SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT
Exhibit 10.21
(e)
NOTE: PORTIONS OF THIS EXHIBIT INDICATED BY “[****]” ARE SUBJECT TO A CONFIDENTIAL TREATMENT REQUEST,
AND HAVE BEEN OMITTED FROM THIS EXHIBIT. COMPLETE, UNREDACTED COPIES OF THIS EXHIBIT HAVE BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION AS PART OF THIS COMPANY’S CONFIDENTIAL TREATMENT REQUEST.
This SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AND SECURITY AGREEMENT (this
“Sixth Amendment”) is entered into as of September 10, 2009 (the “Sixth Amendment
Effective Date”), by and among MARINEMAX, INC., a Delaware corporation (the “Company”)
and each of the six (6) other Borrowers set forth on Schedule I attached hereto and by the
reference incorporated herein (each of the Company and each of such six (6) Persons other than the
Company, singularly, a “Borrower,” and the Company and all of such Persons other than the
Company, collectively, the “Borrowers”), KEYBANK NATIONAL ASSOCIATION, a national banking
association, both individually (in such capacity, “KeyBank”) and as administrative agent
(in such capacity, the “Administrative Agent”) for the Lenders (as hereinafter defined),
BANK OF AMERICA, N.A., a national banking association, individually (in such capacity,
“BOA”), as collateral agent (in such capacity, the “Collateral Agent”) and as
documentation agent (in such capacity, the “Documentation Agent”) and the various other
financial institutions as are or may become parties hereto, including, as of the date hereof, GE
COMMERCIAL DISTRIBUTION FINANCE CORPORATION, a Delaware corporation (“GE Commercial”),
WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association (“Wachovia”), XXXXX
FARGO BANK, N.A., a national banking association (“Xxxxx Fargo”), U.S. BANK NATIONAL
ASSOCIATION, a national banking association (“US Bank”), BRANCH BANKING & TRUST COMPANY, a
North Carolina corporation (“BB&T”), and BANK OF THE WEST, a California corporation
(“Bank of the West”) (KeyBank, BOA, GE Commercial, Wachovia, Xxxxx Fargo, US Bank, BB&T,
Bank of the West, and such other financial institutions, collectively, the “Lenders”),
amending that Second Amended and Restated Credit and Security Agreement dated as of June 19, 2006,
by and among Borrowers and Lenders as heretofore amended by the First Amendment to Second Amended
and Restated Credit and Security Agreement dated as of May 31, 2007, the Second Amendment to Second
Amended and Restated Credit and Security Agreement dated as of October 1, 2007, the Third Amendment
to Second Amended and Restated Credit and Security Agreement dated as of March 7, 2008, the Fourth
Amendment to Second Amended and Restated Credit and Security Agreement dated as of December 15,
2008, and the Fifth Amendment to Second Amended and Restated Credit and Security Agreement dated as
of June 5, 2009 (the “Agreement”). Unless otherwise defined in this Sixth Amendment, all
defined terms used in this Sixth Amendment shall have the meanings ascribed to such terms in the
Agreement. This Sixth Amendment is entered into in consideration of, and upon, the terms,
conditions and agreements set forth herein.
1. Background. Borrowers and Lenders desire to amend certain provisions of the
Agreement effective as of the Sixth Amendment Effective Date.
2. Changed Definitions. The definitions of the following terms heretofore defined in
the Agreement are hereby amended to read in their entirety as follows:
“Commitment Amount” shall mean (a) effective as of Sixth Amendment
Effective Date, three hundred million dollars ($300,000,000), (b) effective as
September 30, 2009, two hundred fifty million dollars ($250,000,000), (c) effective
as December 31, 2009, two hundred thirty-five
million dollars ($235,000,000), (d) effective as March 31, 2010, two hundred twenty
million dollars ($220,000,000), (e) effective as June 30, 2010, two hundred million
dollars ($200,000,000), and (f) effective as September 30, 2010, one hundred
seventy-five million dollars ($175,000,000). All such reductions in the Commitment
Amount shall reduce the Commitments of the Lenders in accordance with their Pro Rata
Percentages, as follows:
| (000 | ||||||||||||||||
| omitted) | (000 | (000 | (000 | |||||||||||||
| Pro Rata | Amend | omitted) | omitted) | (000 omitted) | omitted) | (000 omitted) | ||||||||||
| Lenders | Percentage | No. 5 Date | 9/30/09 | 12/31/09 | 3/31/10 | 6/30/10 | 9/30/10 | |||||||||
BOA |
27% | $ 81,000 | $ 67,500 | $ 63,450 | $ 59,400 | $ 54,000 | $47,250 | |||||||||
