SEA RAY SALES AND SERVICE AGREEMENT

SEA RAY
SALES AND SERVICE AGREEMENT

THIS AGREEMENT made this 7th day of December, 2005 between SEA RAY DIVISION of Brunswick Corporation, a Delaware corporation, (hereinafter referred to as “Sea Ray”), having its principal place of business at 2600 Sea Ray Boulevard, Knoxville, Tennessee 37914 and MarineMax, Inc., doing business as MarineMax, with its principal place of business at 18167 US North, Suite 300, Clearwater, Florida 33764, a corporation organized and existing under the laws of the State of Delaware (hereinafter referred to as “Dealer”),*? whereby in consideration of the mutual covenants herein contained, it is agreed as follows:

1.  Appointment of Dealers : Sea Ray hereby appoints Dealer as a dealer for the retail sale, display, and servicing of all Sea Ray product(s), parts and accessories (hereinafter “Product” or “Products”) as specified in the then current Sea Ray Products and Programs Manual applicable to Sea Ray dealers selling comparable Products (hereinafter referred to as the “Manual”), from the below described Dealer Location(s), which Products shall be purchased only from Sea Ray or an authorized Sea Ray dealer located in the country in which Dealer is located.

During the term of this Agreement, Sea Ray shall not appoint other dealers to sell Product from a dealer location within the Territory set forth in Paragraph 2 so long as Dealer is in compliance with its material obligations and performance standards under this Agreement and Sea Ray’s then current material policies and programs. Sea Ray reserves the right to modify the Territory or appoint other dealers to sell, display and service Product from dealer locations within the Territory at any time if Sea Ray determines, in its sole discretion, the Dealer is in breach of the material obligations and performance standards of this Agreement and Sea Ray’s then current material policies and programs following notice and the expiration of any applicable cure periods without cure. Provided that similar restrictions apply to all domestic Sea Ray dealers selling comparable Products, Dealer shall not sell, advertise, solicit for

     
* Dealer agrees that its applicable subsidiaries will execute this Agreement for their respective locations and territories to replace this Agreement and further acknowledge the termination of the previous Sea Ray Sales and Service Agreements with Dealer and its applicable subsidiaries.

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sale or offer for resale Products outside of the Territory, provided, however, that Dealer may advertise in recognized and established marine publications with cross-territorial distribution. Sea Ray reserves the right in its sole discretion to monitor or otherwise enforce its policies and procedures applicable to all domestic Sea Ray dealers and will do so on a uniform basis. There are no third party beneficiary rights to such policies and procedures or this Agreement or other dealer agreements.

Sea Ray also reserves the right to make sales or provide service in the Territory based upon legitimate business purposes, and to appoint other dealers or service providers to sell, display, and/or service products, from any other location outside the Territory.

Sea Ray shall have the right to adopt and modify policies and programs related to the Products from time to time in its sole discretion and in accordance with its own reasonable business judgment and it will enforce such policies and programs on a uniform basis. Dealer agrees to comply with such policies and programs, and understands that failure to comply with a material term shall give Sea Ray, following the expiration of applicable cure periods without cure, the right to modify the Territory, appoint other dealers to locations within the Territory, and/or to terminate this Agreement.

2.  Location : Dealer shall sell at retail, display, and service Products only at and from the following location(s) (“Dealer Location(s)”). Dealer Location(s) are both sales and service unless otherwise specified in writing:

See applicable subsidiary agreements.

Dealer shall concentrate its sales, display and service effort to within the following Territory:

See applicable subsidiary agreements

Dealer shall not delete, change, or add to the above Dealer Location(s) without the prior written consent of Sea Ray which consent shall not be unreasonably withheld, and Sea Ray may consider any relevant factors and consequences as part of the approval process including but not limited to the Dealer’s qualifications and abilities to perform the Agreement obligations from the proposed Dealer location, the effect such a grant would have on the resulting Territory configuration and adjacent Sea Ray dealer sales, the Dealer’s financial capabilities to successfully operate the business from the Dealer Location, and whether the Dealer will have adequate personnel to manage the business at the Dealer Location. Dealer shall not sell Products for use by or to a purchaser located outside of the country in which the Dealer is located. Dealer shall not sell to others for the purpose of resale without the prior written consent of Sea Ray. Dealer shall not utilize the services of a broker or similar agent to sell Product unless such broker is an affiliated third party of Dealer that is located within the Territory and such broker or agent does not consummate or sell any Product and otherwise complies with the requirements of this Agreement. Dealer agrees to provide appropriate facilities and to assume full and complete managerial authority and responsibility for the service of the Products at and from those Dealer Location(s) specified in this Agreement and for the display and retail sale of the Products at and from each Dealer Location. Additionally, Sea Ray approves of temporary off-site retail activity within the Territory.

3.  Dealer’s Responsibilities : Dealer agrees to:

A. Devote its best efforts to aggressively promote, display, advertise and sell Products at each Dealer Location in accordance with the terms of this Agreement and all applicable federal, state and local laws. Dealer shall display and utilize at each Dealer Location signs, graphics and image elements with Sea Ray’s Identification as defined herein, subject to approval by Sea Ray, that will positively reflect the Sea Ray image and promote the retail sale of the Products.

