Exhibit 10.21(k)





Exhibit 10.21(k)




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.




AMENDMENT NUMBER TWO




THIS AMENDMENT NUMBER TWO dated this 1st day of June, 2011 is to that certain Program Terms
Letter entered into by and between GE Commercial Distribution Finance Corporation (“CDF”)
and the undersigned Dealers (each, individually, a “Dealer” and, collectively,
“Dealers”), dated June 24, 2010 (as amended, supplemented or otherwise modified from time
to time, the “Program Terms Letter”).




WHEREAS, the parties hereto desire to amend the Program Terms Letter in certain respects;



NOW THEREFORE, in consideration of the premises and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereby
agree as follows:



1. The Dealer Rate section of the Program Terms Letter is hereby deleted and is replaced with
the following:



	 	 	 
	Dealer Rate:

	 	The effective dealer interest rate for any month (after the
manufacturer subsidy period expires, if applicable) shall be the
One month LIBOR rate (as defined in the Inventory Financing
Agreement) plus 3.83%.
	 

	 	Dealer Rate shall be the same for both new and pre-owned inventory.
	 

	 	The Dealer Rate will be recalculated monthly based on changes in
the One month LIBOR rate as outlined above.






2. The Floorplan Advance Rate section of the Program Terms Letter is hereby deleted and is
replaced with the following:




	 	 	 
	Floorplan Advance Rate:

	 	For new inventory (other than
inventory financed by CDF in
connection with the Initial
Advances), 100% of invoice amount,
including freight (if included on
original invoice). For new
inventory financed by CDF in
connection with the Payoff Advance,
such percentage, as CDF and Dealers
may agree in writing for each such
unit of inventory, of the result of
(a) invoice amount, less (b) any
curtailment amounts that would have
been required to be made with
respect to such units if CDF had
financed 100% of the original
invoice amount with respect to such
units on or about the applicable
invoice date. For new inventory
financed by CDF in connection with
the [****], 100% of the result of
(1) invoice amount, less (2) any
curtailment amounts that would have
been required to be made with
respect to such units if CDF had
financed 100% of the original
invoice amount with respect to such
units on or about the applicable
invoice date. In each case, subject
to Availability. As used herein,
“Availability” shall mean (i) the
lesser of (a) the Maximum Credit
Amount and (b) at any time the
aggregate outstanding amount of
Obligations is less than
$100,000,000.00, 100% of total
eligible inventory shown on the most
recent inventory certificate or, at
any time the aggregate outstanding
amount of Obligations is equal to or
greater than $100,000,000.00, 90% of
total eligible inventory shown on
such inventory certificate, (ii)
minus the outstanding amount of
Approvals, (iii) minus the aggregate
outstanding amount of Obligations
(as each such term is defined in the
Inventory Financing Agreement). If
Availability is negative at any
time, then immediate payment shall
be required of amount sufficient to
cause Availability to be equal to or
greater than $0.




Amendment Number Two to

Program Terms Letter




 


 









 




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.




	 	 	 
	 

	 	Pre-owned (trade in or used
inventory) advances will be as
follows, subject to Availability,
the Pre-owned Inventory Sublimit,
the Specific Pre-Owned Sublimit, and
the Other Pre-Owned Sublimit (each
as defined in the Inventory
Financing Agreement):
	 
	 	 
	 

	 	75% NADA (based on low NADA Value)
Day 1 (“Day 1” as used herein shall
mean Acquisition Date) through Day
180 (after Acquisition Date); 67%
Day 181 (after Acquisition Date)
through Day 360 (after Acquisition
Date); 0% Day 361+ (after
Acquisition Date).
	 
	 	 
	 

	 	All models of pre-owned inventory
are eligible provided fair market
values can be determined via NADA,
Yachtworld.com, or survey.
	 
	 	 
	 

	 	Internal condition and valuation
methodology required on all units
> $500,000.00 (“Specific
Pre-Owned Items”). If valuation of
any Specific Pre-Owned Item exceeds
[****], CDF advances in excess of
[****] for such Specific Pre-Owned
Item shall be in CDF’s discretion.
	 
	 	 
	 

	 	Trade in units < $500,000.00
value will be financed on a
“borrowing base” calculated as the
aggregate of the pre-owned advance
rates multiplied by the applicable
low NADA Values of such pre-owned
inventory.
	 
