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EXHIBIT 10.13
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN SECURITY AGREEMENT is dated March 18,
1999, between MARINEMAX, INC., a Delaware corporation ("Company"), XXXXXXX BOAT
COMPANY OF FLORIDA, a Florida corporation, GULFWIND SOUTH, INC., a Florida
corporation, GULFWIND USA, INC., a Florida corporation, MARINEMAX MOTOR YACHTS,
INC., a Delaware corporation, MARINEMAX OF BREVARD COUNTY, INC., a Delaware
corporation, XXXXXXX MARINE, INC., a Georgia corporation, MARINEMAX OF TREASURE
COVE, INC., a Delaware corporation, MARINEMAX OF NORTH CAROLINA, INC., a North
Carolina corporation, C & N MARINE CORPORATION, a Minnesota corporation, and
COCHRANS MARINE, INC., a Minnesota corporation (singularly, a "Dealer",
collectively, "Dealers") and NATIONSCREDIT DISTRIBUTION FINANCE, INC., a North
Carolina corporation with its principal place of business at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 and NATIONSBANK, N.A., a national banking
association (together "Lender") amending and restating in its entirety the Loan
and Security Agreement dated April 7, 1998, amended by Amendment No.1 to Loan
and Security Agreement dated January 5, 1999.
WITNESSETH:
WHEREAS, Borrowers' have requested a credit facility up to $105,000,000
from Lender, and Lender has agreed to provide such facility on the terms set
forth herein;
NOW, THEREFORE, for valuable consideration hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. As used in this Agreement, the following terms have
the respective meanings indicated below (such meanings to be applicable equally
to both the singular and plural forms of such terms):
"Account" means accounts, receivables, chattel paper 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 vendor of Inventory, such as volume
purchase discounts, advertising rebates, price protection, warranty work,
incentives and credits.
"Advance" means an advance made by Lender to Borrowers pursuant to
Section 2.01 hereof.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls or is controlled by or is under common control
with another Person.
"Approved Vendor" means a manufacturer or vendor that is (a) requested
by Borrowers to Lender, in writing, for establishment of a direct floorplan
funding arrangement under this Agreement, and (b) approved by Lender.
"Borrowers" mean the Company and the Dealers.
"Borrowing Base" means the sum of the following for the Dealers,
determined on a consolidated basis: (a) the lesser of $105,000,000 or the sum of
(i) 100% of the cost (including freight charges) of Eligible New Inventory that
is aged less than 366 days from date of delivery to the Dealers, plus (ii) 90%
of the cost (including freight charges) of Eligible New Inventory that is aged
more than 365 days, but not more than 730 days, from date of delivery to the
Dealers, (b) the lesser of $25,000,000 or the sum of (i) 80% of NADA Wholesale
Value of Eligible Used Inventory that has been held by the Dealers for not more
than 180 days, plus (ii) 72% of the NADA Wholesale Value of Eligible Used
Inventory that has been held by the Dealers for more than 180 days, but not more
than 365 days, (c) the lesser of $15,000,000 or 75% of the cost (excluding
freight charges) of Eligible Parts Inventory, plus (d) the lesser of $25,000,000
or 80% of the net book value of Eligible Accounts.
"Borrowing Base Certificate" means a certificate in the form of Exhibit
A hereto (as modified with the consent of Lender from time to time), in form and
detail satisfactory to Lender.
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"Business Day" means a day of the year on which banks are open for
business in Atlanta, Georgia.
"Capital Lease" means any capital lease or sublease, as defined in
accordance with GAAP.
"Change in Control" means an acquisition by any person or entity of
more than 5.0% of the beneficial ownership of the voting stock of Company,
except acquisitions (a) by Xxxxxxx Xxxxxxx, Xxxxx XxxXxxxx, Xxxxxxx X. XxXxxx,
Xx., Xxxxx Xxxxxxxx, Xxxxxxx X. XxXxxxx, or any of their family members or
trusts, (b) by Brunswick Corporation, or any of its Subsidiaries, or (c)
consummated after receipt of Lender's prior written consent, which shall not be
unreasonably withheld.
"Collateral" has the meaning set forth in Section 4.01 hereof.
"Committed Advance" means an unfunded approval that has been issued to
an Approved Vendor by Lender, pursuant to which Lender commits to fund a
Dealer's obligations under a purchase order submitted by a Dealer to such
Approved Vendor.
"Commitment" means $105,000,000.
"Company" means MarineMax, Inc., a Delaware corporation.
"Compliance Certificate" means a certificate of an officer of Company
acceptable to Lender, and in form and substance satisfactory to Lender, (a)
certifying that such officer has no knowledge that a material Default or
material Event of Default has occurred and is continuing, or if a material
Default or material Event of Default has occurred and is continuing, a statement
as to the nature thereof and the action being taken or proposed to be taken with
respect thereto, and (b) setting forth detailed calculations with respect to the
covenants described in Section 6.01(a), (b) and (c) hereof.
"Consolidated Collateral" means the following assets of the Dealers,
whether now owned or hereafter acquired and wherever located: (a) all Accounts;
(b) all Inventory; (c) all other goods, equipment, fixtures and furniture; and
(d) all insurance policies and proceeds relating to the foregoing; all books and
records relating to the foregoing; and all proceeds and products of the
foregoing.
"Contingent Liability" means, as to any Person, any obligation,
contingent or otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Debt or obligation of another in any manner, whether
directly or indirectly, including without limitation any obligation of such
Person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or any security for the payment of
thereof, (b) to purchase Property or services for the purpose of assuring the
owner of such Debt of its payment, or (c) to maintain the solvency, working
capital, equity, cash flow, fixed charge or other coverage ratio, or any other
financial condition of the primary obligor so as to enable the primary obligor
to pay any Debt or to comply with any agreement relating to any Debt or
obligation.
"Current Ratio" means the ratio, calculated for Company and its
Subsidiaries on a consolidated basis, of (a) cash plus accounts receivable plus
inventory plus prepaid expenses, as defined in accordance with GAAP, to (b)
current liabilities determined in accordance with GAAP.
"Dealers" mean Xxxxxxx Boat Company of Florida, a Florida corporation.
Gulfwind South, Inc., a Florida corporation, Gulfwind USA, Inc., a Florida
corporation, MarineMax Motor Yachts, Inc., a Delaware corporation, MarineMax of
Brevard County, Inc., a Delaware corporation, Xxxxxxx Marine, Inc., a Georgia,
corporation, MarineMax of Treasure Cove, Inc., a Delaware corporation, MarineMax
of North Carolina, Inc. a North Carolina corporation, C & N Marine Corporation,
a Minnesota corporation, and Cochrans Marine, Inc., a Minnesota corporation. A
single dealer is referred to herein as a "Dealer"
"Debt" means all obligations, contingent or otherwise, which in
accordance with GAAP should be classified on the balance sheet as liabilities,
and in any event including Capital Leases, Contingent Liabilities that are
required to be disclosed and quantified in notes to financial statements in
accordance with GAAP, and liabilities secured by any Lien on any Property,
regardless of whether such secured liability is with or without recourse.
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"Default" means any event specified in Section 7.01 hereof, for which
any requirement for the giving of notice or lapse of time has not yet been
satisfied.
"Eligible Account" means an Account of a Dealer that:
(a) constitutes amounts payable by a vendor or manufacturer of
Inventory for returns, volume purchase discounts, advertising
rebates, price protection, warranty work, incentives, credits or
similar items, or is any other Account approved by Lender from
time to time;
(b) is subject to a perfected, first priority Lien in favor of
Lender, free from any other Lien;
(c) has not remained unpaid more than 90 days, and can be confirmed
with the vendor or manufacturer by Lender;
(d) when aggregated with all other Accounts payable by the Account
obligor (excluding Brunswick Corporation and its Subsidiaries),
does not exceed 5% of total Accounts, unless Lender has
specifically approved the concentration level for such obligor;
(e) is not owing by an Account obligor located or otherwise resident
outside the United States;
(f) is not payable by an Account obligor who has suspended business,
has made an assignment for the benefit of creditors, is
insolvent, or is the subject of a voluntary or involuntary
proceeding under any bankruptcy law or other law for the relief
of debtors;
(g) is not subject to any material condition, contingency, allowance,
defense, dispute, off-set or counterclaim; and
(h) otherwise constitutes collateral reasonably acceptable to Lender
for borrowing purposes.
"Eligible New Inventory" means Inventory of the Dealers that (a) is
subject to a perfected, first priority Lien in favor of Lender, free from any
other Lien other than those acceptable to Lender in its sole discretion, (b) is
located at the Dealer's facilities, or was delivered to a retail purchaser
within the last six business days, or was delivered within the last 10 business
days under a purchase agreement for a lease transaction, (c) does not constitute
Used Inventory or Eligible Parts Inventory, and (d) otherwise constitutes
collateral reasonably acceptable to Lender for borrowing purposes.
"Eligible Parts Inventory" means Inventory of the Dealers that (a)
consists of parts and accessories for boats and trailers, (b) is subject to a
perfected, first priority Lien in favor of Lender, free from any other Lien
other than those acceptable to Lender in its sole discretion, (b) is located at
any of the Dealers' facilities, (c) does not constitute Eligible New Inventory
or Used Inventory, and (d) otherwise constitutes collateral reasonably
acceptable to Lender for borrowing purposes.
"Eligible Used Inventory" means Used Inventory of the Dealers that (a)
is subject to a perfected, first priority Lien in favor of Lender, free from any
other Lien other than those acceptable to Lender in its sole discretion, (b) is
located at the Dealer's facilities, or was delivered to a retail purchaser
within the last six business days, or was delivered within the last 10 business
days under a purchase agreement for a lease transaction, (c) does not constitute
Eligible New Inventory or Eligible Parts Inventory, and (d) otherwise
constitutes collateral reasonably acceptable to Lender for borrowing purposes.
"Environmental Law" means any Law or other authorization or requirement
of any Governmental Body relating to actual or threatened emissions, discharges
or releases of pollutants, contaminants, or hazardous or toxic materials, or
otherwise relating to pollution or the protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rulings and regulations issued thereunder, as from time to time
in effect.
"Event of Default" means any of the events specified in Section 7.01 of
this Agreement, provided any requirement for the giving of notice or lapse of
time has been satisfied.
