1 

Liz Boydston (SBN 24053684)

Alexandria Rahn (SBN 24110246)

GUTNICKI LLP

10440 N. Central Expressway, Suite 800

Dallas, Texas 75231

Telephone: (469) 895-4413 

Facsimile: (469) 895-4413 

lboydston@gutnicki.com

arahn@gutnicki.com

Proposed Counsel to Debtors and Debtors 

in Possession

Max Schlan (Admitted Pro Hac Vice)

Ren-Ann Wang (Admitted Pro Hac Vice) 

GUTNICKI LLP

45 Rockefeller Plaza, Suite 2000 

New York, New York 10111 

Telephone: (646) 825-2330 

Facsimile: (646) 825-2330 

mschlan@gutnicki.com

rwang@gutnicki.com

IN THE UNITED STATES BANKRUPTCY COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

)

In re: ) Chapter 11

)

TOMMY’S FORT WORTH, LLC, et al.,

1 ) Case No. 24-90000

)

Debtors. ) (Jointly Administered)

)

DECLARATION OF MATTHEW BORISCH IN SUPPORT OF 

DEBTORS’ EMERGENCY MOTION TO ENFORCE AUTOMATIC STAY AND 

PUNITIVE DAMAGES FOR WILLFUL VIOLATIONS OF THE AUTOMATIC STAY

AGAINST MALIBU BOATS, INC. AND MALIBU BOATS, LLC

I, Matthew Borisch, hereby declare under penalty of perjury: 

1. I am the President of the “Debtors” or “Tommy’s” or the “Company,” which 

collectively refers to Debtor Tommy’s Fort Worth, LLC and sixteen (16) of its affiliated Debtors: 

Tommy’s Fort Worth, LLC; Tommy’s Lewisville, LLC; Tommy’s Holding Company, LLC; 

1 The Debtors in these Chapter 11 Cases, along with the last four digits of each Debtor’s federal tax identification 

number, are: Tommy’s Fort Worth, LLC (3473); Tommy’s Holding Company, LLC (2662); Tommy’s Grand Rapids, 

LLC (9224); Tommy’s Castaic, LLC (7501); Tommy’s Lewisville, LLC (4750); High Country Watersports, LLC 

(6160); Walloon Lake Village Marina, LLC (0277); MKB Florida Holdings, LLC (5698); Tommy’s Detroit, LLC 

(5242); Tommy’s California Fresno, LLC (8597); Tommy’s Phoenix, LLC (3036); Tommy’s Las Vegas, LLC (7721); 

Tommy’s Chattanooga, LLC (0839); Tommy’s California Ventura, LLC (5149); Tommy’s Rancho Cordova, LLC 

(1070); Tommy’s Stockton, LLC (1338); and Tommy’s Knoxville, LLC (8052).

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Tommy’s Grand Rapids, LLC; Tommy’s Castaic, LLC; High Country Watersports, LLC; Walloon 

Lake Village Marina, LLC; MKB Florida Holdings, LLC; Tommy’s Detroit, LLC; Tommy’s 

California Fresno, LLC; Tommy’s Phoenix, LLC; Tommy’s Las Vegas, LLC; Tommy’s 

Chattanooga, LLC; Tommy’s California Ventura, LLC; Tommy’s Rancho Cordova, LLC; 

Tommy’s Stockton, LLC; and Tommy’s Knoxville, LLC (collectively, the “Debtors”) in the 

above-captioned chapter 11 cases (the “Cases”).

2. I make this Declaration based upon my review of the Debtors’ records as they are 

maintained in Tommy’s ordinary course of its regularly conducted business activity. In the ordinary 

course of my employment at Tommy’s, my duties include communicating with Malibu Boat and 

Debtors’ Lender, M&T Bank. All references to Exhibits herein can be found in the Appendix In 

Support Of Debtors’ Emergency Motion To Enforce Automatic Stay And For Sanctions For Willful 

Violations Of The Automatic Stay Against Malibu Boats, Inc. And Malibu Boats, LLC.

A. TOMMY’S BOATS

3. The Debtors are a high-octane water-sports-enthusiast brand known as Tommy’s 

that began in 2012 in Colorado. Today, Tommy’s is the largest Ski & Wake dealer globally. 

Currently consisting of fourteen (14) dealerships plus nine additional on-water rental programs 

operating in Texas, Colorado, Michigan, Arizona, California, Florida, Nevada, and Tennessee,

Tommy’s supplies a full suite of boat repair services, boat rental services, on-the-water fueling and 

docking services, retail sales of super-premium ski and wake boats, luxury cruisers, fishing boats, 

pontoons, flightboards, and retail goods & apparel at Tommy’s Pro Shops. Tommy’s is and always 

has been dedicated to bringing the absolute best products and services to its loyal customers.

4. Boat sales make up approximately eighty-two (82) percent of the Debtors’ annual 

revenue. The majority of the Debtors’ sales are new luxury watercraft primarily from original 

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equipment manufacturer (OEM) Malibu under two brands: Malibu and Axis. Axis is a Malibumanufactured brand intended to be more entry market than luxury market. The Axis brand boats 

are advertised by Malibu at a price range of $85,000-$175,000 while the Malibu brand boats are 

advertised by Malibu at a price range of $175,000-$300,000. The Debtors are the largest dealer 

nationally for OEM Malibu Boats, accounting for approximately thirty (30) percent of Malibu’s 

national towboat sales. The sale of Malibu boats2 in their Excusive Territories is a necessary and 

critical component of the Debtors’ business. Without the ability to sell Malibu boats in their 

Exclusive Territories throughout the current boating season, there is no business to reorganize and 

no way for the Debtors to dig out from the hole created for it by Malibu3

 and M&T Bank.4 

B. MALIBU DEALERSHIP AGREEMENTS

5. For twelve (12) years, Malibu and each of Debtors’ dealerships had a dealership 

agreement (the “Dealership Agreements”).

