EXHIBIT 10.19
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY "[****]" ARE SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST, AND HAVE BEEN OMITTED FROM THIS EXHIBIT.
COMPLETE, UNREDACTED COPIES OF THIS EXHIBIT HAVE BEEN FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION AS PART OF THIS COMPANY'S CONFIDENTIAL TREATMENT
REQUEST.
FERRETTI GROUP USA, INC. AND BERTRAM YACHT, INC.
DEALER AGREEMENT 2003
- 2006 MARINEMAX INTERNATIONAL, LLC
THIS AGREEMENT ("Agreement") is made September 30, 2003, effective September 30,
2003 (the "Effective Date") between Ferretti Group USA, Inc., a Florida
corporation, 1535 S.E. 17th Street, Suite 205, Fort Lauderdale, FL 33316,
telefax 954-525-4550 ("FGUSA"), its affiliate Bertram Yacht, Inc., a Delaware
corporation ("Bertram"), 3663 N.W. 21st Street, Miami, Florida 33142, telefax
305-635-1388, (collectively, FGUSA and Bertram are "Ferretti Group" herein) and
MarineMax International, LLC, a Delaware limited liability company, 18167 US 19
North, Suite 499, Clearwater, FL 33764, telefax 954-922-6105 ("MarineMax" or
"Dealer").
WHEREAS, FGUSA and Bertram are separate but affiliated companies, which desire
to have MarineMax serve as the exclusive dealer for their yachts and other
products in such markets within the Territory (defined below) in which they each
have no current dealers, as well as in the future if the parties agree on terms
with respect to (i) such additional markets as provided herein, when dealerships
for such markets are not renewed or terminated and (ii) additional brands
acquired by FGUSA or Bertram or an affiliate thereof; and,
WHEREAS, MarineMax desires to be a dealer of FGUSA and Bertram yachts and other
products as above provided; and,
WHEREAS, FGUSA, Bertram, and MarineMax, are committed to reaching a very high
level of cooperation at the highest levels of their organizations and to
developing the FGUSA and Bertram brands throughout the Territory;
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the
parties have agreed as follows:
1. Appointment of Dealer. FGUSA and Bertram hereby each separately
appoints Dealer as their exclusive dealer for the retail sale, display, and
servicing respectively of (i) FGUSA products and repair parts and (ii) Bertram
products and repair parts (collectively, the foregoing products and repair parts
are "Product" or "Products"), manufactured respectively by those manufacturers
listed on Exhibit A-1 and Bertram (the "Manufacturers") within the defined
marketing territory set forth in Paragraph 2 below (the "Territory"). The
Products shall be purchased only from FGUSA and Bertram, respectively. FGUSA and
Bertram each agree that they shall not make any direct sales to purchasers
(except that Bertram can sell directly to governments, or for coast guard, civil
defense, or military purposes) and will not appoint or knowingly allow other
dealers to sell Products within the Territory. All FGUSA Products built for use
in the Territory shall be distributed, held for sale, sold and serviced solely
by and through Dealer. This Agreement does not grant a franchise nor franchise
rights under the laws of any state or jurisdiction. No franchise fee has been
paid to FGUSA or Bertram in connection herewith.
2. Territory; Restrictions Related Thereto; and First Refusal.
A. Territory. Dealer shall have the exclusive right to sell at
retail, display (except for FGUSA and Bertram), and service the Products and
shall concentrate its sales and service effort within the following Territory:
(i) Those areas of the continental United States, Canada and the
Bahamas where (i) as to FGUSA Products, FGUSA currently has no
dealers and where (ii) as to Bertram Products, Bertram
currently has no dealers, as set forth in Exhibits A-2 and
A-3.
(ii) Those areas of Mexico; Antigua and Barbuda; Aruba, Curacao and
Bonaire; Dominica; Dominican Republic; Grenada; Haiti;
Jamaica; Puerto Rico; Trinidad and Tobago; St. Kitts and
Nevis; St. Lucia; St. Vincent and the Grenadines; and the U.S.
Virgin Islands; where (i) as to FGUSA Products, FGUSA
currently has no dealers and where (ii) as to Bertram
Products, Bertram currently has no dealers, as set forth in
Exhibits A-2 and A-3. With respect to the areas in this
subparagraph (ii), MarineMax's appointment is subject to two
conditions: (a) that MarineMax submit a business plan within
ninety (90) days of the date hereof for such of the designated
areas which it would like to service and (b) that local
dealerships be opened in such areas within a year from the
date hereof.
(iii) Sales by dealers to parties who register their yachts in any
jurisdiction in the Caribbean for tax planning purposes, which
yachts are not kept in the Territory, shall not violate this
Agreement nor entitle MarineMax to any compensation. Sales by
MarineMax to parties within the Territory who register their
yachts in any jurisdiction outside the Territory for tax
planning purposes, which yachts are kept in the Territory,
shall not violate this Agreement.
It shall be a pre-condition to the further appointment of MarineMax into any
such area described in Section 2(A)(ii) above that MarineMax agree, with respect
to each such area, not to carry, sell, or otherwise deal in the sale of new
products competitive with the Products to be carried by MarineMax for that area.
The determination of what products are competitive with the Products shall be
made by FGUSA and Bertram, in consultation with and in the spirit of cooperation
with Marine Max, recognizing that it is the parties intent to prevent situations
in which MarineMax would be selling brands substantially in competition with
those of FGUSA and Bertram. Provided, however, that the parties acknowledge and
agree that the following brands are not competitive for purposes of this
Agreement: (i) Sea Ray, (ii) Hatteras, but only in Florida and Texas --
elsewhere, only Hatteras yachts 82 feet and above will be deemed
non-competitive; and (iii) and other brands currently carried by MarineMax as
set forth in Exhibit G.