"Fixed Charges Coverage Ratio" means the ratio, calculated for Company
and its Subsidiaries on a consolidated basis, of (a) pre-tax net income plus
interest expense, to (b) interest expense plus amounts paid or scheduled to be
paid on funded debt (excluding revolving loans owing hereunder) and Capital
Leases, all determined in accordance with GAAP. This ratio shall be measured for
the most recent 12 month period (determined during the first fiscal year on an
annualized basis from the date of the initial public offering of the Company's
common stock).
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"GAAP" means generally accepted accounting principles applied on a
consistent basis.
"Governmental Body" means any governmental official, or state,
commonwealth, federal, foreign, territorial, or other court or governmental
body, including any subdivision, agency, department, commission, board, bureau
or instrumentality.
"Hazardous Materials" means any substances or materials subject to any
Environmental Law, including without limitation materials listed in 49 C.F.R.
Section 172.101, hazardous waste as defined in the Clean Water Act, 33 U.S.C.
Section 1251 et seq., the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., the Resource Conservation
Recovery Act, 42 U.S.C. Section 6901 et seq. or the Toxic Substances Control
Act, 15 U.S.C. Section 2601 et seq., explosive or radioactive materials,
hazardous or toxic wastes or substances, petroleum or petroleum distillates,
asbestos or material containing asbestos, or any other materials or substances
designated as hazardous or toxic under any federal, state or local Law.
"Interest Payment Date" means the 15th day of each calendar month,
commencing April 15, 1999.
"Inventory" means inventory and goods held for sale or lease in the
ordinary course of business, raw materials, work in process, and materials used
or consumed in the business; returned and repossessed goods; replacements and
substitutions therefor; and parts, additions and accessions relating thereto.
"Investment" means any acquisition of all or substantially all assets
of any Person, or any acquisition of, or beneficial interest in, partnership or
membership interests, capital stock or other securities of any Person, or any
advance or capital contribution to or other investment in any Person (except
advances to employees for moving and travel expenses, drawing accounts and
similar expenditures in the ordinary course of business).
"Law" means any law, regulation, order or decree of any Governmental
Body.
"Lender" means NationsCredit Distribution Finance, Inc., a North
Carolina corporation and NationsBank, N.A., a national banking association.
"Leverage Ratio" means the ratio, calculated for the Company and its
Subsidiaries on a consolidated basis, of total liabilities determined in
accordance with GAAP, to Tangible Net Worth.
"LIBOR" means the 90 day London Interbank Offered Rate published in the
Eastern Edition of the Wall Street Journal on the last business day of Lender's
accounting month, effective for the next accounting month.
"License" means any license, permit or other authorization by any
Governmental Body or third Person necessary or appropriate for Company or any of
its Subsidiaries to own or operate their businesses or Properties.
"Lien" means any security interest, lien, pledge, encumbrance, charge
or adverse claim of any kind, including without limitation any agreement to give
or not to give any lien, or any conditional sale or other title retention
agreement.
"Litigation" means any proceeding, claim or investigation by or before
any Governmental Body.
"Loan Papers" means this Agreement, and all financing statements,
certificates, instruments and agreements delivered by any Person hereunder, as
they are modified or extended in accordance with their terms.
"Material Adverse Change" means a material and adverse change in
Company's and the Subsidiaries' financial condition, Properties or business
operations, taken as a whole.
"NADA Wholesale Value" means the wholesale value published in the most
recent NADA Small Boat Appraisal Guide, but if no wholesale value is available
for the boat in such guide, then it shall be the wholesale value published in
the most recent BUC Used Boat Price Guide.
"Operating Lease" means any operating lease or sublease, as defined in
accordance with GAAP.
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"Person" means an individual, partnership, joint venture, corporation,
limited liability company, trust, Governmental Body, association, unincorporated
organization or other entity.
"Plan" means any single employer plan, multiple employer plan or
multi-employer plan, within the meaning of ERISA, established by Company or any
of its Subsidiaries, or otherwise maintained at any time for any of Company's
and its Subsidiaries' employees.
"Property" means all types of real, personal, tangible or intangible
property.
"Retail Paper" means chattel paper and other instruments arising from
Company's or any of its Subsidiaries' sale or lease of goods or provision of
services in the ordinary course of business.
"Rights" means rights, remedies, powers and privileges.
"Solvent" means, with respect to any Person, that on such date (a) the
fair value of the Property of such Person is greater than the total amount of
liabilities (including Contingent Liabilities) of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as
they become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay as such debts and liabilities mature, and (d) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's Property would constitute an unreasonably
small capital.
"Subsidiary" means, as to any Person, any corporation or limited
liability company at least 50% of whose securities having ordinary voting power
(other than securities having such power only by reason of happening of a
contingency) are owned by such Person, or one or more Subsidiaries of that
Person, or a combination thereof.
"Tangible Net Worth" means, calculated for Company and its Subsidiaries
on a consolidated basis, shareholders' equity determined in accordance with
GAAP, minus items treated as intangibles under GAAP, amounts owing by any
employee, officer or other affiliate, and any other asset that cannot be
identified as tangible to Lender's satisfaction.
"Taxes" means all taxes, assessments, fees or other charges imposed by
any Law or Governmental Body.
"Termination Date" means April 1, 2001.
"Used Inventory" means Inventory of the Dealers that has been (a)
previously sold at retail, (b) registered, documented or titled in any state or
jurisdiction, (c) purchased or acquired by the Dealers from a source other than
the manufacturer, or (d) held by the Dealers for more than two years (and in the
case of Inventory covered by this clause (d), then the Dealers shall be deemed
to have held such Inventory as "Used Inventory" only from such two year date
onward).
ARTICLE II
ADVANCES
2.01. ADVANCES.
(a) Lender shall, subject to the terms and conditions set forth herein,
make Advances to the Borrowers from time to time until the Termination Date, to
fund the Dealers' acquisition of Inventory and for Company's general working
capital and operational purposes. Borrowers may borrow, repay and reborrow in
accordance with this Agreement. In no event may total outstanding Advances, plus
all Committed Advances, exceed the Commitment.
(b) Borrowers may use the proceeds of Advances to fund the Dealers'
acquisition of Inventory, for working capital purposes and for other purposes
satisfactory to Lender. No more than $10,000,000 (unless real estate is pledged
to Lender's satisfaction) may be outstanding at any time for Advances used by
Company for other working capital purposes.
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(c) Lender will send Company statements from time to time listing the
amount of each Advance. If Borrowers do not agree with a statement, they must
immediately notify Lender in writing of the objections. Borrowers' failure to
notify Lender of an objection within 10 business days shall constitute an
acceptance of the statement.
(d) In lieu of a promissory note or other instrument evidencing the
indebtedness hereunder, Lender will maintain records reflecting Borrowers'
outstanding indebtedness. Failure to make notation of any Advance, however, will
not affect the obligations of Borrowers. Entries in such records will be
presumed correct, absent manifest error.
2.02. MAKING ADVANCES. Company shall notify Lender at least one
Business Day prior to any proposed Advance; such notification may be oral, but
must be confirmed by telecopy or in writing by the date of the Advance. An
Approved Vendor may contact Lender directly for approvals constituting Committed
Advances, and Lender will disburse the proceeds of Advances under such approvals
directly to the vendor. Other Advances will be disbursed to Company to an
account or address specified by it. Lender may assume that the proceeds of
Advances are being used by the Dealers to acquire Inventory, unless Company
notifies Lender to the contrary at the time that the Advance is being made. Each
date of borrowing must be a Business Day.
2.03. PREPAYMENT AND REPAYMENT OF ADVANCES.
(a) Borrowers may terminate the Commitment, upon 30 days prior written
notice to Lender, and on the date specified for termination of the Commitment,
all outstanding Advances, accrued interest and charges, and other amounts owing
to Lender will be due and payable in full.
(b) In no event may the amount of outstanding Advances used for the
acquisition of Inventory (including Committed Advances for which the Dealers
have received the applicable Inventory) exceed the current Borrowing Base.
Concurrently with delivery of each Borrowing Base Certificate hereunder,
Borrowers shall repay a principal amount of Advances equal to any such excess.
(c) Company and each Dealer acknowledges and agrees that each is
jointly, severally and unconditionally liable for all Advances, accrued interest
and charges and all other amounts owing to Lender under this Agreement,
regardless of which entity requested the financing or received the funds and
regardless of whether such Advances, accrued interest and charges and other
amounts owing to Lender exist as of the date of this Agreement or hereafter
arise. Lender is authorized (in its sole discretion) to demand payment and
performance of obligations hereunder from any entity executing this Agreement,
in any order. Lender may from time to time modify, waive or release the
obligations of any Borrower, release or impair any security for the performance
of obligations of any such Borrower, or otherwise take or omit to take any
action with respect to any such Borrower or this Agreement, in every case
without affecting the liability of any other Borrower.
2.04. INTEREST ON ADVANCES. Advances shall bear interest at a per annum
rate equal to LIBOR plus 1.25%. Accrued interest is due and payable on each
Interest Payment Date. During the existence of an Event of Default, at the
option of Lender, amounts owing hereunder shall bear interest at a per annum
rate equal to LIBOR plus 4.25%, due and payable on demand.
2.05. COMPUTATIONS AND MANNER OF PAYMENTS. Interest will be calculated
on a simple interest basis for a year of 360 days, based on actual days elapsed.
If any payment is due on a date that is not a Business Day, the due date will be
extended to the next Business Day. Lender may, at any time and without notice to
Borrowers, apply monies received in payment of Borrowers' obligations in such
order of application as Lender shall determine. All payments shall be made in
United States dollars and without set-off, counterclaim or other defense.
Borrowers specifically agree that they will not delay payment of any obligations
to Lender, or assert any defense or set-off with respect to said obligations, on
account of a dispute between Company or one of its Subsidiaries and the vendor
or manufacturer of any Inventory.
ARTICLE III
CONDITIONS PRECEDENT
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3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS. The effectiveness of this
Agreement is subject to fulfillment of the following conditions precedent:
(a) Lender shall be satisfied, in its reasonable discretion, with
Company's and each Subsidiary's financial condition, Properties, business,
affairs or prospects as of the effective date.
(b) Borrowers shall have executed and delivered to Lender all of
Borrowers' Loan Papers, in form and substance satisfactory to Lender.
(c) The Dealers shall have delivered such financing statements and lien
filings as Lender shall request to record and perfect the Liens granted to
Lender under the Loan Papers. Lender shall have received such UCC and Lien
search reports as it shall deem appropriate to evidence that its Liens on the
Consolidated Collateral are first priority Liens, subject only to other Liens
acceptable to Lender in its sole discretion.