5 The term of the Dealership Agreements, with the 

2 Unless otherwise specified, any reference to “Malibu boats” includes both Malibu and Axis boats. 

3 As set forth in the Tommy’s v Malibu, et al. litigation pending in the U.S. Dist. Court E.D. of Tennessee (see Ex. 47), 

Malibu intentionally and fraudulently demanded that Tommy’s increase its floor plan capability and proceeded to 

“pump Tommy’s full of boats” (the most expensive, highest margin, slow selling Malibu boats) with full knowledge 

that the market analysis did not warrant such inventory levels, all with the intention of increasing its market share and 

artificially inflating its stock price during a historically low market demand. Malibu stakeholders disclosed this fact 

to Mr. Borisch directly at the Miami Boat Show in February, 2024 (i.e. that Jack Springer, CEO, “refused to turn off 

the spigot” and “pumped Tommy’s full of boats” and Mr. Borisch was asked to “hold on” and advised not to pursue 

another OEM relationship as “Jack would not make it through this.”). Jack Springer’s employment was terminated the 

following week.

4 In September of 2023, when Malibu first drove Tommy’s out of trust (aka SOT) with M&T, Matt Fahey of M&T 

acknowledged that he and M&T “dropped the ball” by failing to obtain the industry standard Repurchase Agreement 

from Malibu, as was ordinary course between Malibu and each of Tommy’s floor plan lenders over the entire 12-year 

relationship (and as is ordinary course for Malibu and each of its other dealer’s floor plan lenders). Tommy’s 

subsequent learned from Malibu representatives that M&T “never even asked for the Repurchase Agreement” from 

Malibu at the time that M&T refinanced the Debtors’ prior Fifth Third floor plan and that Springer was well aware of 

that fact from the time of the refinance. A market Repurchase Agreement would have benefited Tommy’s/resulted in 

an offset to the M&T indebtedness of as much as $100,000,000. See Email between Matt Borisch and Jack Springer 

RE: Follow Up (12.16.2022), a true and correct copy is attached hereto as Exhibit “30.” 5 See Dealership Agreement for High Country Watersports, “Malibu 2023 Model Year Dealer Agreement” (7.1.22 – 

6.30.23) (“non-Texas MY23 Dealership Agreement”), a true and correct copy is attached hereto as Exhibit “1”. 

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exception of those in Texas, run from July 1 to June 30.6 Other than the term of the Texas contracts 

and the location of each dealership, the Dealership Agreements are materially the same.7

6. Each Dealership Agreement provides exclusivity for the sale of Malibu and Axis 

boats to the dealership within a specific area (an “Exclusive Territory” and collectively the 

Debtors’ “Exclusive Territories”).8 Only upon a material breach of the Dealership Agreement 

(assuming Malibu did not commit an earlier material breach rendering Tommy’s performance 

impossible, which is what happened here) may Malibu appoint another dealer within an Exclusive 

Territory.9 

7. Moreover, the Dealership Agreements provide that “Malibu will provide Dealer 

with a new agreement, or notice of non-renewal or termination, reasonably in advance of the 

expiration of this Agreement.10 

8. Historically—and consistently for each of the prior twelve (12) years—Malibu and 

the Debtors would allow the current Dealership Agreements to just about expire and only then 

would Malibu begin negotiations of new model-year Dealership Agreements while continuing to 

operate under the terms of the latest expired-term Dealership Agreement.

11 

6 Id.

7 Compare Dealership Agreement for Tommy’s Lewisville, “Malibu 2023 Model Year Multi-Year Agreement” (7.1.22 

– 6.30.25) (“TX MY23 Dealership Agreement”), a true and correct copy is attached hereto as Exhibit “2”, with, Ex. 

“1” (Texas Dealership Agreements are effective for multiple years, i.e. through 2025). 8 See, e.g., Ex. “1” (the specific term used in the Dealership Agreements for the Exclusive Territory is “Dealer Area.”). 9 Id. at ¶1.b. 10 Id. at ¶2. 11 See infra footnote 12. 

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9. Around the time of the contractual expiration of the MY202312 Dealership 

Agreements (other than in Texas)—June 30, 202313—the Debtors and Malibu took the same 

historic and ordinary course approach and began negotiations for the model year 2024 Dealership 

Agreements.14 On June 12, 2023, Malibu sent the first draft of the “Commitment Builder MY24” 

(the “Commitment Builder” is the annual excel workbook prepared by Malibu for negotiating 

the number of Malibu and Axis boats each dealer’s location will “commit” to purchase for the new 

Dealership Agreement, and such “commitment” is then included in the respective Dealership 

Agreement) and for the first time shared the MY24 Malibu & Axis Dealer Performance 

Programs.15 Despite historic lows in retail luxury power boat demand and sales activity and with 

full recognition that Malibu was not obligated to M&T via is ordinary Repurchase Agreement, 

Malibu’s June 12, 2023 Commitment Builder MY24 set Tommy’s MY24 commitment at 1160 

boats even though the Debtors currently had more than 800 MY2023 Malibu boats in stock and 

the low season was approaching.16 Three days later, Malibu sent a request to the Debtors requesting 

a favor—that the Debtors immediately enter fifty-eight (58) MY24 boats in the order system–boats 

12 MY23 refers to Model Year 2023, which non-Texas MY23 Dealership Agreements had the term July 1, 2022 through 

June 30, 2023. The date that the non-Texas MY23 Dealership Agreements were executed was September 6, 2022. 

Compare Ex. 1 at p.14, with, Ex. 2. For reference, the non-Texas MY22 Dealership Agreements (Model Year 2022) 

were executed on August 24, 2021. See Dealership Agreement for High Country Watersports, “Malibu 2022 Model 

Year Multi-Year Dealer Agreement” (7.1.2021 – 6.30.2022) (“non-Texas MY22 Dealership Agreement”), a true and 

correct copy is attached hereto as Exhibit “3”. 13 See Ex. 1. 14 See, e.g., Email Davenport to Wells, RE: MY24 Dealer Performance Programs and Commitment Builder with 

attachments (6.12.2023), a true and correct copy is attached hereto as Exhibit “4”. 15 Incentive Programs is defined herein at ¶ 20. See Commitment Builder MY24, MY24 Axis Dealer Performance 

Program, and MY24 Malibu Dealer Performance Program, true and correct copies are attached hereto as Exhibits 

“5,” “6,” and “7”, respectively. A true and correct copy of the email containing these attachments is attached hereto 

as Ex. “4.” 16 Ex. 5. 

