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EXHIBIT 10.17
ACCOUNTS RECEIVABLE AND INVENTORY FINANCING AGREEMENT
(MD)
THIS AGREEMENT (as from time to time amended, "THIS AGREEMENT") is dated as of
March 18, 1999 and is by and between TRANSAMERICA COMMERCIAL FINANCE
CORPORATION, a Delaware corporation with its office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("TCFC"), and MARINEMAX, INC., A Delaware
Corporation ("MARINEMAX"), and ▇▇▇▇▇▇▇▇'▇ BOAT CENTER, INC., a California
corporation, ▇▇▇▇▇▇▇▇'▇ MARINE CENTERS OF ARIZONA, INC., an Arizona corporation,
MARINEMAX OF LAS VEGAS, INC., a Delaware corporation and MARINEMAX TX,
L.P.,(each individually a "DEALER" and collectively the "DEALERS").
RECITALS
A. MarineMax and Dealers are related entities.
B. MarineMax desires to have one common credit facility for MarineMax and
Dealers instead of separate credit facilities and MarineMax and Dealers
have requested TCFC to extend such a common credit facility.
The parties further agree as follows:
SECTION 1. DEFINITIONS.
1.1 UCC DEFINED TERMS. "ACCOUNT DEBTOR," "EQUIPMENT," "FIXTURE," "GOODS," and
"PROCEEDS" shall have the meanings assigned to such terms in Article 9, and
"PERSONS" shall have the meaning assigned to such term in Article 1, of the
Illinois Uniform Commercial Code (the "UCC") as of the date of this Agreement.
1.2 ACCOUNTING TERMS. Accounting terms used in this Agreement and not defined
herein shall have the meanings customarily given them in accordance with
generally accepted accounting principles.
1.3 OTHER DEFINED TERMS.
(a) The following terms when used herein shall have the following
meanings:
"ACCOUNTS" - means accounts, receivables, and other rights to payment
arising from the sale or lease of goods or provision of services in the ordinary
course of business, including all amounts payable by, and rights and claims
against, any manufacturer or Seller of Inventory, such as Supplier Benefits,
Approved Return Credits, advertising rebates and warranty work.
"AFFILIATE" - any Person (i) that directly or indirectly controls or is
controlled by, or is under common control with any Dealer, (ii) that directly or
beneficially owns 5% or more of the voting stock (or if any Dealer is not a
corporation, the equity) of any Dealer, (iii) that is a director, partner,
manager or officer (or Person holding an equivalent position) of any Dealer or
any Person referred to in clause (i) or (ii) above, or (iv) any natural Person
related to any Person referred to in clause (i), (ii) or (iii) above.
"APPROVED RETURN CREDITS" - collectively, all of each Dealer's rights
to credits for returns by such Dealer due from and approved by a Seller. . No
such credits shall be Approved Return Credits if (i) subject to set-off or
counterclaim; (ii) from a Seller TCFC no longer considers satisfactory for the
purposes of Loans; or (iii) disputed
"BUSINESS DAY" - a day (other than Saturday or Sunday) on which the
Federal Reserve Bank of Chicago is open for business.
"COLLATERAL" - collectively, the following property and interests in
property of each Dealer, whether now or hereafter existing, owned, licensed,
acquired or arising and wherever located: (i) Accounts, Equipment, Fixtures,
Inventory, and Supplier Benefits; all accessions, accessories, returns,
repossessions, substitutions, repairs and replacements; and all reserves,
however created, of any Dealer in the possession or control of TCFC; (ii) all
Proceeds and products of the foregoing; and (iii) all books and records relating
to the same.
"CREDIT LIMIT" - $48,000,000 in the aggregate.
"EDI" - electronic data interchange including facsimile transmission.
"INVENTORY" - Goods owned by or consigned by or to any Dealer which are
held for sale or lease or furnished or to be furnished under any agreement for
service, or which are raw materials, work in process or materials used or
consumed in any Dealer's business, Goods which were Inventory and are returned
Goods or Goods repossessed or stopped in transit by any Dealer, and all other
Goods in the possession or under the control of any Dealer which are not
Equipment.
"LAWS" - all laws, ordinances, regulations, and rules of all federal,
state, county, municipal, foreign and other governments, including, without
limitation, any instrumentality, division, agency, body, or department thereof.
"LIABILITIES" - collectively, all liabilities, obligations and
indebtedness to TCFC or to any TCFC Affiliate of any and every kind and nature,
whether heretofore, now or hereafter arising, due or payable and howsoever
evidenced, created, incurred, acquired or owing, whether primary, secondary,
direct, contingent, fixed or otherwise (including obligations of performance)
and whether arising or existing under written or oral agreement or agreement
created by EDI or by operation of law including, without limitation, all
liabilities, obligations and indebtedness of MarineMax and Dealers and each of
them to TCFC under this Agreement and any Other Agreement.
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"LIBOR" - for any calendar month shall equal the one month London
Interbank Offered Rates (LIBOR) as published in the Wall Street Journal on the
first Business Day of such month.
"LIEN" - any lien, security interest, claim or other encumbrance,
whether arising by agreement or by operation of law.
"LOANS" - Loans made by TCFC pursuant to this Agreement.
"MATERIAL ADVERSE CHANGE" - a material adverse change in the condition
(financial or otherwise), business, operations or prospects or in the Collateral
of MarineMax and its Subsidiaries, taken as a whole..
"OTHER AGREEMENTS" - Instruments, security agreements, mortgages, deeds
of trust, guarantees, subordination agreements, powers of attorney, consents,
assignments, notices, leases, financing statements and other written agreements,
documents or EDI matter whether heretofore, now, or hereafter executed by or on
behalf of MarineMax or any Dealer and delivered to TCFC, together with all
agreements and documents referred to therein or herein or contemplated thereby
or hereby.
"PRICE PROTECTION PAYMENTS" - collectively, all of each Dealer's rights
to any rebate or credit with respect to Inventory purchased by such Dealer from
a Seller as a result of a reduction in the price of such Inventory after Dealer
orders such Inventory.
"SELLER" - any Person from whom any Dealer purchases or may purchase
Inventory or who advises TCFC that it has sold or may sell Inventory to a
Dealer.
"SUBSIDIARY" - any corporate, limited liability company or partnership
Affiliate in which MarineMax directly or indirectly owns more than 50% of the
outstanding ownership interest having ordinary voting power.
"SUPPLIER BENEFITS" - collectively, all of each Dealer's rights to any
Price Protection Payments, rebates, discounts, credits, factory holdbacks,
incentive payments and other amounts which at any time are due to such Dealer
from a Seller or other supplier of Inventory.
"TCFC AFFILIATE" - any Person that directly or indirectly controls, is
controlled by, or is under common control with TCFC.
(b) The following terms are defined in the following sections of this
Agreement:
Term Section Term Section
---- ------- ---- -------
"ERISA" 6.6
"ACH Debit" 2.6 "GAAP" 6.1
"Approvals" 2.1 "Indebtedness" 6.6
"Borrowing Base" 2.4(a) "Loan Account" 2.7
"Borrowing Base Certificate" 2.5(b)
"Capital Expenditures" 6.6 "Permitted Liens" 7.5
"Capital Leases" 6.6 "Permitted Locations" 6.4
"Records" 6.5
"Start Date" 2.9(b)
"Default" 9.1 "Subordinated Debt" 6.6
"Eligible Account" 2.4(b) "UCC" 1.1
"Eligible Inventory" 2.4(c)
SECTION 2. THE CREDIT.
2.1 INTENTIONALLY LEFT BLANK.
2.2 LOANS. Subject to the terms and conditions of this Agreement, TCFC may from
time to time make Loans to MarineMax and Dealers ("LOANS"). MarineMax and each
Dealer shall be jointly and severally liable with each other for the full and
punctual payment and performance, when due, whether at maturity or earlier by
reason of acceleration or otherwise, and at all times thereafter, of all
Liabilities to TCFC, including without limitation, all obligations relating to
any representations, warranties and covenants of MarineMax and each Dealer to
TCFC and all other Liabilities of each other, whether before, during or after
any bankruptcy, reorganization or arrangement, insolvency, receivership,
dissolution or liquidation statute or other law of any jurisdiction (each, a
Bankruptcy Proceeding") with respect to MarineMax or any Dealer, including
without limitation any Liabilities arising under any guaranty agreements. All
Loans shall constitute a single obligation.
2.3 LOAN LIMITS. The aggregate principal balance of Loans shall not exceed the
lesser of the applicable Credit Limit or the Borrowing Base. If at any time the
sum of the aggregate outstanding principal balance of Loans exceeds the lesser
of the applicable Credit Limit or the Borrowing Base, MarineMax and Dealers
shall, within ten (10) days of receipt of written notice thereof to MarineMax,
(during which time TCFC shall not be obligated to make any additional Loans),
unless TCFC otherwise consents, make such payments to TCFC as shall be necessary
to eliminate such excess.
2.4 BORROWING BASE.
(a) "BORROWING BASE" means the sum of the following: (i) up to 80% of
the face amount (less maximum discounts, credits and allowances which might be
taken by or granted to Account Debtors in connection therewith) of Eligible
Accounts, (provided, however, that no more than 25% of the Credit Limit may be
utilized for outstanding Loans based on Accounts); (ii) up to the percentage or
dollar amount, if less, for each of the classes of Eligible Inventory (which
shall be mutually exclusive) determined pursuant to Schedule 2.4(a), valued on
the lower of cost (using the first-in, first-out method of inventory accounting)
or market.
