NOTE: PORTIONS
OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST, AND HAVE BEEN OMITTED FROM THIS
EXHIBIT. COMPLETE, UNREDACTED COPIES OF THIS EXHIBIT HAVE BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS
COMPANY’S CONFIDENTIAL TREATMENT REQUEST.
FIFTH AMENDMENT
TO SECOND AMENDED AND RESTATED
CREDIT AND SECURITY AGREEMENT
This FIFTH
AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY
AGREEMENT (this “ Fifth Amendment ”) is
entered into as of June 5, 2009 (the “ Effective
Date ”), by and among MARINEMAX, INC. , a Delaware
corporation (the “ Company ”) and each of the
six (6) other Borrowers set forth on Schedule I
attached hereto and by the reference incorporated herein (each of
the Company and each of such six (6) Persons other than the
Company, singularly, a “ Borrower ,” and the
Company and all of such Persons other than the Company,
collectively, the “ Borrowers ”), KEYBANK
NATIONAL ASSOCIATION , a national banking association, both
individually (in such capacity, “ KeyBank ”) and
as administrative agent (in such capacity, the “
Administrative Agent ”) for the Lenders (as
hereinafter defined), BANK OF AMERICA, N.A., a national
banking association, individually (in such capacity, “
BOA ”), as collateral agent (in such capacity, the
“ Collateral Agent ”) and as documentation agent
(in such capacity, the “ Documentation Agent ”)
and the various other financial institutions as are or may become
parties hereto, including, as of the date hereof, GE COMMERCIAL
DISTRIBUTION FINANCE CORPORATION, a Delaware corporation
(“ GE Commercial ”), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association (“
Wachovia ”), WELLS FARGO BANK, N.A., a national
banking association (“ Wells Fargo ”), U.S.
BANK NATIONAL ASSOCIATION, a national banking association
(“ US Bank ”), BRANCH BANKING & TRUST
COMPANY , a North Carolina corporation (“ BB&T
”), and BANK OF THE WEST , a California corporation
(“ Bank of the West ”) (KeyBank, BOA, GE
Commercial, Wachovia, Wells Fargo, US Bank, BB&T, Bank of the
West, and such other financial institutions, collectively, the
“ Lenders ”), amending that Second Amended and
Restated Credit and Security Agreement dated as of June 19,
2006, by and among Borrowers and Lenders as heretofore amended by
the First Amendment to Second Amended and Restated Credit and
Security Agreement dated as of May 31, 2007, the Second
Amendment to Second Amended and Restated Credit and Security
Agreement dated as of October 1, 2007, the Third Amendment to
Second Amended and Restated Credit and Security Agreement dated as
of March 7, 2008, and the Fourth Amendment to Second Amended
and Restated Credit and Security Agreement dated as of December 15,
2008 (the “ Agreement ”). Unless otherwise
defined in this Fifth Amendment, all defined terms used in this
Fifth Amendment shall have the meanings ascribed to such terms in
the Agreement. This Fifth Amendment is entered into in
consideration of, and upon, the terms, conditions and agreements
set forth herein.
1.
Background . Borrowers and Lenders desire to amend
certain provisions of the Agreement effective as of the Effective
Date of this Fifth Amendment.
2.
