UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
 
FORM 10-Q

☒	QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 2018.	
Commission File Number. 1-14173
 
MARINEMAX, INC.
(Exact Name of Registrant as Specified in Its Charter)

Florida	59-3496957	
(State or Other Jurisdiction of Incorporation or Organization)	(I.R.S. Employer Identification Number)	
 	 	
2600 McCormick Drive, Suite 200	 	
Clearwater, Florida 	33759	
(Address of Principal Executive Offices)	(ZIP Code)	
727-531-1700
(Registrant's Telephone Number, Including Area Code)
 
Indicate by check mark whether the registrant:  (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.
Yes   ☒     No   ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).
Yes   ☒     No   ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company" in Rule 12b-2 of the Exchange Act.

Large accelerated filer	 	☐	 	Accelerated filer	 	☒	
Non-accelerated filer	 	☐   	 	Smaller reporting company	 	☐	
 	 	 	 	Emerging growth company	 	☐	
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐
 
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).
Yes   ☐     No   ☒
The number of outstanding shares of the registrant's Common Stock on January 25, 2019 was 27,320,216.

 

 

 

 
MARINEMAX, INC. AND SUBSIDIARIES
Table of Contents
 
Item No .	Page	
 	 	 	 	
PART I. FINANCIAL INFORMATION	 	
1.   	Financial Statements (Unaudited):	 	 	
 	Condensed Consolidated Statements of Operations for the Three Months Ended December 31, 2017 and 2018	 	3	
 	Condensed Consolidated Balance Sheets as of September 30, 2018 and December 31, 2018	 	4	
 	Condensed Consolidated Statement of Stockholders’ Equity for the Three Months Ended December 31, 2018	 	5	
 	Condensed Consolidated Statements of Cash Flows for the Three Months Ended December 31, 2017 and 2018	 	6	
 	Notes to Condensed Consolidated Financial Statements	 	7	
 	 	 	 	
2.   	Management's Discussion and Analysis of Financial Condition and Results of Operations	 	16	
 	 	 	 	
3.   	Quantitative and Qualitative Disclosures About Market Risk	 	22	
 	 	 	 	
4.   	Controls and Procedures	 	22	
 	 	 	 	
PART II. OTHER INFORMATION	 	
1.   	Legal Proceedings	 	24	
1A.	Risk Factors	 	24	
2.   	Unregistered Sales of Equity Securities and Use of Proceeds	 	24	
3.   	Defaults Upon Senior Securities	 	24	
4.   	Mine Safety Disclosures	 	24	
5.   	Other Information	 	24	
6.   	Exhibits	 	25	
SIGNATURES	 	26	
 	 	 	 	
EX – 31.1	 	
EX – 31.2	 	
EX – 32.1	 	
EX – 32.2	 	
EX – 101 INSTANCE DOCUMENT	 	
EX – 101 SCHEMA DOCUMENT	 	
EX – 101 CALCULATION LINKBASE DOCUMENT	 	
EX – 101 DEFINITION LINKBASE DOCUMENT	 	
EX – 101 LABEL LINKBASE DOCUMENT	 	
EX – 101 PRESENTATION LINKBASE DOCUMENT	 	

 
 
2

PART I. FINANCIAL INFORMATION
ITEM 1. Financial Statements
MARINEMAX, INC. AND SUBSIDIARIES
Condensed Consolidated Statements of Operations
(Amounts in thousands, except share and per share data)
(Unaudited)
 
 	 	Three Months Ended	 	
 	 	December 31,	 	
 	 	2017	 	 	2018	 	
Revenue	 	$	236,921	 	 	$	241,937	 	
Cost of sales	 	 	177,672	 	 	 	178,459	 	
Gross profit	 	 	59,249	 	 	 	63,478	 	
 	 	 	 	 	 	 	 	 	
Selling, general, and administrative expenses	 	 	50,246	 	 	 	54,492	 	
Income from operations	 	 	9,003	 	 	 	8,986	 	
 	 	 	 	 	 	 	 	 	
Interest expense	 	 	2,542	 	 	 	2,516	 	
Income before income tax provision	 	 	6,461	 	 	 	6,470	 	
 	 	 	 	 	 	 	 	 	
Income tax provision	 	 	2,249	 	 	 	1,560	 	
Net income	 	$	4,212	 	 	$	4,910	 	
 	 	 	 	 	 	 	 	 	
Basic net income per common share	 	$	0.19	 	 	$	0.22	 	
 	 	 	 	 	 	 	 	 	
Diluted net income per common share	 	$	0.19	 	 	$	0.21	 	
 	 	 	 	 	 	 	 	 	
Weighted average number of common shares used in computing
   net income per common share:	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	
Basic	 	 	21,986,981	 	 	 	22,779,567	 	
Diluted	 	 	22,712,648	 	 	 	23,400,685	 	
 
See accompanying notes to condensed consolidated financial statements.

 
 
3

MARINEMAX, INC. AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
(Amounts in thousands, except share data)
(Unaudited)
 
 	 	September 30,	 	 	December 31,	 	
 	 	2018	 	 	2018	 	
ASSETS	 	 	 	 	 	 	 	 	
CURRENT ASSETS:	 	 	 	 	 	 	 	 	
Cash and cash equivalents	 	$	48,822	 	 	$	38,581	 	
Accounts receivable, net	 	 	34,003	 	 	 	25,711	 	
Inventories, net	 	 	377,074	 	 	 	445,465	 	
Prepaid expenses and other current assets	 	 	5,392	 	 	 	10,904	 	
Total current assets	 	 	465,291	 	 	 	520,661	 	
 	 	 	 	 	 	 	 	 	
Property and equipment, net of accumulated depreciation of $72,013 and $74,344	 	 	138,716	 	 	 	138,730	 	
Goodwill and other long-term assets, net	 	 	33,123	 	 	 	33,715	 	
Deferred tax assets, net	 	 	3,408	 	 	 	2,588	 	
Total assets	 	$	640,538	 	 	$	695,694	 	
LIABILITIES AND SHAREHOLDERS’ EQUITY	 	 	 	 	 	 	 	 	
CURRENT LIABILITIES:	 	 	 	 	 	 	 	 	
Accounts payable	 	$	23,134	 	 	$	11,840	 	
Customer deposits	 	 	17,006	 	 	 	21,071	 	
Accrued expenses	 	 	32,926	 	 	 	29,790	 	
Short-term borrowings	 	 	212,949	 	 	 	270,715	 	
Total current liabilities	 	 	286,015	 	 	 	333,416	 	
Long-term liabilities	 	 	1,431	 	 	 	840	 	
Total liabilities	 	 	287,446	 	 	 	334,256	 	
SHAREHOLDERS' EQUITY:	 	 	 	 	 	 	 	 	
Preferred stock, $.001 par value, 1,000,000 shares authorized, none issued or outstanding
   as of September 30, 2018 and December 31, 2018	 	 	—	 	 	 	—	 	
Common stock, $.001 par value, 40,000,000 shares authorized, 27,141,267 and
   27,317,327 shares issued and 22,670,536 and 22,833,093 shares outstanding as of
   September 30, 2018 and December 31, 2018, respectively	 	 	27	 	 	 	27	 	
Additional paid-in capital	 	 	262,250	 	 	 	265,516	 	
Retained earnings	 	 	166,071	 	 	 	171,380	 	
Treasury stock, at cost, 4,470,731 and 4,484,234 shares held as of September 30, 2018
   and December 31, 2018, respectively	 	 	(75,256	)	 	 	(75,485	)	
Total shareholders’ equity	 	 	353,092	 	 	 	361,438	 	
Total liabilities and shareholders’ equity	 	$	640,538	 	 	$	695,694	 	
 
See accompanying notes to condensed consolidated financial statements.