(b) "ELIGIBLE ACCOUNT" means (i) Accounts due to MarineMax or a Dealer
from a Seller or manufacturer who is a resident of the United States (a) which
are not more than 30 days past due, and (b) with respect to which the Seller or
manufacturer has executed a waiver of any right of offset;
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(ii) accounts due from retail account debtors who are residents of the United
States who have executed retail purchase contracts with a Dealer as payment for
purchases of Inventory from MarineMax or a Dealer, which retail purchase
contracts (a) were created less than 30 days previously, and (b) have not been
financed by any other entity, or are not subject to a lien in favor of any other
entity which is senior to TCFC's lien in such retail purchase contracts; and
(iii) Accounts due to a Dealer from retail finance providers who have purchased
retail installment contracts from a Dealer but have not yet paid Dealer for such
retail installment contracts, provided such Accounts are not due from such
retail finance providers more than 30 days past the date of the underlying
retail installment contract purchased which gives rise to the Account.
(c) "ELIGIBLE INVENTORY" means Inventory which is not Ineligible
Inventory. The following is Ineligible Inventory: (i) Inventory with respect to
which TCFC does not have a first priority perfected security interest; (ii)
Inventory which is not currently usable or saleable in the ordinary course of
Dealers' business; (iii) Inventory to which Dealer does not have good title and
all licenses and rights required for the sale thereof; and (iv) Inventory not
located at a Permitted Location.
2.5 REQUESTS FOR LOANS; BORROWING BASE CERTIFICATES; OTHER INFORMATION;
Appointment of Agents.
(a) All Loans shall be requested by MarineMax in writing, by EDI or by
telephone and if by telephone, shall be confirmed in writing prior to the Loan
being made.
(b) Dealers shall provide TCFC a certificate in form satisfactory to
TCFC as to the Borrowing Base (the "BORROWING BASE CERTIFICATE") (i) by the 15th
day of each month, current as of the prior month end, no later than 12:00 P.M.
(Chicago, Illinois Time).
(c) MarineMax shall provide TCFC with certified copies of resolutions
of MarineMax's and each Dealer's Board of Directors and other documents
requested by TCFC specifying the names of Persons authorized to sign Borrowing
Base Certificates, on behalf of MarineMax and Dealers to make requests for Loans
and to otherwise act for MarineMax and Dealers, and TCFC shall be entitled to
rely upon such documentation until given notice in writing by MarineMax of any
change. TCFC shall be entitled to act on instructions of any Person identifying
him or herself as such an authorized Person by telephone, and Dealers shall be
bound thereby whether or not such Person is actually so authorized. MarineMax
and Dealers shall indemnify TCFC against any and all claims, losses,
liabilities, costs and expenses (including reasonable attorneys' fees) which may
arise or be created by the acceptance of instructions for making or paying Loans
by telephone.
(d) Appointment of Agents. Each Dealer hereby irrevocably appoints
MarineMax as its agent for receiving all notices (including without limitation
Change Notices), statements, and other communications from TCFC and for all
other matters in dealing with TCFC. Any notice, statement or other communication
given to MarineMax by TCFC shall be deemed to have been given simultaneously to
each Dealer. TCFC may deal with MarineMax as agent for all Dealers, and
MarineMax is hereby granted an irrevocable power of attorney on behalf of each
Dealer to bind each Dealer in connection with all matters relating to the
Agreement. No notice, statement or other communication given to or agreement
with MarineMax individually and as agent for the Dealers under this Agreement
need specify that such notice, statement or other communication is given to, or
such agreement is being made by MarineMax, in its individual capacity or in its
capacity as agent for Dealers and MarineMax shall be deemed to be acting on its
own behalf and as agent for all Dealers and each notice, statement or other
communication shall be deemed to be given to and received by MarineMax
individually and as agent for all Dealers, unless expressly proved to the
contrary in writing at the time of such action or notice, statement or other
communication.
2.6 DISBURSEMENT OF LOANS. TCFC, in its sole discretion, may make Loans in
excess of the Borrowing Base or any applicable Credit Limit or any other
limitation without waiving any right of TCFC to demand payments or refuse to
make further Loans. Each Loan shall be sent by Federal Reserve wire transfer as
directed by MarineMax in writing or by EDI or through acceptance of an Automated
Clearing House debit by a bank (an "ACH DEBIT").
2.7 LOAN ACCOUNTS. TCFC shall maintain loan accounts ("LOAN ACCOUNTS") in its
internal data control systems in which shall be recorded all Loans, payments,
and other appropriate debits and credits, including, without limitation, all
interest, fees, charges, and expenses. All entries in the Loan Accounts shall be
made in accordance with TCFC's customary practices in effect from time to time
and shall be presumed accurate.. MarineMax and Dealers shall pay TCFC the amount
reflected as owing by them under the Loan Accounts and all other Liabilities to
TCFC as such amounts become due or are demanded pursuant to the terms of this
Agreement or any of the Other Agreements.
2.8 STATEMENTS.
Subject to the section entitled "Savings Provisions", any statement
with respect to any Liabilities sent to Marine Max by TCFC, shall be subject to
subsequent adjustment by TCFC but shall be presumed accurate evidence of
Liabilities and information covered thereby, unless TCFC shall have received
written notice from MarineMax specifying any error within 30 days after the date
of such statement.
2.9 INTEREST.
(a) The outstanding principal balance of Loans and the other
obligations hereunder shall bear interest before maturity on the average daily
outstanding balance thereof, at a per annum rate equal to the from time to time
LIBOR rate plus one and three quarters percent (1.75%) (the "PRE-DEFAULT RATE").
Interest will be calculated for the actual number of days elapsed on the basis
of a year consisting of 360 days. Interest will accrue from the date a Loan is
made or other obligation is incurred. Interest accruing on Loans and other
obligations hereunder prior to a Default shall be due and payable monthly in
arrears for each month no later than the 15th day of the following month. Upon a
Default and for so long as such Default continues, such interest rate shall
accrue at a rate equal to 2% above the Pre-Default Rate (the "DEFAULT RATE") and
shall be payable upon demand. TCFC may provide for the payment of any unpaid
accrued interest by charging the Loan Accounts.
2.10 FEES AND CHARGES. Dealers shall pay TCFC fees and charges in such amounts
and as set forth on Schedule 2.10. Interest, fees and charges not paid when due
shall become part of the principal of Liabilities to TCFC as of the date they
become due and shall bear interest at the Default Rate. TCFC may charge the Loan
Accounts for any unpaid accrued interest, fees or charges.
2.11 REAFFIRMATION. Each request for a Loan made by MarineMax and each Borrowing
Base Certificate, schedule or report furnished by MarineMax to TCFC shall
constitute a representation and warranty by MarineMax to TCFC that all of the
representations and warranties in this Agreement are true and correct on the
date of such Loan, Borrowing Base Certificate, schedule or report to the same
extent as if then made, unless MarineMax has given TCFC written notice to the
contrary prior thereto.
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2.12 PAYMENTS AND COLLECTIONS. All payments hereunder shall be made, without
setoff or counterclaim, to TCFC prior to 12:00 Noon, Chicago time, on the date
due at its office in immediately available funds at Hoffman Estates, Illinois or
at such other place as may be designated by TCFC to MarineMax in writing or by
EDI. Any payments received after such time shall be deemed received on the next
Business Day. Whenever any payment shall be stated to be due on a date other
than a Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time shall be included in the computation of
interest, fees and charges. Notwithstanding anything to the contrary herein, all
items of payment for purposes of (i) determining the occurrence of a Default
shall be deemed received upon actual receipt by TCFC at its bank the First
National Bank of Chicago or such other bank as TCFC may use as its depository
bank unless subsequently dishonored for any reason; (ii) calculating the
Borrowing Base if received before noon Chicago time shall be applied by TCFC on
the Business Day received , and if received after noon shall be applied by TCFC
against the principal of and/or interest on any Loans on the first Business Day
after receipt by TCFC at its bank the First National Bank of Chicago or such
other bank as TCFC may use as its depository bank; and (iii) calculating
interest shall be deemed to have been applied by TCFC against the principal of
and/or interest on any Loan on the first Business Day after actual receipt by
TCFC, whether by check, wire transfer, ACH Debit or any other form of payment
whatsoever.
2.13 FORBEARANCE. TCFC may, in its sole discretion, at any time and from time to
time, forbear from enforcing any or all of the restrictions imposed in Section
2, but no such forbearance shall impair TCFC's right under this Agreement to
require payment of the Loans and/or to refrain from making any Loan.
SECTION 3. COLLATERAL
3.1 GRANT OF SECURITY INTEREST. Each Dealer hereby grants to TCFC a continuing
security interest in all of the Collateral of such Dealer as security for the
payment and performance of all Liabilities to TCFC (including without limitation
all liabilities of MarineMax and each other Dealer) presently existing or
hereafter arising or created and whether arising directly or by assignment. Such
security interest shall continue in all Collateral notwithstanding any payment
for Liabilities to TCFC, in part or whole. Any lien granted to TCFC in any
Collateral by any Dealer shall continue in such Collateral and the proceeds
thereof upon a sale, exchange, consignment or other transfer or disposition of
such Collateral to MarineMax or any other Dealer, and no purchase of Collateral
by MarineMax from any Dealer or any purchase of any Collateral from any other
Dealer shall be deemed, as to TCFC, to be in the ordinary course of business,
and any contrary provision of Section 9-306 or 9-307 of the UCC or any similar
provisions of any other applicable law are hereby expressly waived by Dealer in
favor of TCFC. With respect to any Collateral purchased by or transferred to
MarineMax from any Dealer MarineMax shall take or purchase any such Collateral
subject to the liens of TCFC in such Collateral, provided however, that TCFC's
lien and security interest shall be extinguished in Accounts due to a Dealer
from a manufacturer or Seller which are transferred or sold by a Dealer to an
Affiliate of such Dealer, except for such Accounts which are part of the
Borrowing Base in which case they shall remain subject to TCFC's lien in such
Accounts. TCFC's lien and security interest in Accounts consisting of retail
installment contracts shall automatically be extinguished upon the purchase of
such retail installment contracts by retail finance providers, but such lien and
security interest shall continue in the proceeds of any such Accounts.