B. Restrictions Related to Territory. Dealer will not knowingly
sell Products for use by or to a purchaser located outside of the Territory, or
to others for the purpose of resale without the prior written consent of FGUSA
or Bertram, as appropriate. Dealer shall not utilize the services of a broker or
similar agent to sell Product unless employed as a subcontractor of the Dealer
or working for the Dealer subject to the terms and conditions of this Agreement.
Dealer shall not sell, advertise, solicit for sale, or offer for resale Products
outside of the Territory except that Dealer may advertise in recognized and
established marine publications with cross-territorial distribution reasonably
acceptable respectively to FGUSA or Bertram. Dealer shall use discretion in
trying to avoid advertising price (with the exception of the current MSRP or
Dealer's Value Price) of Products in any electronic media, newspaper, trade
publications or other publication or medium that is cross territorial and/or
distributed outside of the Territory and FGUSA and Bertram each agree to
discourage such advertising by their other dealers in future dealership
agreements, to the extent permitted by law. Dealer agrees to provide appropriate
facilities and to assume full and complete managerial authority and
responsibility for the display, retail sale and service of the Products at its
dealership locations.
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
C. Dealer's Right of First Refusal. So long as Dealer is meeting
the minimum purchase level ("MPL") required by Paragraph 3.H, and set forth in
Exhibit D, of this Agreement, and is not otherwise in breach of any material
provisions hereof, Dealer shall have the first right of refusal to be the
exclusive dealer for any market in the Territory [****] in the event that any
such market becomes available due to non-renewal or termination with respect to
current or future FGUSA brands, or Bertram, subject to the following conditions:
(i) Prior to the further appointment of MarineMax into any market,
MarineMax shall agree, with respect to each such market, not
to carry, sell, or otherwise deal in the sale of new products
competitive with the Products to be carried by MarineMax for
that area. The determination of what products are competitive
with the Products shall be made by FGUSA and Bertram, in
consultation with and in the spirit of cooperation with
MarineMax, recognizing that it is the parties intent to
prevent situations in which MarineMax would be selling brands
substantially in competition with those of FGUSA and Bertram.
Provided, however, that the parties acknowledge and agree that
the following brands are not competitive for purposes of this
Agreement: (i) Sea Ray; (ii) Hatteras, but only in Florida and
Texas -- elsewhere, only Hatteras yachts 82 feet and above
will be deemed non-competitive; and (iii) and other brands
currently carried by MarineMax as set forth in Exhibit G.
(ii) If the event a market or brand becomes available due to
non-renewal, termination, or acquisition by FGUSA, Bertram or
by an affiliate, FGUSA or Bertram shall, respectively,
promptly notify Dealer in writing that such market or brand is
or will become available. Dealer shall respond in writing to
FGUSA or Bertram within thirty (30) days following receipt of
such notice, indicating its desire to accept or decline the
appointment as the exclusive dealer for such market. The
parties acknowledge and agree that future acquisitions as
described in this subparagraph will be subject to the acquired
entities' dealership and distribution arrangements or
agreements which will not be subject to the requirements of
this Agreement until such expire or are terminated. FGUSA and
Bertram will not renew such distribution arrangements or
dealer agreements, when the terms of such (and the renewal
rights specified therein) expire without first affording
MarineMax a right of first refusal in accordance with this
Paragraph 2.C.
(iii) If MarineMax indicates a desire to accept the appointment,
MarineMax shall be so appointed upon submission of a business
plan with implementation timetables, and approval thereof by
FGUSA or Bertram, as to their respective Products by FGUSA and
Bertram. If Dealer fails to accept the appointment for a
particular market in writing, or Dealer's business plan is not
approved after having been evaluated in good faith by either
FGUSA or Bertram, as to their respective Products, FGUSA and
Bertram may, respectively, appoint another dealer in that
market. It is understood, however, that all decisions made by
the parties with respect to expansion of their relationship
will be made in consultation with each other, as the parties
desire to continue to expand their relationship in a
cooperative and collaborative manner.
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3. Dealer's Responsibilities. Dealer shall:
A. Best Efforts. Devote its commercially reasonable best efforts
(i) to appropriately promote, display, advertise (including without limitation
attending, producing, arranging for delivery of vessels, and managing the
production of the displays for each of the Manufacturers and for the Ferretti
Group, at regional boat shows (as set forth on Exhibit B-1 and B-2) at its own
expense and (ii) to sell the Products in accordance with the terms of this
Agreement and as specified, without limitation, in accordance with the
advertising and promotional guidelines set forth in Exhibit B-1 and B-2. Dealer
will submit an advertising and promotional plan to FGUSA and Bertram,
respectively, yearly within thirty (30) days of each anniversary of the
Effective Date.
AA. Signs. Display and utilize signs, graphics and image elements
with the Manufacturers' Identification, as defined herein, that will positively
reflect the Manufacturer's image and promote the retail sale of the Products.
Dealer shall use its best efforts, subject to governmental regulations, within
one hundred twenty (120) days of the Effective Date, to erect and maintain signs
of the highest quality and appearance, adequate to identify Dealer's places of
business as dealerships where the Products and service are available. The design
of all signs bearing Identification or the Manufacturers' names shall be
consulted with FGUSA and Bertram, respectively, and in every event be subject to
approval by FGUSA and Bertram, respectively, which shall not be unreasonably
withheld.
B. Inventory and Sales Staff; Sales Locations. Purchase and carry
on hand a sufficient inventory of current Products to meet the reasonable demand
of customers. Dealer shall stock sufficient inventory at all locations set forth
on Exhibit C to support the Target Purchases set forth in Exhibit D. Dealer
shall at all times (i) maintain a staff of "product managers" dedicated to the
Manufacturers' brands, (ii) a staff properly and specially trained in the sales
of Products, and (iii) sell the Products through boutique locations and shared
locations (collectively, "Dealer Locations"), as described in Exhibit C.