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that Tommy’s did not need – in order to help Malibu fill its July production as part of Malibu’s 

order chase.17

10. Between June 13 and June 30, 2023, several virtual meetings were held between 

the parties, reviewing data and attempting to land on the correct commitment amount.18 On June 

30, 2023, the Debtors sent Malibu the revised Commitment Builder requesting to set Tommy’s 

commitment at 559 boats.19 For more than two (2) months, Malibu and the Debtors continued to 

discuss the MY24 Dealership Agreements and exchanged revised versions of the Commitment 

Builder; however, Malibu refused to send a Commitment Builder with fewer than 1160 as the 

Debtors’ commitment.20 On August 25, 2023, Malibu sent MY24 Commitment Sheets totaling 605 

boats. The Debtors informed Malibu in person that they could not commit to that many boats, and 

they were nearing danger with respect to their current inventory due to the unreasonable number 

of Malibu boats that Malibu had forced upon the Debtors. 

11. On or about September 2, 2023, Tommy’s informed Malibu that it was officially 

SOT,21 and on September 3, 2023, the Debtors had a discussion with Scott Davenport of Malibu 

seeking assistance in right-sizing the inventory.22 Ultimately, the Debtors began cancelling stock 

17 See Email from Scott Davenport to Mark Wells RE: July Orders due to today...Confirmed (June 15, 2023), a true 

and correct copy is attached hereto as Exhibit “8.” Ultimately, the Debtors did enter the 58-boat order as requested 

by Malibu, which boats ended up not on the M&T Floorplan and out of trust, for which Malibu then used their status 

as not on the M&T Floorplan and out of trust to deny signing the MY24 Dealership Agreements. See Ex. See Email 

between Jack Springer and Matt Borisch, Ed Wells, and Dave Cluka, RE: Update/Conversation (1.17.24), a true and 

correct copy is attached hereto as Exhibit “9”; see also Email from Jack Springer to Mark Wells re: Tommy’s 

Commitment Sheets (9.8.23), a true and correct copy is attached hereto as Exhibit “10.” 18 See Ex. “8.” 19 See Email Wells to Davenport RE: Commitment Builder MY24 – Tommy’s MW Update 6.30.xlsx (6.30.23), a true 

and correct copy of the email and attachment are attached hereto as Exhibit “11.” 20 See Email from Scott Davenport to Mark Wells re: MY24 Commitment Sheets (August 25, 2023), a true and correct 

copy of the email and attachment is attached hereto as Exhibit “12” and Exhibit “13,” respectively. 21See Email between Borisch and Wells RE: Boat Orders (9.2.23), a true and correct copy is attached hereto as Exhibit 

“14.” 22 Id. 

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boat orders.23 On September 8, 2023, Davenport sent a revised MY24 Commitment Sheet totaling 

535 boats.24 

12. On September 11, 2023, the Debtors tried to finalize the MY24 Commitment Sheets 

so the MY2024 Dealership Agreements can be signed, and Malibu CEO Jack Springer replied, 

“Tommy’s is SOT, which is one of the worst situations that can arise. Until Tommy’s is in good 

standing with M&T, no dealer agreement can be or will be signed. It is critical that Tommy’s 

resolve any and all SOT situations and has adequate, supported floorplan financing.”25

13. The Debtors immediately began to work with M&T to resolve the SOT and in 

October 2023, M&T sent confirmation that the Debtors resolved the SOT.26 

14. On October 13, 2023, Malibu CEO Jack Springer confirmed by e-mail, 

Following up with notes to next steps from our meeting so we are all on the 

same page. . . . MBI and Tommy’s to work to write new dealer 

agreements for 2024 which currently expired in 2023 and do not exist. I 

believe these capture the major topics.”27

15. Despite eight (8) months of discussions and being assured by Malibu that MY24 

Dealership Agreements would be entered into, it was not until February 26, 2024 that Malibu 

informed Tommy’s that it was not going to enter into any MY24 Dealership Agreements.28

16. Between July 1, 2023 (the day after the term of the MY23 Dealership Agreements) 

and March 13, 2024 (two days after Malibu alleges they terminated all Dealership Agreements

23 See, e.g., Email from Scott Davenport to Mark Wells re Call (September 7, 2023), a true and correct copy is attached 

hereto as Exhibit “15” and Email from Scott Davenport to Matt Borisch and Mark Wells (September 5, 2023), a true 

and correct copy is attached hereto as Exhibit “16”. 24 See Email from Scott Davenport to Mark Wells re Call (September 9, 2023), a true and correct copy of the email 

and attachment is attached hereto as Exhibit “17” and Exhibit “18”, respectively. 25 See Ex. “10”. 26 A true and correct copy of the letter is attached hereto as Exhibit “19”. 27A true and correct copy of the email is attached hereto as Exhibit “20”. 28 See February 26, 2024 email from J. Springer, a true and correct copy of the email is attached hereto as Exhibit

“21” and a true and correct copy of the letter is attached hereto as Exhibit “22”. 

