HZO » Topics » Item 1.01 Entry into a Material Definitive Agreement.

This excerpt taken from the HZO 8-K filed Jun 9, 2009.

Item 1.01 Entry into a Material Definitive Agreement.

On June 5, 2009, we entered into a Fifth Amendment to our Second Amended and Restated Credit and Security Agreement (the "Amendment") among MarineMax, Inc. and our subsidiaries, as Borrowers; and KeyBank National Association; Bank of America, N.A.; GE Commercial Distribution Finance Corporation; Wachovia Bank, National Association; Wells Fargo Bank, N.A.; U.S. Bank National Association; Branch Banking & Trust Company; and Bank of the West, as Lenders.

The Amendment modifies the amount of borrowing availability, financial covenants, and reporting requirements of the prior facility. The amended facility provides a line of credit with asset-based borrowing availability up to $300 million, stepping down to $250 million by September 30, 2009 and $175 million by September 30, 2010, with interim decreases between such dates. In order to facilitate the reduction of inventory, the Amendment enables us to incur cumulative negative earnings before interest, taxes, depreciation, and amortization (EBITDA) of up to $25 million as of March 31, 2009, $32 million as of June 30, 2009, and $40 million as of September 30, 2009. The Amendment also increases the allowable cumulative negative EBITDA for fiscal 2010 to $12 million as of December 31, 2009 and March 31, 2010 and $5 million as of June 30, 2010. We are required to have a cumulative EBITDA greater than or equal to our interest expense for the fiscal year ended September 2010. The Amendment further requires that we maintain a leverage ratio of not more than 2.75 to 1.

The Amendment provides for a variable interest rate margin of LIBOR plus 490 basis points through September 30, 2010 and thereafter at LIBOR plus 150 to 400 basis points, depending upon our financial and operating performance. With the execution of the Amendment, we have agreed to pay the Lenders a $1.25 million amendment fee. The amended facility matures in May 2011, but includes two one-year renewal options, subject to lender approval.






SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

         
    MarineMax, Inc.
          
June 9, 2009   By:   /s/ Michael H. McLamb
       
        Name: Michael H. McLamb
        Title: Executive Vice President, Chief Financial Officer and Secretary
This excerpt taken from the HZO 8-K filed Mar 12, 2008.

Item 1.01 Entry into a Material Definitive Agreement.

We entered into a Third Amendment to Second Amended and Restated Credit and Security Agreement, on March 7, 2008, among MarineMax, Inc., and our subsidiaries, as Borrowers, and Bank of America, N.A., KeyBank, N.A., General Electric Commercial Distribution Finance Corporation, Wachovia Bank, N.A., Wells Fargo Bank, N.A., U.S. Bank, N.A., Branch Banking and Trust Company, and Bank of the West, as Lenders. The amendment modified the financial covenants lowering the threshold of the "Fixed Charge Coverage Ratio" and modestly increasing the threshold of the "Current Ratio", and replaced National City Bank, N.A., with Bank of the West as a Lender.

A copy of the Third Amendment to Second Amended and Restated Credit and Security Agreement is attached hereto as Exhibit 10.21(b) and is hereby incorporated by reference in this Item 1.01.





This excerpt taken from the HZO 8-K filed Jun 11, 2007.

Item 1.01 Entry into a Material Definitive Agreement.

We entered into a First Amendment to Second Amended and Restated Credit and Security Agreement, on June 5, 2007, effective as of May 31, 2007, among us and our subsidiaries, as Borrowers, and Bank of America, N.A., KeyBank, N.A., General Electric Commercial Distribution Finance Corporation, Wachovia Bank, N.A., Wells Fargo Bank, N.A., National City Bank, N.A., U.S. Bank, N.A., and Branch Banking and Trust Company, as Lenders. The amendment modified the definition of "Fixed Charges Coverage Ratio" and extended the term of the Second Amended and Restated Credit and Security Agreement with the same lenders. The amended credit facility matures in May 2012, with two one-year renewal options.

A copy of the First Amendment to Second Amended and Restated Credit and Security Agreement is attached hereto as Exhibit 10.21(a) and is hereby incorporated by reference in this Item 1.01.





This excerpt taken from the HZO 8-K filed Jun 22, 2006.

Item 1.01 Entry into a Material Definitive Agreement.

Effective June 19, 2006, MarineMax, Inc., a Delaware corporation (the "Company") entered into a Second Amended and Restated Credit and Security Agreement, among the Company and its subsidiaries, as Borrowers, and Bank of America, N.A., KeyBank, N.A., General Electric Commercial Distribution Finance Corporation, Wachovia Bank, N.A., Wells Fargo Bank, N.A., National City Bank, N.A., U.S. Bank, N.A., and Branch Banking and Trust Company, as Lenders.