(d) Lender shall have received a certificate of a duly authorized
officer of Company, certifying that (i) no Default or Event of Default exists to
the best of the knowledge of the officer executing the certificate, (ii) the
representations and warranties set forth in Article V hereof are true and
correct in all material respects, and (iii) Borrowers have complied with all
agreements and conditions to be complied with by it under the Loan Papers by
such date.
(e) Lender shall have received a certificate of the secretary of each
of Borrowers, certifying (i) that attached copies of its articles of
incorporation, bylaws or other organizational documents are true and complete,
and in full force and effect, without amendment except as shown, (ii) that an
attached copy of resolutions authorizing execution and delivery of the Loan
Papers is true and complete, and that such resolutions are in full force and
effect, were duly adopted, have not been amended, modified, or revoked, and
constitute all resolutions adopted with respect to this loan transaction, and
(iii) to the incumbency, name and signature of each officer or representative
authorized to sign the Loan Papers on behalf of the entity. Lender may
conclusively rely on this certificate until it is otherwise notified by
Borrowers in writing.
(f) Lender shall have received an opinion of counsel to Borrowers (i)
that Borrowers have full power and authority to execute and deliver the Loan
Papers; (ii) that the Loan Papers constitute the legal, valid and binding
respective obligations of Borrowers, enforceable in accordance with their terms;
and (iii) as to such other matters, and otherwise in form and substance,
satisfactory to Lender.
(g) Lender shall have received evidence of insurance as required under
Sections 4.03 and 6.09 hereof.
(h) Lender shall have received copies of all appraisals and
environmental assessments that have been performed with respect to Company's and
its Subsidiaries' real estate, and such appraisals and environmental assessments
shall be in form and substance satisfactory to Lender.
(i) Lender shall have received evidence satisfactory to it that
Borrowers are duly organized, validly existing and in good standing in their
respective jurisdiction of organization, and are duly qualified and in good
standing in all other appropriate jurisdictions.
(j) All proceedings of Borrowers taken in connection with the
transactions contemplated hereby, and all documents incidental thereto, shall be
satisfactory in form and substance to Lender. Lender shall have received copies
of all documents or other evidence that it may reasonably request in connection
with such transactions.
3.02. REQUESTS FOR ADVANCES. Each request for an Advance and each
funding of an Advance by Lender (including the disbursement of an Advance
directly to an Approved Vendor) shall constitute a representation by Borrowers
that on each of the dates of the request and funding, the following are true:
(a) the representations and warranties contained in Article V
hereof are true and correct in all material respects on such
date, as though made on and as of such date, and
(b) no event has occurred or exists, or would result from such
Advance, that could constitute a Default or Event of Default.
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Lender may condition any Advance upon Lender's receipt, in form and substance
acceptable to it, of such other information as it may deem necessary or
appropriate. Notwithstanding the foregoing, even if the foregoing conditions are
not satisfied on the applicable disbursement date, Lender may fund a Committed
Advance that was committed when such conditions were satisfied, without being
deemed to have waived any conditions precedent nor to have established any
course of dealing.
ARTICLE IV
SECURITY INTEREST
4.01. SECURITY INTERESTS IN COLLATERAL. As security for all present and
future obligations of Borrowers to Lender, whether or not arising under this
Agreement, and of whatever kind, now due or to become due, absolute or
contingent, joint or several, each Dealer hereby grants to Lender a continuing
security interest and Lien on the following assets of each Dealer, whether now
owned or hereafter acquired and wherever located (collectively, "Collateral"):
(a) all of Dealer's Accounts;
(b) all of Dealer's Inventory;
(c) all of Dealer's other goods, equipment, fixtures and
furniture; and
(d) all insurance policies and proceeds relating to the foregoing;
all books and records relating to the foregoing; and all
proceeds and products of the foregoing.
4.02. DUTIES RELATING TO COLLATERAL. So long as this Agreement is in
effect or any amounts are owing to Lender, Borrowers agree that they shall:
(a) Keep accurate and complete records of the Consolidated Collateral;
keep all books and records relating to the Consolidated Collateral at Company's
address specified under or pursuant to Section 8.02 hereof; and provide at least
30 days advance written notice to Lender of any change in the location of any
such books and records;
(b) Promptly report and pay all Taxes and other charges against the
Consolidated Collateral; maintain a perfected, first priority Lien in favor of
Lender in the Consolidated Collateral, subject only to other Liens permitted
hereunder; and discharge all other Liens that from time to time attach to or are
asserted against the Consolidated Collateral;
(c) Pay all transportation and storage charges on the Consolidated
Collateral; and pay all rents and other amounts, if any, for the use of premises
on which any of the Consolidated Collateral is kept; and
(d) Take all actions appropriate for the collection and enforcement of
Accounts, and for the perfection of any liens securing Accounts; permit Lender
upon reasonable request to contact Account obligors to verify information
provided by Borrowers, and assist Lender in such verification process; and after
a Default or Event of Default, not adjust, settle or compromise the amount,
payment or performance of any obligations relating to Accounts, without the
prior consent of Lender.
4.03. INSURANCE OF COLLATERAL. Borrowers shall keep all Inventory
insured for full value against all insurable risks, on terms and with insurers
reasonably acceptable to Lender, and with Lender as the loss payee, assignee or
additional insured, as appropriate. Company shall provide notice to Lender in
writing at least 10 days before changing or canceling any policy. Each policy
shall require the insurer to give not less than 30 days prior written notice to
Lender of cancellation, and shall provide that Lender's interest will not be
impaired by any act or neglect of Borrowers or any other Person nor by any use
of the premises for purposes more hazardous than are permitted by the policy.
4.04. FURTHER ASSURANCES. Company shall, and shall cause the Dealers
to, execute such financing statements and other instruments and agreements, and
shall take such actions, as Lender shall request from time to time to evidence
or perfect any Lien granted under the Loan Papers. Unless prohibited by Law,
Dealers authorize
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Lender to execute and file any financing statement or other instrument or
agreement on behalf of Dealers for the foregoing purposes. The parties agree
that a copy of this Agreement, or any financing statement may be filed as a
financing statement in any appropriate jurisdiction, to the extent permitted by
Law. Each Dealer hereby ratifies and confirms the continuation of the security
interest granted to Lender pursuant to the Guaranty and Security Agreement
entered into previously by each Dealer and all parties hereto agree that the
grant of the security interest pursuant to this Section 4 shall not in any
manner be considered a novation of the grant of the security interest in the
aforesaid Guaranty and Security Agreement
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant that the following are true and
correct:
5.01. ORGANIZATION AND QUALIFICATION. Each of Company and its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its state of organization. Each of Company and its
Subsidiaries is qualified to do business in all jurisdictions where the nature
of its business or Properties require such qualification. Each Subsidiary of
Company as of the date of this Agreement is listed on Exhibit C hereto.
5.02. DUE AUTHORIZATION; VALIDITY. The Board of Directors of Borrowers
have duly authorized the execution, delivery and performance of its Loan Papers.
No consent of any shareholders of Borrowers is required as a prerequisite to the
validity and enforceability of its Loan Papers. Borrowers have full legal right,
power and authority to execute, deliver and perform under its Loan Papers. Such
Loan Papers constitute the legal, valid and binding obligations of Borrowers,
enforceable in accordance with their terms (subject as to enforcement of
remedies to any applicable bankruptcy, reorganization, moratorium, or similar
Laws or principles of equity affecting creditors' rights generally).
5.03. INTENTIONALLY OMITTED
5.04. CONFLICTING AGREEMENTS AND OTHER MATTERS. The execution or
delivery of any Loan Papers, and performance thereunder, do not conflict with,
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the creation of any
Lien on any Properties of Company or any Subsidiary under, or require any
consent, approval or action by or notice to any Governmental Body or other
Person (other than consents already obtained) pursuant to, the articles of
incorporation, bylaws or other organizational documents of Company or any
Subsidiary, or any Law or material agreement to which Company, any Subsidiary or
any of their Properties is subject.
5.05. FINANCIAL STATEMENTS. The financial statements of Company and its
Subsidiaries delivered to Lender fairly present Company's and its Subsidiaries'
results of operation, and Company's and its Subsidiaries financial conditions as
of the dates and for the periods shown, all in accordance with GAAP. Company's
financial statements (and notes thereto) reflect all material liabilities,
direct and contingent, of Company and its Subsidiaries that are required to be
disclosed in accordance with GAAP. None of Company and its Subsidiaries has
material Contingent Liabilities, liabilities for Taxes, forward or long-term
commitments, or unrealized or anticipated losses from any unfavorable
commitments that are not reflected in such financial statements. Each of Company
and its Subsidiaries is Solvent.
5.06. LITIGATION. Except as disclosed to Lender on Exhibit D attached
hereto, there is no Litigation pending or, to the best of Company's knowledge,
threatened against Company or any of its Subsidiaries on the date hereof that
involves a claim for damages or reasonably expected potential liability of
$1,000,000 or more. There is no pending or, to the best of Company's knowledge,
threatened Litigation against Company or any of its Subsidiaries that could
result in a Material Adverse Change.
5.07. LAWS REGULATING INCURRENCE OF DEBT. No proceeds of any Advance
will be used directly or indirectly to acquire any securities, without the prior
written consent of Lender. No Advance will be used to purchase or carry margin
stock (as defined in applicable Federal Reserve regulations), nor to extend
credit to others to do so. None of Company or its Subsidiaries is subject to
regulation under any Law that prohibits or restricts its incurrence of Debt in
any material respect.
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5.08. LICENSES, TITLE TO PROPERTIES, ETC. Each of Company and its
Subsidiaries possesses all material Licenses and is not in violation thereof in
any material respect. Each of Company and its Subsidiaries has full power,
authority and legal right to own and operate its Properties, and to conduct its
business. Each of Company and its Subsidiaries has good and indefeasible title
(fee or leasehold, as applicable) to its Properties, subject to no Lien of any
kind, except as permitted hereunder. None of Company and its Subsidiaries is in
violation of its articles of incorporation, bylaws or other organizational
documents, any award of any arbitrator, or any Law or material agreement to
which Company, any of its Subsidiaries or any of their Properties is subject. No
business or Property of Company or its Subsidiaries is affected by any strike,
lock-out or other labor dispute, material casualty, earthquake, embargo or act
of God. No event or circumstance has occurred or exists that constitutes or
could reasonably be expected to constitute a violation of, or breach or default
under, Company's settlement agreement with Brunswick Corporation.