MarineMax will send FGUSA and Bertram sales consultants every year to Bertram's,
FGUSA's, and Manufacturers' training sessions (such training sessions, conducted
by Bertram, FGUSA, and the Manufacturers, are hereafter "University") at its own
expense.
C. Service Departments. Maintain at each Dealer Location (unless
a sales location only and then service is to be provided at another Dealer
Location, or an associated or subcontracted location approved and authorized by
FGUSA or Bertram, which approval shall not be unreasonably withheld, conditioned
or delayed) a service department that Dealer agrees to staff, train and equip to
promptly and professionally service Products and to maintain at said location
commercially reasonable parts and supplies to properly service Products on a
timely basis. Dealer shall render at all service facilities prompt, workmanlike,
courteous and willing service, with respect to the Products without regard to
the dealership from which the Products were purchased, so long as such Products
were sold in the Territory. MarineMax will send its FGUSA and Bertram service
team every year to University at its own expense.
D. Product Orientation. Perform Product orientation services
prior to delivery to the purchaser and perform post-sale service of Products
originally sold by Dealer and brought to Dealer for service. Dealer shall advise
purchasers that dealers in other locations are not required to provide warranty
and service work for the purchaser and all such work is the responsibility of
Dealer. Dealer shall instruct the purchaser to contact it prior to moving the
Product so arrangements for warranty or service work can be made.
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E. Delivery of Warranty. Furnish each Product purchaser with
FGUSA's or Bertram's Limited Warranty on new Products and with information and
training as to the safe and proper operation and maintenance of the Product.
F. Warranty Registration. Complete and submit FGUSA's or
Bertram's warranty registration card upon delivery of the Products to the
purchaser and assist FGUSA and Bertram in performing Products defect and recall
campaigns. FGUSA and Bertram will notify Dealer if either, respectively, has not
received the warranty registration card.
G. Records; Internet Accessible Joint Database. Maintain complete
Product purchase, sales and service records and report to FGUSA or Bertram, upon
reasonable request, the name and address of each Product purchaser and provide
access to such records, along with such commercial and technical information
concerning its activities, as FGUSA or Bertram's requests within ten (10)
business days of such request. Dealer shall maintain such records for a period
of six (6) years from the retail sale of each Product which obligation contained
shall survive the expiration or earlier termination of this Agreement. In
addition, Dealer shall allow the Ferretti Group direct access via the Internet
to FGUSA and Bertram customers and prospects. Dealer agrees to work with the
Ferretti Group to develop jointly a database management system for its customers
and prospects for use by Dealer and the Ferretti Group.
H. Purchase and Service Performance. Achieve Minimum Purchase
Levels from FGUSA and Bertram in aggregate as set forth on Exhibit D. If
MarineMax is not able to meet the MPL agreed and targeted, the parties shall
consult with each other in an effort to collaboratively consider the reasons why
these levels were not reached and if a reasonable cure can be attained. Failure
to meet such obligations shall nevertheless constitute a material breach of this
Agreement giving rise to FGUSA's and Bertram's right, either jointly or
separately, to terminate this Agreement after consultation with MarineMax as
above described. Dealer knows of no current market conditions that would affect
its ability to comply with these obligations. Dealer shall also achieve Product
service performance in accordance with commercially reasonable standards
established by FGUSA and Bertram, respectively, in cooperation with Dealer from
time to time as described in Paragraph 13 below, it being understood that the
parties joint intent is that service standards be consistent with the image of
the Ferretti Group's brands. With respect to any civil law jurisdictions
including but not limited to the State of Louisiana and the Commonwealth of
Puerto Rico, Dealer confirms that the purchase obligations set forth herein are
reasonable.
I. Business Practices. Conduct business in a manner that
preserves and enhances the reputation and goodwill of FGUSA, Bertram and Dealer
for providing quality products and services. All Dealer advertising will take
into account the quality and reputation of the Products and the Manufacturers
and be designed to maintain and enhance such reputation. Neither Dealer, nor any
of its related companies, will, nor will it permit any of their officers and
employees to, compete with FGUSA, Bertram, or the Manufacturers, either directly
or indirectly, in the manufacturing, buying, dealing, promoting, importing or
selling of brands which significantly compete with the Products, except in areas
in which Dealer is not acting as the dealer for FGUSA or Bertram hereunder, and
except for (i) Sea Ray; (ii) Hatteras, but only in Florida and Texas --
elsewhere, only Hatteras yachts 82 feet and above will be deemed
non-competitive; and (iii) and other brands currently carried by MarineMax as
set forth in Exhibit G. . Dealer shall not use deceptive, unfair or unethical
practices or advertising, which might be detrimental to FGUSA or Bertram, their
goodwill and reputation, or that of other dealers of any of the Products. Dealer
shall promptly comply with reasonable sales, service and other directives issued
by FGUSA or Bertram from time to time, as well as with such policies and
procedures as are established, and as may be modified, from time to time, in the
respective Dealer Manuals for each brand
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THE OMITTED PORTIONS.
J. Self-Financing. Maintain an ability to purchase Product
inventory via lines of credit sufficient to meet Target Purchases after
considering reasonable sales expectations.
K. Confidentiality. Maintain in confidence all FGUSA, Bertram and
Manufacturers, proprietary and confidential information which is disclosed to
Dealer, including without limitation any news and information regarding FGUSA's,
Bertram's or Manufacturers' production, projects, manufacturing processes, or
use of components, of which it may become aware until such are officially
disclosed by FGUSA, Bertram, or the Manufacturers to the public generally.