B. Purchase and carry on hand at all times a sufficient inventory of current Products to meet the reasonable demand of customers at each Dealer Location, and Sea Ray’s Minimum Stock Requirements as outlined in the then current Manual.

C. Maintain at each Dealer Location (unless a sales location only, and then service shall be provided at another Dealer Location) a service department that Dealer agrees to staff, train, and equip to promptly and professionally service Products; and to maintain at each Dealer Location parts and supplies to properly service Products on a timely basis.

D. Perform any and all necessary Product rigging, installation, and inspection services prior to delivery to the purchaser as required by the then current Manual and perform post-sale service of all Products originally sold by Dealer and brought to Dealer for service. Dealer will be required to provide or arrange for warranty and service work for Product regardless of the selling dealer of the Product or condition of sale. Sea Ray will exercise reasonable efforts as to this Paragraph 3.D. to address circumstances in which another dealer has made a sale to an original retail purchaser who permanently resides within Dealer’s Territory where such sale is contrary to the terms of the selling dealer’s Sales and Service Agreement. Dealer will provide appropriate instructions to purchasers on how to obtain warranty and service work from the Dealer. Dealer will secure all Product inventory against weathering and damage, and maintain inventory in a like new and unused condition.

E. Furnish each Product purchaser with Sea Ray’s limited warranty on new Products and with information and training as to the safe and proper operation and maintenance of the Product.

F. Complete and submit Sea Ray’s Product registration card and In-Service Checklist promptly upon delivery of the Products to the purchaser and assist Sea Ray in performing Product defect and recall campaigns. In the event Dealer fails to return the card to Sea Ray as required, Dealer shall indemnify Sea Ray against any liability, loss, or damage which Sea Ray may sustain directly as a result of such failure.

G. Maintain complete Product sales, warranty and service records, and report to Sea Ray upon request the name and address of each Product purchaser to the extent required by applicable law.

H. Achieve Product sales and service performance in accordance with fair and reasonable standards and sales levels established by Sea Ray in consultation with Dealer from time to time as described in Paragraph 14 below.

I. Submit to Sea Ray upon request any additional information or clarifying information regarding Dealer’s financial statements and if necessary, consent to full and open disclosure of financial information concerning Dealer between Sea Ray and any financial institution or company which may finance or propose to finance all or part of Dealer’s Product Inventory.

J. Conduct business in manner that preserves and enhances the reputation and goodwill of both Sea Ray and Dealer for providing quality products and services, and refrain from using any false, misleading or deceptive advertising. Submit truthful and accurate statements, reports and information to Sea Ray and any financial institution financing or proposing to finance Dealer’s Product inventory or any purchaser.

K. Maintain an ability to purchase Product inventory via flooring and/or self-financing that is customary to carry on hand and display Sea Ray’s current Product models.

L. Allow the application of any rebates, warranty reimbursements or account credits owed to Dealer as an offset against any losses, debts, or monies owed by Dealer to Sea Ray, or any parent, affiliate or subsidiary of Sea Ray including but not limited to losses or debts applicable to open Products accounts, unpaid retail show space, and to any Sea Ray losses relating to Dealer flooring or financing.

M. Use its best efforts to maintain a CSI rating in compliance with Sea Ray’s CSI standards.

N. Comply with those Dealer obligations that may be imposed or established by Sea Ray applicable to all domestic Sea Ray Dealers including but not limited to those included in the Manual, Sea Ray’s Internet Policy, and the Service Administration Program.

O. Maintain a financial condition which is adequate to satisfy and perform its obligations under this Agreement.

P. Maintain Master Dealer Certification or other applicable certification for each Dealer Location, as such Master Dealer Certification or other applicable certification requirements shall be established from time-to-time by Sea Ray, which certification requirements shall be the same as those applicable to all domestic Sea Ray Dealers who participate in the Master Dealer Certification Program or other applicable certification program. For other Dealer Locations which are added to this Agreement after the execution of this Agreement, Dealer shall obtain and maintain Master Dealer Certification or other applicable certification within no more than two (2) years from the date such Dealer Location has been added to this Agreement, provided that Dealer shall not be required to obtain such certification for such additional Dealer Locations where it is not economically justifiable for Dealer to do so, and at the time of the grant of such additional Dealer Location Sea Ray has agreed such certification shall not be required.

Q. Provide prior written notice to Sea Ray if Dealer desires to make any change in Dealer’s financing of its Product inventory or business and give Sea Ray sufficient time to discuss and review with Dealer the effect of the proposed change.

R. Notify Sea Ray of the addition or deletion of any Dealer Location(s) which notification Dealer agrees shall not be deemed a consent by Sea Ray to such a proposed change.