5.09. OUTSTANDING DEBT AND LIENS. Company and its Subsidiaries have no
outstanding Debt, Contingent Liabilities or Liens, except as expressly permitted
hereunder.
5.10. TAXES. Each of Company and its Subsidiaries has filed all Tax
returns and reports which are required to be filed, and has paid all Taxes, to
the extent due and payable. All Tax liabilities of Company and its Subsidiaries
are adequately provided for on their books (including interest and penalties)
and adequate reserves have been established therefor in accordance with GAAP.
Except as disclosed to Lender, no taxing authority has notified Company or any
of its Subsidiaries of any material deficiency in a Tax return nor asserted any
material Tax liability in excess of that already paid.
5.11. EMPLOYEE BENEFITS. All employee benefits are provided in
accordance with all applicable Laws. Each Plan satisfies the minimum funding
standards under all applicable laws, and has no accumulated deficiency. None of
Company or its Subsidiaries has incurred any withdrawal liability nor engaged in
any prohibited transaction with respect to a Plan. None of Company or its
Subsidiaries has failed to make any payment to a Plan as required under
applicable laws, and no reportable event (as defined under ERISA) has occurred.
None of Company or its Subsidiaries has received any notice from any
Governmental Body or administrator of any potential termination of a Plan, and
no circumstance or event exists that could constitute grounds for the
termination of or appointment of a trustee to administer any Plan.
5.12. ENVIRONMENTAL LAWS. Company has delivered to Lender copies of all
environmental studies and reports conducted or received by Company or its
Subsidiaries in connection with any of their Properties. All Licenses have been
obtained or filed that are required under any Environmental Laws, unless the
failure to obtain or file same could not result in a Material Adverse Change. No
Hazardous Materials are generated or produced at or in connection with any
Properties or operations of Company or its Subsidiaries, and no Hazardous
Materials in any material amounts are released onto any Properties of Company or
its Subsidiaries.
5.13. DISCLOSURE. None of Company and its Subsidiaries has made a
material misstatement of fact, or failed to disclose any fact necessary to make
the facts disclosed not misleading, to Lender during the course of application
for and negotiation of this Agreement, the Loan and Security Agreement dated
April 7, 1998, Amendment No.1 to Loan and Security Agreement dated January 5,
1999 or otherwise in connection with any transactions contemplated hereby. There
is nothing known to Company or its Subsidiaries that could materially adversely
affect Company's or any of its Subsidiaries' financial condition, Properties or
business operations, or that could result in a Material Adverse Change, which is
not set forth herein or in notices hereafter delivered to Lender.
ARTICLE VI
COVENANTS
So long as this Agreement is in effect or any amounts are owing to
Lender, Borrowers agrees as follows:
6.01. FINANCIAL COVENANTS; GUARANTIES.
(a) Company shall maintain a Current Ratio of at least: (i) 1.10 to 1
for the period from October 1 through June 30 of each year and (ii) 1.20 to 1
for the period from July 1 through September 30 of each year.
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(b) Company shall maintain a Leverage Ratio of not more than: (i) 5.5
to 1 at the end of each calendar month for the period from January through June
of each year, and (ii) 2.75 to 1 at the end of each calendar month for the
period from July through December of each year.
(c) Company shall maintain an Fixed Charges Coverage Ratio of at least
1.0 to 1 at the end of each month.
6.02. DEBT; OPERATING LEASES. Company shall not, and shall not permit
any of its Subsidiaries to, incur, assume or be liable in any manner for any
Debt without the consent of Lender, which consent shall not be unreasonably
withheld, except (a) Debt under the Loan Papers, (b) existing Debt shown on
Exhibit B hereto, (c) any Debt obligation to finance the acquisition of marine
related Inventory by Subsidiaries that are not Dealers in an amount not to
exceed $10,000,000, (d) Capital Leases and Debt incurred to acquire equipment
used in Company's or the Subsidiary's business (including refinancings thereof),
in an amount not to exceed $3,000,000 in the aggregate at any time, (e) Debt,
other than for the acquisition of marine related Inventory, incurred, assumed or
otherwise owing by Company or its Subsidiaries that are not Dealers in
connection with a marine related acquisition or a marine related merger in an
amount not to exceed $5,000,000 in any single transaction, unless such
transaction would result in the Company and its Subsidiaries being obligated to
make cash payments for marine related acquisitions and marine related merger
Debt in excess of $7,500,000 in any fiscal year, (f) other Debt subordinated to
repayment of amounts owing hereunder on terms satisfactory to Lender, and
otherwise acceptable to Lender in its sole discretion, and (g) trade payables
incurred and paid in the ordinary course of business. Company and its
Subsidiaries shall not enter into or be party to Operating Leases requiring
total rental payments during any fiscal year in excess of $4,000,000 in the
aggregate.
6.03. CONTINGENT LIABILITIES. Company shall not, and shall not permit
any of its Subsidiaries to, incur, assume or be liable in any manner for any
Contingent Liabilities without the consent of Lender, which consent shall not be
unreasonably withheld, except (a) those resulting from the endorsement of
negotiable instruments for collection in the ordinary course of business, or (b)
Contingent Liabilities of Company and its Subsidiaries relating to Debt secured
solely by real property of Company and its Subsidiaries, and in existence on the
date hereof, (c) existing Contingent Liabilities shown on Exhibit B hereto, (d)
Contingent Liabilities of Company created in connection with an acquisition or
merger, as approved by Lender in its reasonable discretion, and (e) Contingent
Liabilities of Company for obligations of its direct or indirect wholly-owned
Subsidiaries.
6.04. LIENS. Company shall not, and shall not permit any of its
Subsidiaries to, create or suffer to exist any Lien upon any of its Properties
without the consent of Lender, which consent shall not be unreasonably withheld,
except (a) Liens hereunder, (b) Liens securing Debt, as shown on Exhibit B
hereof, (c) Liens effected by or relating to Capital Leases or other Debt
permitted under Section 6.02(c) and (d) hereof, encumbering only the assets
leased thereunder or acquired with proceeds thereof, (d) Liens satisfactory to
Lender securing Debt or Contingent Liabilities permitted under Section 6.02(e)
or (f) hereof, or Section 6.03(b) hereof, and (e) Tax, mechanics' and
materialmen's Liens relating to amounts that are not yet due and payable, or
that are being contested in good faith by appropriate proceedings, for which
adequate reserves have been established.
6.05. AMENDMENT OF ORGANIZATIONAL DOCUMENTS. Borrowers shall not, amend
or modify, or permit the amendment or modification of, their articles of
incorporation, bylaws or other organizational documents in any material respect,
without the prior written consent of Lender (which will not be unreasonably
withheld).
6.06. LAWS, LICENSES AND MATERIAL AGREEMENTS.
(a) Company shall, and shall cause its Subsidiaries to, obtain and
comply in all material respects with all applicable Laws and Licenses. Company
and its Subsidiaries shall maintain all Plans such that the representation and
warranty in Section 5.11 hereof is true at all times.
(b) Company shall, and shall cause its Subsidiaries to, maintain and
comply in all material respects with all material agreements necessary or
appropriate for their businesses and Properties, other than defaults arising
under due on sale clauses in mortgages and deeds of trust securing the Debt
shown on Exhibit B hereto. Company shall comply with its settlement agreement
with Brunswick Corporation in all material respects. Company shall not
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take any action or suffer to exist any circumstance that could violate, or
constitute a breach under or grounds for termination of, such agreement.
6.07. DISPOSITION OF ASSETS. Company shall not, and shall not permit
any of its Subsidiaries to, sell, transfer, encumber or lease any of their
assets without the consent of Lender, which consent shall not be unreasonably
withheld, except (a) sales or leases of Inventory in the ordinary course of
business, (b) dispositions of obsolete or useless assets, (c) transfers of
Assets between wholly-owned Subsidiaries of Company, and (d) dispositions of
Retail Paper in the ordinary course of business,. Upon any sale of Retail Paper
by any of the Dealers in the ordinary course of business, Lender's Liens in such
Retail Paper shall be automatically released, without any further action by
Lender.
6.08. MERGERS; INVESTMENTS; BUSINESS. Company shall not, and shall not
permit any Subsidiary of Company to, merge into, consolidate with or make any
Investment in any Person, permit any other Person to merge into or consolidate
with it, or form or acquire any new Subsidiary, without Lender's prior written
consent (which shall not be unreasonably withheld), except mergers or
consolidations of a wholly-owned Subsidiary of Company with or into Company or
another wholly-owned Subsidiary. Lender expressly acknowledges that it is
Company's growth strategy to pursue strategic acquisitions that are beneficial
to its business. Within 30 days after Company's acquisition or formation of any
direct or indirect Subsidiary hereafter, Company shall notify Lender in writing
of such acquisition or formation. None of Company and its Subsidiaries shall
change the nature of its business as now conducted.
6.09. INSURANCE. Except as otherwise required by Section 4.03 hereof,
Company shall, and shall cause its Subsidiaries to, (a) keep its insurable
Properties adequately insured at all times by financially sound and reputable
insurers to such extent and against such risks, including fire and other risks
insured against by extended coverage, as is customary with companies similarly
situated and in the same or similar businesses, (b) maintain in full force and
effect public liability and workers compensation insurance, in amounts customary
for such similar companies to cover normal risks, by insurers satisfactory to
Lender, and (c) maintain such other insurance as may be required by Law or
reasonably requested by Lender. Company shall deliver evidence of renewal of
each insurance policy on or before the date of its expiration, and from time to
time shall deliver to Lender, upon demand, evidence of the maintenance of such
insurance. Company shall promptly deliver to Lender copies of all reports
provided to insurers by Company or any of its Subsidiaries.
6.10. INSPECTION RIGHTS. Company shall, and shall cause its
Subsidiaries to, permit Lender, upon reasonable notice and during normal
business hours, to examine and make copies of and abstracts from any of their
books and records, to inspect their Properties and to discuss their affairs with
any of their directors, officers, managerial employees or accountants, all as
Lender may reasonably request.