L. Competing Products; New Brands. Dealer (its affiliates,
subsidiaries, and related companies) shall not carry, market or sell any brand
that significantly competes with the Products within the Territory.
[****] brands currently carried by MarineMax as set forth in Exhibit G. [****]
4. FGUSA and Bertram Responsibilities. FGUSA and Bertram, respectively,
shall:
A. Database. Provide Dealer access to its current Territory
customer database promptly following execution of this Agreement and work with
Dealer to develop jointly a database management system for customers and
prospects within the Territory for use by all parties hereto.
B. Promotion, Advertising and Sales Materials. Collaborate with
Dealer on marketing and advertising, and boat show participation, as well as
develop and provide MarineMax sales materials, including but not limited to,
brochures and technical information, tailored for the U.S. market and produced
in consultation with MarineMax, all in accordance with Exhibits B-1 and B-2, and
otherwise provide and comply with all provisions set forth in Exhibit B-1 and
B-2.
C. Training and Support. Provide adequate training of Dealer
personnel in the Products, potentially and eventually including but not limited
to online e-learning courses, as well as provide technical support required to
establish Dealer Locations as provided in Paragraph 3.B and Exhibit C.
D. Products: Warranty Service. Provide commercially reasonable
products, parts and accessories for purchase by Dealer in a commercially timely
manner and comply with its warranty obligations pursuant to Paragraph 10 in a
commercially reasonable manner.
E. Miscellaneous. Comply with and fulfill all obligations
described in Paragraphs 1 and 2 of this Agreement.
4.A Orders. Dealer agrees to submit orders to FGUSA and Bertram in a manner
and format prescribed by FGUSA or Bertram, which orders shall be subject to
FGUSA's and Bertram's then current terms and conditions of sale, which shall not
be inconsistent with the terms of this Agreement, unless agreed by the parties
in writing. FGUSA and Bertram shall notify Dealer in writing within seven (7)
business days following receipt of a purchase order its acceptance of an order,
failing which such shall
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be deemed rejected. Dealer shall have seven (7) business days to reject the
sales order received from FGUSA or Bertram, failing which it shall be deemed
accepted.
5. Prices; MSRP; Price Subsidies; Security Interests.
A. Prices. The prices to be paid by Dealer for the Products
(including parts) may be modified by FGUSA or Bertram [****]. Discounts and
deposits shall be as described on Exhibits E-1 and E-2.
B. MSRP. [****] establish the MSRP for FGUSA Products [****].
[****] establish and publish suggested retail prices and may modify such at any
time, [****].
C. Price Subsidies. For FGUSA Products only, Dealer will be paid
by FGUSA an amount equal to the total [****] (i) for a period not to exceed
[****] from the date of Delivery as defined in Paragraph 7 below for yachts
between [****] feet and [****] feet and (ii) for a period not to exceed [****]
from the date of Delivery for yachts under [****] feet. Additionally, as to
yachts sold prior to the expiration of the subsidy period, Dealer shall receive
[****] of the subsidy for the remaining months from the date of retail sales in
the relevant subsidy period [****], if the Dealer does not accept a trade in,
Dealer shall be paid [****] of the [****] subsidy. Dealer shall be paid [****]
of the reimbursement subsidy for stock orders converted to retail for yachts up
to [****] feet. For yachts above [****] feet, FGUSA and Dealer will mutually
determine subsidy on a boat-by-boat basis.
D. Security Interests. FGUSA and Bertram shall each,
respectively, retain a security interest and lien on all their respective
Products [****] until Products are paid for in full in cash. Dealer agrees to
promptly execute upon request (and hereby confers an irrevocable special power
of attorney in favor of FGUSA and Bertram, respectively, to sign and/or file
with appropriate government agencies such agreements and statements that
reasonably may be required by FGUSA and Bertram to confirm and perfect such
security interests).
6. Shipments. All shipments of Products shall be made FOB (ICC Incoterms
2000) port of delivery as agreed by the parties. If FGUSA or Bertram ship
Products not ordered by Dealer, Dealer shall have the right to refuse delivery,
in which event FGUSA or Bertram, respectively, shall pay all costs incurred in
returning same to FGUSA or Bertram.
7. Risk of Loss; Delivery Definition; Insurance. Risk of loss for Products
ordered by Dealer shall pass to Dealer at the time of "Delivery," at which time
title shall pass as provided in Paragraph 8. Delivery occurs with respect to
FGUSA Products when the Products are tendered to the designated carrier at the
port of delivery or as agreed by the parties in the order. FGUSA will arrange
for insurance from the shipping point to the port of delivery. Dealer shall
arrange for and pay for insurance to its final delivery point. Dealer will be an
additional insured on all insurance policies, to the extent of its deposits.
FGUSA will assist Dealer in the processing and collection of any claims against
the carrier and insurer contracted by FGUSA. Delivery occurs with respect to
Bertram Products when the Products are tendered for Delivery at Bertram's
premises in Miami.
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8. Payment; Inspection; Tax Reimbursement; Cancellation.
A. Payment; Title; and Delivery. All Products sold to Dealer
shall be paid for simultaneously with Delivery as defined above, at which time
title shall pass, unless the Dealer certifies the existence of a material
defect, either individually or collectively, as provided below. FGUSA or Bertram
shall notify Dealer by e-mail and facsimile when the Products will be ready for
Delivery. With respect to all Products other than CRN and Custom Line, Dealer
shall have seven (7) days from the date specified for Delivery to accept the
yacht. With respect to CRN and Custom Line Products, Dealer shall be given
fifteen (15) days notice via e-mail and telefax as to when the Product is ready
for inspection at the Manufacturer's premises in Ancona, Italy and seven (7)
days from such date to complete its inspection. With respect to all yachts, if
Dealer does not accept Delivery of the vessel within such seven (7) day period,
FGUSA or Bertram, as applicable, shall have the right to consider the order
cancelled by the Dealer unless the Dealer provides FGUSA or Bertram, as
applicable, a written certification as part of its punch list stating the yacht
is materially defective, either individually or collectively -- in which event
the provisions of Paragraph B below shall apply, and, failing which the
provisions of Paragraph D below shall apply.