	 	 
	 

	 	Borrowing base certificate in the
form attached hereto as Exhibit B
required to be submitted on the date
hereof and monthly by the
5th day of the month
based on preceding month end
balances of pre-owned inventory.
Month-end borrowing base certificate
can be used to borrow up to 80% of
eligible borrowing base for that
calendar month, subject to
Availability, the Pre-Owned
Inventory Sublimit and the Other
Pre-Owned Sublimit. Any request for
advances > 80% of prior month-end
borrowing base requires submission
of an updated borrowing base and
such advances shall be limited to
100% of updated borrowing base,
subject to Availability, the
Pre-Owned Inventory Sublimit and the
Other Pre-Owned Sublimit.
	 
	 	 
	 

	 	If any unit (new or pre-owned)
remains at a location other than a
Permitted Location for more than 30
days, then immediate payment shall
be required of the full principal
amount of the Obligations owed with
respect to such unit. If the
aggregate value of units at
locations other than Permitted
Locations (excluding boat shows)
exceeds $5,000,000.00 at any time,
then immediate payment shall be
required of the Obligations with
respect to such units in an
aggregate amount equal to such
excess. In addition, if a material
adverse change results in the
reduction of the value of the
Collateral in an aggregate amount
exceeding $250,000.00, then
immediate payment shall be required
of the Obligations with respect to
such Collateral in an amount equal
to such excess; provided that, if
such reduction of value is the
subject of an insurance claim
payable to CDF as loss payee, then
immediate payment of such excess
amount shall only be required to the
extent it exceeds the claim amount
(net of any deductible) and payment
of the remainder of such excess
shall not be required until the
earlier of (i) receipt of such
insurance proceeds, if any, or the
rejection or denial of such claim or
any portion thereof and (ii) 30 days
(or such later date as CDF may agree
in writing) after such loss or
damage.




Amendment Number Two to

Program Terms Letter




 


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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.




3. Exhibits A, B and C to the Program Terms Letter are hereby deleted and are replaced with
Exhibits A, B and C attached hereto.



4. Each reference in the Program Terms Letter, the Inventory Financing Agreement, the [****]
(the “[****]”), and any other document, instrument or agreement related thereto or executed in
connection therewith (collectively, the “Documents”) to the Program Terms Letter shall be
deemed to refer to the Program Terms Letter as amended by this Amendment Number Two. Capitalized
terms used but not otherwise defined herein shall have the meanings assigned to them in the Program
Terms Letter.



5. Each Dealer represents and warrants to CDF that (a) all representations and warranties of
Dealer in the Documents are true and correct as of the date hereof, (b) such Dealer has all the
necessary authority to enter into and perform this Amendment Number Two, (c) this Amendment Number
Two, the Program Terms Letter, the Inventory Financing Agreement, and the [****] are the legal,
valid and binding obligations of such Dealer, enforceable against Dealer in accordance with their
terms, and (d) the execution, delivery and performance of this Amendment Number Two will not
violate (i) such Dealer’s organizational documents, (ii) any agreement binding upon it, unless such
violation could not result, individually or in the aggregate, in a Material Adverse Effect, or
(iii) any law, rule, regulation, order or decree, unless such violation could not result,
individually or in the aggregate, in a Material Adverse Effect.



6. All other terms and provisions of the Program Terms Letter shall remain in full force and
effect except as modified pursuant to this Amendment Number Two. In the event of any inconsistency
between the terms of this Amendment Number Two and any Document, this Amendment Number Two shall
govern. Each Dealer acknowledges that it has consulted with counsel and with such other experts
and advisors as it has deemed necessary in connection with the negotiation, execution and delivery
of this Amendment Number Two. This Amendment Number Two shall be construed without regard to any
presumption or rule requiring that it be construed against the party causing this Amendment Number
Two or any part hereof to be drafted.



7. This Amendment Number Two shall not be construed to: (a) impair the validity, perfection or
priority of any lien or security interest securing the Obligations; (b) waive or impair any rights,
powers or remedies of CDF under the Documents; (c) constitute an election of remedies to the
exclusion of any other remedies; (d) constitute an agreement by CDF or require CDF to waive any
existing or future Default or any event which, with the giving of notice, the passage of time, or
both, would result in a Default, to grant any forbearance period, or to extend the term of the
Program Terms Letter or the time for payment of the Obligations; or (e) constitute an agreement by
CDF to make any further Advances or other extensions of credit to Dealers. The execution of this
Amendment Number Two and acceptance of any documents related hereto shall not be deemed to be a
waiver of any Default or any event which, with the giving of notice, the passage of time, or both,
would result in a Default, under the Inventory Financing Agreement or breach, default or event of
default under any other Document, whether or not known to CDF and whether or not existing on the
date hereof.

 Amendment Number Two to

Program Terms Letter




 


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8. Each Dealer hereby ratifies and confirms the Program Terms Letter, as amended hereby, and
each other Document executed by such Dealer in all respects.