6.11. RECORDS; CHANGES IN GAAP; YEAR 2000 COMPATIBILITY. Company shall,
and shall cause its Subsidiaries to, keep adequate books and records in
conformity with GAAP. Company shall not change its fiscal year nor change, or
permit any of its Subsidiaries to change, its method of financial accounting
except in accordance with GAAP. In connection with any change in accounting
methods resulting from a change in GAAP, Company and Lender shall make
appropriate alterations to the covenants set forth in Section 6.01 hereof,
reflecting such change. Company shall take all action necessary to assure that
its and its Subsidiaries' computer-based systems are able to materially operate
and materially effectively process data having dates on or after January 1,
2000.
6.12. REPORTING REQUIREMENTS. Company shall furnish to Lender:
(a) By the 15th day of each month, a Borrowing Base Certificate
prepared on a consolidated basis for Company and the Dealers as of the close of
business for the preceding month and accompanied by detailed Inventory, accounts
payable aging and receivable aging reports, in form and substance satisfactory
to Lender and certified as true and complete by an officer of Company;
(b) As soon as available and in any event within 20 days after the end
of each month, a balance sheet and statement of income of Company and its
Subsidiaries for such month and for the portion of the fiscal year ending with
such month, prepared on a consolidated basis in accordance with GAAP in
reasonable detail, and certified by an officer of Company (in a manner
satisfactory to Lender) as fairly presenting the financial condition and results
of operations of Company and its Subsidiaries, together with a Compliance
Certificate;
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(c) As soon as available and in any event within 120 days after the end
of each fiscal year of Company, an audited balance sheet and statements of
income and cash flows of Company and its Subsidiaries for such fiscal year,
prepared on a consolidated basis in accordance with GAAP in reasonable detail
and accompanied by an unqualified opinion of independent certified public
accountants acceptable to Lender, together with a Compliance Certificate;
(d) Promptly upon receipt thereof, copies of all material reports or
letters submitted to Company or any of its Subsidiaries by any auditors or
accountants in connection with any annual, interim or special audit;
(e) As soon as possible but at least 60 days prior to the commencement
of each fiscal year, a monthly business plan of Company and its Subsidiaries for
such year, including a projected balance sheet and income statements,
accompanied by a statement of assumptions and certified by an officer of Company
in a manner acceptable to Lender;
(f) Promptly upon the filing thereof, copies of all filings made by
Company or any of its Subsidiaries with the Securities and Exchange Commission;
(g) As soon as possible and in any event within five Business Days
after knowledge thereof by an officer of Company or any of its Subsidiaries, a
notice of the occurrence of any material Default or material Event of Default,
setting forth the details thereof, and the action being taken or proposed to be
taken with respect thereto;
(h) As soon as possible and in any event within five Business Days,
notice of any Litigation pending or threatened against Company or any of its
Subsidiaries which, if determined adversely, could result in damages in excess
of $500,000 or more or any other Material Adverse Change, together with a
statement of an officer of Company describing the allegations of such
Litigation, and the action being taken or proposed to be taken with respect
thereto;
(i) Promptly after filing or receipt thereof, copies of all reports and
notices that Company or any of its Subsidiaries furnishes to or receives from
any holders of any Debt or Contingent Liability relating to a material breach,
default or event of default thereunder, or otherwise relating to any event or
circumstance that could result in a material Default or material Event of
Default; and
(j) Promptly upon request, such information concerning the Borrowing
Base, Accounts, Inventory, Company's or its Subsidiaries' financial condition,
Properties, business, affairs or prospects, and other matters, as Lender may
from time to time reasonably request.
6.13. TRANSACTIONS WITH AFFILIATES. Except as permitted herein, Company
shall not, and shall not permit any of its Subsidiaries to, enter into or be
party to a transaction with an Affiliate (except Company or a direct or indirect
wholly-owned Subsidiary of Company), except on terms no less favorable than
could be obtained on an arm's-length basis with a Person that is not an
Affiliate. Company shall not, and shall not permit any of its Subsidiaries to,
make any loans or advances to any of its officers, shareholders or other
Affiliates (except a direct or indirect wholly-owned Subsidiary of Company),
except advances made for customary travel expenses incurred in the conduct of
Company's business. Company shall not, and shall not permit any of its
Subsidiaries to, make any loans or advances to any Subsidiary of Company, unless
such Subsidiary is directly or indirectly wholly-owned by Company.
ARTICLE VII
EVENTS OF DEFAULT
7.01. EVENTS OF DEFAULT. Each of the following shall be an "Event of
Default" hereunder, if the same shall occur for any reason whatsoever, whether
voluntary or involuntary, by operation of Law or otherwise:
(a) Borrowers shall fail to pay any principal owing hereunder when due;
or Borrowers shall fail to pay any interest or other amounts payable under any
Loan Papers within 15 days after the due date therefor;
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(b) Any material representation or warranty of any Borrower made in
connection with this Agreement or any transactions contemplated hereby shall be
incorrect or misleading in any material respect when given;
(c) Any Borrower shall fail to perform or observe any other term or
covenant contained in any of their respective Loan Papers, and such default
shall not be cured within 30 days after the earlier of knowledge thereof by an
officer of such Borrower, or after written notice of the default is delivered by
Lender to Company, but if the default is subject to cure and the cure is being
diligently pursued by appropriate means at the end of such 30 days, then such
Borrower, shall have an additional 30 days thereafter to complete the cure;
(d) Any provision of any Loan Papers shall, for any reason, not be
valid and binding on any Borrower; any Borrower shall not have been Solvent when
it delivered this Agreement to Lender; or any breach, default or event of
default shall occur or exist under any Loan Papers after any applicable grace
period;
(e) Any of the following shall occur: (i) Company or any of its
Subsidiaries shall make an assignment for the benefit of creditors, be insolvent
or unable to pay its debts as they come due, or cease to be Solvent; (ii)
Company ceases doing business as a going concern; (iii) any Subsidiary shall
cease doing business as a going concern without the consent of Lender, which
consent shall not be unreasonably withheld; (iv) Company or any of its
Subsidiaries shall petition any Governmental Body for the appointment of a
trustee, receiver or liquidator of it or any of its assets, or shall commence
any proceedings under any bankruptcy, reorganization, insolvency, moratorium,
liquidation or other debtor relief Laws; (v) any petition shall be filed, or any
such proceedings shall be commenced, against Company or any of its Subsidiaries
under any such Laws and the same is not dismissed or otherwise discharged within
90 days, or an order, judgment or decree shall be entered approving such
petition or appointing any trustee, receiver or liquidator for Company or any of
its Subsidiaries, or any of their assets; or (vi) any final order, judgment or
decree shall be entered decreeing Company's or any of its Subsidiaries'
dissolution, split-up or divestiture of assets;
(f) Any lender(s) under any of the real estate Debt shown on Exhibit B
hereto shall declare such Debt due and payable prior to its stated maturity as a
result of breach of a due-on-sale clause, and such action shall result in a
Material Adverse Change; Company or any of its Subsidiaries shall fail to make
any payment when due with respect to any other Debt or Contingent Liability of
$1,000,000 or more in the aggregate, and such failure shall continue after any
applicable grace period; Company or any of its Subsidiaries shall fail to
observe any term or condition of any agreement relating to any other Debt or
Contingent Liability of $1,000,000 or more in the aggregate, and such failure
shall continue after any applicable grace period; or any such other Debt or
Contingent Liability shall be declared to be due and payable, or required to be
prepaid, prior to the stated maturity thereof; provided, however, it shall not
be an Event of Default if Company or any of its Subsidiaries shall fail to make
any payment when due with respect to any Debt to a manufacturer or vendor of
Inventory if Company or any of its Subsidiaries are in good faith contesting the
payment of such Debt and the aggregate amount of all such contested Debt does
not exceed $2,500,000;
(g) Company and its Subsidiaries shall have any final judgment(s)
outstanding against them for the payment of $2,000,000 or more in excess of
insurance, and such judgment(s) shall remain unstayed and unpaid for over 30
days;
(h) There shall be an issuance of an order of attachment against
Company, any of its Subsidiaries or any material portion of their Properties, or
there shall be damage to or destruction of a substantial part of Company's or
any of its Subsidiaries' assets that is not covered by insurance;
(i) Any investigation or proceeding shall be instituted against Company
or any of its Subsidiaries under or with respect to any Environmental Laws that
could reasonably be expected to result in any penalty, fine, remediation costs
or other damages of $2,000,000 or more in excess of insurance;
(j) Company shall have any material change in its management, without
prior consent of Lender, or there shall be a Change in Control; or
(k) Lender shall determine that there has been a Material Adverse
Change.
7.02. REMEDIES UPON DEFAULT. If an Event of Default described in
Section 7.01(e) hereof shall occur with respect to Company or any Borrower all
amounts owing to Lender shall, to the extent permitted by applicable
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Law, become immediately due and payable without any action by Lender, and
without diligence, presentment, demand, protest, notice of protest or intent to
accelerate, or notice of any other kind, all of which are hereby waived to the
fullest extent permitted by Law. If any other Event of Default shall occur and
be continuing, Lender may do any one or more of the following from time to time:
(a) Declare all Advances, interest and other amounts owing to Lender
immediately due and payable, whereupon they shall be due and payable without
diligence, presentment, demand, protest, notice of protest or intent to
accelerate, or notice of any other kind, all of which are hereby waived to the
fullest extent permitted by Law;
(b) Terminate or reduce the Commitment; and/or
(c) Exercise any other Rights afforded under any agreement, by Law, at
equity or otherwise, including those Rights of a secured party under the Uniform
Commercial Code in effect in any jurisdiction where the Collateral is kept. Such
Rights shall include the right to cancel any Committed Advances, to direct
Dealers to return any Inventory to a vendor or manufacturer thereof for credit
or refund, to enter any of Borrowers' premises with or without legal process,
but without force, and/or to take possession of and remove Collateral, and books
and records relating to Collateral. At Lender's request during an Event of
Default, Company and the Dealers will assemble, prepare for removal and make
available to Lender at a place to be designated by Lender which is reasonably
convenient to both parties such items of Collateral as Lender may from time to
time request. During the continuance of an Event of Default, Lender may take
control of any funds generated by the Collateral, notify Account obligors to
make payment to an account or location designated by Lender, and in Lender's
name or Dealer's name, demand, collect, receipt for, settle, compromise, xxx
for, repossess, accept returns of, foreclose or realize upon any Collateral,
including without limitation Accounts and related instruments and security
therefor. Borrowers waive any and all rights that any of them may have to a
notice prior to seizure by Lender of any Collateral. Ten days written notice of
a public sale date or the date after which a private sale may occur shall be a
reasonable notice. Lender shall not be chargeable with responsibility for the
accuracy or validity of any document or for the existence or value of any
Collateral, and shall not be liable for failure to collect any amounts owing on
an Account or instrument. Borrowers waive all relief from all appraisement,
valuation, deficiency or exemption laws now in force or hereafter enacted.
