SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED INVENTORY FINANCING AGREEMENT, FIFTH AMENDED AND RESTATED PROGRAM TERMS LETTER, AND FOURTH AMENDED AND RESTATED

NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” HAVE BEEN OMITTED FROM THIS EXHIBIT AS THESE PORTIONS ARE NOT MATERIAL AND WOULD LIKELY CAUSE COMPETITIVE HARM IF PUBLICLY DISCLOSED.  

 

 

Exhibit 10.1

 

SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED
INVENTORY FINANCING AGREEMENT, FIFTH AMENDED AND RESTATED

PROGRAM TERMS LETTER, AND FOURTH AMENDED AND RESTATED

[****]

 

THIS SECOND AMENDMENT TO FOURTH AMENDED AND RESTATED INVENTORY FINANCING AGREEMENT, FIFTH AMENDED AND RESTATED PROGRAM TERMS LETTER, AND FOURTH AMENDED AND RESTATED [****] (this “Amendment”) dated as of November 8, 2019, is made to that certain FOURTH AMENDED AND RESTATED INVENTORY FINANCING AGREEMENT (as amended, supplemented, restated or modified, the “IFA”) by and among ▇▇▇▇▇ FARGO COMMERCIAL DISTRIBUTION FINANCE, LLC (“CDF”) as Agent (in such capacity as agent, the “Agent”) for the several financial institutions that may from time to time become party thereto (collectively, “Lenders,” and individually, each a “Lender”) and Dealers that may from time to time become party thereto (collectively, “Dealers” and individually, each a “Dealer”) and for itself as a Lender, and such Lenders, FIFTH AMENDED AND RESTATED  PROGRAM TERMS LETTER (as amended, restated, supplemented or otherwise modified from time to time, the “PTL”) by and among CDF and Dealers, and FOURTH AMENDED AND RESTATED [****] (as amended, restated, supplemented or otherwise modified from time to time, the “[****],” and together with the IFA and PTL, the “Agreements”) by and among Agent and Existing Dealers (as defined below), each dated as of October 26, 2018. All capitalized terms not otherwise defined in this Amendment shall have the respective meanings assigned to them in the IFA.

Recitals

A.Agent, Lenders and Dealers desire to make certain amendments to the Agreements in accordance with the terms and conditions of this Amendment.

Agreement

NOW, THEREFORE, in consideration of the premises and of the mutual promises contained herein and in the Agreement the receipt and sufficiency of which is hereby acknowledged, Agent and Dealers agree as follows:

1.IFA Amendments:

 

a.The defined term “Maximum Aggregate Credit Amount” in Section 1 of the IFA is hereby deleted in its entirety and replaced with the following:

“Maximum Aggregate Credit Amount” means an aggregate total of four hundred forty million dollars ($440,000,000.00).

b.The defined term “Settlement Date” in Section 1 of the IFA is hereby amended to replace the term “Settlement Date” with the term “Reporting Date” and each reference to Settlement Date in the IFA is hereby deemed to be a reference to Reporting Date.

 

c.The following clause (xi) is added to Section 2(a) of the IFA:

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“(xi)Agent may, in its Permitted Discretion, adjust any advance rates for any Vendor that is not an Approved Vendor, provided that, with respect to a Vendor that was previously an Approved Vendor and is no longer an Approved Vendor (including, for the avoidance of doubt, Azimut-Benetti S.p.A., but excluding the Benetti brand), if (A) Dealers’ Tangible Net Worth is greater than two hundred fifty million dollars ($250,000,000.00) and (B) Dealers’ Liquidity exceeds twenty five million dollars ($25,000,000.00) (clauses (A) and (B), collectively, the “Advance Adjustment Criteria”), such adjustment shall not decrease any such advance rate by more than ten percentage points.  “Liquidity” shall be defined as (Y) Dealers’ unrestricted cash plus (Z) the lesser of (1) the Pre-Owned Inventory Sublimit (as defined below) or (2) (a) the Specific Pre-Owned Sublimit (as defined below) less the total amount of Loans outstanding with respect to pre-owned inventory with applicable valuations of seven hundred fifty thousand dollars ($750,000.00) or more plus (b) borrowing base availability (as calculated on the most recent borrowing base certificate delivered to Agent pursuant to the terms of the Program Terms Letter).