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pursuant to the March 11th Letter (defined below)), Malibu delivered 13129 boats to the Debtors, 

requested that Tommy’s be the sole dealer representative of Malibu at 14 boat shows30 (wherein 

Malibu promised the Debtors they would be entitled to Boat Show Program incentives31 and 

reimbursement for boat show attendance costs as was the ordinary course of dealing between the 

parties for 12 years), and included Tommy’s in all of their MY23 and MY24 Incentive Programs.32 

17. Even after the March 11th Letter, Malibu requested that Tommy’s be the sole dealer 

representative of Malibu at five (5) boat shows, attendance at and sales during which Malibu 

promised the Debtors they would be entitled to Boat Show Program incentives33 and 

reimbursement for boat show attendance costs as was the ordinary course of dealing between the 

parties for 12 years:

34

18. For what it is worth, this would not be the first time that Malibu was found 

responsible for fraud in connection with its failure to extend its Dealership Agreements.35

29 See Delivered Boats Excel, a true and correct copy is attached hereto as Exhibit “23”. 30 See Chart “Boat Shows Since 2023,” a true and correct copy is attached hereto as Exhibit “24”. 31 Boat Show Program incentives (referenced in the industry as BSP) are one of the many Incentive Programs offered 

by Malibu only to its dealers, and compliance with the specifications in any offered Incentive Program entitles the 

dealer (here, Tommy’s) to the financial incentives outlined therein. See, e.g., 2024 Boat Show Program Incentives – 

Malibu (“2024 Malibu BSP”), a true and correct copy is attached hereto as Exhibit “26”; see also Email Davenport 

RE: Reminders – please read, attachments MY24 BSP (Dealer Name) reporting.xlsx (2.14.24), a true and correct copy 

is attached hereto as Exhibit “51”. 32 See, e.g., 2024 Malibu BSP, Ex. “26”; see also PowerPoint “2023 Boat Show Program Malibu” (“2023 Malibu 

BSP”), a true and correct copy is attached hereto as Exhibit “27”. Incentive Programs is defined herein at ¶ 20. 33 Malibu has refused payment to Tommy’s of any incentives, rebates, programs, sales events, bonuses, and/or 

reimbursements, including for the 19 boat shows that Malibu required Tommy’s to attend on Malibu’s behalf as the 

sole dealer representative of Malibu. See Ex. “24”; Spreadsheet “2024 Tommy’s Internal Discount Tracker Malibu,” 

a true and correct copy is attached hereto as Exhibit “28”. 34 See also Ex. “24”. 35 See, e.g., Houghton, et al. v. Malibu Boats, LLC, No. E2023-00324-COA-R3-CV (Tenn. Ct. App. 2024). 

Show Date

Novi Boat Show March 15 - 16 2024

Bakersfield/Sportsman Boat & RV Show March 15 - 17 2024

Traverse City Boat Show March 15 - 17 2024

Arizona Outdoor Expo March 23 - 24 2024

Orlando Boat Show April 5-7 2024

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C. PRESSURE FROM MALIBU THAT THE DEBTORS INCREASE THE FLOOR PLAN

19. During the COVID-19 pandemic in 2020 and into 2021, domestic retail demand for 

recreational towboats increased to the highest levels seen by the industry in decades, as customers 

turned to boating as a form of outdoor, socially-distanced recreation.

20. Retail luxury power boat demand and sales activity (referred to in the industry as 

“retail registration”) began declining in the second half of the 2021 calendar year because of 

inventory shortages due to the strong sales activity during the pandemic and supply chain 

disruptions that began impacting production levels. During 2022, retail registration continued to 

decline at a lower year-over-year rate than even the second half of 2021. Forecasting for 

2023 national sales of retail luxury power boats projected a drop of approximately 50% from 

2022 sales.36

21. In late 2022, despite the historic lows in retail registrations, Malibu began to 

pressure the Debtors to increase their available floor plan financing from $30 million (drawn on a 

$50 million facility with a $10 million overlimit) to $160 million.

37 Malibu represented to 

Tommy’s that Tommy’s was required to have a minimum of twenty-five (25) weeks of inventory 

in stock at the turn of the model year based on Malibu’s market analysis.38 To have a minimum of 

twenty-five (25) weeks of inventory of 2023 model year, Tommy’s would have to increase its floor 

plan by more than a factor of five (5). Here, Malibu CEO Jack Springer fraudulently represented 

Malibu’s market data in order to demand that Tommy’s increase its floor plan limits and several 

Malibu representatives were aware.39

36 See PowerPoint “Ski-Wake Market Share,” a true and correct copy of which is attached hereto as Exhibit “29”. 37 See Email between Matt Borish and Jack Springer RE: Follow up (12.16.22), a true and correct copy is attached 

hereto as Exhibit “30”. 38 Exhibit “5” (25 weeks at June 30). 39 See Exhibit “30.”

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22. At the same time, in 2022, the Debtors had earned significant incentives and rebates 

through the sale of Malibu boats.40 Numerous times each year, Malibu would offer various 

incentive programs including, for example, “Dealer Performance Programs,” “Hottest Ever 

Summer Sales Event” incentives, “Year-End Sales Event Programs,” “Boat Show Programs,” 

“Market Share Bonus” programs, and “Order Performance Incentives,” which would entitle 

dealers like Tommy’s to earn incentives related to sales of Malibu and Axis products (the 

“Incentive Programs”).

41 The Incentive Programs are only offered to Malibu dealers and include, 

but are not limited to, interest reimbursement, rebates, advertising reimbursements, bonuses, and 

discounts.42 The Incentive Programs not only provided a key source of income for the Debtors, 

but the purpose of the Incentive Programs is to offset lulls in seasonal sales, increased costs, 

mandated advertising required by Malibu, and to cover the interest charged by a floor plan lender 

for inventory on the floorplan during low seasons; thus, the Incentive Programs are necessary to 

sustain a profitable business and to ensure no sales are out of trust. 

23. Historical income and offsets received by the Debtors (and due and owing to the 

Debtors) from the Incentive Programs is set forth below: 

40 See 2017-2024 Summary Table of Historical Data, infra ¶23. 41 See MY24 Axis Dealer Performance Program and MY24 Malibu Dealer Performance Program, true and correct 

copies are attached hereto as Exs. “6” and “7”, respectively. See also 2019 Axis YESE, 2020 Malibu Axis BSP-Final, 

and Axis Summer Sales Rebates 2023, true and correct copies are attached hereto as Exhibits “31,” “32,” and “33”, 

respectively.

