Exhibit 10.21(j)





Exhibit 10.21 (j)




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 Inventory
Financing Agreement 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 “Financing Agreement”).




WHEREAS, the parties hereto desire to amend the Financing Agreement 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. Section 1(b) of the Financing Agreement is hereby deleted and is replaced with the
following:




“(b) Floor Plan Advances. Subject to the terms and conditions of this
Agreement, CDF agrees to thereafter make available to Dealers extensions of credit
on a revolving basis in such amounts as Dealers may from time to time request up to
an aggregate total of one hundred fifty million dollars ($150,000,000.00) (the
“Maximum Credit Amount”), minus (i) the outstanding amount of Approvals (as
defined below) and (ii) the aggregate outstanding amount of any other Obligations of
Dealers to CDF and any CDF Affiliates, to purchase inventory, which will be subject
to a purchase money security interest in favor of CDF, from Dealers’ existing
vendors identified on Exhibit A to this Agreement and any additional vendors
acceptable to CDF in its sole discretion (such existing vendors and additional
vendors, in each case until any such vendor shall be disapproved by written notice
from CDF due to (x) such vendor’s failure to comply with any law, rule, regulation,
order or decree; (y) such vendor’s failure to comply with any internal policies and
procedures of CDF or any CDF Affiliate (as defined below) relating to import or
export controls, anti-money laundering, anti-terrorism, securities law, banking law
or regulation, fraud statutes and other similar laws and regulations and codes of
ethical conduct (collectively, “Internal Policies”); or (z) any circumstance
which may make CDF’s disbursement of any advance to such vendor illegal or otherwise
in violation of any law, rule, regulation, order or decree applicable to CDF or any
Internal Policies, each, a “Vendor” and, collectively, “Vendors”)
and for other purposes (including the Pre-Owned Inventory Sublimit described below);
provided, however, that (1) repayments from time to time of the
outstanding



Amendment Number Two to

Inventory Financing Agreement


 


 









 






balance of the indebtedness hereunder shall be available to be
reborrowed pursuant to the terms and conditions of this Agreement; (2) if the
Obligations hereunder outstanding at any time or from time to time exceed the Maximum Credit Amount, Dealers shall
immediately (but in any event within two (2) Business Days) repay the Obligations in
such amount necessary to eliminate such excess; provided that, in its
reasonable discretion, CDF may immediately cease to make loans and/or to issue
Approvals until such repayment occurs, and (3) notwithstanding anything else
contained in this Agreement, (I) CDF may, in its reasonable discretion, immediately
cease to make loans and/or to issue Approvals (x) upon the occurrence and during the
continuance of any Default or upon the occurrence and during the continuance of any
event which, with the giving of notice, the passage of time, or both would result in
a Default, or (y) if any remittance for any Obligations is dishonored when first
presented for payment, until such payment is honored; and (II) upon termination of
this Agreement, Dealers shall repay to CDF all Obligations hereunder, plus interest
accrued to the date of payment. If a Vendor is disapproved for any reason set forth
above, such disapproval will only affect Dealers’ ability to request, and CDF’s
obligation to fund, subsequent advances and will not require immediate repayment of
previous advances with respect to inventory purchased from such disapproved Vendor.”



2. Section 1(c) of the Financing Agreement is hereby deleted and is replaced with the
following:




“(c) Pre-Owned Inventory Advances and Sublimits. Subject to the
overall Maximum Credit Amount set forth above and the terms and conditions of this
Agreement, on and after the Closing Date, CDF agrees to make cash advances to
Dealers with respect to pre-owned units of inventory; provided that such cash
advances shall not exceed the Pre-Owned Inventory Sublimit and must comply with the
pre-owned inventory advance terms set forth herein. Regardless of the amount of
credit available to Dealers under the Maximum Credit Amount hereunder, CDF shall not
provide extensions of credit to Dealers in excess of an amount equal to twenty
percent (20%) of the Maximum Credit Amount with respect to used or pre-owned
inventory (the “Pre-Owned Inventory Sublimit”). Within such Pre-Owned
Inventory Sublimit, (A) any advances with respect to units with applicable
valuations of five hundred thousand dollars ($500,000.00) or more shall require unit
specific documentation (including an advance request form), (B) CDF will not advance
Dealers more than seventy-five percent (75%) of such Pre-Owned Inventory Sublimit
for used or pre-owned inventory with applicable valuations of less than five hundred
thousand dollars ($500,000.00) (the “Other Pre-Owned Sublimit”), and (C) CDF
will not advance Dealers more than fifty percent (50%) of such Pre-Owned Inventory
Sublimit for used or pre-owned inventory with applicable valuations of five hundred
thousand dollars ($500,000.00) or more (the “Specific Pre-Owned Sublimit”).”