3.2 SCHEDULES OF ACCOUNTS. Contemporaneously with the delivery of each Borrowing
Base Certificate, MarineMax shall deliver to TCFC, in form reasonably acceptable
to TCFC, schedules of Accounts. In addition, along with each such schedule of
Accounts MarineMax shall deliver reports to TCFC which shall include current
addresses and telephone numbers of Account Debtors. MarineMax's failure to
execute and deliver the same shall not affect or limit TCFC's security interest
in Accounts. MarineMax shall also furnish TCFC an aged Accounts trial balance
along with the Borrowing Base Certificate . TCFC from time to time in its name
or the name of a nominee may contact Account Debtors with respect to Accounts
included in the Borrowing Base to verify the validity, amount and any other
matters relating to Accounts. Upon Default, MarineMax and Dealers shall deliver
to TCFC the originals of all Instruments, Chattel Paper, security agreements,
guarantees and other documents and property evidencing or securing any Accounts,
immediately upon receipt thereof and in the same form as received, with all
necessary endorsements to enable TCFC to enforce the same.
3.3 DISPUTES. MarineMax and Dealers shall notify TCFC of all material disputes
and claims with respect to Accounts. After a Default has occurred, TCFC shall
have the right, in its reasonable discretion, to settle, accept reduced amounts
and adjust disputes and claims directly with, and give releases on behalf of any
Dealer to, Account Debtors for cash, credit or otherwise, upon terms which TCFC,
in its reasonable discretion, considers advisable. In such case, TCFC will
credit the Loan Accounts with only the net amounts of cash received by TCFC in
payment of Accounts, less all costs and expenses (including reasonable
attorneys' fees) incurred by TCFC in connection with the settlement or
adjustment of such disputes and claims and the collection of such Accounts.
3.4 ACCOUNT WARRANTIES. Each Dealer represents and warrants to TCFC with respect
to each of its Accounts listed in any schedule of Accounts that: (i) such
Account is owned free and clear of any Liens other than Permitted Liens; (ii)
all statements made and all unpaid balances appearing in all documents
evidencing such Account are true and correct and all such documents and all of
such Dealer's books and records are genuine and in all respects what they
purport to be, and all signatories and endorsers have full capacity to contract;
(iii) all signatures and endorsements on all documents, Instruments and
agreements relating to such Account are genuine, and all such documents,
Instruments and agreements are legal, valid and binding obligations of such
Dealer (and to the best of such Dealer's knowledge, of the other parties
thereto), legally enforceable in accordance with their terms; (iv) MarineMax or
such Dealer has not, sold, assigned, pledged, encumbered, forgiven (completely
or partially), settled for less than payment in full, or transferred or disposed
of such Account or any other Account, or agreed to do any of the foregoing,
except for the settlement of Accounts in good faith, in the ordinary course of
business; and (v) any such Account, satisfies the definition of "Eligible
Account."
3.5 INTENTIONALLY LEFT BLANK.
3.6 INVENTORY WARRANTIES. Each Dealer represents and warrants to TCFC with
respect to each item of Inventory listed in any schedule of Inventory that such
item is owned by such Dealer free and clear of any Liens other than Permitted
Liens; and if Dealers want TCFC to consider it "Eligible Inventory" of a
specified class, satisfies the definition of Eligible Inventory and the
requirements of such class.
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3.7 INTENTIONALLY LEFT BLANK.
3.8 INVENTORY SYSTEM. MarineMax and Dealers shall maintain a perpetual inventory
system, keeping accurate records itemizing and describing the kind, type, age, ,
quantity and cost of Eligible Inventory and withdrawals and additions. Such
records shall be available for inspection during MarineMax and each Dealer's
usual business hours by TCFC upon reasonable notice or immediately if Dealer is
in Default.
3.9 REPORTS. MarineMax and Dealers shall furnish TCFC the reports required by
Schedule 3.9 and such other reports as TCFC from time to time may reasonably
request regarding MarineMax and Dealers and the Collateral, all in form
reasonably satisfactory to TCFC. All reports furnished TCFC shall be complete
and accurate in all respects at the time furnished.
3.10 NOTICE TO ACCOUNT DEBTORS. Upon request by TCFC, MarineMax and each Dealer
shall make entries on its books and records in form reasonably satisfactory to
TCFC disclosing TCFC's security interest in Accounts and shall keep a separate
account on its books of all collections received thereon. In the event of
Default, (a) MarineMax and each Dealer shall, in such form and at such times as
TCFC shall reasonably request, give notice to Account Debtors whose Accounts are
included in the Borrowing Base of TCFC's security interest in such Accounts, and
(b) TCFC may itself give such notice at any time and from time to time in TCFC's
or in MarineMax's or such Dealer's name requiring such Account Debtors (whose
Accounts are included in the Borrowing Base) to pay the Accounts directly to
TCFC.
3.11 ADDITIONAL DOCUMENTS. MarineMax and each Dealer shall, on request by TCFC,
do all things and execute all financing statements, continuation and amendments
of financing statements, security agreements, assignments, affidavits, reports,
notices, schedules of Accounts and other agreements and documents, in form and
substance reasonably satisfactory to TCFC, as TCFC may reasonably deem necessary
in order to perfect and maintain a first-priority security interest in each
Dealer's Collateral, or to otherwise protect and preserve the Collateral and
such security interest, to enforce such security interest and to consummate the
transactions contemplated under this Agreement.
SECTION 4. CONDITIONS PRECEDENT. The following are conditions to TCFC's making
of Loans :
4.1 DOCUMENTS. MarineMax and each Dealer shall have executed and delivered, or
caused to be executed and delivered, to TCFC in form and substance reasonably
satisfactory to TCFC, financial statements, certificates of insurance, loss
payee endorsements, certified resolutions and other certificates, financing
statements, debt subordinations, Instruments, consents, landlord waivers, legal
opinions, security agreements and other agreements and documents as TCFC shall
reasonably specify.
4.2 NO DEFAULTS. All of each and every of MarineMax's and each Dealer's
representations and warranties to TCFC, in this Agreement and otherwise, are
true and correct in all material respects. Neither MarineMax nor any Dealer
shall have materially breached any of its covenants or agreements with TCFC; and
no Default shall have occurred.
4.3 SECURITY INTEREST. TCFC shall have a first-priority perfected security
interest in the Collateral of each Dealer subject only to Permitted Liens.
4.4 NO MATERIAL ADVERSE CHANGE. No Material Adverse Change shall have occurred,
and no litigation, arbitration or governmental proceeding shall be pending or
threatened which may result in a Material Adverse Change.
SECTION 5. REPRESENTATIONS AND WARRANTIES. MarineMax and each Dealer represents
and warrants that as of the date of this Agreement and for as long as any
Liabilities to TCFC are outstanding, (and for so long as this Agreement shall
continue in effect, whether or not any Liabilities to TCFC are outstanding) each
of the following representations and warranties now is and hereafter will
continue to be true and correct in all material respects:
5.1 EXISTENCE AND POWER. MarineMax and each Dealer is and will continue to be, a
corporation duly authorized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and qualified and licensed in all
jurisdictions in which the nature of its business, or the ownership or leasing
of its property, make such qualification or licensing necessary; has and will
continue to have all requisite power and authority to carry on its business as
it is now, or may hereafter be, conducted, and will continue in, and limit its
operations to, the same general line of business it presently conducts.
5.2 AUTHORITY. The execution, delivery and performance by MarineMax and each
Dealer of this Agreement and the Other Agreements have been duly authorized by
its Board of Directors and if necessary, shareholders; do not and will not
require any governmental consent, registration or approval; and do not and will
not violate any Law, or any provision of, nor be grounds for acceleration under,
MarineMax's or such Dealer's articles or certificate of incorporation or bylaws
or any material agreement, indenture, note or instrument which is binding upon
such Dealer or any of MarineMax's or such Dealer's property.
5.3 NAMES, TRADE STYLES AND PRODUCT LINES. MarineMax and each Dealer's name as
set forth in this Agreement is its correct corporate name. Each Dealer shall
provide TCFC with 30 days advance written notice before changing its name or
doing business under any other name, or before adding any new product line to
any Dealer's Inventory. Schedule 5.3 lists each prior name of MarineMax and each
Dealer and each fictitious name, trade name and trade style by which MarineMax
and each Dealer has been or is now known, or has transacted or now transacts
business.
5.4 COMPLIANCE WITH LAWS. MarineMax and each Dealer has complied and will comply
with all provisions of applicable Laws if the failure to comply would result in
a Material Adverse Change or in a material impairment of MarineMax's or each
Dealer's ability or right to carry on its business in substantially the same
manner as now conducted.