d.Section 2(b) of the IFA is hereby deleted in its entirety and replaced with the following:

“(b)Pre-Owned Inventory Advances and Sublimits.  Subject to the overall Maximum Aggregate Credit Amount set forth above and the terms and conditions of this Agreement, on and after the Closing Date, Lenders severally and not jointly may make Loans to Dealers with respect to pre-owned units of inventory; provided that such cash advances shall not exceed the Pre-Owned Inventory Sublimit and must comply with the pre-owned inventory advance terms set forth herein.  Regardless of the amount of credit available to Dealers under the Maximum Aggregate Credit Amount hereunder, the total amount of Loans outstanding with respect to used or pre-owned inventory shall not exceed forty-five million dollars ($45,000,000.00) (the “Pre-Owned Inventory Sublimit”).  Within such Pre-Owned Inventory Sublimit, (i) any Loans with respect to units with applicable valuations of seven hundred fifty thousand dollars ($750,000.00) or more shall require unit specific documentation (including an advance request form), (ii) no more than thirty-five million dollars ($35,000,000.00) of such Pre-Owned Inventory Sublimit shall be used by Dealers to finance pre-owned inventory with applicable valuations of less than seven hundred fifty thousand dollars ($750,000.00) (the “Other Pre-Owned Sublimit”), and (iii) no more than twenty million dollars ($20,000,000.00) of such Pre-Owned Inventory Sublimit shall be used by Dealers to finance pre-owned inventory with applicable valuations of seven hundred fifty thousand dollars ($750,000.00) or more (the “Specific Pre-Owned Sublimit”).”

e.Section 2(c) of the IFA is hereby deleted in its entirety and replaced with the following:

“(c)Advance Rates; Approvals.  The advance rates with respect to pre-owned inventory as well as additional details of the financing program are set forth in the Program Terms Letter, the terms of which are incorporated herein by this reference. Upon thirty (30) days’ notice to Dealers, Agent may adjust the advance rates set forth in the Program Terms Letter (i) for Approved Vendors as provided in Section 2(a)(x) and (ii) for all other Vendors as provided in Section 2(a)(xi).  This Agreement concerns the extension of credit, and not the provision of goods or services.  An “Approval” shall be defined as Agent’s indication to a Vendor that the Lenders will provide financing to Dealers with respect to a particular Invoice or Invoices.”

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f.Section 3(a) of the IFA is hereby amended by adding the following to the end of such section:

“Notwithstanding anything to the contrary contained herein, including without limitation the provisions of Section 17 hereof, without the consent of Lenders, CDF may change any aspect or portion of any Transaction Statement at any time, provided that such change is not inconsistent with the terms and conditions of this Agreement.”

g.Section 6(b)(viii) of the IFA is hereby deleted in its entirety and replaced with the following:

 

“(viii)upon Agent’s request, (i) at any time the aggregate Obligations with respect to any Collateral or Dealer located in Ohio exceeds twelve million dollars ($12,000,000.00), deliver to Agent immediately upon such request (and Agent may retain) each certificate of title or statement of origin issued for such Collateral and (ii) at any time during the continuance of a Default, deliver to Agent immediately upon such request (and Agent may retain) each certificate of title or statement of origin issued for Collateral financed by any one or more Lenders;”

 

h.Section 6(d)(iv) of the IFA is hereby deleted in its entirety and replaced with the following:

 