9. Dealers hereby release, remise, acquit and forever discharge CDF and its affiliates,
employees, agents, representatives, consultants, attorneys, fiduciaries, servants, officers,
directors, partners, participants, predecessors, successors and assigns, subsidiary corporations,
parent corporations and related corporate divisions (collectively, “Released Parties”) from
any and all actions and causes of action, judgments, executions, suits, debts, claims, demands,
liabilities, obligations, damages and expenses of any and every character, known or unknown, direct
and/or indirect, at law or in equity, of whatsoever kind or nature, whether heretofore or hereafter
arising, for or because of any matter or thing done, omitted or suffered to be done by any Released
Party prior to and including the date of execution hereof and in any way directly or indirectly
arising out of or in any way connected to this Amendment Number Two and the Documents, including
without limitation claims relating to any settlement negotiations (collectively, the “Released
Matters”). Dealers acknowledge that the agreements in this Section 9 are intended to
be in full satisfaction of all or any alleged injuries or damages arising in connection with the
Released Matters. Dealers represent and warrant to CDF that they have not purported to transfer,
assign or otherwise convey any right, title or interest in any Released Matter to any other person
or entity and that the foregoing constitutes a full and complete release of all Released Matters.



10. This Amendment Number Two shall be binding upon, inure to the benefit of and be
enforceable by the parties hereto and their participants, successors and assigns. No other person
or entity shall be entitled to claim any right or benefit hereunder, including the status of a
third-party beneficiary of this Amendment Number Two.



11. Except as expressly set forth herein, there are no agreements or understandings, written
or oral, among the parties hereto relating to this Amendment Number Two or the Program Terms Letter
that are not fully and completely set forth herein or therein. All representations, warranties,
covenants, agreements, undertakings, waivers, and releases of Dealers contained herein shall
survive the payment and performance in full of the Obligations.



12. Any provision of this Amendment Number Two which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition
or unenforceability without invalidating the remaining provisions of this Amendment Number Two or
affecting the validity or enforceability of such provision in any other jurisdiction.



13. This Amendment Number Two may be executed in any number of counterparts, each of which
counterparts, once they are executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same agreement. This
Amendment Number Two may be executed by any party to this Amendment Number Two by original
signature, facsimile and/or electronic signature.



[Remainder of page blank]



Amendment Number Two to

Program Terms Letter




 


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



DEALERS:



	 	 	 	 	 
	MARINEMAX, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Kurt M. Frahn
 

Print Name: Kurt M. Frahn
	 	 
	 

	 	Title: Vice President of Finance,	 	 
	 

	 	Treasurer and Assistant Secretary	 	 
	 
	 	 	 	 
	MARINEMAX EAST, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Kurt M. Frahn
 

Print Name: Kurt M. Frahn
	 	 
	 

	 	Title: Assistant Secretary	 	 
	 
	 	 	 	 
	MARINEMAX SERVICES, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Kurt M. Frahn
 

Print Name: Kurt M. Frahn
	 	 
	 

	 	Title: Assistant Secretary	 	 
	 
	 	 	 	 
	MARINEMAX NORTHEAST, LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Kurt M. Frahn
 

Print Name: Kurt M. Frahn
	 	 
	 

	 	Title: Assistant Secretary	 	 




Amendment Number Two to

Program Terms Letter




 


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	BOATING GEAR CENTER, LLC
 

	 	 
	By: MARINEMAX EAST, INC., the sole member of Boating	 	 
	Gear Center, LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Kurt M. Frahn
 

Print Name: Kurt M. Frahn
	 	 
	 

	 	Title: Assistant Secretary	 	 
	 
	 	 	 	 
	US LIQUIDATORS, LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Kurt M. Frahn
 

Print Name: Kurt M. Frahn
	 	 
	 

	 	Title: Assistant Secretary	 	 
	 
	 	 	 	 
	NEWCOAST FINANCIAL SERVICES, LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Kurt M. Frahn
 

Print Name: Kurt M. Frahn
	 	 
	 

	 	Title: Assistant Secretary	 	 




Amendment Number Two to

Program Terms Letter




 


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	CDF:	 	 
	 
	 	 	 	 
	GE COMMERCIAL DISTRIBUTION	 	 
	FINANCE CORPORATION	 	 
	 
	 	 	 	 
	By:

	 	/s/ Michael McKay
 

Print Name: Michael McKay
	 	 
	 

	 	Title: Credit Director	 	 





Amendment Number Two to

Program Terms Letter




 


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Exhibit A

Advance Request Form




 


 









 







Exhibit B

Borrowing Base Certificate Form




 


 









 







Exhibit C

Monthly Inventory Certificate Form