42 Id. 

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2017 – 2024 SUMMARY TABLE OF HISTORICAL DATA INCENTIVE PROGRAMS

MY

Total # 

Boats 

Delivered

Tommy's 

Commitment # # over/under

Rebates, 

Incentives & 

Interest Paid

Rebates, 

Incentives & 

Interest NOT Paid

# of Tommy's 

Dealerships

2017 217 240 -23 $2,024,458.20 n/a 4

2018 380 275 105 $2,333,767.16 n/a 5

2019 413 450 -37 $2,655,512.90 n/a 5

2020 345 637 -292 $2,425,474.20 n/a 7

2021 690 Malibu couldn't 

to meet COVID

build enough market 

demands $3,042,717 n/a 12

2022 1014 Malibu couldn't 

to meet COVID

build enough market 

demands $2,891,370 $364,750 15

2023 1191 1234 -43 $2,936,006 $2,017,750 14

2024 157 No signed 

commitment n/a $234,660 $1,166,929 14

24. Beginning in or around late 2022, Malibu refused to pay the Debtors approximately 

$365,000 of their earned incentives and rebates.43 As late as February 7, 2023, Malibu confirmed 

that Malibu still has not paid the accrued and earned 2022 rebates and promised to “get . . . caught 

up this week.”44 The Debtors never received those 2022 rebates. Rather, Malibu withheld the

earned incentives and rebates and instead promised additional incentives in the future, but only if 

the Debtors complied with Malibu’s compulsory demands.45 The Debtors never received those 

additional incentives either.46 To date, as set forth below, Malibu owes the Debtors more than $12 

million in incentives and rebates.

TYPE of Rebate DUE

2022 COOP47 $364,750

2023 BCP48 $666,250

2023 COOP $414,000

2023 QCP49 $505,500

2023 MSB50 $432,000

43 See the total amount due to Debtors as summarized in the table in ¶23. 44 See email from Scott Davenport, a true and correct copy is attached herein as Exhibit “34”. 45 See email and attached letter from Jack Springer, true and correct copies are attached hereto as Exhibits “21” and 

“22.” 46 See Email Matt Borisch and Jack Springer RE: MY2024 (09.05.23), a true and correct copy is attached hereto as 

Exhibit “35”. 47 2022 COOP means advertising dollars spent on Malibu’s behalf that are owed back. 48 2023 BCP means Boat Confirmation Payout. 49 2023 QCP means Quarterly Confirmation Payout. 50 2023 MSB means Market Share Bonus. 

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TYPE of Rebate DUE

2024 OPI51 $258,500

2024 Interest52 $508,429

2024 YESE Oct-Dec 2023 and BSP Discounts with no order53 $1,506,950

Interest on 2023s since MBUU stopped covering54 $5,302,285

Est 2024 COOP $400,000

TOTAL DUE TO TOMMY’S FROM MALIBU $12,983,664

25. When asked why Malibu refused to pay earned incentives, Malibu would claim that 

Tommy’s failed to meet their commitments.55 Yet it was not Tommy’s who failed to order their 

commitments, it was Malibu who refused to “slot” (i.e. begin to manufacture) all of the boats that 

Tommy’s ordered. Moreover, 2023 commitments have no relevance to the 2022 incentives that 

were earned and outstanding. For MY2023, the Debtors total number of boats was 1191, however 

it would have been higher (and thus met commitments) had Malibu built the other 235 Axis boats 

that Tommy’s had requested each month.56

Summary of Boats Requested v. Boats Slotted 

# Boats Requested by Tommys #of Boats Slotted 

Jul-22 74 66

Aug-22 107 105

Sep-22 164 91

Oct-22 168 67

Nov-22 157 143

Dec-22 165 114

Jan-23 100 15

Feb-23 114 31

Mar-23 141 146

Apr-23 146 125

May-23 164 164

Jun-23 117 91

1617 1158

51 2024 OPI means Order Performance Incentive. 52 2024 Interest means interest recapture that should have been paid by Malibu. 53 2024 YESE and BSP Discounts with no order means Year-end sales event and Boat Show program discount to be 

applied to future orders. 54 Interest on MY2023s since MBUU stopped covering means interest that should have been paid by Malibu that was 

not paid.

55 See February 26, 2024 email from J. Springer, a true and correct copy of the email is attached hereto as Exhibit

“21,” and a true and correct copy of the letter is attached hereto as Exhibit “22”. 56 See supra ¶23 chart; see charts, Requested v. Slotted (Malibu – Axis Mix), at infra ¶33. 

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26. Without the income and offsets from the Incentive Programs, retail margins on 

boats are especially small, and the only way to make up the margin shortfall was to sell more boats. 

Facing severe financial pressure without the income from the Incentive Programs, the Debtors 

succumbed to Malibu’s pressure and increased their floor plan capacity from $50 million to $85 

million with the Debtors’ prior lender, Fifth Third Bank. Malibu wanted the Debtors to take on 

additional floor plan, but Fifth Third Bank reached its limit. 

27. In March of 2023, the Debtors were introduced to M&T Bank (“M&T”), which 

had the ability to provide a larger floor plan to allow the Debtors to comply with Malibu’s demands. 

By May 2023, with M&T financing, the floor plan increased yet again to $110 million with a $20 

million overlimit.57

28. Malibu represented publicly and to M&T Bank that Malibu would support the 

obligatory increased floor plan by entering into a market Repurchase Agreement with M&T.58

29. Repurchase agreements are a critical component of floor plan financing. A 

repurchase agreement is an agreement between the floor plan lender and the manufacturer that 

provides that the manufacturer would repurchase the remaining merchandise if the borrower does 

not pay off the floor plan and if the lender had to take title to the merchandise because of default 

of the borrower. A repurchase agreement greatly reduces the risk factor to the lender and the 

57 See Variable Rate Demand Note (Floor Plan) dated May 18, 2023 (the “Floor Plan Note”), a true and correct copy 

is attached hereto as Exhibit “36”. 58 https://d18rn0p25nwr6d.cloudfront.net/CIK-0001590976/186a89fc-6d50-43c8-a26c-e129d3edf001.pdf 

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borrower but places additional risk on the manufacturer, which acts as a check to ensure 

manufacturers do not oversupply retailers/borrowers. A repurchase agreement is customary and 

standard in the boat industry, and Malibu had entered into repurchase agreements with Fifth Third 

Bank (and each of predecessor lenders) of the Debtors on each and every one of Tommy’s previous 

floor plan facilities.