“(iv)change the nature of its business in any material manner or its legal structure or be a party to a merger or consolidation (other than a merger or consolidation of a Dealer with or into another Dealer), divide itself pursuant to Section 18-217 of the Delaware Limited Liability Company Act or any similar law or statute or change its type of organization, its jurisdiction of incorporation or organization, or its organizational identification number, if any, or acquire any Person (an “Acquired Person”) or a substantial portion of the assets of any Person (“Acquired Assets”), except that Dealers may acquire an Acquired Person or Acquired Assets, if (A) Dealers provide Agent with thirty (30) days’ prior written notice of such acquisition, accompanied by a certificate of Dealers’ chief financial officer that such acquisition complies with the conditions of this Section 6(d)(iv) and copies of pro forma financial statements and projections giving effect to such acquisition, (B) immediately after any such acquisition of an Acquired Person, such Acquired Person becomes a party to this Agreement as a Dealer by executing and delivering to Agent such documents and agreements as Agent may reasonably require, at Dealers’ cost and expense, (C) immediately after any such acquisition of Acquired Assets, Agent shall continue to have, on behalf of Lenders a first-priority perfected security interest in such Acquired Assets that constitute “Collateral” (as defined herein) and the other Collateral, (D) at the time of such acquisition and after giving effect thereto, neither a Default nor an event which, with the giving of notice, the passage of time, or both, would result in a Default, shall have occurred and be continuing, (E) before and after giving effect to such acquisition, as illustrated by the pro forma financial statements and projections provided to Agent pursuant to clause (A) above, Dealers shall be in compliance with the financial covenants set forth in Section 6(c) as of the most recently ended fiscal quarter and the next four fiscal quarters ending after such acquisition, (F) the

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total acquisition cost of such Acquired Person or Acquired Assets (including, without limitation, acquired inventory) shall not exceed ten million dollars ($10,000,000) individually or twenty-five million dollars ($25,000,000) in the aggregate in any rolling twelve-month period for all such Acquired Persons and Acquired Assets, collectively; provided, however, if such acquisition does not comply with this clause (F), then Agent shall not unreasonably withhold its consent to such acquisition, and (G) at the time of such acquisition, Availability shall be at least five million dollars ($5,000,000) and the sum of Dealers’ cash, plus the balance of the [****] (as defined in the [****] Agreement), plus Availability shall be at least fifteen million dollars ($15,000,000); provided, however, that notwithstanding anything in this Section to the contrary, MarineMax Vacations, Ltd. shall not be required to become a party to this Agreement as a Dealer;”

 

i.Section 8(d) of the IFA is hereby deleted in its entirety and replaced with the following:

“(d) within thirty (30) days after Dealers’ year-end, Dealers’ financial projections for the next fiscal year on a consolidated basis;”

j.Section 8(g) of the IFA is hereby deleted in its entirety and replaced with the following:

“(g) concurrently with the delivery of the financial statements required to be delivered under clauses (a) and (b), above, a trigger compliance and advance adjustment criteria certificate in the form attached hereto as Exhibit G (the “Trigger Compliance and Advance Adjustment Criteria Certificate”), setting forth a calculation of Fixed Charge Coverage Ratio and  TTM EBITDA (each as defined in the Program Terms Letter), Tangible Net Worth and the Advance Adjustment Criteria, executed by an officer of Dealers.”

k.The following clause (d) is hereby added to Section 17 of the IFA:

“(d)Notwithstanding the foregoing, Agent, with the consent of the Dealers, may amend, modify or supplement any Loan Document without the consent of any Lender or the Required Lenders in order to correct, amend or cure any inconsistency or defect or correct any typographical error or other manifest error in any Loan Document, and such amendment, modification or supplement shall become effective without any further action or consent of any other party to any Loan Document if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof.  Furthermore, notwithstanding anything to the contrary herein, with the consent of Agent at the request of the Dealers (without the need to obtain any consent of any Lender), any Loan Document may be amended to add terms that are favorable to the Lenders (as reasonably determined by Agent).”

l.Section 19 of the IFA is hereby deleted in its entirety and replaced with the following:

 

“19.Term and Termination.  Unless sooner terminated as provided in this Agreement, the term of this Agreement shall commence on the date hereof and