Changed Definitions . The definitions of the following
terms heretofore defined in the Agreement are hereby amended to
read in their entirety as follows:
[****] —
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
“
Borrowing Base ” shall mean the greatest amount that
may be borrowed or retained by the Borrowers in respect of the
Commitment, which at any date of calculation, shall be determined
by applying the then applicable Availability Reserve, if any, to
the sum of the following determined on a consolidated basis for all
of the Borrowers:
(a)
the sum of (1) ninety percent (90%) of the original invoice
price (including freight charges, but excluding, to the extent that
the same are included in the Borrowing Base as Accounts, any earned
volume purchase rebates, earned advertising rebates, verifiable
price protection, and earned incentives, credits, or similar items)
of Eligible New Inventory that is aged not more than three hundred
sixty-five (365) days from date of delivery to the Borrowers,
(2) eighty percent (80%) of the original invoice price
(including freight charges, but excluding, to the extent that the
same are included in the Borrowing Base as Accounts, any earned
volume purchase rebates, earned advertising rebates, verifiable
price protection, and earned incentives, credits, or similar items)
of Eligible New Inventory that is aged more than three hundred
sixty-five (365) days, but not more than seven hundred thirty
(730) days, from date of delivery to the Borrowers, and
(3) sixty-five percent (65%) of the original invoice price
(including freight charges, but excluding, to the extent that the
same are included in the Borrowing Base as Accounts, any earned
volume purchase rebates, earned advertising rebates, verifiable
price protection, and earned incentives, credits, or similar items)
of Eligible New Inventory that is aged more than seven hundred
thirty (730) days, but not more than one thousand ninety-five
(1,095) days, from date of delivery to the Borrowers; provided,
however , that (A) the amount includable in the Borrowing
Base on account of Loose Outboard Motors in the Eligible New
Inventory shall never exceed one million, five hundred thousand
dollars ($1,500,000), it being agreed that all Loose Outboard
Motors over such amount shall be included in the Borrowing Base
only as Eligible Parts Inventory; (B) nothing shall be
includable in the Borrowing Base in respect of any Unit of Eligible
New Inventory acquired after the Effective Date of the Fifth
Amendment at an original invoice price (including freight charges,
but excluding, to the extent that the same are included in the
Borrowing Base as Accounts, any earned volume purchase rebates,
earned advertising rebates, verifiable price protection, and earned
incentives, credits, or similar items) of more than [****];
(C) the amount includable in the Borrowing Base on account of
both the Eligible New Inventory of [****] and the Eligible Used
Inventory of [****] shall not exceed in the aggregate [****];
(D) the amount includable in the Borrowing Base on account of
both the Eligible New Inventory of [****] and the Eligible Used
Inventory of [****] shall not exceed in the aggregate [****];
(E) the amount includable in the Borrowing Base on account of
both the Eligible New Inventory of [****] and the Eligible Used
Inventory of [****] shall not exceed in the aggregate (i) at
all times prior to September 30, 2009, [****], (ii) from
September 30, 2009 through November 29, 2009, [****],
(iii) from November 30,
2
[****] —
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
2009 through
February 27, 2010, [****], and (iv) commencing
February 28, 2010, [****]; and (F) the amount includable
in the Borrowing Base on account of the Eligible New Inventory of
[****], and [****] and the Eligible Used Inventory of [****] and
[****] shall not exceed in the aggregate (i) at all times
prior to September 30, 2009, [****], (ii) from
September 30, 2009 through November 29, 2009, [****],
(iii) from November 30, 2009 through March 30, 2010
[****], (iv) from March 31, 2010 through June 29, 2010,
[****], (v) from June 30, 2010 through September 29,
2010, [****], and (vi) effective September 30, 2010,
[****]; and provided further , that if Lenders receive, with
respect to particular Eligible New Inventory aged not more than
three hundred sixty-five (365) days either, (i) a five
percent (5.0%) manufacturer’s guaranty, satisfactory to
Required Lenders in their reasonable discretion, with respect to
such Eligible New Inventory, or (ii) a manufacturer’s
repurchase agreement, that is reasonably satisfactory to Required
Lenders, at a purchase price of ninety-five percent (95%) of the
Eligible New Inventory value, the advance with respect to the
Eligible New Inventory covered by such guaranty or repurchase
agreement will be increased by five percent (5.0%) to ninety-five
percent (95%), notwithstanding anything to the contrary in this
clause (a).