 
 
4

MARINEMAX, INC. AND SUBSIDIARIES
Condensed Consolidated Statement of Shareholders’ Equity
(Amounts in thousands, except share data)
(Unaudited)
 
 	 	 	 	 	 	 	 	 	 	Additional	 	 	 	 	 	 	 	 	 	 	Total	 	
 	 	Common Stock	 	 	Paid-in	 	 	Retained	 	 	Treasury	 	 	Shareholders’	 	
 	 	Shares	 	 	Amount	 	 	Capital	 	 	Earnings	 	 	Stock	 	 	Equity	 	
BALANCE, September 30, 2018	 	 	27,141,267	 	 	$	27	 	 	$	262,250	 	 	$	166,071	 	 	$	(75,256	)	 	$	353,092	 	
Net income	 	 	—	 	 	 	—	 	 	 	—	 	 	 	4,910	 	 	 	 	 	 	 	4,910	 	
Purchase of treasury stock	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	(229	)	 	 	(229	)	
Shares issued pursuant to employee stock purchase
   plan	 	 	30,650	 	 	 	—	 	 	 	507	 	 	 	—	 	 	 	—	 	 	 	507	 	
Shares issued upon vesting of equity awards, net of
   minimum tax withholding	 	 	35,000	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	—	 	 	 	-	 	
Shares issued upon exercise of stock options	 	 	108,275	 	 	 	—	 	 	 	1,311	 	 	 	—	 	 	 	—	 	 	 	1,311	 	
Stock-based compensation	 	 	2,135	 	 	 	—	 	 	 	1,448	 	 	 	—	 	 	 	—	 	 	 	1,448	 	
Cumulative effect of change in accounting principle - revenue recognition, net of tax	 	 	—	 	 	 	—	 	 	 	—	 	 	 	399	 	 	 	—	 	 	 	399	 	
BALANCE, December 31, 2018	 	 	27,317,327	 	 	$	27	 	 	$	265,516	 	 	$	171,380	 	 	$	(75,485	)	 	$	361,438	 	
 
See accompanying notes to condensed consolidated financial statements.

 
 
5

MARINEMAX, INC. AND SUBSIDIARIES
Condensed Consolidated Statements of Cash Flows
(Amounts in thousands)
(Unaudited)
 
 	 	Three Months Ended	 	
 	 	December 31,	 	
 	 	2017	 	 	2018	 	
CASH FLOWS FROM OPERATING ACTIVITIES:	 	 	 	 	 	 	 	 	
Net income	 	$	4,212	 	 	$	4,910	 	
Adjustments to reconcile net income to net cash used in operating
   activities:	 	 	 	 	 	 	 	 	
Depreciation and amortization	 	 	2,461	 	 	 	2,775	 	
Deferred income tax provision	 	 	1,298	 	 	 	683	 	
(Gain) loss on sale of property and equipment and assets held for sale	 	 	(21	)	 	 	84	 	
Gain on insurance settlements	 	 	(82	)	 	 	—	 	
Proceeds from insurance settlements	 	 	906	 	 	 	475	 	
Stock-based compensation expense	 	 	1,507	 	 	 	1,448	 	
(Increase) decrease in —	 	 	 	 	 	 	 	 	
Accounts receivable, net	 	 	(5,035	)	 	 	7,817	 	
Inventories, net	 	 	(39,419	)	 	 	(68,946	)	
Prepaid expenses and other assets	 	 	(872	)	 	 	(5,013	)	
Increase (decrease) in —	 	 	 	 	 	 	 	 	
Accounts payable	 	 	(16,066	)	 	 	(11,294	)	
Customer deposits	 	 	(1,410	)	 	 	4,065	 	
Accrued expenses and long-term liabilities	 	 	(3,663	)	 	 	(2,093	)	
Net cash used in operating activities	 	 	(56,184	)	 	 	(65,089	)	
CASH FLOWS FROM INVESTING ACTIVITIES:	 	 	 	 	 	 	 	 	
Purchases of property and equipment	 	 	(2,724	)	 	 	(3,025	)	
Proceeds from insurance settlements	 	 	146	 	 	 	—	 	
Proceeds from sale of property and equipment and assets held for sale	 	 	101	 	 	 	43	 	
Net cash used in investing activities	 	 	(2,477	)	 	 	(2,982	)	
CASH FLOWS FROM FINANCING ACTIVITIES:	 	 	 	 	 	 	 	 	
Net borrowings on short-term borrowings	 	 	53,562	 	 	 	57,766	 	
Net proceeds from issuance of common stock under incentive compensation and
   employee purchase plans	 	 	2,352	 	 	 	1,818	 	
Contingent acquisition consideration payments	 	 	(2,826	)	 	 	—	 	
Payments on tax withholdings for equity awards	 	 	(118	)	 	 	(1,525	)	
Purchase of treasury stock	 	 	(695	)	 	 	(229	)	
Net cash provided by financing activities	 	 	52,275	 	 	 	57,830	 	
NET DECREASE IN CASH AND CASH EQUIVALENTS	 	 	(6,386	)	 	 	(10,241	)	
CASH AND CASH EQUIVALENTS, beginning of period	 	 	41,952	 	 	 	48,822	 	
CASH AND CASH EQUIVALENTS, end of period	 	$	35,566	 	 	$	38,581	 	
Supplemental Disclosures of Cash Flow Information:	 	 	 	 	 	 	 	 	
Cash paid for:	 	 	 	 	 	 	 	 	
Interest	 	$	2,841	 	 	$	2,711	 	
Income taxes	 	 	—	 	 	 	—	 	
Non-cash items:	 	 	 	 	 	 	 	 	
Accrued acquisition of property and equipment	 	 	364	 	 	 	—	 	
 
See accompanying notes to condensed consolidated financial statements.

