carry out the
provisions of this Agreement.
(j) ATTORNEYS' FEES. In the event of any claim, controversy or
dispute arising out of or relating to this Agreement, or the breach thereof, the
prevailing party shall be entitled to recover reasonable attorneys' fees
incurred in connection with any arbitration or court proceeding.
(k) REMEDIES CUMULATIVE. The remedies of the parties hereto
under this Agreement are cumulative and shall not exclude any other remedies to
which any party may be lawfully entitled.
(l) AUTHORITY. Each individual signing below personally
represents that he or she has full authority to bind the party or parties on
whose behalf he or she is signing.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
MARINEMAX, INC.
By:____________________________________
Name:__________________________________
Title:_________________________________
BRUNSWICK CORPORATION
By:____________________________________
Name:__________________________________
Title:_________________________________
THE FOLLOWING BRUNSWICK SUBSIDIARIES
HEREBY APPROVE THIS AGREEMENT:
BAJA MARINE CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
BOSTON WHALER, INC.
By:_________________________________
Name:_______________________________
Title:______________________________
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