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continue until October 30, 2022 and, if Agent provides written notice to Dealers of Agent’s intent to renew the current term at least (ninety) 90 days prior to the end of the then current term, at Agent’s election, subject to Section 17(a)(ii) above, the term of this Agreement shall automatically renew for up to two successive one year periods thereafter.  Upon termination of this Agreement, all Obligations shall become immediately due and payable without notice or demand.  Upon any termination, Dealers shall remain fully and jointly and severally liable to each Lender for all Obligations owed to such Lender, including without limitation all fees, expenses and charges, arising prior to or after termination, and each Lender’s rights and remedies and security interest, if any, shall continue until all Obligations to such Lender hereunder are paid and all obligations of Dealers are performed in full.  All waivers and indemnifications in Agent’s and each Lender’s favor, and the agreement to arbitrate, set forth in this Agreement will survive any termination of this Agreement.”

 

m.Exhibits A, C, E and G of the IFA are hereby deleted in their entirety and replaced with Exhibits A, C, E and G attached hereto.

 

 

2.PTL Amendments:

 

a.The second paragraph under the section entitled “Advance Request” is hereby deleted in its entirety and replaced with the following:

 

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b.The first paragraph under the section entitled “Floorplan Advance Rate” is hereby deleted in its entirety and replaced with the following:

“For new inventory (excluding Azimut brand new inventory (for the avoidance of doubt, when used herein, the term “Azimut brand new inventory” and “Azimut brand inventory” shall not include Benetti brand inventory), Benetti brand new inventory, Aquila brand new inventory, Ocean Alexander brand new inventory, and Galeon brand new inventory), 100% of invoice amount, including freight (if included on original invoice), subject to Availability.”

c.The following paragraph is added to the section entitled “Floorplan Advance Rate” of the PTL:

“For Benetti brand new inventory: 60% of invoice amount for all inventory subject to a maximum of [****] in the aggregate advanced at any one time, and further subject to Availability.  Notwithstanding the foregoing, with respect to that certain 125 ft. Benetti unit (the “Benetti Unit”) to be financed by Lenders, the following conditions shall apply:  (a) the maximum amount Lenders shall fund with respect to such Benetti Unit shall be 50% of the invoice amount of such Benetti Unit and (b) prior to any such funding, Agent shall have received evidence in form and substance acceptable to Agent that Dealer owns such Benetti Unit free and clear of all Liens, including any Liens of the Azimut-Benetti S.p.A.”

d.Clause (i)(b)(2) of the definition of “Availability” in the section entitled “Floorplan Advance Rate” of the PTL is hereby deleted in its entirety and replaced with the following:

 

“(2) if the Fixed Charge Coverage ratio is less than 1.2x or TTM EBITDA is less than [****], in each case as shown on the most recent Trigger Compliance Certificate delivered pursuant to Section 8(g) of the Inventory Financing Agreement, 100% of Total Eligible Inventory shown on the most recent inventory certificate, less the lesser of (x) [****] and (y) 10% of Total Eligible Inventory shown on such inventory certificate (such lesser amount, the “Collateral Block”) ((b)(1) or (2), as applicable, the “Net Eligible Inventory Amount”),”

 

e.The first two paragraphs under the section entitled “Concentration Limits” are hereby deleted in their entirety and replaced with the following:

“If the number of units of inventory (new and pre-owned) financed by any one or more Lenders which are not Pre-Sold and which have an Outstanding Amount > $250,000.00 exceeds [****] of total number of units of inventory financed by such Lender or Lenders, then immediate payment shall be required and applied to the oldest units of such inventory financed by such Lender or Lenders to the extent

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required to reduce the number of such units to [****] or less.  “Outstanding Amount” means the outstanding amount financed by any one or more Lenders for such unit, minus any portion of the Required Amount (as defined in the [****]) funded to the [****] with respect to curtailments for such unit.  For purposes of determining the concentration limits, units of inventory financed by any one or more Lenders shall include, without limitation, each unit of pre-owned inventory with a valuation < $750,000.00 identified on the current borrowing base certificate.  