 
 
6

MARINEMAX, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
 
1.	COMPANY BACKGROUND:	
We are the largest recreational boat and yacht retailer in the United States.  We engage primarily in the retail sale, brokerage, and service of new and used boats, motors, trailers, marine parts and accessories and offer slip and storage accommodations in certain locations.  In addition, we arrange related boat financing, insurance, and extended service contracts.  We also offer the charter of power yachts in the British Virgin Islands.  As of December 31, 2018, we operated through 63 retail locations in 16 states, consisting of Alabama, Connecticut, Florida, Georgia, Maryland, Massachusetts, Minnesota, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Rhode Island, South Carolina and Texas. Our MarineMax Vacations operation maintains a facility in Tortola, British Virgin Islands.
We are the nation’s largest retailer of Sea Ray and Boston Whaler recreational boats and yachts, which are manufactured by Brunswick Corporation (“Brunswick”). Sales of new Brunswick boats accounted for approximately 40% of our revenue in fiscal 2018.  Sales of new Sea Ray and Boston Whaler boats, both divisions of Brunswick, accounted for approximately 21% and 17%, respectively, of our revenue in fiscal 2018. Brunswick is a world leading manufacturer of marine products and marine engines. We believe we represented approximately 42% of Brunswick’s Sea Ray boat sales, during our fiscal 2018.
In June 2018 Brunswick announced it will discontinue Sea Ray sport yacht and yacht models.  Sea Ray sport yacht and yacht models represented approximately 10% of revenue during fiscal year 2018. We believe our brand and product diversification should allow us to replace the Sea Ray sport yacht and yacht revenue.
We have dealership agreements with Sea Ray, Boston Whaler, Harris, and Mercury Marine, all subsidiaries or divisions of Brunswick. We also have dealer agreements with Italy-based Azimut-Benetti Group’s product line for Azimut Yachts. These agreements allow us to purchase, stock, sell, and service these manufacturers’ boats and products. These agreements also allow us to use these manufacturers’ names, trade symbols, and intellectual properties in our operations.
We have multi-year dealer agreements with Brunswick covering Sea Ray products that appoint us as the exclusive dealer of Sea Ray boats in our geographic markets. We are the exclusive dealer for Boston Whaler through multi-year dealer agreements for many of our geographic markets. In addition, we are the exclusive dealer for Azimut Yachts for the entire United States through a multi-year dealer agreement. Sales of new Azimut boats accounted for approximately 11% of our revenue in fiscal 2018. We believe non-Brunswick brands offer a migration for our existing customer base or fill a void in our product offerings, and accordingly, do not compete with the business generated from our other prominent brands.
As is typical in the industry, we deal with most of our manufacturers, other than Sea Ray, Boston Whaler, and Azimut Yachts, under renewable annual dealer agreements, each of which gives us the right to sell various makes and models of boats within a given geographic region.  Any change or termination of these agreements, or the agreements discussed above, for any reason, or changes in competitive, regulatory, or marketing practices, including rebate or incentive programs, could adversely affect our results of operations.  Although there are a limited number of manufacturers of the type of boats and products that we sell, we believe that adequate alternative sources would be available to replace any manufacturer other than Sea Ray and Azimut as a product source.  These alternative sources may not be available at the time of any interruption, and alternative products may not be available at comparable terms, which could affect operating results adversely.
General economic conditions and consumer spending patterns can negatively impact our operating results.  Unfavorable local, regional, national, or global economic developments or uncertainties regarding future economic prospects could reduce consumer spending in the markets we serve and adversely affect our business.  Economic conditions in areas in which we operate dealerships, particularly Florida, in which we generated approximately 55%, 55%, and 51% of our revenue during fiscal 2016, 2017, and 2018, respectively, can have a major impact on our operations.  Local influences, such as corporate downsizing, military base closings, inclement weather such as Hurricane Sandy in 2012 or Hurricanes Harvey and Irma in 2017, environmental conditions, and specific events, such as the BP oil spill in the Gulf of Mexico in 2010, also could adversely affect, and in certain instances have adversely affected, our operations in certain markets.
 
7

In an economic downturn, consumer discretionary spending levels generally decline, at times resulting in disproportionately large reductions in the sale of luxury goods.  Consumer spending on luxury goods also may decline as a result of lower consumer confidence levels, even if prevailing economic conditions are favorable.  As a result, an economic downturn could impact us more than certain of our competitors due to our strategic focus on a higher end of our market.  Although we have expanded our operations during periods of stagnant or modestly declining industry trends, the cyclical nature of the recreational boating industry or the lack of industry growth may adversely affect our business, financial condition, and results of operations.  Any period of adverse economic condition s or low consumer confidence is likely to have a negative effect on our business.
Historically, in periods of lower consumer spending and depressed economic conditions, we have, among other things, substantially reduced our acquisition program, delayed new store openings, reduced our inventory purchases, engaged in inventory reduction efforts, closed a number of our retail locations, reduced our headcount, and amended and replaced our credit facility.  Acquisitions and new store openings remain important strategies to our company, and we plan to accelerate our growth through these strategies as industry conditions continue to improve.  

2.	BASIS OF PRESENTATION:	
These unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States for interim financial information, the instructions to Quarterly Report on Form 10-Q, and Rule 10-01 of Regulation S-X and should be read in conjunction with our Annual Report on Form 10-K for the fiscal year ended September 30, 2018. Accordingly, these unaudited condensed consolidated financial statements do not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements. All adjustments, consisting of only normal recurring adjustments considered necessary for fair presentation, have been reflected in these unaudited condensed consolidated financial statements. As of December 31, 2018, our financial instruments consisted of cash and cash equivalents, accounts receivable, accounts payable, customer deposits, and short-term borrowings. The carrying amounts of our financial instruments reported on the balance sheet as of December 31, 2018, approximated fair value due either to length to maturity or existence of variable interest rates, which approximate prevailing market rates.  The operating results for the three months ended December 31, 2018, are not necessarily indicative of the results that may be expected in future periods.
The preparation of unaudited condensed consolidated financial statements in conformity with accounting principles generally accepted in the United States requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities as of the date of the unaudited condensed consolidated financial statements and the reported amounts of revenue and expenses during the reporting periods. Significant estimates made by us in the accompanying unaudited condensed consolidated financial statements include valuation allowances, valuation of goodwill and intangible assets, valuation of long-lived assets, and valuation of accruals. Actual results could differ from those estimates.
Unless the context otherwise requires, all references to “MarineMax” mean MarineMax, Inc. prior to its acquisition of five previously independent recreational boat dealers in March 1998 (including their related real estate companies) and all references to the “Company,” “our company,” “we,” “us,” and “our” mean, as a combined company, MarineMax, Inc. and the 28 recreational boat dealers, two boat brokerage operations, and two full-service yacht repair operations acquired as of December 31, 2018 (the “acquired dealers,” and together with the brokerage and repair operations, “operating subsidiaries” or the “acquired companies”).
In order to provide comparability between periods presented, certain amounts have been reclassified from the previously reported unaudited condensed consolidated financial statements to conform to the unaudited condensed consolidated financial statement presentation for the current period. The unaudited condensed consolidated financial statements include our accounts and the accounts of our subsidiaries, all of which are wholly owned. All significant intercompany transactions and accounts have been eliminated.