Lender shall not be required and Borrowers hereby waive any and all rights to
require Lender, (i) to prosecute or seek to enforce any remedies against any
particular Borrower and/or (ii) to require Lender to seek to enforce or resort
to any remedies with respect to any security interests, liens or encumbrances
granted to Lender by any particular Borrower. Lender, at its sole discretion,
may enforce this Agreement against any Borrower or any Collateral of any
Borrower. LENDER SHALL NOT BE LIABLE FOR ANY ACT OR OMISSION OF ITS OFFICERS,
AGENTS OR EMPLOYEES, ABSENT GROSS NEGLIGENCE OR WILFUL MISCONDUCT.
7.03. POWER OF ATTORNEY. Dealers hereby irrevocably appoint Lender,
including any officer or employee of Lender as Lender may designate, as Dealers'
true and lawful attorney-in-fact with power of substitution to do the following
acts on behalf of Dealers' during the continuance of any Event of Default: to
prepare, execute and deliver in the name of Dealers security instruments,
financing statements, lien filings and certificates of title relating to
Collateral; to endorse the Dealers name upon any notes, checks, drafts, money
orders and other forms of instruments made payable to any Dealer and relating to
Collateral; and generally to perform all acts and do all things necessary and
proper in connection with the transactions contemplated hereby or in discharge
of the powers hereby conferred, including the making of affidavits and the
acknowledgment of instruments as fully as if done by the Dealers. The foregoing
powers are coupled with an interest and shall be irrevocable, as long as the
Commitment or any obligations of Borrowers to Lender remain outstanding.
7.04. CUMULATIVE RIGHTS. All Rights available to Lender under the Loan
Papers shall be cumulative of and in addition to all other Rights under any
other agreement, at Law or in equity. The acceptance by Lender at any time and
from time to time of partial payment of any amount owing under any Loan Papers
shall not be deemed to be a waiver of any Event of Default then existing. No
waiver by Lender of an Event of Default shall be deemed to be a waiver of any
Event of Default other than such Event of Default. No delay or omission by
Lender in exercising any Right under the Loan Papers shall impair such Right or
be construed as a waiver thereof or an acquiescence therein, nor shall any
single or partial exercise of any Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
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7.05. PERFORMANCE BY LENDER; EXPENDITURES. Should any covenant of
Borrowers fail to be performed in accordance with the terms of the Loan Papers,
Lender may, at its option, attempt to perform such covenant on behalf of
Borrowers. It is expressly understood, however, that Lender does not assume and
shall never have any liability or responsibility for the performance of any
obligations of Borrowers. Any amounts expended or incurred by Lender in the
performance of any such act or in the enforcement of this Agreement (including
reasonable attorneys' fees) shall constitute part of the obligations secured
hereunder, will bear interest at the default rate hereunder and will be payable
upon demand.
7.06. CONTROL. None of the provisions hereof shall be deemed to give
Lender any right to exercise control over the affairs and/or management of
Company or any of its Subsidiaries, which the parties agree is retained by
Company and its Subsidiaries.
ARTICLE VIII
MISCELLANEOUS
8.01. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision
of any Loan Papers, nor consent to any departure by Company or any Dealer
therefrom, shall be effective unless the same shall be in writing and signed by
Lender, and then any such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
8.02. NOTICES. Unless otherwise provided herein, all notices, demands
and other communications under the Loan Papers shall be in writing and shall be
personally delivered, sent by telecopy or telex (answerback received), or sent
by certified mail, postage prepaid, to the following addresses:
(a) If to Borrowers:
MarineMax, Inc.
00000 X.X. 00 Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx XxXxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxx, Esq.
X'Xxxxxx, Cavanagh, Anderson, Xxxxxxxxxxxxx & Xxxxxxxx
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
(b) If to Lender:
NationsCredit Distribution Finance, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Marine Group Operations Manager
Fax: (000) 000-0000
and
NationsCredit Distribution Finance, Inc.
00000 Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxx X. Xxxxx, Xx., Esq.
NationsBank Corporation
00000 Xxxxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Fax: (000) 000-0000
-16-
17
or to such other address as any party shall hereafter designate in written
notice to the other party. All notices, demands and other communications will be
effective when so personally delivered or sent by telecopy or telex, or five
days after being so mailed; provided, however, that notices to Lender pursuant
to Article II hereof shall only be effective when received.
8.03. PARTIES IN INTEREST. The Loan Papers shall bind and inure to the
benefit of the parties hereto, and their successors and assigns. Lender may from
time to time assign its rights or obligations hereunder, but Borrowers may not
assign or transfer its rights or obligations hereunder (whether voluntarily or
by operation of Law), without the prior written consent of Lender.
8.04. COSTS, EXPENSES AND TAXES. Borrowers, jointly and severally,
agree to pay on demand (a) all costs and expenses (including reasonable
attorneys' fees) of Lender in connection with any extension, modification,
waiver or release of any Loan Papers, and (b) all costs and expenses of Lender
incurred in any work-out or enforcement of any Loan Papers, including reasonable
attorneys' fees and the costs and expenses of environmental or other
consultants. Borrowers shall pay any stamp, debt, recordation, withholding and
other Taxes payable in connection with any Loan Papers or payments thereunder
(other than Taxes on the overall net income of Lender), and agrees to save
Lender harmless from and against all liabilities relating to any Taxes. All
payments by Borrowers shall be made free and clear of and without deduction for
any Taxes of any nature now or hereafter existing.
8.05. INDEMNIFICATION BY BORROWERS. BORROWERS, JOINTLY AND SEVERALLY,
AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS LENDER, ITS AFFILIATES, AND ALL OF
THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS,
ATTORNEYS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS,
LOSSES, DAMAGES, PENALTIES, ACTIONS, JUDGMENTS, SUITS, CLAIMS, COSTS, EXPENSES
AND DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER WHICH MAY BE IMPOSED ON,
INCURRED BY OR ASSERTED AGAINST ANY OF THEM IN ANY WAY RELATING TO OR ARISING
OUT OF ANY LOAN PAPERS, ANY TRANSACTION RELATED HERETO OR THERETO, OR ANY ACT,
OMISSION OR TRANSACTION OF COMPANY, ITS SUBSIDIARIES OR ANY OF THEIR AFFILIATES,
OR ANY OF THEIR DIRECTORS, OFFICERS, AGENTS, EMPLOYEES OR REPRESENTATIVES;
PROVIDED, HOWEVER, THAT BORROWERS SHALL NOT INDEMNIFY, DEFEND AND HOLD HARMLESS
ANY INDEMNIFIED PERSON FOR LOSSES OR DAMAGES THAT BORROWERS PROVE WERE CAUSED BY
SUCH PERSON'S WILLFUL MISCONDUCT, GROSS NEGLIGENCE OR OTHER NEGLIGENCE. LENDER
SHALL NOT BE LIABLE TO BORROWERS OR ITS SUBSIDIARIES FOR ANY CONSEQUENTIAL
DAMAGES. This indemnity shall survive repayment of Borrowers' obligations to
Lender.
8.06. HAZARDOUS WASTE INDEMNIFICATION. Borrowers, jointly and
severally, shall indemnify and hold harmless Lender, its Affiliates, and all of
their directors, officers, employees, representatives, agents, successors,
attorneys and assigns, from and against any loss, damage, cost, expense or
liability directly or indirectly arising out of or attributable to the use,
generation, manufacture, treatment, production, storage, release, threatened
release, discharge, disposal or presence of any Hazardous Materials on, under or
about Company's or its Subsidiaries' property or operations or property leased
to Company or its Subsidiaries, including but not limited to attorneys' fees
(including the reasonable estimate of the allocated cost of in-house counsel and
staff). This indemnity shall survive repayment of Borrowers' obligations to
Lender.
8.07. DISCLAIMER OF WARRANTY. BORROWERS ACKNOWLEDGE THAT LENDER HAS
MADE NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY INVENTORY OR OTHER
CONSOLIDATED COLLATERAL, INCLUDING ANY WARRANTY OF MERCHANTABILITY. BORROWERS
IRREVOCABLY WAIVE ANY CLAIMS AGAINST LENDER WITH RESPECT TO THE INVENTORY AND
OTHER CONSOLIDATED COLLATERAL WHETHER FOR BREACH OF WARRANTY OR OTHERWISE. Any
such claims shall not alter, diminish or otherwise impair Borrowers' liabilities
or obligations to Lender under the Loan Papers. Lender does not assume any
obligations of Borrowers relating to the Inventory, any Accounts, any contract
obligations, or any other obligations or duties arising from the Consolidated
Collateral.
8.08. RATE PROVISION. It is not the intention of any party to any Loan
Papers to make an agreement violative of the Laws of any applicable jurisdiction
relating to usury. In no event shall Borrowers be obligated to pay any amount in
excess of the maximum amount of interest permitted under applicable Law. If from
any circumstance
-17-
18
Lender shall ever receive anything of value deemed excess interest under
applicable Law, an amount equal to such excess shall be applied to the reduction
of the principal amount of outstanding Advances and any remainder shall be
refunded to the payor.
8.09. SEVERABILITY; COUNTERPARTS. If any provision of any Loan Papers
is held to be illegal, invalid or unenforceable under present or future Laws
during the term thereof, such provision shall be fully severable, and the Loan
Papers shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part thereof. This Agreement and
the other Loan Papers may be executed in any number of counterparts.
8.10. GOVERNING LAW. This Agreement and the other Loan Papers shall be
governed by and construed in accordance with the laws of the State of Georgia.
The state and federal courts located in Atlanta, Georgia, including the U.S.
District Court for the Northern District of Georgia, shall have jurisdiction to
determine any claim or dispute pertaining to this Agreement. The parties
expressly submit and consent to such jurisdiction, and waive any claim of
inconvenient forum.
8.11. WAIVER OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY THE LAWS
OF ANY FORUM STATE, THE PARTIES HERETO WAIVE ANY RIGHT TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT, THE OTHER LOAN PAPERS OR
ANY RELATED MATTERS.
8.12. ENTIRE AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL
AGREEMENTS BETWEEN THE PARTIES.