B. Inspection Process. Following inspection, Dealer shall advise
FGUSA or Bertram, as applicable, in writing within the time frames specified
above, of any alleged defects in the Products. FGUSA or Bertram shall,
respectively, remedy any defects - which the parties agree are defects --within
thirty (30) days (or such longer period as is reasonably necessary) of receipt
of the Dealer's advice thereof. If Dealer has certified the existence of a
material defect, either individually or collectively, upon FGUSA's or Bertram's
certification, as applicable, that the material defect, either individually or
collectively, has been corrected, Dealer shall be provided notice thereof and
upon satisfactory re-inspection of the yacht within such reasonable time as
specified in the notice, Dealer shall thereupon accept and pay for the yacht. If
FGUSA or Bertram fail to remedy the defect, Dealer shall not be required to
accept or pay for the yacht. The failure by Dealer to advise FGUSA or Bertram,
as applicable, of alleged defects prior to Delivery, as provided herein, shall
constitute an absolute waiver by Dealer, or any party claiming through Dealer,
of any claims for obvious defects. The parties acknowledge, however, that such a
waiver shall not hinder Dealer's ability to make appropriate warranty claims.
C. Reimbursement of Taxes. Dealer shall cause to be paid or shall
make reimbursement to FGUSA or Bertram in full for any and all taxes, duties, or
other charges imposed by federal, state, municipal or other governmental
authority upon any purchase or sale under this Agreement
D. Cancellation. Notwithstanding anything to the contrary in this
Agreement, in the event of Dealer's bad faith cancellation, rejection or
non-acceptance of any order or Product, whether in part or in full, or default
in Dealer's obligation to make any additional deposits required hereby, Dealer
agrees (i) to compensate FGUSA for the cost to convert such vessel back to
European standards and (ii) that its deposits shall be retained as agreed upon
liquidated damages, subject to FGUSA's and Bertram's obligation to mitigate
damages.
9. Product Modification and Designations. FGUSA and Bertram shall each
have the right to discontinue the sale of Products or to modify the design and
components of Products at any time; provided, however, that FGUSA or Bertram
shall notify Dealer, upon receipt of order, of any significant design changes
with respect to Products. If any visible modification is inconsistent with an
order, with respect to yachts sold by the Dealer, and such modification is not
acceptable to customer, FGUSA or Bertram, as applicable, shall modify the yacht
to conform to the order as long as such is commercially
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reasonable. If FGUSA or Bertram, as applicable, is not able to make reasonably
satisfactory modification, Dealer may cancel the order without liability or
penalty. If FGUSA discontinues a brand, MarineMax shall have the right to
[****]. FGUSA may market any Products with a different model designation from
that used in Europe.
10. Warranties.
A. Only Warranty. Dealer shall sell Products only on the basis of
FGUSA's or Bertram's, as applicable, published Limited Warranty and make no
other warranty or representations concerning the Products, express or implied,
either verbally or in writing. The Limited Warranty currently used by FGUSA and
Bertram is as set forth in Exhibits F-1 and F-2, though it may be modified by
FGUSA or Bertram in their sole discretion, provided that as long as this
Agreement is in effect, the Limited Warranty provided by FGUSA and Bertram on
yachts sold by MarineMax shall run from the date of retail sale for one (1) year
on all items manufactured by the Manufacturers and five (5) years on the hulls.
All warranty claims shall be reported to FGUSA or Bertram, as applicable, by
Dealer and coordinated by FGUSA or Bertram, as applicable, which shall provide
warranty support in accordance with their respective Dealer Manuals, including
the coordination of all warranty claims on items installed but not manufactured
by FGUSA or Bertram, as applicable.
B. Display. Display at each Dealer Location Product warranty
information and furnish and make known to the first-use purchaser at the time of
delivery the appropriate operations and maintenance manual provided by FGUSA or
Bertram, the Product installation instructions, if any, together with the
applicable written Limited Warranty, including all disclaimers and limitations
thereto.
C. Inform Customers. Expressly inform the purchaser of the terms
of the FGUSA or Bertram Limited Warranty, that no FGUSA or Bertram warranty
applies if the Product is "used," which includes personal or substantial
demonstration, such as, for example, boats used as "tournament boats" (but
excludes reasonable sea trials and demos for prospective customers or for
marketing purposes. unless FGUSA or Bertram, as applicable, expressly authorize
such warranty in writing). No Product warranty shall apply if the design or
material of the Product is modified without the express authorization of FGUSA
or Bertram, as applicable, in writing.
D. Timeliness; Cost of Warranty Labor. Provide timely warranty
service on Product presented to Dealer by purchasers at a warranty labor rate
equal to (i) ninety percent (90%) of Dealer's posted shop labor rate, or (ii) if
a subcontractor is used, the lesser of one hundred percent (100%) of a
subcontractor's posted shop labor rate or the actual amount paid to a
subcontractor.
E. Access to Records. Provide FGUSA or Bertram, as applicable,
with access to its books and records and provide such additional documentation
which FGUSA or Bertram may reasonably request to verify the accuracy of the
warranty claims submitted to FGUSA or Bertram by Dealer and the service provided
by Dealer with regard to such warranty claims. FGUSA or Bertram, as applicable,
shall pay or credit all claims properly submitted to it in accordance with its
warranty claims policy, as such may be modified from time to time by FGUSA or
Bertram in their sole but reasonable discretion, subject to the limitations
described herein with respect to the duration of the warranties as provided in
Paragraph A above, within thirty (30) days after receipt of all required
documentation.