3.	NEW ACCOUNTING PRONOUNCEMENTS:	
In May 2014, the FASB issued Accounting Standards Update No. 2014-09, “Revenue from Contracts with Customers (Topic 606)” (“ASU 2014-09”), a converged standard on revenue recognition.  The new pronouncement requires revenue recognition to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services.  The guidance also specifies the accounting for some costs to obtain or fulfill a contract with a customer, as well as enhanced disclosure requirements. The FASB also subsequently issued several amendments to the standard, including clarification on principal versus agent guidance, identifying performance obligations, and immaterial goods and services in a contract.
 
8

The new accounting standard update must be applied using either of the following transition me thods: (i) a full retrospective approach reflecting the application of the standard in each prior reporting period with the option to elect certain practical expedients, or (ii) a modified retrospective approach with the cumulative effect of initially adopting the standard recognized at the date of adoption (which requires additional footnote disclosures).
The new accounting standard is effective for reporting periods beginning after December 15, 2017. We adopted the accounting standard effective October 1, 2018, using the modified retrospective approach applied only to contracts not completed as of the date of adoption, with no restatement of comparative periods. Therefore, the comparative information has not been adjusted and continues to be reported under ASC Topic 605. We recognized a net after-tax cumulative effect adjustment to retained earnings of $399,000 as of the date of adoption. The details and quantitative impacts of the significant changes are described below.
 
We previously recognized revenue for parts and service operations (boat maintenance and repairs) when the services were completed and recorded amounts due to us as receivables. Under ASC Topic 606, performance obligations associated with parts and service operations are satisfied over time, which results in the acceleration of revenue recognition, and amounts due to us are reflected as a contract asset until the right to such consideration becomes unconditional, at which time amounts due to us are reclassified to receivables.
 
Consolidated Balance Sheet Line Items	 	
 	 	Impact of changes in accounting policies	 	
 	 	 	 	 	 	Balances without	 	 	Impact of	 	
 	 	 	 	 	 	adoption of ASC	 	 	adoption	 	
December 31, 2018	 	As Reported	 	 	Topic 606	 	 	Higher/(Lower)	 	
Inventories, net	 	$	445,465	 	 	$	446,228	 	 	$	(763	)	
Prepaid expenses and other current assets	 	 	10,904	 	 	 	6,940	 	 	 	3,964	 	
     Deferred tax assets, net	 	 	2,588	 	 	 	2,725	 	 	 	(137	)	
     Accounts payable	 	 	11,840	 	 	 	11,703	 	 	 	137	 	
     Accrued expenses	 	 	29,790	 	 	 	27,725	 	 	 	2,065	 	
     Retained earnings	 	 	171,380	 	 	 	170,518	 	 	 	862	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	
Consolidated Statements of Operations Line Items	 	
 	 	Impact of changes in accounting policies	 	
 	 	 	 	 	 	Balances without	 	 	Impact of	 	
 	 	 	 	 	 	adoption of ASC	 	 	adoption	 	
Three Months Ended December 31, 2018	 	As Reported	 	 	Topic 606	 	 	Higher/(Lower)	 	
Revenue	 	$	241,937	 	 	$	241,130	 	 	$	807	 	
Cost of sales	 	 	178,459	 	 	 	178,252	 	 	 	207	 	
Income from operations	 	 	8,986	 	 	 	8,386	 	 	 	600	 	
     Income before income tax provision	 	 	6,470	 	 	 	5,870	 	 	 	600	 	
Income tax provision	 	 	1,560	 	 	 	1,423	 	 	 	137	 	
Net Income	 	 	4,910	 	 	 	4,447	 	 	 	463	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	
Consolidated Statements of Cash flows	 	
 	 	Impact of changes in accounting policies	 	
 	 	 	 	 	 	Balances without	 	 	Impact of	 	
 	 	 	 	 	 	adoption of ASC	 	 	adoption	 	
Three Months Ended December 31, 2018	 	As Reported	 	 	Topic 606	 	 	Higher/(Lower)	 	
Net income	 	$	4,910	 	 	$	4,447	 	 	$	463	 	
(Increase) decrease in —	 	 	 	 	 	 	 	 	 	 	 	 	
Inventories, net	 	 	(68,946	)	 	 	(69,154	)	 	 	208	 	
Prepaid expenses and other assets	 	 	(5,013	)	 	 	(2,140	)	 	 	(2,873	)	
Increase (decrease) in —	 	 	 	 	 	 	 	 	 	 	 	 	
Accounts payable	 	 	(11,294	)	 	 	(11,431	)	 	 	137	 	
Accrued expenses and other long-term liabilities	 	 	(2,093	)	 	 	(4,158	)	 	 	2,065	 	

9

In February 2016, the FASB issued ASU 2016-02, “Leases (Topic 842)” (“ASU 2016-02”).  This update requires organizations to recognize lease assets and lease liabilities on the balance sheet and also disclose key information about leasing arrangements. ASU 2016-02 is effective for annu al reporting periods beginning on or after December 15, 2018, and interim periods within those annual periods. Earlier application is permitted for all entities as of the beginning of an interim or annual period.  While we are continuing to evaluate the impact of the adoption of ASU 2016-02 on our unaudited condensed consolidated financial statements, we believe the adoption of ASU 2016-02 will have a sign ificant and material impact to our unaudited condensed consolidated balance sheet given our current lease agreements for our leased retail locations.  We are continuing to evaluate the impact the adoption of ASU 2016-02 will have on our other unaudited condensed consolidated financial statements.  Based on our current assessment, we expect that most of our operating lease commitments will be subject to the new guidance and recognized as operating lease liabilities and right-of-use assets upon adoption, resulting in a material increase in the assets and liabilities recorded on our unaudited condensed consolidated balance sheet. We expect to elect the majority of the standard’s available practical expedients on adoption . We are continuing our assessment, which may identify additional impacts this standard will have on our unaudited condensed consolidated financial statements and related disclosures and internal control over financial reporting. We plan to adopt ASU 2016-02 in fiscal 2020.
.
 