Amendment Number Two to

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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. Section 1(e) of the Financing Agreement is hereby deleted and is replaced with the
following:




“(e) Re-Advances. Subject to the overall Maximum Credit Amount set
forth above and the terms and conditions of this Agreement, on and after the Closing
Date, CDF agrees to make cash advances to Dealers with respect to units of inventory
(excluding used or pre-owned inventory) financed by CDF pursuant to Section 1(a) or
1(b) of this Agreement for which Dealers may have previously
made payments to CDF; provided that such units of inventory have not
previously been repaid in full, and further provided such cash advances shall not
exceed (a) 100% of the original invoice amount with respect to such units, less (b)
any curtailment amounts that have been required to be made by cash payment, offset,
application of a Curtailment Offset under and as defined in that certain [****],
dated the date hereof, between CDF and Dealers (as amended, supplemented or
otherwise modified from time to time, the “[****]”), or otherwise with respect to
such units or, if such units were financed by CDF in connection with the Initial
Advances, any curtailment amounts that would have been required to be made by cash
payment, offset, application of a Curtailment Offset under and as defined in the
[****], or otherwise 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; provided, further, that such cash advances, in the
aggregate, shall not exceed the Re-Advance Sublimit specified in the Program Terms
Letter or, if not specified in such Program Terms Letter, twenty-five percent (25%)
of the Maximum Credit Amount within any thirty (30) day period.”




4. Section 1(f) of the Financing Agreement is hereby deleted in its entirety.



5. Section 5(d)(iv) of the Financing Agreement is hereby deleted and is replaced with the
following:




“(iv) change the nature of its business in any material manner or its legal
structure or be a party to a merger or consolidation (other than a merger or
consolidation of a Dealer with or into another Dealer) or change its type of
organization, its jurisdiction of incorporation or organization, or its
organizational identification number, if any, or acquire any person or entity (an
“Acquired Person”) or a substantial portion of the assets of any person or
entity (“Acquired Assets”), except that Dealers may acquire an Acquired
Person or Acquired Assets, if (A) Dealers provide CDF with thirty (30) days’ prior
written notice of such acquisition, accompanied by a certificate of Dealers’ chief
financial officer that such acquisition complies with the conditions of this Section
5(d)(iv) and copies of pro forma financial statements and projections giving effect
to such acquisition, (B) immediately after any such acquisition of an Acquired
Person, such Acquired Person becomes a party to this Agreement as a Dealer by
executing and delivering to CDF such documents and agreements as CDF may reasonably
require, at Dealers’ cost and expense, (C) immediately after any such acquisition of
Acquired Assets, CDF shall continue to have a first-priority perfected security
interest in such Acquired Assets that constitute “Collateral” (as defined herein)
and the other Collateral, (D) at the time of such acquisition and after giving
effect thereto, neither a Default nor an event which, with the giving of notice, the
passage of time, or both, would result in a Default, shall have occurred and be
continuing, (E) before and after giving effect to such acquisition, as illustrated
by the pro forma financial statements and projections provided to CDF pursuant to
clause (A) above, Dealers shall be



Amendment Number Two to

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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.



 in compliance with the financial covenants set
forth in Section 5(c) as of the most recently ended fiscal quarter and the next four fiscal quarters ending after such acquisition, (F) the total
acquisition cost of such Acquired Person or Acquired Assets (including, without
limitation, acquired inventory) shall not exceed ten million dollars ($10,000,000)
individually or twenty-five million dollars ($25,000,000) in the aggregate in any
rolling twelve-month period for all such Acquired Persons and Acquired Assets,
collectively; provided, however, if such acquisition does not comply
with this clause (F), then CDF shall not unreasonably withhold its consent to such
acquisition, and (G) at the time of such acquisition, Availability (as defined in
the Program Terms Letter) shall be at least five million dollars ($5,000,000) and
the sum of Dealers’ cash, plus the balance of the Cash Collateral Reserve (as
defined in the [****]), plus Availability shall be at least fifteen million dollars
($15,000,000);”



6. The first sentence of Section 17 of the Financing Agreement is hereby deleted and is
replaced with the following:




“Unless sooner terminated as provided in this Agreement, the term of this Agreement
shall commence on the date hereof and continue until June 24, 2014 and, if CDF
provides written notice to Dealers of CDF’s intent to renew the current term at
least ninety (90) days prior to the end of the then current term, at CDF’s sole
election, the term of this Agreement shall automatically renew for up to two
successive one year periods thereafter.”



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



8. Each Dealer represents and warrants to CDF that (a) all representations and warranties of
Dealer in the Financing Agreement and the other 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 Financing Agreement, the [****], and the Program
Terms Letter are the legal, valid and binding obligations of such Dealer, enforceable against
Dealer in accordance with their terms, (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, (e) neither a Default nor an event which, with the giving of notice, the passage of time,
or both, would result in a Default has occurred and is continuing, and (f) the obligations of
Dealer to repay the Advances and to perform the Obligations are absolute and unconditional, and
there exists no right of setoff or recoupment, counterclaim or defense of any nature whatsoever to
payment or performance of the Obligations.



Amendment Number Two to

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9. All other terms and provisions of the Financing Agreement 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.



10. 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
Financing Agreement 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 except as required by and
subject to the terms and conditions of the Financing Agreement as amended hereby. 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 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.



11. Each Dealer hereby ratifies and confirms the Financing Agreement, as amended hereby, and
each other Document executed by such Dealer in all respects.



12. 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 12 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.



13. 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.



Amendment Number Two to

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14. 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 Financing Agreement
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.



15. 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.



16. 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.



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	 	 




Amendment Number Two to

Inventory Financing Agreement


 


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	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	 	 
	 
	 	 	 	 
	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

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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

Inventory Financing Agreement



 


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