F. Storage and Maintenance. Dealer undertakes to properly store,
transport, insure and
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maintain all yachts sold to Dealer under this Agreement in accordance
with the highest standards from the date such yachts are delivered to the
Dealer. Dealer shall hold, and indemnify, Distributor harmless from all damages
and costs (including without limitation, attorney fees and costs, including
those in any appeals) resulting from a breach of the obligations set forth in
this paragraph.
11. Indemnification. FGUSA or Bertram, as applicable, shall indemnify,
defend and hold harmless Dealer from and against any and all loss, cost, or
expense, including but not limited to judgments, claims, demands, settlements,
including attorneys' fees, related to or arising out of the defective
manufacture of the Products, including all parts and accessories, or the sale of
the Products to Dealer pursuant to this Agreement. MarineMax shall indemnify,
defend and hold harmless FGUSA or Bertram, as applicable, from and against any
and all loss, cost, or expense, including but not limited to judgments, claims,
demands, settlements, including attorneys' fees, related to or arising out of
the defective modification, or any modification not authorized in writing by
FGUSA or Bertram, as applicable, of the Products, or any misrepresentation made
by MarineMax or any of its officers, employees or agents, with respect to the
Products. This Paragraph shall survive termination for a period not to exceed
six (6) years from the date of retail sale of each yacht.
12. Trademarks and Service Marks. Dealer acknowledges that FGUSA, the
Manufacturers, or their related or affiliated companies are the exclusive owners
of various trademarks, logos, service marks, trade designations and trade dress
(collectively "Identification") which FGUSA and the Manufacturers use in
connection with Products and their businesses. Dealer is authorized to use
Identification only in the manner prescribed by FGUSA or Bertram, only in
connection with the promotion and sale of Products and only until the expiration
or earlier termination of this Agreement. Dealer shall not use Identification in
any manner that adversely reflects upon the reputation of FGUSA or the
Manufacturers or in relation to any other matter that is a breach of this
Agreement. Dealer shall not use Identification or knowingly advertise outside of
the Territory without FGUSA's or Bertram's express written consent.
Authorization shall not be interpreted as a license for use of Identification.
Dealer acquires no proprietary rights with respect to Identification and this
authorization shall terminate simultaneously with the expiration or earlier
Termination of this Agreement. In the event of expiration or earlier termination
of this Agreement, Dealer shall promptly discontinue use of Identification in
any way whatsoever and shall thereafter not use, either directly or indirectly,
any Identification or any confusingly similar Identification in a manner likely
to confuse, mistake or deceive the public and remove such signs within ninety
(90) days, failing which FGUSA is hereby irrevocably authorized to remove such
signs from Dealer's places of business and destroy them, at Dealer's expense.
13. Service Performance Standards. Dealer and FGUSA shall work together to
establish fair and reasonable standards of service performance for the
Dealership consistent with the image of the brands.
14. No Agency Created; Separate Entities. It is understood and agreed that
neither party is, nor shall it at any time represent itself to be, the agent,
employee, representative or franchisee of the other. Neither party shall enter
into any contract or commitment in the name of or on behalf of the other. Dealer
shall include in its sales contract for Products the statement: "Dealer [or
MarineMax] is an independent business enterprise and not an agent of is
distributor or the manufacturer and no party to this Agreement shall make such a
claim." MarineMax confirms that it understands that FGUSA and Bertram are
entirely separate entities; that it has specifically consulted counsel in this
regard; and that it shall not assert a claim against Bertram for matters
involving FGUSA, or against FGUSA for matters involving Bertram.
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[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
15. Term of Agreement; Termination.
A. Term. The term of this Agreement shall be three (3) years
beginning on September 30, 2003, and ending on August 31, 2006 (the "Term").
Provided that Dealer has purchased from the Ferretti Group either [****] of
Target Sales or [****] of its Minimum Purchase Level ("MPL") for the 2003-2004
year as set forth on Exhibit D [****], and is not otherwise in material breach
of its obligations, the Agreement will be extended by one (1) year. Likewise,
provided that Dealer has purchased from the Ferretti Group either [****] of
Target Sales or [****] of its MPL for the 2004-2005 year as set forth on Exhibit
D by August 31, 2005, and is not otherwise in material breach of its
obligations, the Agreement will be extended by one (1) additional year.
Notwithstanding the foregoing, if Dealer fails to meet MPL due to Bertram's or
FGUSA's failure to deliver Products in accordance with the terms of the orders
therefore, the Products in question shall be deemed purchased for the sole
purpose of measuring compliance with MPL requirement and volume discounts. If
this Agreement is extended to August 31, 2008, the parties shall meet on or
before August 31, 2007, to discuss the terms and conditions upon which the
Agreement can be further extended in time, as to other territories, and with
respect to future brands beyond the contemplated termination date. In any event,
if this Agreement has not been terminated on or before August 31, 2007, no party
will terminate this Agreement other than (i) due a material breach as specified
in subparagraph C of this Section or (ii) pursuant to subparagraph D of this
Section, below, without giving the other party at least twelve (12) months
notice. It is understood, however, that any extension beyond the initial Term
will involve purchase and sale requirements not on a Ferretti Group basis alone,
but segmented by brand as well.
B. Termination by Mutual Consent. This Agreement may be
terminated at any time by the mutual consent of the parties - by MarineMax and
FGUSA, with respect to FGUSA and by MarineMax and Bertram, with respect to
Bertram.