(b)
the sum of (1) eighty percent (80%) of NADA Wholesale Value of
Eligible Used Inventory that has been held by the Borrowers for not
more than one hundred eighty (180) days from the date of
receipt, plus (2) seventy-two percent (72%) of the NADA
Wholesale Value of Eligible Used Inventory that has been held by
the Borrowers for more than one hundred eighty (180) days from
the date of receipt, but not more than three hundred sixty-five
(365) days; provided, however , that (A) the
amount includable in the Borrowing Base on account of Eligible Used
Inventory shall never exceed twenty-five percent (25%) of the
aggregate of (i) Eligible New Inventory, and (ii) Eligible
Used Inventory; (B) nothing shall be includable in the
Borrowing Base in respect of any Unit of Eligible Used Inventory
acquired after the Effective Date of the Fifth Amendment for which
the NADA Wholesale Value is more than [****]; (C) the amount
includable in the Borrowing Base on account of both the Eligible
New Inventory of [****] and the Eligible Used Inventory of [****]
shall not exceed in the aggregate [****]; (D) the amount
includable in the Borrowing Base on account of both the Eligible
New Inventory of [****] and the Eligible Used Inventory of [****]
shall not exceed in the aggregate [****]; (E) the amount
includable in the Borrowing Base on account of both the Eligible
New Inventory of [****] and the Eligible Used Inventory of [****]
shall not exceed in the aggregate (i) at all times prior to
September 30, 2009, [****], (ii) from September 30, 2009
through November 29, 2009, [****], (iii) from
November 30, 2009 through February 27, 2010, [****], and
(iv) commencing February 28, 2010, [****]; and
(F) the amount includable in the Borrowing Base on account of
the Eligible New Inventory of [****] and [****] and the Eligible
Used Inventory of [****] and [****] shall not exceed in the
aggregate (i) at all times prior to September 30, 2009,
[****], (ii) from September 30, 2009 through
November 29,
3
[****] —
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
2009, [****],
(iii) from November 30, 2009 through March 30, 2010
[****], (iv) from March 31, 2010 through June 29,
2010, [****], (v) from June 30, 2010 through
September 29, 2010, [****], and (vi) effective
September 30, 2010, [****];
(c)
eighty percent (80%) of the net book value of Eligible Accounts;
provided, however , that the amount includable in the
Borrowing Base on account of Eligible Accounts shall never exceed
thirty million dollars ($30,000,000);
(d)
the lesser of (1) twelve million dollars ($12,000,000), or
(2) sixty percent (60%) of the cost (excluding freight
charges) of Eligible Parts Inventory net of any reserve required by
GAAP for damaged, obsolete, or slow-moving items in such inventory;
and
(e)
the Pledged Real Estate Loan Value of the Pledged Real Estate
Collateral with respect to which all of the steps contemplated by
Section 4.07 of the Agreement have been completed to the
satisfaction of the Collateral Agent.
No Property of
the Borrowers shall be included in the Borrowing Base if
(1) the Collateral Agent, for the benefit of the Lenders, does
not have a first priority security interest under the Uniform
Commercial Code, to the extent applicable, subject only to
Permitted Liens, in such Property, (2) any other Person has a
Preferred Ship’s Mortgage on a Documented Vessel included in
the Borrowing Base that has not been extinguished by payment in
full and delivery of a written satisfaction of such Preferred
Ship’s Mortgage, irrespective of whether such satisfaction
has been filed with the Coast Guard or whether such Preferred
Ship’s Mortgage is a Permitted Lien, or (3) any other
Person has a perfected purchase money security interest in such
Property, irrespective of whether such purchase money security
interest is a Permitted Lien.
“
Borrowing Base Certificate ” shall mean a certificate
in the form of Exhibit B to the Fifth Amendment to the
Agreement (as the form may be modified with the consent of the
Required Lenders from time to time), in form and detail
satisfactory to the Required Lenders setting forth the calculation
of the Borrowing Base as of the date of such
certificate.
“
Commitment Amount ” shall mean (a) effective as
of the Effective Date of the Fifth Amendment to the Agreement,
three hundred million dollars ($300,000,000), (b) effective as
September 30, 2009, two hundred fifty million dollars
($250,000,000), (c) effective as December 31, 2009, two
hundred thirty-five million dollars ($235,000,000),
(d) effectiv
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