If the units of inventory (new and pre-owned) financed by any one or more Lenders which are not Pre-Sold and which have an Outstanding Amount > $750,000.00 exceed [****] in the aggregate (of which no more [****] in the aggregate may be Azimut brand and no more than [****] in the aggregate may be Benetti brand), then immediate payment shall be required and applied to the oldest units of such inventory financed by such Lender or Lenders to the extent required to reduce the Outstanding Amount to [****] or less for such inventory (and [****] or less for Azimut brand inventory and [****] or less for Benetti brand inventory).  In no event shall any one or more Lenders finance more than the greater of [****] units or [****] of such inventory that exceeds 72 ft., and which are not Pre-Sold.”

f.Exhibits A, B and C of the PTL are hereby deleted in their entirety and replaced with Exhibits A, B and C attached hereto.

 

3.[****] Amendments:

 

a.[****]

 

 

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[Signature pages follow]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the date first above written.

DEALERS:

 

 

 

 

[Signature Page to Second Amendment to IFA, PTL, and [****]]

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MY WEB SERVICES, LLC,

a Delaware limited liability company

 

 

 

MARINEMAX CHARTER SERVICES, LLC,

a Delaware limited liability company

 

[Signature Page to Second Amendment to IFA, PTL, and [****]]

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[****],

a Florida limited liability company

 

By: MY WEB SERVICES, LLC,

       the sole member of [****]

 

 

GULFPORT MARINA, LLC,

a Delaware limited liability company

 

 

 

 

 

[Signature Page to Second Amendment to IFA, PTL, and [****]]

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[Signature Page to Second Amendment to IFA, PTL, and [****]]

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AGENT AND LENDER:

 

 

 

LENDERS:

 

 

 

[Signature Page to Second^t Amendment to IFA, PTL, and [****]]

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Exhibit A to IFA

Existing Approved Vendors

 

 

 

 

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Exhibit C to IFA

Permitted Locations

 

 

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EXHIBIT E to IFA

Lender’s Allocations and Ratable Share

 

 

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EXHIBIT G to IFA

Trigger Compliance and Advance Adjustment Criteria Certificate

 

 

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Exhibit A to PTL

Advance Request Form

 

▇▇▇▇▇ Fargo Commercial Distribution Finance, LLC

▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇ ▇▇▇▇▇

▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇

 

Ladies and Gentlemen:

The undersigned is agent for Dealers under the Agreement and as such is authorized to make and deliver this advance request (this “Request”) on behalf of Dealers pursuant to Section 1 of the Agreement.  All capitalized terms used, but not defined, herein have the meanings provided in the Agreement.

Dealers hereby request that Lenders make an advance on ________________, 20____ of $______________________ to Dealers under the terms of the Agreement with respect to the following (check one):

The undersigned hereby represents, warrants and certifies that, as of the date hereof,

 

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(g)each Specific Pre-Owned Item, Other Pre-Owned Item and Re-Advance Item, as applicable, is owned by the Dealer identified on the Exhibits attached hereto, free and clear of all Liens, and Agent holds a first and prior Lien on such Collateral as collateral agent for the Lenders pursuant to the Agreement, and such Collateral is in good saleable condition (normal wear and tear excepted); and

(h)The terms and conditions of the Agreement apply to this Request.

Executed this ____ day of _______________, _____.

MarineMax, Inc.,

a Florida corporation

 

By:

Its:

Typed Name:

 

 

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Exhibit A to Advance Request Form

Specific Pre-Owned Items

 

RE:  USED       TRADE-IN           (CIRCLE ONE)

 

AGENT FOR DEALERS     MARINE MAX                           DEALER NUMBER____________

 

UNIT LOCATION  ___________________________________________________________________________

 

YEAR  ________MAKE/MODEL__________________________________________________

 

BOAT SERIAL NUMBER______________________________________________________________________

 

ENGINE MODEL, HORSEPOWER & SERIAL

 

                                              

NADA (ABOS or BUC) LOW WHOLESALE VALUE FOR BOAT & ENGINE $____________VALUE X        %

 

$_____________

 

DOLLAR AMOUNT OF USED/TRADE REQUEST TO BE ADVANCED $____________________

 

REQUIRED DOCUMENTS:                                                                                                              

*Attach copy of customer contract for trade-in units/▇▇▇▇ of sale and proof of payment for used units.