5.5 LITIGATION AND CONTINGENT OBLIGATIONS. Except as heretofore disclosed to
TCFC in writing and except for claims fully covered by insurance as to which the
insurer has admitted coverage in writing, no claim, litigation (including,
without limitation, derivative action), arbitration, governmental investigation,
proceeding or inquiry is pending or, to the best of MarineMax's knowledge,
threatened against MarineMax or any Dealer which (i) would, if adversely
determined, result in a Material Adverse Change or the ability of MarineMax to
perform its obligations in connection with this Agreement and the Other
Agreements, or (ii) relates to any of the transactions contemplated thereby, and
there is no basis known to MarineMax or any Dealer for any of the foregoing.
Other than any liability incident to such claims, litigation, proceedings or
inquiries, there are no material contingent obligations not provided for or
referred to in financial statements heretofore furnished to TCFC.
5.6 OTHER AGREEMENTS. MarineMax and each Dealer is not in material default under
any material agreement to which it is a party or by which it is bound and does
not know of any dispute regarding any agreement which, if determined adversely,
could result in a Material Adverse Change.
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5.7 ASSETS. MarineMax and each Dealer possesses all assets, licenses, patents,
copyrights, service marks, trademarks, trade names, government approvals and
other authorizations and rights necessary for MarineMax and such Dealer to
continue to conduct its business as heretofore conducted by it.
5.8 TAXES. MarineMax and each Dealer has filed all tax reports and returns
required by applicable Laws except for extensions duly obtained. MarineMax and
each Dealer has either duly paid all taxes, duties and charges indicated due on
the basis of such reports and returns or has made adequate provision for the
payment thereof, and the assessment of any material amount of additional taxes,
duties or charges in excess of those paid and reported is not reasonably
expected.
5.9 NO CHANGE IN BUSINESS. Since the most recent financial statements furnished
by MarineMax to TCFC, there has been no Material Adverse Change.
5.10 COMPLETE DISCLOSURE. There is no fact which MarineMax has not disclosed to
TCFC which could result in a Material Adverse Change or which is necessary to
disclose in order to keep the foregoing representations and warranties from
being misleading in any material respect.
SECTION 6. AFFIRMATIVE COVENANTS. Unless TCFC otherwise consents in writing,
MarineMax and each Dealer, as applicable, shall comply with the agreements in
this Section 6.
6.1 BOOKS AND RECORDS. MarineMax shall at all times maintain complete and
accurate books and records comprising a standard, modern accounting system in
accordance with United States generally accepted accounting principles ("GAAP")
which accurately record and reflect on a consolidated basis, MarineMax's income,
expenses, liabilities, operations, accounts, and ownership and location of the
Collateral, including, without limitation, adequate reserves (including without
limitation, for bad debts, depreciation and taxes) in accordance with GAAP. All
such books and records and all documents relating to any of the Collateral are
and will continue to be genuine and in all material respects what they purport
to be.
6.2 INSURANCE. MarineMax and each Dealer shall, at all times, and for such
periods of time as TCFC may require, insure all insurable Collateral, with
financially sound and reputable insurers acceptable to TCFC, with extended
coverage against loss or damage by theft, embezzlement, fire, explosion, flood,
sprinkler, and other insurable events and risks that are customarily insured
against by similarly situated Persons in similar businesses, to the extent of
the replacement value thereof. All insurance policies covering Collateral shall
name TCFC as lender loss payee, and provide that proceeds payable thereunder
shall be payable directly to TCFC as its interest may appear, and that no act or
default of MarineMax or such Dealer or any other Person shall affect the right
of TCFC to recover thereunder. Upon receipt of the proceeds of any such
insurance, TCFC may apply such proceeds to the Loans, and then to other
Liabilities to TCFC. MarineMax and each Dealer shall maintain public liability
and third party property damage insurance in such amounts and with such
deductibles as are reasonably acceptable to TCFC. MarineMax shall provide TCFC
with the original or a certificate of each policy of insurance which shall
contain a provision requiring the insurer to give not less than 30 (10 in the
case of non-payment of premiums) days advance written notice to TCFC in the
event of cancellation or termination for any reason.
6.3 FINANCIAL STATEMENTS. All financial statements of MarineMax now or hereafter
delivered to TCFC have been, and shall be, prepared in conformity with GAAP
consistently applied, and now and hereafter will completely and accurately
reflect the financial condition and results of MarineMax and its operations at
the times and for the periods therein stated. MarineMax shall deliver to TCFC
(i) quarterly, unaudited financial statements, within 45 days after the end of
the fiscal quarter to which they pertain; and (ii) annual audited financial
statements for each fiscal year, accompanied by a certificate of an independent
certified public accounting firm selected by MarineMax and reasonably acceptable
to TCFC, in scope and substance acceptable to TCFC, within 120 days after the
end of the fiscal year to which they pertain.
6.4 LOCATIONS OF COLLATERAL AND BUSINESSES. MarineMax's and each Dealer's record
respecting Accounts and chief executive office and principal place of business
are and shall continue to be located at its address set forth on its signature
page hereto; and the only other locations at which any Collateral is located are
referred to or listed on each Dealer's signature page under the heading
"Business and Warehouse locations" (together with additional "Permitted
Locations") . "PERMITTED LOCATIONS" shall mean business and warehouse locations
in the United States as set forth in Schedule 6.4, and boat shows and other
short term selling locations. The books and records of MarineMax and each Dealer
are and shall continue to be located at its principal place of business. Neither
MarineMax nor any Dealer shall make any change in the location of Collateral or
of its principal place of business, chief executive office, books and records,
without 30 days prior written notice to TCFC.
6.5 ACCESS TO COLLATERAL AND RECORDS. TCFC, and any person designated by TCFC,
shall have reasonable access to, and the right without hindrance or delay to
inspect, audit, examine and test the Collateral, wherever located, and to
inspect, audit, check, copy and make extracts from MarineMax's and each Dealer's
books, records and accounts ("RECORDS") including, but not limited to,
printouts, computer runs or discs, minute books, journals, ledgers, work papers,
financial statements, orders, receipts, correspondence and other data relating
to MarineMax's or such Dealer's business or to any transactions of MarineMax or
such Dealer, no matter how or where such Records may be maintained, generated or
stored. For such purposes, TCFC and its agents at no charge may enter into and
remain upon MarineMax's or a Dealer's premises as often and for so long as
reasonably necessary. To the extent reasonably necessary, TCFC and its agents
may use all computers and other equipment and devices which MarineMax or such
Dealer owns, leases or otherwise has available; provided that TCFC shall not
have any such rights with respect to proprietary information of third parties,
nor, unless a Default has occurred, the right to make copies of MarineMax's or
such Dealer's proprietary computer programs. After the occurrence of a Default,
TCFC shall have the right to possession of the Records, and access to the
computer systems and programs relating to the Collateral for so long as
reasonably necessary to make full use thereof in aid of TCFC's rights under this
Agreement. MarineMax and each Dealer shall permit TCFC to discuss MarineMax or
such Dealer's condition (financial or otherwise), business, operations and
prospects with employees and accountants of MarineMax. .
6.6 FINANCIAL COVENANTS. So long as any Liabilities to TCFC remain outstanding
and (even if no Liabilities to TCFC are outstanding) so long as this Agreement
remains in effect, MarineMax (on a financial basis taken together with its
Subsidiaries on a consolidated basis) shall comply with the financial covenants
in Schedule 6.6. As used in this Agreement, the following terms shall have the
following meanings:
"TANGIBLE NET WORTH" as of any date shall mean the sum of MarineMax and
its Subsidiaries on a consolidated basis (a) net worth as reflected on its last
twelve-month fiscal financial statements, (b) net earnings since the end of such
fiscal year, both after provision for taxes and with inventory determined on a
first in, first out basis and (c) Subordinated Debt, less the sum of MarineMax
and its Subsidiaries on a consolidated basis (i) intangible assets, including,
without limitation, , goodwill, franchises, licenses, patents, tradenames,
copyrights, service marks, brand names, and covenants not to compete; ; (ii)
franchise fees; (iii) notes, Accounts and other amounts owed to it by any
guarantor, Affiliate or employee of MarineMax or a Dealer, excluding any amounts
owed by Brunswick Corporation or its Subsidiaries; (iv) losses since the end of
such fiscal year; and (vi) interest in the cash surrender value of officer's or
shareholder's life insurance policies.
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"INDEBTEDNESS" shall mean (i) debt for borrowed money or for the
deferred purchase price of property or services in respect of which MarineMax or
any of its Subsidiaries are liable as obligor or otherwise or assures a creditor
against loss, (ii) obligations under any leases which have been or in accordance
with GAAP should be recorded as capitalized leases ("CAPITALIZED LEASES")upon
which obligations MarineMax or any of its Subsidiaries are liable, and (iii)
unfunded obligations of MarineMax or any of its Subsidiaries under a
"multiemployer plan," as such term is defined under the Employment Retirement
Security Act of 1974, as amended ("ERISA"), required to be accrued by GAAP.
"CAPITAL EXPENDITURES" shall mean all expenditures, or agreements for
expenditures, for fixed assets, improvements or replacements, or substitutions
or additions thereto, which have a useful life of more than one year, including,
without limitation, the direct or indirect acquisition of assets by way of
increased product or services charges, offset items or otherwise, and includes
payments under Capitalized Leases.
"SUBORDINATED DEBT" shall mean Indebtedness of MarineMax and its
subsidiaries on a consolidated basis which is fully subordinated to all
Liabilities to TCFC in a manner reasonably satisfactory to TCFC.