30. Here, the repurchase agreement would have protected both M&T and the Debtors, 

because the repurchase agreement with M&T would have required Malibu to repurchase the 

Debtors’ Malibu inventory that did not sell, as well as cover all carry interest (monthly interest 

during the low sales season) on the floor-plan obligations. Importantly, the repurchase agreement 

would also incentivize Malibu not to oversaturate a dealer (in this case the Debtors) with too much 

inventory. According to Malibu’s own public filings, Malibu provides the lenders providing floor 

plan financing to its dealers with a repurchase agreement in the ordinary course: 

Our North American dealers often purchase boats through floor plan financing 

programs with third-party floor plan financing providers. During fiscal year 

2020, approximately 85% of our North American shipments were made 

pursuant to floor plan financing programs through which our dealers 

participate. These programs allow dealers across our brands to establish lines 

of credit with third-party lenders to purchase inventory. Under these programs, 

a dealer draws on the floor plan facility upon the purchase of our boats and the 

lender pays the invoice price of the boats. As is typical in our industry, we have 

entered into repurchase agreements with certain floor plan financing providers 

to our dealers (emphasis added). Under the terms of these arrangements, in the 

event a lender repossesses a boat from a dealer that has defaulted on its floor 

financing arrangement and is able to deliver the repossessed boat to us, we are 

obligated to repurchase the boat from the lender. Our obligation to repurchase 

such repossessed products for the unpaid balance of our original invoice price 

for the boat is subject to reduction or limitation based on the age and condition 

of the boat at the time of repurchase, and in certain cases by an aggregate cap 

on repurchase obligations associated with a particular floor financing 

program.59 

59 Malibu Boats, Form 10-Q, Period Ending Dec 31, 2023 (available at https://www.sec.gov/Archives/edgar/data/15

90976/000159097624000012/mbuu-20231231.htm). During the receivership, there were discussions among M&T, 

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31. However, despite its promises, its public filings, and the fact that a repurchase 

agreement is customary in the industry, Malibu ultimately reneged. To date, Malibu has yet to 

execute a repurchase agreement for the full floor plan with M&T.60

32. Malibu’s unrelenting pressure on Tommy’s to increase its floor plan and Malibu’s 

avoiding the ordinary course repurchase agreement with M&T (due initially to M&T’s failure to 

obtain one at the inception of the loan), created the perfect storm for Malibu to take advantage of 

the Debtors., created the perfect storm for Malibu to take advantage of the Debtors. Malibu could 

now pump upwards of $130 million of Malibu’s highest-priced inventory on the Debtors without 

any risk or obligation to repurchase.61 Not only did Malibu push as many boats as possible on the 

Debtors, Malibu did so with mainly its most expensive, highest-margin line of boats, outside of 

the customary and Debtor-requested inventory mix of 65% luxury Malibu boats and 35% entrylevel Axis-branded boats.62

the Receiver, and Malibu about Malibu providing a repurchase agreement as part of a global settlement with the 

Receiver and M&T. In their Motion for Extension of Time to Respond to Complaint filed on June 2, 2024, Malibu 

stated that the receiver and Malibu discussed a commercial resolution of the matters underlying this lawsuit, which 

Malibu expected to resolve the case. A true and correct copy of the motion is attached hereto as Exhibit “37”. 60 See January 17, 2024 email from J. Springer to M. Borisch, E. Wells, and D. Cluka, a true and correct copy of the 

email is attached hereto as Exhibit “38”; see also February 26, 2024 email from J. Springer, a true and correct copy 

of the email is attached hereto as Exhibit “21,” and a true and correct copy of the letter is attached hereto as Exhibit

“22”. 

In the late summer and fall of 2023, Malibu shipped $6 million inventory to Tommy’s that was not covered by M&T’s 

floorplan financing. Malibu demanded payment of the $6 million and dangled the promise of the model year 2024 

Dealership Agreements being signed if the Debtors were able to pay the $6 million. Between August and November 

2023, M&T refused to add the $6 million of Malibu inventory because Malibu repeatedly refused to provide the 

required repurchase agreement to M&T. After months of back and forth, in December 2023 the Debtors were able to 

convince Malibu to at least provide M&T a repurchase agreement on the $6 million of forced inventory, to which 

Malibu agreed. To date, that $6 million repurchase agreement is the only repurchase agreement between Malibu and 

M&T relating to the Debtors’ floor plan. After Malibu received its $6 million, Malibu’s CEO Jack Springer pushed 

off any discussion of the MY2024 Dealership Agreements, saying “let’s discuss Dealership Agreements in January.” 

See Ex. “9”. 61 See Email RE: MY2024 (09.05.23), Ex. “35”. 62 See Charts, Requested v. Slotted (Malibu – Axis Mix), at ¶33; see also Spreadsheet “Tommy’s Malibu Orders

7.1.2023 to Current” (07.2023-current), a true and correct copy is attached hereto as Exhibit “39” (showing that orders 

delivered since July 1, 2023 to current are 58% Malibu and 42% Axis).