4.	REVENUE RECOGNITION:	
The majority of our revenue is from contracts with customers for the sale of boats, motors, and trailers. We recognize revenue from boat, motor, and trailer sales upon transfer of control of the boat, motor, or trailer to the customer, which is generally upon acceptance or delivery to the customer. At the time of acceptance or delivery, the customer is able to direct the use of, and obtain substantially all of the benefits of the boat, motor, or trailer at such time. We recognize commissions earned from a brokerage sale when the related brokerage transaction closes upon transfer of control of the boat, motor, or trailer to the customer, which is generally upon acceptance or delivery to the customer.
We do not directly finance our customers’ boat, motor, or trailer purchases. In many cases, we assist with third-party financing for boat, motor, and trailer sales. We recognize commissions earned by us for placing notes with financial institutions in connection with customer boat financing when we recognize the related boat sales. Pursuant to negotiated agreements with financial institutions, we are charged back for a portion of these fees should the customer terminate or default on the related finance contract before it is outstanding for a stipulated minimum period of time.  We base the chargeback allowance, which was not material to the unaudited condensed consolidated financial statements taken as a whole as of December 31, 2018, on our experience with repayments or defaults on the related finance contracts. We recognize variable consideration from commissions earned on extended warranty service contracts sold on behalf of third-party insurance companies at generally the later of customer acceptance of the service contract terms as evidenced by contract execution or recognition of the related boat sale. We also recognize variable consideration from marketing fees earned on insurance products sold by third-party insurance companies at the later of customer acceptance of the insurance product as evidenced by contract execution or when the related boat sale is recognized.
We recognize revenue from parts and service operations (boat maintenance and repairs) over time as services are performed. Each boat maintenance and repair service is a single performance obligation that includes both the parts and labor associated with the service. Payment for boat maintenance and repairs is typically due upon the completion of the service, which is generally completed within a short period of time from contract inception. We satisfy our performance obligations, transfer control, and recognize revenue over time for parts and service operations because we are creating a contract asset with no alternative use and we have an enforceable right to payment for performance completed to date. Contract assets primarily relate to our right to consideration for work in process not yet billed at the reporting date associated with maintenance and repair services. We use an input method to recognize revenue and measure progress based on labor hours expended to satisfy the performance obligation and average labor rates. We have determined labor hours expended to be the relevant measure of work performed to complete the maintenance and repair service for the customer. As a practical expedient, since repair and maintenance service contracts have an original duration of one year or less, we do not consider the time value of money, and we do not disclose estimated revenue expected to be recognized in the future for performance obligations that are unsatisfied (or partially unsatisfied) at the end of the reporting period or when we expect to recognize such revenue. Contract assets, recorded in Prepaid expenses and other current assets, totaled approximately $2.7 million and $4.0 million as of October 1, 2018 (beginning of the period of adoption of ASC 606) and December 31, 2018, respectively.  
We recognize deferred revenue from service operations and slip and storage services over time on a straight-line basis over the term of the contract as our performance obligations are met. We recognize income from the rentals of chartering power and sailing yachts over time on a straight-line basis over the term of the contract as our performance obligations are met.
 
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The following table sets forth percentages on the timing of revenue recognition for the three months ended December 31, 2018.
 	 	Three Months Ended	 	
 	 	December 31,	 	
 	 	2018	 	
Goods and services transferred at a point in time	 	 	88.3	%	
Goods and services transferred over time	 	 	11.7	%	
     Total Revenue	 	 	100.0	%	

5.	INVENTORIES:	
Inventory costs consist of the amount paid to acquire inventory, net of vendor consideration and purchase discounts, the cost of equipment added, reconditioning costs, and transportation costs relating to acquiring inventory for sale. We state new and used boat, motor, and trailer inventories at the lower of cost, determined on a specific-identification basis, or net realizable value.  We state parts and accessories at the lower of cost, determined on an average cost basis, or net realizable value.  We utilize our historical experience, the aging of the inventories, and our consideration of current market trends as the basis for determining a lower of cost or net realizable value valuation allowance.  As of September 30, 2018 and December 31, 2018, our lower of cost or net realizable value valuation allowance for new and used boat, motor, and trailer inventories was $1.5 million and $1.8 million, respectively. If events occur and market conditions change, causing the fair value to fall below carrying value, the lower of cost or net realizable value valuation allowance could increase.

6.	IMPAIRMENT OF LONG-LIVED ASSETS:	
FASB Accounting Standards Codification 360-10-40, “Property, Plant, and Equipment - Impairment or Disposal of Long-Lived Assets” (“ASC 360-10-40”), requires that long-lived assets, such as property and equipment and purchased intangibles subject to amortization, be reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of the asset is measured by comparison of its carrying amount to undiscounted future net cash flows the asset is expected to generate. If such assets are considered to be impaired, the impairment to be recognized is measured as the amount by which the carrying amount of the asset exceeds its fair market value. Estimates of expected future cash flows represent our best estimate based on currently available information and reasonable and supportable assumptions. Any impairment recognized in accordance with ASC 360-10-40 is permanent and may not be restored. The analysis is performed at a regional level for indicators of permanent impairment given the geographical interdependencies among our locations. Based upon our most recent analysis, we believe no impairment of long-lived assets existed as of December 31, 2018.

7.	INCOME TAXES:	
We account for income taxes in accordance with FASB Accounting Standards Codification 740, “Income Taxes” (“ASC 740”). Under ASC 740, we recognize deferred tax assets and liabilities for the future tax consequences attributable to temporary differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. We measure deferred tax assets and liabilities using enacted tax rates expected to apply to taxable income in the years in which we expect those temporary differences to be recovered or settled.  We record valuation allowances to reduce our deferred tax assets to the amount expected to be realized by considering all available positive and negative evidence.  As of September 30, 2018 and December 31, 2018, we had a valuation allowance on our deferred tax assets of $119,000.
 
During the three months ended December 31, 2017 and 2018 we recognized an income tax provision of $2.2 million and $1.6 million, respectively. The effective income tax rate for the three months ended December 31, 2017 and 2018 was 34.8% and 24.1%, respectively . Due to the passage of the Tax Cuts and Jobs Act legislation in December 2017 which lowered the federal corporate tax rate from 35% to 21% (among other changes), our deferred tax assets were re-measured as of December 31, 2017 resulting in an approximately $889,000 reduction in our beginning deferred tax assets and corresponding increase in our income tax provision for the three months ended December 31, 2017.

 
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8.	SHORT-TERM BORROWINGS:	
In October 2018, we amended and restated our Inventory Financing Agreement (the “Amended Credit Facility”), originally entered into in June 2010, as subsequently amended, with Wells Fargo Commercial Distribution Finance LLC (formerly GE Commercial Distribution Finance Corporation). The October 2018 amendment and restatement extended the maturity date of the Credit Facility to October 2021, and the Amended Credit Facility includes two additional one-year extension periods, with lender approval. The October 2018 amendment and restatement, among other things, modified the amount of borrowing availability and maturity date of the Credit Facility. The Amended Credit Facility provides a floor plan financing commitment of up to $400.0 million, an increase from the previous limit of $350.0 million, subject to borrowing base availability resulting from the amount and aging of our inventory.
The Amended Credit Facility has certain financial covenants as specified in the agreement. The covenants include provisions that our leverage ratio must not exceed 2.75 to 1.0 and that our current ratio must be greater than 1.2 to 1.0. The interest rate for amounts outstanding under the Amended Credit Facility is 345 basis points above the one-month London Inter-Bank Offering Rate (“LIBOR”). There is an unused line fee of ten basis points on the unused portion of the Amended Credit Facility.
 