6.7 NOTICE OF CONTINGENCIES. Forthwith upon learning of the occurrence of any of
the following, MarineMax shall furnish TCFC written notice describing the same
and the steps being taken by MarineMax with respect thereto: (i) any expected
uncollectibility of, material delay in collection of, or other impairment of any
material Eligible Account, (ii) the occurrence of a material Default or an
event, which with notice or lapse of time or both, would constitute a material
Default, (iii) the institution or threatened institution of, or any adverse
determination or materially adverse development in, any litigation, arbitration,
governmental or other proceeding which, if adversely determined, would result in
a Material Adverse Change or the ability of MarineMax to perform its obligations
in connection with this Agreement or the Other Agreements, (iv) notice from a
governmental Person that MarineMax's or a Dealer's operations violate any
applicable Law in any material respect, or (v) any event which has resulted or
may result in a Material Adverse Change.
6.8 TAXES. MarineMax shall promptly file all tax returns required by Law and pay
all taxes, fees and other governmental charges for which it is liable.
6.9 ADDITIONAL AFFIRMATIVE COVENANTS. MarineMax and each Dealer shall comply
with all other covenants, if any, set forth in Schedule 6.9.
6.10 INDEMNIFICATION. To the fullest extent not prohibited by applicable Law,
MarineMax and each Dealer shall jointly and severally indemnify TCFC and each of
its officers, directors, employees and agents ("INDEMNITIES") from and against
any and all claims, losses, liabilities, costs (including, without limitation,
all documentary, recording, filing, mortgage or other stamp taxes or duties),
and expenses (including reasonable attorneys' fees) (irrespective of whether
such Indemnity is a party to the action for which indemnification is sought)
(the "INDEMNIFIED LIABILITIES"), incurred by Indemnities or any of them as a
result, or arising out of or relating to (i) any transaction financed or to be
financed in whole or in part, directly or indirectly, with the proceeds of any
Loan or involving any Loan, or (ii) the execution, delivery, performance or
enforcement of this Agreement or the Other Agreements, except for any
Indemnified Liabilities arising on account of the relevant Indemnitees' s
negligence, gross negligence or willful misconduct. Obligations provided for in
this Section 6.10 shall survive termination of this Agreement and shall not be
reduced or impaired by any investigation made by or on behalf of TCFC or any
other Indemnity.
SECTION 7. NEGATIVE COVENANTS. Unless TCFC otherwise consents in writing, each
Dealer shall comply with the agreements in this Section 7.
7.1 CORPORATE STRUCTURE. MarineMax and each Dealer may without the prior written
consent of TCFC, (i) recapitalize, dissolve or be a party to any merger or
consolidation or acquire all or substantially all of the assets of any other
Person ; or (ii) amend its certificate or articles of incorporation, (except to
effect a change in its corporate name for which it must notify TCFC pursuant to
Section 5.3 and provide TCFC with such financing statements as TCFC may request
and an exact copy of the amendment) provided that such event under subsection
(i) or (ii) above would not on a pro forma basis result in a material breach by
MarineMax or any Dealer of any other terms and provisions of this Agreement,
(and further provided, that any breach of a financial covenant hereunder would
automatically be deemed to be material for these purposes).
7.2 INDEBTEDNESS. Each Dealer shall not without the prior written consent of
TCFC, which will not be unreasonably withheld: (i) incur or permit to exist any
Indebtedness except for Liabilities to TCFC, deferred taxes, current accounts
payable arising in the ordinary course of business and not overdue, and
non-current accounts payable which such Dealer is contesting in good faith by
appropriate proceedings; or (ii) guarantee, endorse or become responsible for
obligations of any other Person or incur any contingent obligation other than
endorsements of negotiable instruments for collection in the ordinary course of
business.
7.3 DISPOSAL OF COLLATERAL. Each dealer shall not sell, lease, transfer, assign
or otherwise dispose of any of the Collateral except for (A) the sale (not
subject to a repurchase obligation or return right) of Inventory at retail in
the ordinary course of business; (B) sales or transfers of Inventory to
Affiliates (except MarineMax) , and (C) transfers of Accounts (which are due to
Dealers from Sellers or manufacturers) to Affiliates, except for Accounts which
are included in the Borrowing Base, subject to the other provisions of this
Agreement.
7.4 ENCUMBRANCES. Except for the security interest granted by each Dealer to
TCFC pursuant to this Agreement, each Dealer shall not create, incur, assume or
suffer to exist any Lien other than those set forth on Schedule 7.4 or consented
to in writing by TCFC ("PERMITTED LIENS").
SECTION 8. APPLICATION OF PAYMENTS. In the event of a Default, notwithstanding
any provision of this Agreement or in any Other Agreement, MarineMax and each
Dealer waive the right to direct the application of any and all payments
received by TCFC from MarineMax and each Dealer or with respect to any
Collateral. In the event of a Default, TCFC shall have the continuing exclusive
right to apply and reapply any and all payments received, whether with respect
to the Collateral or otherwise, against Liabilities to TCFC in such manner as
TCFC may reasonably deem advisable, notwithstanding any entry by TCFC upon any
of its books and records.
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SECTION 9. DEFAULT AND REMEDIES.
9.1 DEFAULT. The occurrence of any one or more of the following events shall
constitute a "DEFAULT:
(a) Any material warranty of MarineMax or any Dealer to TCFC is now or
hereafter materially breached or any representation, statement, report or
certificate made or delivered to TCFC by MarineMax or any of MarineMax's
officers, employees or agents is now or hereafter materially incorrect, false,
untrue or misleading in any material respect;
(b) Any failure by MarineMax or any Dealer to promptly repay any
Liabilities to TCFC when due or declared to be due and such failure is not cured
within 10 days of receipt of written notice thereof to MarineMax (during which
period following the giving of such notice TCFC shall not be obligated to make
any additional Loans hereunder);
(c) Any failure by MarineMax or any Dealer to materially perform or
comply with, or if MarineMax or any Dealer shall otherwise materially breach,
any provision of this Agreement or any Other Agreement and such failure is not
cured within 30 days of receipt of written notice thereof to MarineMax, provided
that if such failure is subject to cure and such cure is diligently being
pursued by MarineMax or such Dealer at the end of such 30 day period, then as
long as such efforts to cure continue to be diligently pursued, MarineMax and
such Dealer shall have an additional 60 days thereafter to complete such cure;
(d) MarineMax or a Dealer shall materially default under or shall fail
to promptly perform or comply with any material provision of any agreement now
or hereafter existing with any third party ; or if any such failure to perform
or comply, which, if not performed, would result in a Material Adverse Change;
or any letter of credit or other obligation of any Dealer with respect to any
Liabilities or the Collateral shall terminate or not be renewed at least 30 days
prior to its stated expiration or maturity;
(e) Any amount in excess of $1,000,000 of the Collateral shall become
the subject of a levy, assessment, attachment, seizure or Lien which impairs its
value, the prospect of payment or performance, or the priority of TCFC's
security interest, and such levy, assessment, attachment, seizure or Lien is not
cured, satisfied or discharged within 10 days, and further provided, however,
that any Collateral subject to any such levy, assessment, attachment, seizure or
Lien shall no longer be considered as an Eligible Account or Eligible Inventory
until and unless such levy, assessment, attachment, seizure or Lien is cured,
satisfied, or discharged and then only to the extent that such Collateral still
satisfies the criteria for an Eligible Account or Eligible Inventory;
(f) Dissolution, termination of existence, insolvency or business
failure of MarineMax; ; or appointment of a receiver, trustee or custodian, for
all or any part of the property of, general assignment for the benefit of
creditors by, or the commencement of any proceeding by or against MarineMax
under any reorganization, bankruptcy, insolvency, arrangement, readjustment of
debt, dissolution or liquidation law of any jurisdiction;
(g) MarineMax or any Dealer shall conceal, remove or permit to be
concealed or removed any material part of its property with intent to hinder,
delay or defraud its creditors, or make or suffer any transfer of any of its
property which may be fraudulent under any bankruptcy, fraudulent conveyance or
similar Law;
(h) A Material Adverse Change shall occur; or
(i) TCFC in good faith believes that prospect of payment of any
Liabilities to TCFC is impaired or deems itself insecure.
9.2 REMEDIES.
(a) Upon or at any time after the occurrence of a Default, TCFC, at its
option, may do any one or more of the following: (i) cease advancing money, or
extending credit to or for the benefit of Dealers under this Agreement and any
Other Agreement; (ii) terminate this Agreement; (iii) accelerate and declare all
or any part of the Liabilities to TCFC to be immediately due and payable, ; (iv)
take possession of any or all of the Collateral wherever it may be found, and
for that purpose MarineMax or Dealers authorize TCFC without judicial process to
enter onto any of Dealers' premises without hindrance to search for, take
possession of, and keep, store, sell or remove any or all of the Collateral; (v)
require MarineMax or Dealers to assemble any or all of the Collateral and make
it available to TCFC at a place or places designated by TCFC reasonably
convenient to TCFC and Dealers, and to remove the Collateral to such locations
as TCFC may deem advisable; (vi) complete processing or repair of all or any
portion of the Collateral prior to a disposition thereof and, for such purpose
and for the purpose of removal, TCFC shall have the right to use MarineMax or
any Dealer's premises, Equipment and any and all other property without charge;
(vii) sell, ship, reclaim, lease or otherwise dispose of all or any portion of
the Collateral in its condition at the time TCFC obtains possession or after
further manufacturing, processing or repair, at any one or more public and/or
private sale(s) (including, without limitation, execution sales), in lots or in
bulk, for cash or otherwise, and any notification shall be deemed reasonably and
properly given if sent at least 10 days before a disposition of any Collateral,
(and any such notice may be given to MarineMax individually and as agent for all
Dealers) ); and Dealers agree that sale at wholesale of any of the Collateral
will be a commercially reasonable disposition and that TCFC may purchase all or
any part of the Collateral at public sale and in lieu of actual payment of such
purchase price, may set-off the amount thereof against Liabilities to TCFC;
(viii) demand payment of, and collect any Accounts and other Collateral and, in
connection therewith, each Dealer irrevocably authorizes TCFC to endorse or sign
such Dealer's name on all collections, receipts, Instruments and other
documents, to take possession of and open mail addressed to such Dealer and
remove therefrom payments made with respect to Collateral or Proceeds thereof,
and, in TCFC's sole discretion, to grant extensions of time to pay, compromise
claims and settle Accounts and the like for less than face value; and (ix) TCFC
shall have the right to obtain access to any of any MarineMax or Dealer's data
processing equipment, computer hardware and software relating to the Collateral
and, subject to the terms of any licenses with third parties, to use all of the
foregoing and information contained therein in any manner TCFC deems
appropriate.