KeyBank |
20% | $ 60,000 | $ 50,000 | $ 47,000 | $ 44,000 | $ 40,000 | $35,000 | |||||||||
GE Commercial |
18% | $ 54,000 | $ 45,000 | $ 42,300 | $ 39,600 | $ 36,000 | $31,500 | |||||||||
Wachovia |
10% | $ 30,000 | $ 25,000 | $ 23,500 | $ 22,000 | $ 20,000 | $17,500 | |||||||||
Xxxxx Fargo |
7% | $ 21,000 | $ 17,500 | $ 16,450 | $ 15,400 | $ 14,000 | $12,250 | |||||||||
US Bank |
6% | $ 18,000 | $ 15,000 | $ 14,100 | $ 13,200 | $ 12,000 | $10,500 | |||||||||
BB&T |
6% | $ 18,000 | $ 15,000 | $ 14,100 | $ 13,200 | $ 12,000 | $10,500 | |||||||||
Bank of the West |
6% | $ 18,000 | $ 15,000 | $ 14,100 | $ 13,200 | $ 12,000 | $10,500 | |||||||||
| 100% | $ 300,000 | $250,000 | $235,000 | $ 220,000 | $200,000 | $175,000 | ||||||||||
Notwithstanding the foregoing, (i) the applicable Commitment Amount under each of
(a), (b), (c), (d) and (e) above shall be reduced by the aggregate amount of Common
Stock Net Proceeds received by the Company after the Sixth Amendment Effective Date
and on or before December 31, 2009, but shall never be reduced under this clause (i)
to less than one hundred seventy-five million dollars ($175,000,000), and (ii) the
applicable Commitment Amount under (f) above shall be or become one hundred
seventy-five million dollars ($175,000,000) at September 30, 2010 even if prior to
such date the Company shall have received no Common Stock Net Proceeds. In
addition, the applicable Commitment Amount (A) may be increased by virtue of any
exercise of the accordion feature set forth in Section 2.01(a)(2) of the Agreement,
and (B) shall be reduced in connection with sales of Additional Real Estate
Collateral in the manner set forth in Section 4.08(g) of the Agreement.
“EBITDA” shall mean, for any period, the earnings before interest,
Taxes, Statement of Financial Accounting Standards No. 123R stock-based
compensation, depreciation, amortization, and any intangible asset impairment charge
deducted in determining the earnings of the Borrowers on a consolidated basis for
such period; provided, however, that for each of the four quarterly periods
of the Borrowers ending on December 31, 2008, March 31, 2009, June 30, 2009 and
September 30, 2009, EBITDA shall be calculated by adding back nonrecurring
restructuring charges associated with business location closings, leasehold
improvement impairment charges, lease termination charges, Lender closing costs
associated with the Fourth Amendment, the Fifth Amendment, and the Sixth Amendment
to the Agreement, and actual [****] inventory repurchase settlement writedowns up to
a maximum of [****]; provided further, that for each
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of the four quarterly periods of the Borrowers ending on December 31, 2009,
March 31, 2010, June 30, 2010 and September 30, 2010, EBITDA shall be calculated by
adding to earnings the lesser of (a) fifty percent (50%) of the total Common Stock
Net Proceeds received by the Company at any time after the Sixth Amendment Effective
Date and on or before December 31, 2009, and (b) fifteen million dollars
($15,000,000). For purposes of calculating EBITDA, Common Stock Net Proceeds
actually received after the Sixth Amendment Effective Date and on or before
September 30, 2009 shall be deemed to have been received by the Company during the
quarterly period ending on December 31, 2009.
3. Added Definitions. The following new defined terms are hereby added to Section
1.01 of the Agreement.
“Common Stock Net Proceeds” shall mean the cash proceeds from any New
Common Stock Sale, net of all fees (including investment banking fees), discounts,
commissions, costs and other expenses, in each case incurred in connection with such
New Common Stock Sale. In connection with the calculation of Common Stock Net
Proceeds with respect to any New Common Stock Sale, all fees, discounts,
commissions, costs and expenses shall be allocated on a pro rata basis among the
shares sold in such New Common Stock Sale.
“New Common Stock Sale” shall mean any public or private cash sale of
common stock of the Company occurring at any time after the Sixth Amendment
Effective Date and on or before December 31, 2009.
“Sixth Amendment Effective Date” shall mean September 10, 2009, the
effective date of the Sixth Amendment to the Agreement.
4. Legal Fees and Expenses of Sixth Amendment. Borrowers shall reimburse the
Administrative Agent and the Collateral Agent for their legal fees and expenses in connection with
the execution and delivery of this Sixth Amendment.