*Attach copy of completed Title Documents(front and rear) evidencing the boat is free and clear of all liens.

*Attach copy of survey/internal condition report

*Attach copy of internal valuation report

*Attach copy of Coast Guard documentation, abstract of title, and ▇▇▇▇ of sale

 

Specific Pre-Owned Sublimit$20,000,000 (1)

 

Outstanding Amount with Respect to Specific

Pre-Owned Items____________________(2)

 

Amount of Advance Requested

[not > $2,500,000.00]____________________(3)

 

Outstanding Amount with Respect to Specific Pre-Owned

After Requested Advance

[(2) + (3)]____________________(4)

 

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Specific Pre-Owned Sublimit Availability After

Requested Advance

[(1) – (4)]____________________(5)

 

Pre-Owned Inventory Sublimit$45,000,000(6)

 

Outstanding Amount with Respect to Other Pre-Owned

Items ____________________(7)

 

Outstanding Amount with Respect to Specific Pre-Owned

Items and Other Pre-Owned Items After Requested Advance

[(5) + (7)]____________________(8)

 

Pre-Owned Inventory Sublimit Availability After

Requested Advance

[(6) – (8)]____________________(9)

 

 

 

 

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Exhibit B to Advance Request Form

Other Pre-Owned Items

 

Borrowing Base Certificate Date   ____________________

 

Borrowing Base Amount____________________(1)

 

Other Pre-Owned Sublimit$35,000,000 (2)

 

Other Pre-Owned Line of Credit

[Lesser of (1) or (2)]____________________(3)

 

Outstanding Amount with Respect to Other Pre-Owned____________________(4)

 

Borrowing Base Availability (Payment Required)

[(3) - (4)]____________________(5)

 

Amount of Advance Requested____________________(6)

 

Outstanding Amount with Respect to Other Pre-Owned

After Requested Advance

[(4) + (6)]____________________(7)

 

Percentage of Borrowing Base Amount

[(7) / (1)] (must be ≤ 80% if certificate date not request

date and ≤ 100% if certificate date is request date) ____________________%(8)

 

Borrowing Base Availability After Requested Advance

[(1) – (7)]____________________(9)

 

Pre-Owned Inventory Sublimit$45,000,000(10)

 

Outstanding Amount with Respect to Specific Pre-Owned

Items ____________________(11)

 

Outstanding Amount with Respect to Specific Pre-Owned

Items and Other Pre-Owned Items After Requested Advance

[(7) + (11)]____________________(12)

 

Pre-Owned Inventory Sublimit Availability

[(10) – (12)]____________________(13)

 

 

 

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Exhibit C to Advance Request Form

Re-Advance Items

 

DEALER NAME ______________________________________   DEALER NUMBER____________

 

UNIT LOCATION  __________________________________________________________________

 

MANUFACTURER _________________________________________________________________

BOAT SERIAL NUMBER ____________________________________________________________

 

BOAT MODEL& SERIAL_________________

 

ORIGINAL INVOICE NUMBER______________________________

 

ORIGINAL INVOICE DATE______________________________

 

ORIGINAL INVOICE AMOUNT______________________________

 

OUTSTANDING AMOUNT WITH

RESPECT TO RE-ADVANCE ITEM______________________________

 

RE-ADVANCE AMOUNT REQUESTED______________________________

 

 

 

Re-Advance Sublimit____________________ (1)

 

Re-Advance Amounts within prior 30 Days____________________(2)

 

Amount of Advance Requested____________________(3)

 

Re-Advance Amounts within prior 30 Days After

Requested Advance

[(2) + (3)]____________________(4)

 

Re-Advance Sublimit Availability After Requested

Advance

[(1) – (4)]____________________(5)

 

 

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Exhibit B to PTL

Borrowing Base Certificate Form

 

 

 

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