Advances under the Amended Credit Facility are initiated by the acquisition of eligible new and used inventory or are re-advances against eligible new and used inventory that have been partially paid-off. Advances on new inventory will generally mature 1,080 days from the original invoice date. Advances on used inventory will mature 361 days from the date we acquire the used inventory. Each advance is subject to a curtailment schedule, which requires that we pay down the balance of each advance on a periodic basis starting after six months. The curtailment schedule varies based on the type and value of the inventory.  The collateral for the Amended Credit Facility is all of our personal property with certain limited exceptions. None of our real estate has been pledged for collateral for the Amended Credit Facility.
As of December 31, 2018, our indebtedness associated with financing our inventory and working capital needs totaled approximately $270.7 million. As of December 31, 2017 and 2018, the interest rate on the outstanding short-term borrowings was approximately 4.7% and 5.5%, respectively. As of December 31, 2018, our additional available borrowings under our Amended Credit Facility were approximately $60.1 million based upon the outstanding borrowing base availability.
As is common in our industry, we receive interest assistance directly from boat manufacturers, including Brunswick. The interest assistance programs vary by manufacturer, but generally include periods of free financing or reduced interest rate programs. The interest assistance may be paid directly to us or our lender depending on the arrangements the manufacturer has established. We classify interest assistance received from manufacturers as a reduction of inventory cost and related cost of sales as opposed to netting the assistance against our interest expense incurred with our lenders.
The availability and costs of borrowed funds can adversely affect our ability to obtain adequate boat inventory and the holding costs of that inventory as well as the ability and willingness of our customers to finance boat purchases. As of December 31, 2018, we had no long-term debt. However, we rely on our Amended Credit Facility to purchase our inventory of boats. The aging of our inventory limits our borrowing capacity as defined curtailments reduce the allowable advance rate as our inventory ages. Our access to funds under our Amended Credit Facility also depends upon the ability of our lenders to meet their funding commitments, particularly if they experience shortages of capital or experience excessive volumes of borrowing requests from others during a short period of time. Unfavorable economic conditions, weak consumer spending, turmoil in the credit markets, and lender difficulties, among other potential reasons, could interfere with our ability to utilize our Amended Credit Facility to fund our operations. Any inability to utilize our Amended Credit Facility could require us to seek other sources of funding to repay amounts outstanding under the credit agreements or replace or supplement our credit agreements, which may not be possible at all or under commercially reasonable terms.
Similarly, decreases in the availability of credit and increases in the cost of credit adversely affect the ability of our customers to purchase boats from us and thereby adversely affect our ability to sell our products and impact the profitability of our finance and insurance activities.

9.	STOCK-BASED COMPENSATION:	
We account for our stock-based compensation plans following the provisions of FASB Accounting Standards Codification 718, “Compensation — Stock Compensation” (“ASC 718”).  In accordance with ASC 718, we use the Black-Scholes valuation model for valuing all stock-based compensation and shares purchased under our Employee Stock Purchase Plan. We measure compensation for restricted stock awards and restricted stock units at fair value on the grant date based on the number of shares expected to vest and the quoted market price of our common stock. We recognize compensation cost for all awards in operations, net of estimated forfeitures, on a straight-line basis over the requisite service period for each separately vesting portion of the award.
 
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During the three months ended December 31, 2017 and 2018, we recognized stock-based compensation expense of approximately $1.5 million and $1.4 million, respectively, in selling, general, and administrative expenses in the unaudited condensed consolidated statements of operations.
Cash received from option exercises under all share-based compensation arrangements and the employee stock purchase plan for the three months ended December 31, 2017 and 2018, was approximately $2.4 million and $1.8 million, respectively.  We currently expect to satisfy share-based awards with registered shares available to be issued.

10.	THE INCENTIVE STOCK PLANS:	
During February 2017, our shareholders approved a proposal to amend the 2011 Stock-Based Compensation Plan (“2011 Plan”) to increase the 2,200,456 share threshold by 1,000,000 shares to 3,200,456 shares.  During January 2011, our shareholders approved a proposal to authorize our 2011 Plan, which replaced our 2007 Incentive Compensation Plan (“2007 Plan”). Our 2011 Plan provides for the grant of stock options, stock appreciation rights, restricted stock, stock units, bonus stock, dividend equivalents, other stock related awards, and performance awards (collectively “awards”), that may be settled in cash, stock, or other property. Our 2011 Plan is designed to attract, motivate, retain, and reward our executives, employees, officers, directors, and independent contractors by providing such persons with annual and long-term performance incentives to expend their maximum efforts in the creation of shareholder value. Subsequent to the February 2017 amendment described above, the total number of shares of our common stock that may be subject to awards under the 2011 Plan is equal to 3,000,000 shares, plus: (i) any shares available for issuance and not subject to an award under the 2007 Plan, which was 200,456 shares at the time of approval of the 2011 Plan; (ii) the number of shares with respect to which awards granted under the 2011 Plan and the 2007 Plan terminate without the issuance of the shares or where the shares are forfeited or repurchased; (iii) with respect to awards granted under the 2011 Plan and the 2007 Plan, the number of shares that are not issued as a result of the award being settled for cash or otherwise not issued in connection with the exercise or payment of the award; and (iv) the number of shares that are surrendered or withheld in payment of the exercise price of any award or any tax withholding requirements in connection with any award granted under the 2011 Plan or the 2007 Plan. The 2011 Plan terminates in January 2021, and awards may be granted at any time during the life of the 2011 Plan. The dates on which awards vest are determined by the Board of Directors or the Plan Administrator. The Board of Directors has appointed the Compensation Committee as the Plan Administrator. The exercise prices of options are determined by the Board of Directors or the Plan Administrator and are at least equal to the fair market value of shares of common stock on the date of grant. The term of options under the 2011 Plan may not exceed ten years. The options granted have varying vesting periods. To date, we have not settled or been under any obligation to settle any awards in cash.
The following table summarizes activity from our incentive stock plans from September 30, 2018 through December 31, 2018:
 
 	 	Shares
Available
for Grant	 	 	Options Outstanding	 	 	Aggregate
Intrinsic   Value
(in thousands)	 	 	Weighted
Average
Exercise
Price	 	 	Weighted
Average
Remaining Contractual
Life	 	
Balance as of September 30, 2018	 	 	1,047,247	 	 	 	611,223	 	 	$	5,544	 	 	$	12.18	 	 	 	4.4	 	
Options granted	 	 	-	 	 	 	-	 	 	 	-	 	 	 	-	 	 	 	 	 	
Options cancelled/forfeited/expired	 	 	4,667	 	 	 	(4,667	)	 	 	-	 	 	 	5.42	 	 	 	 	 	
Options exercised	 	 	-	 	 	 	(108,275	)	 	 	-	 	 	 	12.11	 	 	 	 	 	
Restricted stock awards issued	 	 	(319,624	)	 	 	-	 	 	 	-	 	 	 	-	 	 	 	 	 	
Restricted stock awards forfeited	 	 	2,700	 	 	 	-	 	 	 	-	 	 	 	-	 	 	 	 	 	
Additional shares of stock issued	 	 	(2,135	)	 	 	-	 	 	 	-	 	 	 	-	 	 	 	 	 	
Balance as of December 31, 2018	 	 	732,855	 	 	 	498,281	 	 	$	2,986	 	 	$	12.26	 	 	 	4.4	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Exercisable as of December 31, 2018	 	 	 	 	 	 	494,947	 	 	$	2,986	 	 	$	12.21	 	 	 	4.3	 	
 