4.  Orders : Dealer agrees to submit orders to Sea Ray in a manner and format prescribed by Sea Ray, applicable to all domestic Sea Ray dealers which orders shall be subject to Sea Ray’s then current terms and conditions of sale which may be modified by Sea Ray at any time for all domestic dealers as deemed reasonably necessary. Any order which does not comply with Sea Ray’s terms and conditions need not be filled by Sea Ray provided, however, that Sea Ray shall promptly notify Dealer of such noncompliance. Any additional or different terms submitted by Dealer will be void and of no effect. Dealer cancellation of orders will be subject to Sea Ray’s then current cancellation policy applicable to all domestic Sea Ray dealers. All orders submitted by Dealer are subject to acceptance by Sea Ray.

5.  Prices : The Products sold to the Dealer by Sea Ray shall be on the basis of price lists published by Sea Ray from time to time for its domestic dealers, less any applicable discounts allowed by Sea Ray’s programs. Sea Ray shall have the right to revise the price lists or applicable discounts on programs applicable to all of its domestic dealers at any time and agrees to promptly notify Dealer of any such change. The Product prices charged to Dealer will be the lowest price then charged to other domestic dealers subject to Dealer meeting all the requirements and conditions of Sea Ray’s applicable programs, and provided that Sea Ray may in good faith, charge lesser prices to other dealers to meet existing competitive circumstances, for unusual and limited duration non-ordinary business circumstances, or for limited duration promotional programs. Sea Ray shall have no obligation to reimburse Dealer for any loss which Dealer may sustain by reason of any change in price, program, or discount for which notice was provided in accordance herewith. Terms of payment will be as specified from time to time by Sea Ray. Dealer will pay Sea Ray the lesser of 1.5% late charges per month or the maximum permitted by applicable law on any past due invoice. Sea Ray may refuse shipment for any credit reason, including Dealer’s failure to pay for a prior shipment and shall immediately notify Dealer in such event. Dealer will reimburse Sea Ray for all reasonable and necessary costs in collecting past due accounts, including attorney fees and court costs. Dealer hereby grants to Sea Ray and Sea Ray hereby retains a security interest in all Products sold to Dealer and all proceeds arising out of the sale of the Products until such Products are paid for in full. Dealer agrees to sign, file, authenticate, and authorize the signing, filing and authenticating by Sea Ray of such financing statements and other documents and do such other acts, as Sea Ray may request to establish and maintain a valid and protected security interest in the Products.

6.  Shipments : All shipments of Products shall be made FOB the Sea Ray factory designated by Sea Ray, at which time title shall pass. Dealer shall pay all applicable shipping, transportation, delivery, and handling charges for Products ordered. If Dealer fails to accept delivery of any Products ordered, other than material non-conforming Products that must be returned to Sea Ray for repair, Dealer shall reimburse Sea Ray for any costs incurred, including returning such Products to Sea Ray. If Sea Ray ships Products not ordered by Dealer, Dealer shall have the right to refuse delivery, in which event Sea Ray shall pay all costs incurred in returning same to Sea Ray. Shipments shall be subject to Sea Ray’s production schedule and availability of materials or transportation equipment. No liability shall be sustained by Sea Ray by reason of its not filling any order due to circumstances beyond its reasonable control such as, but not limited to, labor disputes, natural disasters, accidents to machinery, acts of God, acts of or threatened acts of war or terrorism, material shortages, regulations, demands for goods exceeding Sea Ray’s available supply or any other cause beyond Sea Ray’s control. In the event of any delay in delivery, failure to fill orders or other default or damage caused by any of the foregoing, Sea Ray may, at its option and without liability, cancel all or any portion of the applicable orders to the extent affected by the event of force majeure and/or extend any date upon which performance is due hereinunder.

7.  Risk of Loss : Risk of loss for Products ordered by Dealer shall pass to Dealer at the time the Products or parts are tendered to the designated carrier at the Sea Ray factory. Sea Ray will arrange for insurance from the shipping point to the final delivery point. Dealer will be the loss payee on any claim. Sea Ray will assist Dealer in the processing and collection of any claims against the carrier contracted by Sea Ray.

8.  Payment — Claims : All sales of Products to Dealer shall be paid for in advance by Dealer, unless otherwise agreed between Sea Ray and Dealer. All claims for shortage or damages or unacceptable Product shall be made pursuant to Sea Ray’s then current policy on shipment damage and claims procedures applicable to all Sea Ray domestic dealers. The failure of Dealer to give such notification as set forth in Sea Ray’s then current shipment damage and claims procedures policy shall constitute a waiver of any such claim. Dealer shall cause to be paid or shall make reimbursement to Sea Ray in full for any and all taxes, duties, or other charges imposed by federal, state, municipal, or other governmental authority upon Dealer’s purchase under this Agreement.

9.  Product Modification : Sea Ray shall have the right to discontinue the sale of Products or to modify the design, specifications and components of Products at any time provided, however, that Sea Ray shall notify Dealer, prior to shipment, of any major changes with respect to Products previously ordered by Dealer but not yet delivered, in which event Dealer shall have the right to terminate such order within five (5) business days after such notification by providing written notice to Sea Ray. The failure to provide such timely written notification shall be deemed acceptance by Dealer of such changes.

10.  Warranties : Dealer agrees to:

A. Sell Products only on the basis of Sea Ray’s published applicable limited warranty and make no other warranty or representations concerning the limited warranty, express or implied, either verbally or in writing.

B. Display at e