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33. Additionally, Tommy’s would submit orders for the proper mix, yet time over time, 

Malibu would “slot” (i.e. begin the manufacture of) mostly higher-priced, highest-margin Malibu 

boats. For example, in both September of 2022 and February of 2023, the Debtors not only 

requested a larger number of total boats than Malibu slotted, but also the Debtors requested a 

higher percentage of the lower-priced Axis boats over luxury Malibu boats, but Malibu slotted the 

Debtors a higher percentage of Malibu boats, as shown below: 

September 2022 Requested v. Slotted (Malibu - Axis Mix)

# Requested by 

Tommys

# Slotted by 

Malibu

Malibu Boats 90 55% 55 60%

Axis Boats 74 45% 36 40%

Total 164 100% 91 100%

February 2023 Requested v. Slotted (Malibu - Axis Mix)

# Requested by 

Tommys

# Slotted by 

Malibu

Malibu Boats 38 33% 18 58%

Axis Boats 76 67% 13 42%

Total 114 100% 31 100%

34. The Malibu-branded boats provide higher margins for Malibu. However, because 

of the higher price point, they tie up substantially more of the Debtors’ floor plan and cost the 

Debtors substantially more in carry interest due to the slow pace at which they are sold. By 

“pumping” the Debtors full of the higher-end, highest-margin Malibu boats, it became impossible 

for the Debtors to hit sales targets, burying the Debtors in carry interest, which Malibu promised 

to pay as an incentive63 (and which, historically, Malibu had paid as reimbursements to the Debtors 

through 2022).

64 Malibu reneged on its contractual obligations to reimburse the Debtors for the 

63 See, e.g., Ex. “6” at 5. Winter Flooring Program (a) “Flooring interest expenses associated with MY24 model year 

boats will be paid for by Malibu Boats through April 30th if purchased before that date.

64 See Carry Interest Earned by Tommys, attached hereto as Exhibit “40”. 

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carry interest. Malibu not only denied the Debtors their carry interest incentives and other rebates, 

but Malibu also refused to honor its commitment to enter into a repurchase agreement when M&T 

finally requested one months after the new floor plan was in place, Tommy’s was buried with boats 

and SOT for the first time in 12 years.

65 The last month that Malibu paid any carry interest for 

Tommy’s was for the month of March 2023.66 Without reimbursement of their carry interest and 

without a repurchase agreement, there was nothing the Debtors could do. 

D. MALIBU CONTINUED OPERATING UNDER THE DEALERSHIP AGREEMENTS UNTIL IT 

BLED THE DEBTORS DRY. 

35. Approximately a month after the Debtors entered into their floor plan financing 

with M&T, the MY23 Dealership Agreements, other than in Texas, expired by their terms on June 

30, 2023. Notwithstanding the expiration, Malibu and the Debtors continued to conduct themselves 

as if the Dealership Agreements were still in place and that entering into new agreements was 

merely a formality.

36. Since July 1, 2023, Malibu delivered 131 boats to the Debtors, by far the most boats 

delivered to any Malibu dealer.67 As is set forth above, the dumping of inventory on the Debtors 

without a repurchase agreement provided increased sales to Malibu in a significantly downturned 

market without any corresponding risk to Malibu, or so Jack Springer thought. Indeed, Malibu 

used the pumping of inventory into the Debtors to relate to the public that “[w]hile retail activity 

at our dealers trended lower during fiscal year 2023, given low inventory levels at the beginning 

of the fiscal year, we continued to experience strong wholesale demand throughout the first three 

quarters of fiscal year 2023.”68 

65 A true and correct copy of the email is attached hereto as Exhibit “41”. 66 See, e.g., See February 26, 2024 email from J. Springer, a true and correct copy of the email is attached hereto as 

Exhibit “21”, and a true and correct copy of the letter is attached hereto as Exhibit “22”. 67 See Exhibit “23”. 68 Malibu Boats, Form 10-Q, Period Ending Sept. 30, 2023 (available at https://www.sec.gov/Archives/edgar/data/15

90976/000159097623000115/mbuu-20230930.htm).

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37. In February of 2024, at Malibu’s direct request, Tommy’s represented Malibu at the 

boat show in Miami.69 While at the Miami boat show, Matthew Borisch, principal for all Tommy’s

dealerships, was pulled aside by three Malibu stakeholders to discuss Tommy’s Dealership 

Agreements with Malibu. The stakeholders disclosed to Mr. Borisch that Malibu and its former 

CEO, Jack Springer, were “intentionally pumping Tommy’s full of inventory” in order to 

artificially inflate Malibu sales and market share when “most manufacturers are 70% too heavy on 

inventory and [Jack Springer] knows that. He “refused to turn off the spigot.” 

38. By this time the Debtors learned of Malibu’s plan to oversell its inventory to the 

Debtors without a repurchase agreement, the Debtors had become overextended on their floor plan 

with an inventory mix that was difficult to sell. On February 27, 2024, M&T notified the Debtors 

that it would not be able to provide financing for additional boats, leaving the Debtors with stale 

inventory and the inability to bring in anything new.70 Additionally, the Debtors could not fill 

custom boat orders, which made up a significant portion of the Debtors’ boat sales, because M&T 

would not allow the Debtors to deliver boats for which customers had given deposits, even when 

the Debtors asked if such boats could be delivered cash-on-demand by the customers.71

39. Using the Debtors’ financial difficulties with M&T—difficulties directly caused by 

Malibu’s actions—as pretext, on March 11, 2024 Malibu sent a letter to the Debtors purporting to 

“terminate” the Dealership Agreements at the Texas locations (the “March 11th Letter”).72

69 It is a contractual obligation in the Dealership Agreements and the Boat Show Program to represent Malibu at boat 

shows. See Ex. 1 at Exhibit 2 Performance Standards ¶11 (pg. 18 of 40) (“You agree that you shall represent Malibu 

Products at the following boat shows: Denver, Ft. Collins, Colorado Springs”); see also MKB Florida Holdings’ 

Dealership Agreement “Malibu 2023 Model Year Dealer Agreement” at Exhibit 2 Performance Standards ¶11(pg. 18 

of 40) (“You agree that you shall represent Malibu Products at the following boat shows: 

Orlando/Clearwater/Tampa/St Peterburg/Jacksonville/Miami.”), a true and correct copy is attached hereto as Exhibit 

“42”. 70 See February 27, 2024 letter: M&T notifies Debtors it would not provide financing (February 27, 2024), a true and 

correct copy of the email is attached hereto as Exhibit “43”. 71 See List of Deposits, a true and correct copy is attached hereto as Exhibit “44”. 72 March 11th Letter, a true and correct copy is attached hereto as Exhibit “45”. 