No options were granted for the three months ended December 31, 2017 and 2018. The total intrinsic value of options exercised during the three months ended December 31, 2017 and 2018 was $1.9 million and $1.3 million, respectively. The total fair value of options vested during the three months ended December 31, 2017 and 2018 was approximately $1.3 million and $0, respectively.
 
We used the Black-Scholes model to estimate the fair value of options granted. The expected term of options granted is estimated based on historical experience. Volatility is based on the historical volatility of our common stock. The risk-free rate for periods within the contractual term of the options is based on the U.S. Treasury yield curve in effect at the time of grant.

13

 
11.	EMPLOYEE STOCK PURCHASE PLAN:	
During February 2012, our shareholders approved a proposal to amend our 2008 Employee Stock Purchase Plan (“Stock Purchase Plan”) to increase the number of shares available under that plan by 500,000 shares. The Stock Purchase Plan as amended provides for up to 1,000,000 shares of common stock to be available for purchase by our regular employees who have completed at least one year of continuous service. In addition, there were 52,837 shares of common stock available under our 1998 Employee Stock Purchase Plan, which have been made available for issuance under our Stock Purchase Plan. The Stock Purchase Plan provides for implementation of up to 10 annual offerings beginning on the first day of October starting in 2008, with each offering terminating on September 30 of the following year. Each annual offering may be divided into two six-month offerings. For each offering, the purchase price per share will be the lower of: (i) 85% of the closing price of the common stock on the first day of the offering or (ii) 85% of the closing price of the common stock on the last day of the offering. The purchase price is paid through periodic payroll deductions not to exceed 10% of the participant’s earnings during each offering period. However, no participant may purchase more than $25,000 worth of common stock annually.
We used the Black-Scholes model to estimate the fair value of options granted to purchase shares issued pursuant to the Stock Purchase Plan. Volatility is based on the historical volatility of our common stock. The risk-free rate for periods within the contractual term of the options is based on the U.S. Treasury yield curve in effect at the time of grant.
The following are the weighted average assumptions used for each respective period:
 
 	Three Months Ended	 	
 	December 31,	 	
 	2017	 	 	2018	 	
Dividend yield	0.0%	 	 	0.0%	 	
Risk-free interest rate	1.2%	 	 	2.4%	 	
Volatility	50.9%	 	 	52.2%	 	
Expected life	Six months	 	 	Six months	 	
 
As of December 31, 2018, we had issued 891,185 shares of common stock under our Stock Purchase Plan.

12.	RESTRICTED STOCK AWARDS:	
We have granted non-vested (restricted) stock awards (“restricted stock”) and restricted stock units (“RSUs”) to employees and officers pursuant to the 2011 Plan and the 2007 Plan. The restricted stock awards and RSUs have varying vesting periods, but generally become fully vested between two and four years after the grant date, depending on the specific award, performance targets met for performance based awards granted to officers, and vesting period for time based awards. Officer performance based awards are granted at the target amount of shares that may be earned and the actual amount of the award earned generally could range from 0% to 200% of the target number of shares based on the actual specified performance target met. We accounted for the restricted stock awards granted using the measurement and recognition provisions of ASC 718. Accordingly, the fair value of the restricted stock awards, including performance based awards, is measured on the grant date and recognized in earnings over the requisite service period for each separately vesting portion of the award.
The following table summarizes restricted stock award activity from September 30, 2018 through December 31, 2018:
 
 	 	Shares/ Units	 	 	Weighted
Average Grant
Date Fair Value	 	
Non-vested balance as of September 30, 2018	 	 	704,326	 	 	$	17.61	 	
Changes during the period	 	 	 	 	 	 	 	 	
Awards granted	 	 	319,624	 	 	$	20.89	 	
Awards vested	 	 	(35,000	)	 	$	20.40	 	
Awards forfeited	 	 	(2,700	)	 	$	20.60	 	
Non-vested balance as of December 31, 2018	 	 	986,250	 	 	 	 	 	

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As of December 31, 2018, we had approximately $11.7 million of total unrecognized compensation cost, assuming applicable performance conditions are met, related to non-vested restricted stock awards. We expect to recognize that cost over a weighted average period of 2.5 years.

13.	NET INCOME PER SHARE:	
The following is a reconciliation of the shares used in the denominator for calculating basic and diluted net income per share:
 
 	 	Three Months Ended	 	
 	 	December 31,	 	
 	 	2017	 	 	2018	 	
Weighted average common shares outstanding used in
   calculating basic income per share	 	 	21,986,981	 	 	 	22,779,567	 	
Effect of dilutive options and non-vested restricted stock
   awards	 	 	725,667	 	 	 	621,118	 	
Weighted average common and common equivalent shares
   used in calculating diluted income per share	 	 	22,712,648	 	 	 	23,400,685	 	
 
For the three months ended December 31, 2017 and 2018, there were 116,844 and no weighted average shares related to options outstanding and non-vested restricted stock awards, respectively, that were not included in the computation of diluted income per share because the options’ exercise prices or assumed proceeds per share were greater than the average market price of our common stock, and therefore, would have an anti-dilutive effect.

14.	COMMITMENTS AND CONTINGENCIES:	
We are party to various legal actions arising in the ordinary course of business. While it is not feasible to determine the actual outcome of these actions as of December 31, 2018, we believe that these matters should not have a material adverse effect on our unaudited condensed consolidated financial condition, results of operations, or cash flows.