The credit facility amends and replaces our previous credit facility with the same financial institutions and adds four new Lenders. The credit facility provides us a line of credit with asset-based borrowing availability of up to $500 million for working capital and inventory financing, with the amount of permissible borrowings determined pursuant to a borrowing base formula. The credit facility also permits approved-vendor floorplan borrowings of up to $20 million. The credit facility accrues interest at the London Interbank Offered Rate (LIBOR) plus 150 to 260 basis points, with the interest rate based upon the ratio of our net outstanding borrowings to our tangible net worth. The credit facility is secured by our inventory, accounts receivable, equipment, furniture, and fixtures. The credit facility requires us to satisfy certain covenants, including maintaining a leverage ratio tied to our tangible net worth. The credit facility matures in May 2011, with two one-year renewal options.

On June 20, 2006, we issued a press release announcing our entry into a Second Amended and Restated Credit and Security Agreement. A copy of the press release is attached hereto as Exhibit 99.1 and is hereby incorporated by reference in this Item 1.01.





This excerpt taken from the HZO 8-K filed Apr 3, 2006.

Item 1.01 Entry into a Material Definitive Agreement.

We hereby incorporate the discussion contained in Item 2.01 of this Form 8-K regarding the terms and conditions of the Asset Purchase Agreement entered into with Surfside-3 Marina, Inc. and its affiliated companies ("Surfside").





This excerpt taken from the HZO 8-K filed Feb 16, 2006.

Item 1.01 Entry into a Material Definitive Agreement.

On February 10, 2006, MarineMax, Inc., a Delaware corporation (the "Company") entered into Amendment No. 2 to its Amended and Restated Credit and Security Agreement, among the Company and its subsidiaries, as Borrowers, Keybank National Association, Bank of America, N.A., and various other lenders, as Lenders. The amendment to the credit facility increases our line of credit, with asset-based borrowing availability, to $385 million from $340 million. The credit facility may be used for working capital and inventory financing, with the amount of permissible borrowings determined pursuant to a borrowing base formula. The amendment also extends the maturity of the credit facility to March 1, 2009, with two one year renewal options.





This excerpt taken from the HZO 8-K filed Dec 9, 2005.

Item 1.01 Entry into a Material Definitive Agreement.

Dealer Agreements with Sea Ray

Brunswick, through its Sea Ray division, and we, through our principal operating subsidiaries, are parties to Sales and Service Agreements relating to Sea Ray products extending through June 30, 2015. Each of these dealer agreements appoints one of our operating subsidiaries as a dealer for the retail sale, display, and servicing of all Sea Ray products, parts, and accessories currently or in the future sold by Sea Ray. Each dealer agreement designates a designated geographical territory for the dealer, which is exclusive to the dealer as long as the dealer is not in breach of the material obligations and performance standards under the agreement and Sea Ray’s then current material policies and programs following notice and the expiration of any applicable cure periods without cure. Each dealer agreement also specifies retail locations, which the dealer may not close, change, or add to without the prior written consent of Sea Ray, provided that Sea Ray may not unreasonably withhold its consent. Each dealer agreement also restricts the dealer from selling, advertising (other than in recognized and established marine publications), soliciting for sale, or offering for resale any Sea Ray products outside its territory without the prior written consent of Sea Ray as long as similar restrictions also apply to all domestic Sea Ray dealers selling comparable Sea Ray products. In addition, each dealer agreement provides for the lowest product prices charged by Sea Ray from time to time to other domestic Sea Ray dealers, subject to the dealer meeting all the requirements and conditions of Sea Ray's applicable programs and the right of Sea Ray in good faith to charge lesser prices to other dealers to meet existing competitive circumstances, for unusual and non-ordinary business circumstances, or for limited duration promotional programs.

Among other things, each dealer agreement requires the dealer to

• devote its best efforts to promote, display, advertise, and sell Sea Ray products at each of its retail locations in accordance with the agreement and applicable laws;

• purchase and maintain at all times sufficient inventory of current Sea Ray products to meet the reasonable demand of customers at each of its locations and to meet Sea Ray’s applicable minimum inventory requirements;

• maintain at each retail location, or at another acceptable location, a service department that is properly staffed and equipped to service Sea Ray products promptly and professionally and to maintain parts and supplies to service Sea Ray products properly on a timely basis;

• perform all necessary product rigging, installation, and inspection services prior to delivery to purchasers in accordance with Sea Ray’s standards and perform post-sale services of all Sea Ray products sold by the dealer and brought to the dealer for service;

• provide or arrange for warranty and service work for Sea Ray products;

• provide appropriate instructions to purchasers on how to obtain warranty and service work from the dealer;

• furnish product purchasers with Sea Ray's limited warranty on new products and with information and training as to the safe and proper operation and maintenance of the products;

• assist Sea Ray in performing any product defect and recall campaigns;