C. Termination for Breach or Default. It is the desire of neither
party to terminate this Agreement for any reason during the Term hereof, as such
may be extended. Therefore, before any party notifies the other of a material
breach (other than as a result of an act of bad faith), the parties shall
communicate with each other regarding the reasons for their concerns and attempt
in good faith to resolve the concerns in a mutually satisfactory and timely
manner. Only if the parties are unable to do so, either party may, upon thirty
(30) days written notice to the other stating the reasons therefore, terminate
this Agreement upon the other party's breach or default in any of the material
obligations, covenants, representations, warranties or duties imposed herein and
provided that the breach or default has not been cured or commenced to be cured
during the thirty (30) day notification period.
(i) The following shall be defined as breaches of the Dealer's
material obligations, covenants, representations, warranties
or duties: the commission of an act of bad faith, failure to
meet MPL performance standards, failure to meet commercially
reasonable service standards consistent with what the parties
have agreed as provided herein, intentional sales outside the
Territory, failure to comply with any of the material
obligations accepted by Dealer as set forth in Paragraphs 3.A,
3.C, 3G, 3.H, 3.L, 10.A, 10,E, and 10.F hereof.
(ii) The following shall be defined as breaches of FGUSA's or
Bertram's material obligations, covenants, representations,
warranties or duties: the commission of an act of bad faith,
failure to comply with any of the material obligations
accepted by FGUSA or
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[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Bertram as set forth in Paragraphs 1, 2, 4.B and 4.D hereof,
including such material obligations as are set forth in
Exhibits B-1 and B-2.
(iii) If the breach or default is not subject to cure because it
resulted from the commission of an act of bad faith, this
Agreement may be terminated immediately, effective upon notice
to the breaching or defaulting party.
D. Automatic Termination. This Agreement may be immediately
terminated by a party upon written notice to the other party if any of the
following occur with regard to the other party: (1) the other party ceases to
exist other than due to a corporate reorganization; (2) the other party becomes
insolvent or takes or fails to take any action which constitutes an admission of
inability to pay debts as they mature; (3) the other party makes a general
assignment for the benefit of creditors to an agent authorized to liquidate any
substantial amount of assets; (4) the other party becomes a subject of an "order
for relief" within the meaning of the United States Bankruptcy Code; (5) the
other party applies to a court for the appointment of a receiver for any assets
or properties; (6) Dealer makes a fraudulent misrepresentation that is material
to this Agreement; (7) there is a change in control in the ownership of
MarineMax which results in the association through direct or indirect ownership
of MarineMax with another yacht manufacturer which competes with the Ferretti
Group.
DD. Repurchase. If this Agreement is terminated:
(i) Repurchase Obligation. By FGUSA or Bertram, respectively,
other than as a result of a reason set forth in Paragraph D
above, [****]. Dealer shall thereupon provide written notice
to FGUSA or Bertram of all unsold Products [****], including
Product serial numbers and the [****] for each Product. Upon
the termination of this agreement [****], Dealer shall [****],
as applicable, shall reimburse Dealer for all deposits on
yachts made [****], in which case FGUSA or Bertram, as
applicable, shall deliver the yacht [****] fulfill its
obligation to the customer. FGUSA or Bertram, as applicable,
shall have [****] to accept and close upon Dealer's offer of
sale, which acceptance shall be provided by a written notice
given to Dealer. [****]. Dealer shall deliver all title
documentation reasonably requested by FGUSA or Bertram and
Dealer shall execute, if needed a limited power of attorney on
behalf of FGUSA or Bertram, for purposes of executing all
necessary title documentation. Payment for purchased Product
shall be, at Dealer's option, by credit, offset or payment
made to Dealer within [****] or delivery to FGUSA or Bertram,
as applicable, if earlier.
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[****] - CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
(ii) Repurchase Option. Pursuant to subparagraph D, or upon the
mutual consent of the parties hereof, or without cause by
MarineMax, FGUSA and Bertram shall each, as applicable, have
an option to repurchase Dealer's inventory of their respective
Products in accordance the procedures, and at the prices, set
forth above. If Dealer terminates this Agreement pursuant to
paragraph 15.C., Dealer shall have the right to [****].
E. Ongoing Sales of Parts. If FGUSA or Bertram terminate, or
FGUSA or Bertram, and Dealer mutually terminate this Agreement prior to its
expiration date, provided the termination is not for quality of service as
provided above, fraud, or financial instability or insolvency of Dealer, FGUSA
and Bertram may nevertheless continue to sell warranty parts and accessories for
Products on a cash on delivery basis for a period not to exceed twelve (12)
months from the warranty activation period of the last FGUSA or Bertram Product
delivered by the Dealer in order that Dealer may continue to provide warranty
service on Products which have outstanding warranties.
F. Time Periods. Any period of time described in the Agreement
shall be modified to include such different period of time that may be required
by applicable law.
G. Other Considerations on Termination. Upon the effective date
of expiration or termination, Dealer will supply FGUSA and Bertram with customer
lists and, except as described in Section 11 and Section 15.D.D. of this
Agreement, neither party shall be under no obligation to compensate or otherwise
indemnify the other in any way, for any damages, including without limitation
consequential damages, or any costs of any kind, whether as a result of a loss
of present or prospective profits, anticipated sales, expenditures, investments,
commitments made in connection with this Agreement, or on account of any other
reason or cause whatsoever. Except as described in Section 11 and Section 15.DD
of this Agreement, any right to claim any such damages, compensation or
indemnity is hereby expressly waived by the parties.
16. Governing Law; Compliance. This Agreement shall become binding upon the
execution by both parties hereto. This Agreement shall be governed, interpreted
and construed according to the laws of the State of Florida, U.S.A., without
regard to applicable conflicts of law. The parties shall comply with all
applicable federal, state and local laws and regulations, including those of any
non-U.S. jurisdiction in which it operates, as they apply to their duties under
this Agreement.