5. Representations and Warranties of the Borrowers. The Borrowers represent and
warrant to the Agent, the Collateral Agent, and the Lenders that this Sixth Amendment and each
related Loan Document has been duly authorized by all necessary action on the part of each of the
Borrowers, has been duly executed and delivered by each of the Borrowers, and constitutes a valid
and binding agreement of each of the Borrowers enforceable against such Borrower in accordance with
its terms.
6. Opinion of Counsel. This Sixth Amendment shall not become effective until the
Agent, the Collateral Agent, and the Lenders shall have received an opinion of counsel to the
Company and the other Borrowers reasonably satisfactory to the Agent, the Collateral Agent, and the
Lenders to the effect set forth in Section 5 of this Sixth Amendment; provided, however,
that such opinion of counsel may be subject to customary qualifications.
7. Effect on Agreement. Except as specifically amended and modified by this Sixth
Amendment, all terms, conditions, covenants and agreements set forth in the Agreement
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shall remain in full force and effect. The miscellaneous provisions of Article IX of the Agreement
shall apply with equal force to this Sixth Amendment.
8. Counterparts. This Sixth Amendment may be executed in two or more counterparts,
each of which shall constitute an original but all of which when taken together shall constitute
one agreement.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, this Sixth Amendment to the Second Amended and Restated Credit and
Security Agreement has been executed and delivered by the parties (including 100% of the Lenders)
as of the day and year first above written.
| “BORROWERS” MARINEMAX, INC., a Delaware corporation |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Vice President | ||||
| MARINEMAX EAST, INC., a Delaware corporation | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Assistant Secretary | ||||
| MARINEMAX SERVICES, INC., a Delaware corporation | ||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Assistant Secretary | ||||
US LIQUIDATORS, LLC, a Delaware limited liability company
NEWCOAST FINANCIAL SERVICES, LLC, a Delaware limited liability company
NEWCOAST FINANCIAL SERVICES, LLC, a Delaware limited liability company
By: MARINEMAX, INC., sole member
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Vice President | ||||
MARINEMAX NORTHEAST, LLC, a Delaware limited liability company
BOATING GEAR CENTER, LLC, a Delaware limited liability company
BOATING GEAR CENTER, LLC, a Delaware limited liability company
By: MARINEMAX EAST, INC., sole member
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Assistant Secretary | ||||
Signature Page
| “LENDERS” KEYBANK NATIONAL ASSOCIATION, a national banking association |
||||
| By: | /s/ Xxxxx X. XxXxxxxx | |||
| Name: | Xxxxx X. XxXxxxxx | |||
| Title: Vice President | ||||
| BANK OF AMERICA, N.A., successor by merger to Banc of America Specialty Finance, Inc. |
||||
| By: | /s/ X. Xxxxxx Xxxxx | |||
| Name: | X. Xxxxxx Burts | |||
| Title: Senior Vice President | ||||
| GE COMMERCIAL DISTRIBUTION FINANCE CORPORATION, a Delaware
corporation |
||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: Portfolio Management Director | ||||
| WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association |
||||
| By: | /s/ Xxxxxx Xxxxxxxxxx | |||
| Name: | Xxxxxx Xxxxxxxxxx | |||
| Title: VP | ||||
Signature Page
| XXXXX FARGO BANK, N.A., a national banking association | ||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: Senior Vice President | ||||
| U.S. BANK NATIONAL ASSOCIATION, a
national banking association |
||||
| By: | /s/ Xxxx Xxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxx | |||
| Title: Vice President | ||||
| BRANCH BANKING & TRUST COMPANY,
a North Carolina corporation |
||||
| By: | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: Senior Vice President | ||||
| BANK OF THE WEST, a California corporation |
||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: Vice President | ||||
| “ADMINISTRATIVE AGENT” KEYBANK NATIONAL ASSOCIATION, a national banking association |
||||
| By: | /s/ Xxxxx X. XxXxxxxx | |||
| Name: | Xxxxx X. XxXxxxxx | |||
| Title: Vice President | ||||
Signature Page
| “COLLATERAL AGENT” and “DOCUMENTATION AGENT” BANK OF AMERICA, N.A., successor by merger to Banc of America Specialty Finance, Inc. |
||||
| By: | /s/ X. Xxxxxx Burts | |||
| Name: | X. Xxxxxx Xxxxx | |||
| Title: Senior Vice President | ||||
Signature Page
Schedule I
| 1. | MARINEMAX EAST, INC., a Delaware corporation | |
| 2. | MARINEMAX SERVICES, INC., a Delaware corporation | |
| 3. | US LIQUIDATORS, LLC, a Delaware limited liability company | |
| 4. | NEWCOAST FINANCIAL SERVICES, LLC, a Delaware limited liability company | |
| 5. | MARINEMAX NORTHEAST, LLC, a Delaware limited liability company | |
| 6. | BOATING GEAR CENTER, LLC, a Delaware limited liability company |
Schedule