(b) Reasonable attorneys' fees, expenses, costs, liabilities and
obligations incurred by TCFC with respect to the foregoing shall become part of
Liabilities to TCFC, be due on demand, and bear interest at the Default Rate.
(c) Anything contained herein to the contrary notwithstanding, upon the
occurrence of a Default described in Section 9.1(f) or 9.1(g), all Liabilities
to TCFC, including without limitation, accrued interest thereon shall become
immediately due and payable without notice or election by TCFC.
9.3 REMEDIES CUMULATIVE. In addition to rights and remedies set forth in this
Agreement, TCFC shall have all rights and remedies accorded a secured party
under the UCC and other applicable Laws and in any other agreement or document
now or hereafter executed by MarineMax and Dealers for TCFC's benefit. All
rights and remedies are cumulative and none is exclusive. Exercise or partial
exercise by TCFC of one or more rights or remedies shall
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not be deemed an election, nor bar TCFC from subsequent exercise or partial
exercise of any other rights or remedies. The failure or delay of TCFC to
exercise any rights or remedies shall not operate as a waiver thereof, but all
rights and remedies shall continue in full force and effect until all
Liabilities to TCFC have been fully paid and performed.
9.4 RECOVERED PAYMENTS. To the extent MarineMax or any Dealer makes a payment to
TCFC or TCFC enforces its security interest or exercises a right of setoff, and
such payment or the proceeds of such enforcement or exercise or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to a trustee, receiver or any other Person under
any bankruptcy law, state or federal law, common law or equitable cause, then to
the extent of such recovery, the obligation or part thereof originally intended
to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such enforcement or exercise had not occurred.
SECTION 10. POWER OF ATTORNEY.
10.1 POWER OF ATTORNEY. MarineMax and each Dealer hereby grants to TCFC an
irrevocable power of attorney coupled with an interest, authorizing and
permitting TCFC, at its option but without obligation, at MarineMax's and such
Dealer's sole expense, in such Dealer's name or otherwise, to the extent
reasonably determined by TCFC to be necessary or advisable in order to carry out
TCFC's rights or remedies to do any or all of the following: (a) execute on
behalf of any Dealer any financing statement or any continuation or amendment
thereof and any other agreement or document that TCFC may, in its reasonable
discretion, deem advisable in order to perfect or maintain TCFC's security
interest in the Collateral or other property intended to constitute Collateral;
or (b) subsequent to a Default and during the continuance of such Default, to do
any of the following: (i) pay, contest or settle any Lien with respect to the
Collateral, or any judgment based thereon, or otherwise take any action to
terminate or discharge the same; (ii) demand payment of Accounts, enforce
payment of Accounts constituting Collateral by legal proceedings or otherwise,
and enforce any and all rights of Dealers in Accounts; grant extensions of time
to pay, compromise claims and settle Accounts constituting Collateral for less
than face value and execute all releases and other documents in connection
therewith; (iii) settle and adjust, and give releases of, any claim under any
insurance policy that relates to any of the Collateral and obtain payment
therefor, and make all determinations and decisions as they may relate to
Collateral with respect to any such policy as to and endorse MarineMax's or such
Dealer's name on any Instrument or other item of payment or the proceeds of such
policy; and (iv) take any action or pay any sum required of MarineMax or such
Dealer pursuant to this Agreement, and any other present or future agreements
between TCFC, MarineMax, and Dealers and do all acts and things which are
reasonably necessary to fulfill MarineMax or Dealers' obligations under this
Agreement. Notwithstanding the above provisions, the grant by MarineMax of a
power of attorney under this section 10.1 is limited to only those powers or
actions as described above as may be reasonably necessary for TCFC to exercise
the above described powers or perform the above described actions with respect
to Collateral.
SECTION 11. TERM AND TERMINATION.
11.1 TERM AND TERMINATION. The term of this Agreement, unless sooner terminated
as provided in this Agreement, shall be for two years from the date of this
Agreement and from year to year thereafter until terminated at the end of the
second year or any subsequent one-year renewal period of such term by either
party by at least 60 days prior written notice to the other; provided MarineMax
may terminate this Agreement at any time by at least 90 days prior written
notice to TCFC, with such notice (and such notice maybe given by MarineMax
individually and as agent for all other Dealers). Any notice given to TCFC by
MarineMax shall be on behalf of all Dealers. Upon termination of this Agreement,
all Liabilities to TCFC shall become immediately due and payable without notice
or demand. Upon any termination, MarineMax and each Dealer shall remain liable
to TCFC for all Liabilities to TCFC, including without limitation interest,
fees, charges and expenses arising prior to or after the effective date of
termination, and all of TCFC's rights and remedies and its security interest
shall continue until all Liabilities to TCFC are paid and all obligations of,
each Dealer are performed in full.
SECTION 12. GENERAL.
12.1 NOTICES. All notices to be given under this Agreement shall be in writing
and shall be served either personally or by depositing the same with a reputable
overnight courier with charges prepaid or provided for, or in the United States
mail, first-class postage prepaid, by ordinary, registered or certified mail,
addressed to TCFC or addressed to MarineMax at its respective chief executive
office shown on their respective signature page hereto or at any other address
as shall be designated by one party in a written notice to the other party. Any
such notice shall be deemed to have been given upon delivery in the case of
personal delivery, one Business Day after being so deposited with a reputable
overnight courier, or 3 Business Days after being so deposited in the United
States mail, except that any notice of change of address shall not be effective
until actually received. In addition, notice may be sent by facsimile
transmission, which shall be effective upon confirmation to the sender that such
transmission was received, provided a hard copy of such notice is sent within 24
hours of such transmission.
12.2 ATTORNEYS' FEES AND COSTS. MarineMax and Dealers shall pay TCFC the amount
of (i) all reasonable fees, costs and expenses (including reasonable attorneys'
fees of TCFC's in house and outside counsel) incurred by TCFC in collecting
Liabilities to TCFC, enforcing, protecting or perfecting TCFC's security
interest in the Collateral or in connection with any matters contemplated by or
arising out of this Agreement or any Other Agreement excluding preparation of
this Agreement or any amendment or modification of this Agreement,; (ii) all
reasonable fees, costs and expenses (including reasonable attorneys' fees)
incurred upon appeal; and (iii) all reasonable expenses, costs and charges
relating to any of the foregoing, including reasonable fees of paralegal and
other staff of TCFC's attorneys.
12.3 BENEFIT. This Agreement and documents contemplated hereby shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided that neither MarineMax nor any Dealer may
assign any of its rights under this Agreement without the prior written consent
of TCFC, such consent not to be unreasonably withheld, and any prohibited
assignment shall be void. References herein to TCFC shall be deemed to refer to
TCFC and its successors and assigns. No consent by TCFC to any assignment shall
relieve MarineMax or Dealers from their respective liability for any Liabilities
to TCFC or any other obligation unless expressly granted by TCFC in writing.
12.4 NON-WAIVER BY TCFC.
(a) The failure of TCFC at any time to require MarineMax or Dealers
strictly to comply with any of the provisions of this Agreement or any Other
Agreement shall not waive or diminish any right of TCFC thereafter to demand and
receive strict compliance therewith or with any other provision; and any waiver
of any breach shall not waive or affect any other breach, whether prior or
subsequent thereto and whether of the same or a different type. None of the
provisions of this Agreement or any Other Agreement shall be deemed waived by
any act or knowledge of TCFC or its agents or employees, but only by a specific
written waiver signed by an agent of TCFC and delivered to MarineMax.
(b) TCFC shall have the right to seek recourse against any one or more
of MarineMax or Dealers , and no election by TCFC to seek recourse against less
than all such parties shall constitute a waiver of TCFC's right to seek recourse
against the others.
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(c) Time is of the essence in the performance of all of Dealers'
obligations under this Agreement.
12.5 WAIVERS BY DEALERS.
(a) MarineMax and each Dealer waives: (i) notice of the creation,
renewal or accrual of any Liabilities to TCFC or of TCFC's reliance upon
MarineMax's or any Dealer's agreements, representations and warranties in this
Agreement; (ii) except as provided in this Agreement or any Other Agreement,
demand of payment, protest, notice of protest, notice of default or dishonor,
notice of payment, (iii) any notice of any action taken or to be taken by TCFC
unless expressly required by this Agreement or applicable law; (iv) any right of
contribution from MarineMax or any Dealer; (v) any right to require TCFC to
institute any action or suit or to exhaust TCFC's rights and remedies against
any Collateral or MarineMax or any Dealer before proceeding against MarineMax or
such Dealer; and (vi) any obligation of TCFC to marshal any assets in favor of
MarineMax or any Dealer.