8.13 RELEASE OF GUARANTORS.
(a) Lender hereby releases and discharges each of the Subsidiaries of
Company that are not Dealers from any and all obligations, claims and demands
whatsoever arising from or relating to their respective Guaranty and Security
Agreements heretofore delivered to Lender. Lender terminates and releases all
security interests and liens granted by such Guaranty and Security Agreements.
(b) Upon satisfactory evidence that all necessary financing statements
and termination statements have been filed, Lender shall release and discharge
each of the Dealers from the guaranty obligations (but not the grant of the
security interest therein) in their respective Guaranty and Security Agreements
heretofore delivered to Lender. It is acknowledged that the obligations under
the Guaranty and Security Agreement are hereby assumed hereunder.
(c) Lender hereby releases and discharges Xxxxxxx X. Xxxxxxx, Xxxxx X.
Xxxxxxxx, Xx., Xxxxxxx X. XxXxxx. Jr., Xxxxx Xxxxxxxx, Xxxxxxx X. XxXxxxx, Xx.,
Xxxx Xxxxxx Xxxxxxx, Xxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx and any other "Individual
Guarantor" from any and all obligations, claims and demands whatsoever arising
from or relating to their respective Guaranty's heretofore delivered to Lender
IN WITNESS WHEREOF, this Amended and Restated Loan and Security
Agreement is executed as of the date first set forth above.
MARINEMAX, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
-18-
19
MARINEMAX MOTOR YACHTS, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
MARINEMAX OF BREVARD COUNTY, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
MARINEMAX OF TREASURE COVE, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
MARINEMAX OF NORTH CAROLINA, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
XXXXXXX BOAT COMPANY OF FLORIDA
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
C & N MARINE CORPORATION
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
COCHRANS MARINE, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
GULFWIND SOUTH, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
GULFWIND USA, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
XXXXXXX MARINE, INC.
/s/ Xxxxxxx X. XxXxxx
By_____________________________________________
Title: Vice President
-19-
20
NATIONSCREDIT DISTRIBUTION FINANCE, INC.
/s/ Xxxxx X. Xxxxxx
By_____________________________________________
Title: Sr. Vice President
NATIONSBANK, N.A.
/s/ Xxxxx X. Xxxxxx
By_____________________________________________
Title Sr. Vice President
-20-
21
Exhibit A
To
Amended and Restated Loan and Security Agreement
BORROWING BASE CERTIFICATE
22
BORROWING BASE CERTIFICATE
NationsCredit Distribution Finance, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
This Borrowing Base Certificate is made for the month ending _________.
The undersigned is the _________________ of MarineMax, Inc., a Delaware
corporation ("Company"). This Certificate is delivered pursuant to the Amended
and Restated Loan and Security Agreement dated March 18, 1999, between Company
and NationsCredit Distribution Finance, Inc., and NationsBank, N.A. ("Lender"),
as such agreement may be amended, modified, supplemented, renewed or extended
from time to time ("Loan Agreement"). Terms are used herein as defined in the
Loan Agreement.
The following calculation of the Borrowing Base is made in accordance
with the applicable provisions of the Loan Agreement, and is true and correct in
all material respects as of the end of the aforesaid month:
ELIGIBLE INVENTORY:
NEW (cost plus freight charges)
<366 days from invoice (100%) $
-----------------
> 365 but < 731 days from invoice (90%) $
-----------------
TOTAL NEW, maximum $105MM $
----------------
USED
<181 days old (80% NADA or BUC) $
-----------------
> 180 but < 366 days old (72% NADA or BUC) $
-----------------
TOTAL USED, maximum $25MM $
----------------
PARTS
75% of cost (excl. freight), maximum $15MM $
----------------
TOTAL INVENTORY - maximum $105MM $
----------------
ELIGIBLE ACCOUNTS
Total Accounts $
----------------
Less Ineligible Accounts
Account balances 90+ $
-----------------
Concentrations >5% (except Brunswick) $
-----------------
Contra Balances $
-----------------
Other $
-----------------
Total Ineligible Accounts ($ )
----------------
TOTAL ELIGIBLE ACCOUNTS - 80% net book
value, maximum $25MM $
==================
BORROWING BASE AVAILABILITY - max $105MM $
==================
OUTSTANDING BALANCE OF INVENTORY ADVANCES ($ )
----------------
AVAILABILITY (SHORTAGE) $
==================
Attached hereto are detailed Inventory, accounts payable aging and
receivable aging reports as of close of business for the month covered by this
Certificate, which reports are certified as true and complete in all material
respects. Any repayment of Advances required under Section 2.03(b) of the Loan
Agreement is delivered with this Certificate.
Company represents and warrants to Lender that, except as previously
disclosed to Lender in writing, the representations and warranties contained in
the Amended and Restated Loan and Security Agreement are true and correct in all
material respects as of the date hereof, and there is no material Default or
material Event of Default on the date hereof.
MARINEMAX, INC.
By________________________________
Title: Vice President
23
Exhibit B
To
Amended and Restated Loan and Security Agreement
DEBT, LIENS AND CONTINGENT LIABILITIES
24
Existing Debt and Liens
APPROX.
PAYOR DEBT CREDITOR MATURITY DATE COLLATERAL
----- ---- -------- ------------- ----------
11502 Xxxxx, Inc. 1,318,135 Transamerica Commercial N/A Floor Plan-Boaters World
Finance Corporation
Xxxxxxxx'x Boat Center, 9,483 Valley National 96 Chevy
Inc. Financial Services Co. Various
Maturity
Dates
Between
the
years
1999
and
2002
4,737 Sea West Federal Credit Dodge 1 Ton
Xxxxxxxx'x Marine Centers 822 Bank One, NA Dodge Truck
of Arizona, Inc.
11,277 Bank One, NA Ford 250
3,936 Xxxx Deere Credit Xxxxxxx
0,000 Xxxx Xxx, Xxxxxxx, XX 00 Ford 150
17,077 Bank One, NA 97 Ford 250
*Xxxxxxxx'x Realty, L.L.C. 387,000 U.S. Small Business 10/2013 0000 X. Xxxxxxxx Xxxx
Xxxxxxxxxxxxxx Xxxxx, XX
Development Company
MarineMax of North 75,716 First Union 1/2014 Slip F-4
Carolina, Inc.
76,934 First Union 9/2009 Slip G-11
191,692 First Union 2/2010 Slip A-9
Gulfwind USA, Inc. 617,000 First Union National 8/2002 18025 U.S. 19 North
Bank of Florida Clearwater, FL
Gulfwind South, Inc. 2,000 Icon 12/2002 Lease
*Real property transferred subject to debt of transferor. Debt may not have been
assumed by Payor listed above and may be subject to due on transfer
requirements.
25
APPROX.
PAYOR DEBT CREDITOR MATURITY COLLATERAL
----- ---- -------- -------- ----------
DATE
----
Gulfwind South Realty, 1,644,000 Key Bank National 4/2002 0000 0xx Xxxxxx Xxxxx
X.X.X. Association Naples, FL
179,000 Key Bank National 5/2003 0000 0xx Xxxxxx Xxxxx
Xxxxxxxxxxx Xxxxxx, XX
217,000 Great American Marine 5/2017 Property & Other Equipment
Located at
0000 0xx Xxxxxx Xxxxx
Xxxxxx, XX
C&N Marine Realty, L.L.C. 117,000 Sea Ray 5/2000 Property & Other Equipment
Located at 00000 Xxxxxx Xxxx
00
Xxxxxx, XX
MarineMax of New Jersey, $7,414,000 Deutsche Financial N/A Floor Plan-Merit Marine
Inc. Services, Inc.
MarineMax, Inc., $50,000,000 Transamerica Commercial 3/2001 Inventory
Xxxxxxxx'x Boat Center, Finance Corporation
Inc., Xxxxxxxx'x Marine
Centers of Arizona, Inc.,
MarineMax of Las Vegas,
Inc., and MarineMax TX,
L.P.
26
Contingent Liabilities
Repurchase obligations of Subsidiaries in connection with the sale of Retail
Paper.
27
Exhibit C
To
Amended and Restated Loan and Security Agreement
SUBSIDIARIES
Exhibit C
to
Amended and Restated Loan Agreement
SUBSIDIARIES OF MARINEMAX, INC.
28
SUBSIDIARIES OF MARINEMAX, INC.
TYPE OF LOCATION OF TYPE & PERCENTAGE
NAME & ADDRESS ORGANIZATION ACTIVITIES OF OWNERSHIP
-------------- ------------ ---------- ------------
Xxxxxxx Boat Company of Florida, Inc. Florida corporation Florida 100% of the capital stock owned
000 Xxxxx Xxxxxxx Xxxxxxx by Company
Xxxxxxx Xxxxx, XX 00000
Gulfwind South, Inc. Florida corporation Florida 100% of the capital stock owned
00000 XxXxxxxx Xxxx. by Company
Ft. Xxxxx, XX 00000
Gulfwind USA, Inc. Florida corporation Florida 100% of the capital stock owned
00000 X.X. 00xx Xxxxx by Company
Xxxxxxxxxx, XX 00000
MarineMax of Brevard County, Inc. Delaware corporation Florida 100% of the capital stock owned
0000 Xxxx Xxxxxx by Company
Xxxxx, XX 00000
Cochrans Marine, Inc. Minnesota corporation Minnesota 100% of the capital stock owned
N. Hwy. 371 by Company
X.X. Xxx 000
Xxxxxx, XX 00000
C&N Marine Corporation Minnesota corporation Minnesota 100% of the capital stock owned
00000 Xxxxxx Xxxx 81 by Company
X.X. Xxx 000
Xxxxxx, XX 00000
Xxxxxxx Marine, Inc. Georgia corporation Georgia 100% of the capital stock owned
0000 X-00 Xxxxx by Company
Xxxxxx Xxxx, XX 00000
MarineMax of Treasure Cove, Inc. Delaware corporation Ohio 100% of the capital stock owned
0000 X.X. Xxxxxxx Xxxx by Company
Xxxx Xxxxxxx, XX 00000
MarineMax of North Carolina, Inc. North Carolina North Carolina 100% of the capital stock owned
000 Xxxxx Xxxxxx corporation by Company
Xxxxxxxxxxxx Xxxxx, XX 00000
MarineMax Motor Yachts, Inc. Delaware corporation Florida 100% of the capital stock owned
0000 X.X. 00xx Xxxxxx by Company
Ft. Xxxxxxxxxx, XX 00000
29
TYPE OF LOCATION OF TYPE & PERCENTAGE
NAME & ADDRESS ORGANIZATION ACTIVITIES OF OWNERSHIP
-------------- ------------ ---------- ------------
MarineMax of New Jersey, Inc. Delaware corporation New Jersey 100% of the capital stock owned
18167 U.S. 19 N. by Company
Xxxxx 000
Xxxxxxxxxx, XX 00000
MarineMax of New Jersey II, Inc. Delaware corporation New Jersey & 100% of the capital stock owned
00000 X.X. 00 X. Xxxxxxxxxxxx by Company
Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxxxx'x Boat Center, Inc. California corporation California 100% of the capital stock owned
0000 Xxxx Xxxx Xxxx. by Company
Xxxxxxx, XX 00000
Xxxxxxxx'x Marine Centers of Arizona, Arizona corporation Arizona 100% of the capital stock owned
Inc. by Company
0000 Xxxx Xxxxxxxx Xxxx
Xxxxx, XX 00000
MarineMax of Las Vegas, Inc. Delaware corporation Nevada 100% of the capital stock owned