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Another letter followed on March 22, 2024 purporting “to confirm that Malibu does not anticipate 

entering into dealer agreements with any of the Tommy’s Dealerships . . .” (the “March 22nd 

Letter”).73 After leading the Debtors on for months about the prospect of 2024 Dealership 

Agreements and continually performing as though the agreement were in place, it took only a few 

weeks after Malibu got everything it could out of the Debtors to simply attempt to walk away.

40. On April 10, 2024, after discussions between the parties failed, the Debtors filed a 

Verified Complaint (the “Complaint”) in the US District Court for the Eastern District of 

Tennessee, evidencing Tommy’s swift move to protect itself and preserve the status quo (i.e. no 

competitors or new Malibu dealers in the Exclusive Territories).74 The Complaint (provided to 

Malibu in draft prior to filing) initially included a prayer for injunctive relief and was ultimately 

removed upon Malibu’s counsel indicating that Malibu had no issue continuing to honor the 

Dealership Agreements at least through the 2024 boating season.75

E. MALIBU SIGNS WITH COMPETITOR DEALERSHIPS

41. The Debtors immediately disputed Malibu’s position in both the March 11th Letter 

and March 22nd Letter, setting forth the arguments contained herein. Instead of engaging with the 

Debtors, Malibu informed M&T Bank that it had terminated any and all Dealership Agreements 

with the Debtors. Days later, M&T Bank defaulted the Debtors based on the “new information” 

that there were no Dealership Agreements in place with Malibu – though all parties knew that 

Malibu, M&T, and the Debtors were functioning for more than nine (9) months under the terms of 

73 A true and correct copy of the letter is attached hereto as Exhibit “46”. 74 Verified Complaint, Tommy's et al. v. Malibu et al. (April 10, 2024), a true and correct copy is attached hereto as

Exhibit “47”. 75 See Email between Floyd Gates and Malibu’s Counsel RE: Tommy’s / Malibu (April 2024), a true and correct copy 

is attached hereto as Exhibit “48”. 

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the 2023 Dealership Agreements and were each relying on the promise that the 2024 Dealership 

Agreements (which by terms would have expired approximately 100 days later) were in progress. 

42. Instead, Malibu almost immediately began discussions with competitor dealerships 

in the Debtors’ Exclusive Territories to sell its products. To date, the Debtors believe at least eleven 

(11) agreements with competitors have been signed within the Debtors’ Exclusive Territories.76

For example, upon information and belief, Malibu entered into a Dealership Agreement with 

competitor Liquid Planet Marine in Clermont, Florida, within the Exclusive Territory of Tommy’s 

Florida.77 So close in fact, Liquid Planet intends to open its dealership two (2) doors down from 

the Debtors on the same day the Debtors filed this Motion. Many employees, including one of 

Tommy’s top-ranking managers in the area, have given notice to Tommy’s expressly to work for 

Liquid Planet as Malibu’s “replacement dealer.”

43. In fact, Malibu is already advertising their “replacement” dealers.78

44. Adding insult to injury, the Debtors have been informed by store-level employees 

that entire staffs have been made job offers by the competitor dealerships now selling Malibu boats. 

45. In fact, on Friday, May 31, 2024, the Debtors held a virtual all-staff meeting with 

all Tommy’s locations. Then the Debtors held follow-up meetings with each store individually. 

The Fort Worth manager informed the Debtors’ management that all but seven (7) Texas employees 

have received job offers from Malibu Texas, that Malibu Texas took over the Debtors’ Fort Worth 

lease, and that Malibu Texas was opening a Fort Worth dealership at the Debtors’ Fort Worth 

dealership and a brand new Lewisville dealership.79 Despite the automatic stay and warnings by 

76 See Copy of Replacement Dealers to Stop 5.26.24 (May 27, 2024), a true and correct copy is attached hereto as

Exhibit “49”. 77 Id. Debtor MKB Florida Holdings, LLC does business as Tommy’s Florida. 78 See Advertisements, copies of which are attached hereto as Exhibit “50”, 79 Id. 

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the Debtors to Malibu that poaching their employees was a violation of the automatic stay, Malibu 

continues to “replace” the Debtors in the Debtors’ Exclusive Territories and poach the Debtors’ 

employees.80

46. Although Malibu does not want to recognize the continuation of their Dealership 

Agreements with the Debtors, (a) the historical and customary course of dealing between Malibu 

and the Debtors relating to the Dealership Agreements, (b) their historical actions between the 

contract term of each historical Dealership Agreement and the renegotiation of the next year’s 

Dealership Agreement, (c) their continued actions after the contract term expiration of the 2023 

Dealership Agreements, (d) their statements and actions that a 2024 Dealership Agreement was 

forthcoming, and (e) their delivery of (and demand that Debtors’ accept and pay for) 131 boats 

between July 1, 2023 and March 13, 2024 establish that the full intent of the parties was that the 

Dealership Agreements are still in place.

47. Accordingly, the Court should enforce the automatic stay by requiring Malibu to 

honor the exclusivity provision of the Dealership Agreements. Moreover, to the extent Malibu has 

already violated the exclusivity provision of the Dealership agreements, the Debtors should receive 

punitive and compensatory damages for Malibu’s willful violations of the automatic stay. 

Dated: June 4, 2024 

_____/s/ Matthew Borisch____________ 

Matthew Borisch

President

Tommy’s Fort Worth, LLC; Tommy’s Fort Worth, LLC; Tommy’s Lewisville, 

LLC; Tommy’s Holding Company, LLC; Tommy’s Grand Rapids, LLC; Tommy’s 

Castaic, LLC; High Country Watersports, LLC; Walloon Lake Village Marina, 

LLC; MKB Florida Holdings, LLC; Tommy’s Detroit, LLC; Tommy’s California 

Fresno, LLC; Tommy’s Phoenix, LLC; Tommy’s Las Vegas, LLC; Tommy’s 

Chattanooga, LLC; Tommy’s California Ventura, LLC; Tommy’s Rancho 

Cordova, LLC; Tommy’s Stockton, LLC; and Tommy’s Knoxville, LLC 

80 Id.

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