• achieve sales performance in accordance with fair and reasonable standards and sales levels established by Sea Ray in consultation with the dealer based on factors such as population, sales potential, market share percentage of Sea Ray products sold in the territory compared with competitive products sold in the territory, local economic conditions, competition, past sales history, number of retail locations, and other special circumstances that may affect the sale of Sea Ray products or the dealer, in each case consistent with standards established for all domestic Sea Ray dealers selling comparable products;

• provide designated financial information that is truthful and accurate;

• conduct its business in a manner that preserves and enhances the reputation and goodwill of both Sea Ray and the dealer for providing quality products and services;

• maintain the financial ability to purchase and maintain on hand and display Sea Ray’s current product models;

• maintain customer service ratings in compliance with Sea Ray's criteria;

• comply with those dealer’s obligations that may be imposed or established by Sea Ray applicable to all domestic Sea Ray dealers;

• maintain a financial condition that is adequate to satisfy and perform its obligations under the agreement;

• achieve within designated time periods or maintain master dealer status or other applicable certification requirements as established from time to time by Sea Ray applicable to all domestic Sea Ray dealers;

• notify Sea Ray of the addition or deletion of any retail locations;

• sell Sea Ray products only on the basis of Sea Ray’s published applicable limited warranty and make no other warranty or representations concerning the limited warranty, expressed or implied, either verbally or in writing;

• provide timely warranty service on all Sea Ray products presented to the dealer by purchasers in accordance with Sea Ray’s then current warranty program applicable to all domestic Sea Ray dealers selling comparable Sea Ray products; and

• provide Sea Ray with access to the dealer’s books and records and such other information as Sea Ray may reasonably request to verify the accuracy of the warranty claims submitted to Sea Ray by the dealer with regard to such warranty claims;

Sea Ray has agreed to indemnify each of our dealers against any losses to third parties resulting from Sea Ray’s negligent acts or omissions involving the design or manufacture of any of its products or any breach by it of the agreement. Each of our dealers has agreed to indemnify Sea Ray against any losses to third parties resulting from the dealer’s negligent acts or omissions involving the dealer’s application, use, or repair of Sea Ray products, statements or representation not specifically authorized by Sea Ray, the installation of any after market components or any other modification or alteration of Sea Ray products, and any breach by the dealer of the agreement.

Each dealer agreement may be terminated

• by Sea Ray, upon 60 days prior written notice, if the dealer fails or refuses to place a minimum stocking order of the next model year's products in accordance with requirements applicable to all Sea Ray dealers generally or fails to meet its financial obligations as they become due to Sea Ray or to the dealer's lenders;

• by Sea Ray or the dealer, upon 60 days written notice to the other, in the event of a breach or default by the other with any of the of the material obligations, performance standards, covenants, representations, warranties, or duties imposed by the agreement or the Sea Ray manual that has not been cured within 60 days of the notice of the claimed deficiency or within a reasonable period when the cure cannot be completed within a 60-day period, or at the end of the 60-day period without the opportunity to cure when the cause constitutes bad faith;

• by Sea Ray or the dealer if the other makes a fraudulent misrepresentation that is material to the agreement or the other engages in an incurable act of bad faith;

• by Sea Ray or the dealer in the event of the insolvency, bankruptcy, or receivership of the other;

• by Sea Ray in the event of the assignment of the agreement by the dealer without the prior written consent of Sea Ray;

• by Sea Ray upon at least 15 days' prior written notice in the event of the failure to pay any sums due and owing to Sea Ray that are not disputed in good faith; and

• upon the mutual consent of Sea Ray and the dealer.

Brunswick Agreement Relating to Acquisitions Risk Factors

We and the Sea Ray Division of Brunswick have entered into a revised agreement replacing our prior agreement to provide a process for our continued growth through the acquisition of additional Sea Ray boat dealers that desire to be acquired by us. The agreement extends through June 30, 2005. Under the agreement, acquisitions of Sea Ray dealers will be mutually agreed upon by us and Sea Ray with reasonable efforts to be made to include a balance of Sea Ray dealers that have been successful and those that have not been. The agreement provides that Sea Ray will not unreasonably withhold its consent to any proposed acquisition of a Sea Ray dealer by us, subject to the conditions set forth in the agreement. Among other things, the agreement provides for us to provide Sea Ray with a business plan for each proposed acquisition, including historical financial and five-year projected financial information regarding the acquisition candidate; marketing and advertising plans; service capabilities and managerial and staff personnel; information regarding the ability of candidate to achieve performance standards within designated periods; and information regarding the success of our previous acquisitions of Sea Ray dealers. The agreement also contemplates Sea Ray reaching a good faith determination whether the acquisition would be in its best interest based on our dedication and focus of resources on the Sea Ray brand and Sea Ray’s consideration of any adverse effects that the approval would have on the resulting territory configuration and adjacent or other dealer sales and the absence of any violation of applicable laws or rights granted by Sea Ray to others.

















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