0000 Xxxxxxx Xxxxxxx by Company
Xxx Xxxxx, XX 00000
11502 Xxxxx, Inc. Nevada corporation Texas 100% of the capital stock owned
0000 X. Xxxxx Xxxxxxx Xxxx., Xxxxx X by Company
Xxxxxx Xxxx, XX 00000
Xxxxx XX, L.L.C. Delaware limited Texas 100% of the membership interests
0000 X. Xxxxx Xxxxxxx Xxxx., Xxxxx X liability company owned by 11502 Xxxxx, Inc.
Xxxxxx Xxxx, XX 00000
MarineMax TX, L.P. Texas limited Texas 99% of the partnership units owned
0000 X. Xxxxx Xxxxxxx Xxxx., Xxxxx X partnership by 11502 Xxxxx, Inc. and 1% of the
Xxxxxx Xxxx, XX 00000 partnership units owned by Xxxxx
XX, L.L.C.
Xxxxxxx Boat Company Florida corporation Florida 100% of the capital stock owned
000 X.X. Xxxxxxxx Xxxx by Company
Xxxxxx, XX 00000
30
TYPE OF LOCATION OF TYPE & PERCENTAGE
NAME & ADDRESS ORGANIZATION ACTIVITIES OF OWNERSHIP
-------------- ------------ ---------- ------------
Xxxxx XX, Inc. Nevada corporation 100% of the capital stock owned
00000 X.X. Xxxxxxx 00 X. by Company
Xxxxx 000
Xxxxxxxxxx, XX 00000
MarineMax of Jacksonville, Inc. Delaware corporation 100% of the capital stock owned
00000 X.X. Xxxxxxx 00 X. by Company
Xxxxx 000
Xxxxxxxxxx, XX 00000
MarineMax USA, Inc. Nevada corporation 100% of the capital stock owned
00000 X.X. Xxxxxxx 00 X. by Company
Xxxxx 000
Xxxxxxxxxx, XX 00000
Xxxxxxx Realty, L.L.C. Delaware limited Florida 100% of the membership interests
000 Xxxxx Xxxxxxx Xxxxxxx liability company owned by Company
Xxxxxxx Xxxxx, XX 00000
C & N Marine Realty, L.L.C. Delaware limited Minnesota 100% of the membership interests
00000 Xxxxxx Xxxx 81 liability company owned by Company
X.X. Xxx 000
Xxxxxx, XX 00000
Gulfwind South Realty, L.L.C. Delaware limited Florida 100% of the membership interests
0000 0xx Xxxxxx Xxxxx liability company owned by Company
Xxxxxx, XX 00000
Xxxxxxxx'x Realty California, L.L.C. Delaware limited California 100% of the membership interests
0000 Xxxx Xxxx Xxxx. liability company owned by Company
Xxxxxxx, XX 00000
Xxxxxxxx'x Realty, L.L.C. Delaware limited Arizona 100% of the membership interests
0000 Xxxx Xxxxxxxx Xxxx liability company owned by Company
Xxxxx, XX 00000
31
TYPE OF LOCATION OF TYPE & PERCENTAGE
NAME & ADDRESS ORGANIZATION ACTIVITIES OF OWNERSHIP
-------------- ------------ ---------- ------------
Marina Drive Realty I, L.L.C. Delaware limited Minnesota 100% of the membership interests
N. Hwy. 371 liability company owned by Company
X.X. Xxx 000
Xxxxxx, XX 00000
Marina Drive Realty II, L.L.C. Delaware limited Minnesota 100% of the membership interests
N. Hwy. 371 liability company owned by Company
X.X. Xxx 000
Xxxxxx, XX 00000
Xxxxxx Xxxxxx Realty, L.L.C. Delaware limited Minnesota 100% of the membership interests
#0 Xxxxxx Xxxxx liability company owned by Company
Xxxxxx, XX 00000
32
Exhibit D
To
Amended and Restated Loan and Security Agreement
LIST OF LITIGATION
33
MarineMax, Inc.
(a) MarineMax, Inc., plaintiff, v. Xxxxxxx X. XxXxxxx Xx., Xxxxxxx X.
XxXxxxx III, and Xxxxxxx X. XxXxxxx, defendants, U.S. District Court for the
Middle District of Florida, Tampa Division, Cause No. 98-2429-CIV-T-25F, filed
on 11/30/98.
(b) Xxxxxxx X. XxXxxxx Xx., Xxxxxxx X. XxXxxxx III, and Xxxxxxx X.
XxXxxxx, plaintiffs, v. MarineMax, Inc., defendant, Superior Court of Shasta
County, California, Cause No. 136666, filed on 12/21/98.
See the attached excerpt from the Company's 10K Form dated December 29, 1998,
for a further description of the litigation described above.
MarineMax TX, L.P.
Xxxxx and Xxxx Xxxxx, individually and as personal representatives of the Estate
of Xxxxxxxxxxx Xxxxx and as next friend of Xxxxxxx Xxxxxxx Xxxxx, a minor,
plaintiffs v. Premiere Marine, Inc. and Xxxxx XxxXxxxx Marine, defendants,
Xxxxxx County District Court for the State of Texas, Cause No. 96-34353, filed
on 6/26/97. This is a wrongful death action which is being defended by the
insurance company.
34
The following is a description of litigation contained in the Company's
10K Form dated December 29, 1998:
The Company is involved in various legal proceedings arising out of its
operations in the ordinary course of business. The Company does not believe that
such proceedings, even if determined adversely, will have a material adverse
effect on its business, financial condition, or results of operations.
On November 28, 1998, the Company terminated for cause the employment
of Xxxxxxx X. XxXxxxx Xx., Xxxxxxx X. XxXxxxx III, and Xxxxxxx X. XxXxxxx
(collectively, the "LaMannas") under their employment agreements dated as of
March l, 1998. The Company also removed each of the LaMannas as officers of the
Company. In accordance with the terms of the employment agreements, the Company
ceased the payment of compensation to the LaMannas. The LaMannas have disputed
the termination of their employment by the Company, including the termination of
their compensation. As a result, the Company, on December 23, 1998, commenced
binding arbitration before the American Arbitration Association in Tampa,
Florida as required by the terms of the employment agreements. The Company's
Demand for Arbitration and Statement of Claims to resolve any disputes arising
out of the employment agreements was based on various breaches and acts of
misconduct by the LaMannas.
On November 30, 1998, the Company filed a lawsuit against the LaMannas
in the United States District Court for the Middle District of Florida, Tampa
Division, Case No. 98-2429-CIV-T-25F. The Company alleges that the LaMannas
engaged in activities in connection with the Company's acquisition of Xxxxxxxx'x
Boat Center, Inc., Xxxxxxxx'x Marine Center of Arizona, Inc., and related
entities (collectively, "Xxxxxxxx'x") that constituted breaches of the
representations and warranties in the merger documents. The complaint requests
damages, attorneys' fees and costs, and a declaratory judgment regarding the
Company's rights, status, and legal relations relative to, among other things,
the LaMannas' agreement to indemnify the Company.
On December 21, 1998, the LaMannas filed a lawsuit against the Company
and certain of its directors in the Superior Court of Shasta County, California,
Case No. 136666. The complaint alleges that the Company and certain of its
officers and directors engaged in activities during and after the Company's
acquisition of Xxxxxxxx'x that constituted fraud, constructive fraud, breach of
fiduciary duty, conversion, breach of contract, wrongful termination in
violation of public policy, age discrimination, discrimination based on
perceived disability, intentional and negligent infliction of emotional
distress, negligent misrepresentation, defamation, and conspiracy, all allegedly
in violation of California state law. In particular, the plaintiffs allege that
certain of the Acquired Dealers and certain of the Company's officers and
directors (i) fraudulently
35
induced the plaintiffs to sign various documents, including their employment
agreements, (ii) did not treat the plaintiffs equitably in the merger valuation
process, and (iii) terminated the plaintiffs without cause. The complaint
requests damages, rescission, and punitive damages. The Company believes that
this lawsuit is substantively without merit and is procedurally defective since,
among other things, the claims set forth in the lawsuit either are subject to
binding arbitration or are properly subject to the proceeding before the United
States District Court for the Middle District of Florida. The Company intends to
vigorously defend this action and to pursue its Florida Federal District Court
action and the arbitration against the XxXxxxxx.
00
OFFICER'S CERTIFICATE
The undersigned hereby certifies that he is the Vice President of
MARINEMAX, INC., a Delaware corporation ("Company"), and that he is authorized
to execute this Certificate in connection with the Amended and Restated Loan and
Security Agreement of even date herewith, between NationsCredit Distribution
Finance, Inc., and NationsBank, N.A. and Borrowers ("Loan Agreement"). Terms are
used herein as defined in the Loan Agreement.
The undersigned further certifies as follows:
1. No Default or Event of Default exists on the date hereof to be best
of the knowledge of the undersigned.
2. The representations and warranties set forth in Article V of the
Loan Agreement are true and correct in all material respects as of the date
hereof.
3. Borrowers have complied with all agreements and conditions to be
complied with by it under the Loan Agreement on or prior to the effective date
thereof.
IN WITNESS WHEREOF, this Certificate is signed as of March 18, 1999.
/s/ Xxxxxxx X. XxXxxx
___________________________________________
Title: Vice President