17. Assignability. This appointment and Agreement is made and entered into
with the understanding that it is personal with Dealer and is not, whether by
operation of law or otherwise, assignable or in any part delegable or
transferable unless pursuant to a corporate reorganization or with the prior
written consent of FGUSA or Bertram, as applicable, is obtained which consent
shall not be unreasonably withheld, conditioned or delayed. It is understood,
however, that Dealer may appoint [****] for the purpose of giving effect to the
terms of this Agreement. All such [****] shall be subject to the terms of this
Agreement and the Dealer shall be conscious of the need to maintain the
confidentiality of this Agreement.
18. Notices. Any written notice given pursuant to this Agreement shall be
either hand delivered (by nationally recognized courier with proof of delivery
retained), to the party at the respective address first above written. Notice
may also be given by fax (with proof of delivery retained) if a copy is also
delivered in the manner described herein. Such notice shall be deemed to be
given upon first receipt. A change of address may be given by such notice.
Notices to Dealer shall be sent to the attention of its CEO and General Counsel
at the address above first stated. Notices to FGUSA and Bertram shall be
13
sent to the attention of their respective CEO's at the addresses above first
stated, and to Robert N. Allen, Jr., Esq., 601 Brickell Key Drive, Suite 805,
Miami, Florida 33131, telefax 305-379-7018.
19. Entire Agreement; Non-Waiver; Severability; Interpretation. This
Agreement contains the entire agreement between the parties with respect to the
matters set forth herein and may not be amended or modified except by written
instrument signed by FGUSA (with respect to matters involving FGUSA) or by
Bertram (with respect to matters involving Bertram) and Dealer that expressly
states that the writing constitutes a rider or modification to this Agreement.
Failure on the part of FGUSA, Bertram or Dealer to enforce any term of this
Agreement shall not constitute a waiver thereof. Any provision of this Agreement
which in any way contravenes or is unenforceable under applicable law shall not
apply and shall be deemed separable and not to be a part of this Agreement
without affecting the validity of the remaining provisions. No rule of
construction resolving ambiguities in any provision herein against the primary
drafter shall apply.
20. Venue. Any action, claim, suit or proceeding between FGUSA, Bertram and
Dealer, whether based on federal, state statutory or common law, including but
not limited to, any and all disputes relating to, arising out of or in
connection with the interpretation, performance or the nonperformance of this
Agreement and any and all disputes arising out of or in connection with
transactions in any way related to this Agreement (including the termination of
this Agreement) shall be litigated solely and exclusively before the United
States District Court for the Southern District of the State of Florida. The
parties consent to the in personam jurisdiction of said court for the purposes
of any such litigation, and waive, fully and completely, any right to dismiss
and/or transfer any action pursuant to 28 U.S.C. Section 1404 or 1406 (or any
successor statutes) or the doctrine of forum non conveniens. In the event the
United States District Court does not have subject matter jurisdiction of said
matter, then such matters shall be litigated solely and exclusively before the
appropriate state court of competent jurisdiction located in Miami-Dade County,
Florida, and the parties consent to the personal jurisdiction of such courts for
the purpose of such litigation. In the event that notwithstanding the foregoing
provision, either party brings suit in any venue other than that above required,
the defendant in such action may elect to have the dispute, and any further
dispute arbitrated under the Commercial Arbitration Rules of the American
Arbitration Association in Miami, Florida, and this election shall be deemed
made pursuant to the Federal Arbitration Act. ___/___ (initials)
21. Miscellaneous. In case of any dispute relating to the rights and duties
imposed by this Agreement, both parties will openly discuss and make reasonable
efforts at amicable resolution. Except as expressly described to the contrary in
this Agreement, the rights and remedies of each party are not exclusive. The
parties shall be under an affirmative duty of good faith. Where consent or
approval is required, each party agrees that it shall not unreasonably withhold,
delay or condition such consent or approval, unless otherwise provided herein.
All Exhibits form a part of this Agreement. The prevailing party in any lawsuit
shall be entitled to its reasonable attorneys fees and costs. The United Nations
Convention on the International Sale of Goods shall not apply to this Agreement.
22. Confidentiality: Press Releases. FGUSA and Bertram shall maintain in
confidence all Dealer proprietary and confidential information which is
disclosed to FGUSA or Bertram. Neither party shall issue press releases or make
statements to the press concerning this Agreement, without the advance written
approval of the other parties, which shall not be unreasonably withheld, delayed
or conditioned.
23. Waivers: Special Damages; Generally; Trial by Jury. The parties waive
any right to indemnity, damages or other compensation not explicitly provided
for in this Agreement that may arise by virtue of this Agreement, or any order,
including without limitation consequential, incidental, exemplary or
14
punitive damages. No waiver of a breach shall be deemed effective unless it is
in writing and such shall not be construed as a continuing waiver under any
circumstances. The parties hereby waive the right to trial by jury.
24. Steering Committee. FGUSA, Bertram and MarineMax agree that they desire
to have meetings of their senior executives at least twice a year for the
purpose of evaluating the status of their respective relationships and
addressing issues of mutual concern. Each party shall have at least two
representatives participate in such meetings, and each party may include in such
meetings representatives of their respective holding companies and affiliates.
IN WITNESS WHEREOF, FGUSA and Dealer have executed this Agreement as of the date
first above written.
Ferretti Group USA, Inc. MarineMax International, LLC.
By: /s/ [ILLEGIBLE] By: /s/ Michael H. McLamb
__________________________ __________________________
Title: President Title: V.P.
__________________________ __________________________
Date: __________________________ Date: __________________________
Bertram Yacht, Inc.
By: /s/ [ILLEGIBLE]
__________________________
Title: Pres & CEO
__________________________
Date: __________________________
15