(b) MarineMax and each Dealer consents that TCFC may, without in any
manner affecting MarineMax and such Dealer's joint and several liability for any
Liabilities to TCFC: (i) sell, release, surrender, modify, impair, exchange,
substitute or extend the duration or the time for the performance or payment of
any and all Collateral or other property, of any nature and from whomsoever
received, held by TCFC as security for the payment or performance of any
Liabilities to TCFC or MarineMax or any Dealer or any obligations of MarineMax
or any Dealer; and (ii) settle, adjust or compromise any of TCFC's claims
against MarineMax or such Dealer.
12.6 MARINEMAX'S AND DEALER'S COSTS; TCFC EXPENDITURES. All obligations of
MarineMax or Dealers under this Agreement and the Other Agreements shall be
performed at MarineMax or Dealers' sole cost and expense unless otherwise
indicated in this Agreement. If MarineMax or Dealers shall fail to pay taxes,
insurance, assessments, costs or expenses which MarineMax or Dealers' are
required to pay under this Agreement, or fails to keep the Collateral free from
Liens except for Permitted Liens, TCFC may, in its reasonable discretion upon 10
days prior written notice to MarineMax, make expenditures for any or all of such
purposes, and the amount so expended, together with interest thereon at the
Default Rate shall be part of the Liabilities to TCFC, payable on demand.
12.7 CUSTODY AND PRESERVATION OF COLLATERAL. TCFC shall be deemed to have
exercised reasonable care in the custody and preservation of Collateral in its
possession if it takes such action for that purpose as Dealers shall request in
writing, but failure by TCFC to comply with any such request shall not of itself
be deemed a failure to exercise reasonable care, and no failure by TCFC to
preserve or protect any right with respect to such Collateral against prior
parties, or to do any act with respect to the preservation of such Collateral
not requested by Dealers, shall of itself be deemed a failure to exercise
reasonable care in the custody or preservation of such Collateral.
12.8 CREDIT INFORMATION. TCFC may at any time investigate or make inquiries of
former or current creditors of any Dealer or other Persons.
12.9 SEVERABILITY. If any provision of this Agreement is held by any court of
competent jurisdiction to be invalid or otherwise unenforceable, such defect
shall not affect any other provision and the remainder of this Agreement shall
be effective as though such defective provision had not been a part of this
Agreement.
12.10 SINGULAR/PLURAL MEANING. The meaning of all terms used in this Agreement
shall be equally applicable to both singular and plural forms of such terms
unless the context otherwise requires.
12.11 AMENDMENT. The provisions of this Agreement may not be waived, altered,
modified or amended except in a writing executed by duly authorized officer of
MarineMax and Dealers and a duly authorized agent or officer of TCFC.
12.12 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ALL RESPECTS IN
ACCORDANCE WITH, AND GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF
LAW PROVISIONS) OF THE STATE OF ILLINOIS, EXCEPT THAT QUESTIONS AS TO PERFECTION
OF TCFC'S SECURITY INTEREST AND THE EFFECT OF PERFECTION OR NON-PERFECTION SHALL
BE GOVERNED BY THE LAW WHICH WOULD BE APPLICABLE EXCEPT FOR THIS SECTION.
12.13 WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
PARTIES HERETO EACH WAIVE ANY RIGHT TO A TRIAL BY JURY ON ANY CLAIM, DEMAND,
ACTION, CAUSE OF ACTION OR COUNTERCLAIM ARISING UNDER OR IN ANY WAY RELATED TO
THIS AGREEMENT, AND UNDER ANY THEORY OF LAW OR EQUITY, WHETHER NOW EXISTING OR
HEREAFTER ARISING.
12.14 SUBMISSION TO JURISDICTION; WAIVER OF BOND. MarineMax and each Dealer
consents to the non-exclusive jurisdiction of any federal, state or municipal
court located within the State of Illinois and waives any objection which
MarineMax or such Dealer may have based on improper venue or forum non
conveniens to the conduct of any proceeding in any such court. MarineMax and
each Dealer waives, to the extent permitted by law, any bond or surety or
security upon such bond which might, but for this waiver, be required of TCFC.
Nothing contained in this section shall affect the right of TCFC to bring any
action or proceeding against MarineMax or any Dealer or its property in the
courts of any other jurisdiction.
12.15 SAVINGS PROVISIONS. All agreements between TCFC and MarineMax and each
Dealer, whether now existing or hereafter arising, and whether written or oral,
are hereby limited by this section. In no contingency, whether by reason of
acceleration or the maturity of the amounts due hereunder or otherwise, shall
interest contracted for, charged, received, paid or agreed to be paid to TCFC
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to TCFC in excess
of the maximum lawful amount, the interest shall be reduced to the maximum
amount permitted under applicable law; and if, from any circumstance, TCFC shall
have received anything of value deemed interest by applicable law, in excess of
the maximum lawful amount, an amount equal to any excess of interest shall be
applied to the reduction of the principal amount of Liabilities to TCFC and not
to the payment of interest, or if such excess interest exceeds the unpaid
balance of the principal amount of Liabilities to TCFC, such excess shall be
refunded to MarineMax and Dealers. All interest paid or agreed to be paid to
TCFC, to the extent permitted by applicable law, shall be amortized, prorated,
allocated and spread throughout the full term of this Agreement until payment in
full of all principal obligations owing by MarineMax and Dealers so that
interest for such full term shall not exceed the maximum amount permitted by
applicable law.
12.16 INTEGRATION. THIS AGREEMENT AND THE OTHER WRITINGS REFERRED TO HEREIN
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES, EMBODY THE ENTIRE AGREEMENT
BETWEEN THE PARTIES HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY, AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS
10 of 16
11
BETWEEN THE PARTIES. NOTWITHSTANDING THE ABOVE PROVISIONS, THIS AGREEMENT IS NOT
INTENDED TO SUPERSEDE THAT CERTAIN INVENTORY SECURITY AGREEMENT ENTERED INTO BY
AND BETWEEN TCFC AND MARINEMAX TX, L.P. DATED MARCH 18,1999.
12.17 EFFECTIVENESS. This Agreement shall not become an agreement between the
parties until accepted by TCFC in Illinois. MarineMax and Dealers waive notice
of such acceptance.
Dated: March 18,1999.
Accepted in Illinois:
TRANSAMERICA COMMERCIAL FINANCE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Meals
--------------------------------------------------
Its: Vice President - Credit
--------------------------------------------------
11 of 16
12
SIGNATURE PAGE AS TO MARINEMAX
ATTEST:
(or witness)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ MarineMax, Inc.
----------------------------------------------------------- ---------------------------------------------------------------------
Title (Name of corporation, partnership or individual)
Witness
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------------
Title: Vice President and Chief Financial Officer
---------------------------------------------------------
Tax ID No:
---------------------------------------------------------
Dealer's Chief Executive Office and Principal Place of Business:
▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
---------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇
---------------------------------------------------------------------
---------------------------------------------------------------------
Dealer is a corporation organized and existing under the laws of the
State of Delaware.
This signature page is part of the foregoing Accounts Receivable and Financing
Agreement of MarineMax and the Dealers listed therein with Transamerica
Commercial Finance Corporation dated March 18, 1999.
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13
SIGNATURE PAGE AS TO EACH DEALER
ATTEST: DEALER
(or witness)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ Boat Center, Inc.
----------------------------------------------------------- ---------------------------------------------------------------------
Title (Name of corporation, partnership or individual)
Witness
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------------
Title: Assistant Treasurer
---------------------------------------------------------
Tax ID No:
---------------------------------------------------------
Dealer's Chief Executive Office and Principal Place of Business:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
---------------------------------------------------------------------
Redding, Ca. 96003
---------------------------------------------------------------------
---------------------------------------------------------------------
Dealer is a corporation organized and existing under the laws of the
State of California.
This signature page is part of the foregoing Accounts Receivable and Financing
Agreement of MarineMax and the Dealers listed therein with Transamerica
Commercial Finance Corporation dated March 18, 1999.
13 of 16
14
SIGNATURE PAGE AS TO EACH DEALER
ATTEST: DEALER
(or witness)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇'▇ Marine Center's of Arizona, Inc.
----------------------------------------------------------- ---------------------------------------------------------------------
Title (Name of corporation, partnership or individual)
Witness
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------------
Title: Vice President
---------------------------------------------------------
Tax ID No:
---------------------------------------------------------
Dealer's Chief Executive Office and Principal Place of Business:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇.
---------------------------------------------------------------------
Tempe, AZ. 85282
---------------------------------------------------------------------
Dealer is a corporation organized and existing under the laws of the
State of Arizona.
This signature page is part of the foregoing Accounts Receivable and Financing
Agreement of MarineMax and the Dealers listed therein with Transamerica
Commercial Finance Corporation dated March 18, 1999.
14 of 16
15
SIGNATURE PAGE AS TO EACH DEALER
ATTEST: DEALER
(or witness)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ MarineMax, of Las Vegas, Inc.
----------------------------------------------------------- ---------------------------------------------------------------------
Title (Name of corporation, partnership or individual)
Witness
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------------------
Title: Assistant Treasurer
---------------------------------------------------------
Tax ID No:
---------------------------------------------------------
Dealer's Chief Executive Office and Principal Place of Business:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------------------------
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------------------------------
Dealer is a corporation organized and existing under the laws of the
State of Delaware.
This signature page is part of the foregoing Accounts Receivable and Financing
Agreement of MarineMax and the Dealers listed therein with Transamerica
Commercial Finance Corporation dated March 18, 1999.
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16
SIGNATURE PAGE AS TO EACH DEALER
ATTEST: DEALER
(or witness)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ MarineMax TX L.P., a Texas limited partnership
----------------------------------------------------------- ---------------------------------------------------------------------
Title (Name of corporation, partnership or individual)
Witness
By: ▇▇▇▇▇ ▇▇, L.L.C., a Delaware limited liability company
-------------------------------------------------------------
Its: General Partner
-------------------------------------------------------------
By: 11502 ▇▇▇▇▇, Inc. a Nevada corporation
-------------------------------------------------------------
Its: Sole Member
-------------------------------------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. McLanb
Title: Vice President
-------------------------------------------------------------
Tax ID No:
----------------------------------------------------------
Dealer's Chief Executive Office and Principal Place of Business:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇
---------------------------------------------------------------------
League City, TX. 77573
---------------------------------------------------------------------
Dealer is a limited liability company organized and existing under
the laws of the State of Texas.
This signature page is part of the foregoing Accounts Receivable and Financing
Agreement of MarineMax and the Dealers listed therein with Transamerica
Commercial Finance Corporation dated March 18 , 1999.
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17
SCHEDULE 2.4(a)
BORROWING BASE PERCENTAGES MENU
For purposes of calculating the Borrowing Base with respect to the
following classes of Eligible Inventory pursuant to Section 2.4(a), the
following percentages shall apply:
Class FS. New Inventory: (A) 100% of the cost (plus freight) of such
new Inventory which is less than 1 year old from the original date of
delivery from the manufacturer; (B) 90% of the cost (plus freight) of
such new Inventory which is between one and two years old from the
original date of delivery from the manufacturer; and (C) 72% of the
cost (plus freight) of such New Inventory which is more than two years
old from the original date of delivery from the manufacturer.
Class U. Used Inventory. Used Inventory (defined as previously sold at
retail) located on Dealer's premises: (A) the lesser of (i) the cost of
such item or (ii) 80% of the most recent wholesale NADA or BUC value
for such Inventory which has been held by MarineMax or a Dealer less
than 181 days; and (B) the lesser of (i) the cost of such item or (ii)
72% of the most recent wholesale NADA or BUC book value for such
Inventory which has been held by MarineMax or a Dealer between 181 days
and one year, (provided, however, that no more than 25% of the Credit
Limit may be utilized for outstanding Loans based upon this Class of
Inventory) . .
Class PT. Inventory of Parts. Parts Inventory, not including freight
charges: 75% of the cost (less freight) of such Class of Inventory,
(provided, however, that no more than 15% of the Credit Limit may be
utilized for outstanding Loans based upon this Class of Inventory).
18
SCHEDULE 2.10
FEES AND CHARGES MENU
RETURNED CHECK FEE:
Dealer shall pay TCFC a fee equal to $25 for any check of Dealer that TCFC
submits for payment and is returned by the bank unpaid.
19
SCHEDULE 3.9
REPORTS MENU
MarineMax and each Dealer shall provide TCFC with the following additional
reports, in form and substance satisfactory to TCFC, and such other reports as
TCFC may request from time to time:
Monthly Inventory reports as of the prior month end due by the 15th day
of each month. Such reports shall contain a schedule of Inventory by
cost, type, brand, model and location.
Borrowing Base Certificates shall be submitted by the 15th day of each
month, current as of the prior month end.
Business Plan for each fiscal year, submitted no later than sixty (60)
days prior to the end of the then current fiscal year. BUSINESS PLAN
shall mean the projected balance sheet and profit and loss statement
of MarineMax, prepared in accordance with GAAP, together with
appropriate supporting details and a statement of underlying
assumptions, all prepared by MarineMax's chief financial officer.
MarineMax warrants each Business Plan is and will be the best available
good faith estimate of MarineMax's management regarding the course of
MarineMax's business for the period covered thereby. MarineMax also
warrants each Business Plan, and the assumptions on which such Business
Plan is based, shall be reasonable and realistic based on the current
economic conditions.
20
SCHEDULE 5.3
DEALER'S NAMES
1. Dealer: ▇▇▇▇▇▇▇▇'▇ Boat Center, Inc.
a. Legal names used in the past 5 years:
▇▇▇▇▇▇▇▇'▇ Boat Center, Inc.
b. Trade names and trade styles used in the past 5 years:
Not Applicable.
c. Current legal name: ▇▇▇▇▇▇▇▇'▇ Boat Center, Inc.
d. Current trade names and trade styles: Not Applicable.
2. Dealer: ▇▇▇▇▇▇▇▇'▇ Marine Centers of Arizona, Inc.
a. Legal names used in the past 5 years:
▇▇▇▇▇▇▇▇'▇ Marine Centers of Arizona, Inc.
b. Trade names and trade styles used in the past 5 years:
▇▇▇▇▇▇▇▇'▇ Marine Centers of Arizona
c. Current legal name:
▇▇▇▇▇▇▇▇'▇ Marine Centers of Arizona, Inc.
d. Current trade names and trade styles:
Not Applicable.
3. Dealer: MarineMax of Las Vegas, Inc.
a. Legal names used in the past 5 years:
MarineMax of Las Vegas, Inc.
b. Trade names and trade styles used in the past 5 years:
Sea Ray of Las Vegas
Ashley's SeaRay Boats
c. Current legal name: MarineMax of Las Vegas, Inc.
d. Current trade names and trade styles: Not Applicable.
4. Dealer: MarineMax TX, L.P.
a. Legal names used in the past 5 years:
MarineMax TX, L.P.
11502 ▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇., Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ Interests, Inc.
Airtex Interests, Inc.
Delhomme Realty, Inc.
Lake Lewisville Interests, Inc.
Nasa Road Interests, Inc.
▇▇▇▇▇▇ Road Interests, Inc.
South Shore Interests, Inc.
b. Trade names and trade styles used in the past 5 years:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marine - 11502 ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marine - Del Lago
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marine - Ft. Worth
Delhomme Service Center
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marine-Airtex
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marine - Lake Lewisville
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marine - Nasa Road
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marine - Dallas
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Marine - South Shore
c. Current legal name: MarineMax TX, L.P.
d. Current trade names and trade styles: Not Applicable.
21
SCHEDULE 6.4
PLACE OF BUSINESS
1. Dealership - ▇▇▇▇▇▇▇▇'▇ Boat Center, Inc.
Principal Place of Business:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Shasta County
Other Store/Warehouse Locations:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Sonoma County
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Contra Costa County
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Shasta County
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Sacramento County
2. Dealership - ▇▇▇▇▇▇▇▇'▇ Marine Centers of Arizona, Inc.
Principal Place of Business:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Maricopa County
3. Dealership - MarineMax of Las Vegas, Inc. Principal Place of Business:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ County
4. Dealership - MarineMax TX, L.P. Principal Place of Business:
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Galveston County
Dealership - MarineMax TX, L.P.
Other Store/Warehouse Locations:
22
▇▇▇▇ ▇▇▇▇ ▇-▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tarrant County
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ County
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ County
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
23
SCHEDULE 6.6
FINANCIAL COVENANTS MENU
MarineMax covenants and agrees that so long as any of the Liabilities to TCFC
remain outstanding or this Agreement remains in effect, even if no Liabilities
to TCFC are outstanding (such covenants shall be determined based upon MarineMax
taken as a whole together with each of its Subsidiaries, based upon their
consolidated financial statements):
Indebtedness to Tangible Net Worth: MarineMax shall maintain a ratio of
Indebtedness to Tangible Net Worth not to exceed (a)_5.5_ to 1.0,
during the period of January through June of each calendar year, and
(b) 2.75 to 1.0 during the period of July through December of each
calendar year. Such covenant shall be measured quarterly .
Current Ratio: MarineMax shall maintain a ratio of total current assets
to total current liabilities of not less than (a) 1.1 to 1.0 during the
period of January through June of each calendar year, (b) 1.15 to 1.0
during the period of July through September of each calendar year, and
(c) 1.2 to 1.0, during the period of October through December of each
calendar year. Such covenant shall be measured quarterly .
Debt Coverage: MarineMax shall maintain a debt coverage ratio (defined
as income before interest, taxes, depreciation and amortization to
interest expense) of not less than 1.0 to 1.0, as measured on a rolling
four quarter average. Such covenant shall be measured quarterly. .
Profitibility: MarineMax shall achieve a net income after taxes,
depreciation, amortization and distributions of at least (a)
$13,500,000 for fiscal year 1999 and (b) $16,500,000 for fiscal year
2000.
24
SCHEDULE 6.9
ADDITIONAL AFFIRMATIVE COVENANTS
Certificates of Compliance. MarineMax shall provide TCFC an annual
certificate from either MarineMax's chief financial officer or
president containing a computation of, and showing compliance with,
each of the financial covenants contained in Schedule 6.6 and to the
effect that the Person signing such certificate has not become aware of
any non-compliance by MarineMax, or any material Default or event,
which with notice or lapse of time or both, would constitute a material
Default.
25
SCHEDULE 7.5
PERMITTED LIENS
(i) Liens to secure payment of taxes which are not yet
due and payable or which are being contested in good
faith.
(ii) Deposits under workmen's compensation, unemployment
insurance, social security and other similar laws, or
to secure statutory or performance bonds in the
ordinary course of business.
(iii) Liens which, in TCFC's reasonable determination, do
not materially impair the use or lessen the value of
the Collateral.