 
 
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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
This Management’s Discussion and Analysis of Financial Condition and Results of Operations contains “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Forward-looking statements include statements regarding our “expectations,” “anticipations,” “intentions,” “beliefs,” or “strategies” regarding the future. These forward-looking statements include statements relating to market risks such as interest rate risk and foreign currency exchange rate risk; economic and industry conditions and corresponding effects on consumer behavior and operating results; environmental conditions; inclement weather; certain specific and isolated events; our future estimates, assumptions and judgments, including statements regarding whether such estimates, assumptions and judgments would have a material adverse effect on our operating results; the impact of changes in accounting policy and standards; our plans to accelerate our growth through acquisitions and new store openings; our belief that our existing capital resources will be sufficient to finance our operations for at least the next 12 months, except for possible significant acquisitions; and the seasonality and cyclicality of our business and the effect of such seasonality and cyclicality on our business, financial results and inventory levels. Actual results could differ materially from those currently anticipated as a result of a number of factors, including those set forth under “Risk Factors” in our Annual Report on Form 10-K for the fiscal year ended September 30, 2018.
General
We are the largest recreational boat and yacht retailer in the United States with fiscal 2018 revenue approaching $1.2 billion. Through our current 63 retail locations in 16 states (as of the filing of this Quarterly Report on 10-Q), we sell new and used recreational boats and related marine products, including engines, trailers, parts, and accessories. We also arrange related boat financing, insurance, and extended service contracts; provide boat repair and maintenance services; offer yacht and boat brokerage sales; and, where available, offer slip and storage accommodations, as well as the charter of power yachts in the British Virgin Islands.
MarineMax was incorporated in January 1998 (and reincorporated in Florida in March 2015).  We commenced operations with the acquisition of five independent recreational boat dealers on March 1, 1998.  Since the initial acquisitions in March 1998, we have, as of the filing of this Quarterly Report on 10-Q, acquired 28 recreational boat dealers, two boat brokerage operations, and two full-service yacht repair facilities. As a part of our acquisition strategy, we frequently engage in discussions with various recreational boat dealers regarding their potential acquisition by us.  Potential acquisition discussions frequently take place over a long period of time and involve difficult business integration and other issues, including, in some cases, management succession and related matters.  As a result of these and other factors, a number of potential acquisitions that from time to time appear likely to occur do not result in binding legal agreements and are not consummated.  We completed one acquisition in the fiscal year ended September 30, 2017, three acquisitions in the fiscal year ended September 30, 2018, and no acquisitions to date in fiscal 2019.
General economic conditions and consumer spending patterns can negatively impact our operating results. Unfavorable local, regional, national, or global economic developments or uncertainties regarding future economic prospects could reduce consumer spending in the markets we serve and adversely affect our business. Economic conditions in areas in which we operate dealerships, particularly Florida, in which we generated approximately 55%, 55%, and 51% of our revenue during fiscal 2016, 2017, and 2018, respectively, can have a major impact on our operations. Local influences, such as corporate downsizing, military base closings, and inclement weather such as hurricanes and other storms, environmental conditions, and specific events, such as the BP oil spill in the Gulf of Mexico in 2010, also could adversely affect, and in certain instances have adversely affected, our operations in certain markets.
In an economic downturn, consumer discretionary spending levels generally decline, at times resulting in disproportionately large reductions in the sale of luxury goods. Consumer spending on luxury goods also may decline as a result of lower consumer confidence levels, even if prevailing economic conditions are favorable. As a result, an economic downturn could impact us more than certain of our competitors due to our strategic focus on a higher end of our market. Although we have expanded our operations during periods of stagnant or modestly declining industry trends, the cyclical nature of the recreational boating industry or the lack of industry growth may adversely affect our business, financial condition, and results of operations. Any period of adverse economic conditions or low consumer confidence is likely to have a negative effect on our business.
Historically, in periods of lower consumer spending and depressed economic conditions, we have, among other things, substantially reduced our acquisition program, delayed new store openings, reduced our inventory purchases, engaged in inventory reduction efforts, closed a number of our retail locations, reduced our headcount, and amended and replaced our credit facility.  Acquisitions and new store openings remain important strategies to our company, and we plan to accelerate our growth through these strategies as industry conditions continue to improve.
 
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Although past economic conditions have adversely affected our operating results, we believe we have capitalized on our core strengths to substantially outperform the industry, resulting in market share gains.  Our ability to capture such market share supports the alignment of our retailing strategies with the desires of consumers.  We believe the steps we have taken to address weak market conditions have yielded, and will yield in the future, an increase in revenue. We expect our core strengths and retailing strategies will position us to capitalize on growth opportunities as they occur and will allow us to emerge with greater earnings potential as industry conditions continue to recover.
Application of Critical Accounting Policies
We have identified the policies below as critical to our business operations and the understanding of our results of operations. The impact and risks related to these policies on our business operations are discussed throughout Management's Discussion and Analysis of Financial Condition and Results of Operations when such policies affect our reported and expected financial results.
In the ordinary course of business, we make a number of estimates and assumptions relating to the reporting of results of operations and financial condition in the preparation of our financial statements in conformity with accounting principles generally accepted in the United States. We base our estimates on historical experiences and on various other assumptions (including future earnings) that we believe are reasonable under the circumstances. The results of these assumptions form the basis for making judgments about the carrying values of assets and liabilities, including contingent assets and liabilities such as contingent consideration liabilities from acquisitions, which are not readily apparent from other sources. Actual results could differ significantly from those estimates under different assumptions and conditions. We believe that the following discussion addresses our most critical accounting policies, which are those that are most important to the portrayal of our financial condition and results of operations and require our most difficult, subjective, and complex judgments, often as a result of the need to make estimates about the effect of matters that are inherently uncertain.
Revenue Recognition
The majority of our revenue is from contracts with customers for the sale of boats, motors, and trailers. We recognize revenue from boat, motor, and trailer sales upon transfer of control of the boat, motor, or trailer to the customer, which is generally upon acceptance or delivery to the customer. At the time of acceptance or delivery, the customer is able to direct the use of, and obtain substantially all of the benefits of the boat, motor, or trailer at such time. We recognize commissions earned from a brokerage sale when the related brokerage transaction closes upon transfer of control of the boat, motor, or trailer to the customer, which is generally upon acceptance or delivery to the customer.
We do not directly finance our customers’ boat, motor, or trailer purchases. In many cases, we assist with third-party financing for boat, motor, and trailer sales. We recognize commissions earned by us for placing notes with financial institutions in connection with customer boat financing when we recognize the related boat sales. Pursuant to negotiated agreements with financial institutions, we are charged back for a portion of these fees should the customer terminate or default on the related finance contract before it is outstanding for a stipulated minimum period of time.  We base the chargeback allowance, which was not material to the unaudited condensed consolidated financial statements taken as a whole as of December 31, 2018, on our experience with repayments or defaults on the related finance contracts. We recognize variable consideration from commissions earned on extended warranty service contracts sold on behalf of third-party insurance companies at generally the later of customer acceptance of the service contract terms as evidenced by contract execution or recognition of the related boat sale. We also recognize variable consideration from marketing fees earned on insurance products sold by third-party insurance companies at the later of customer acceptance of the insurance product as evidenced by contract execution or when the related boat sale is recognized.
We recognize revenue from parts and service operations (boat maintenance and repairs) over time as services are performed. Each boat maintenance and repair service is a single performance obligation that includes both the parts and labor associated with the service. Payment for boat maintenance and repairs is typically due upon the completion of the service, which is generally completed within a short period of time from contract inception. We satisfy our performance obligations, transfer control, and recognize revenue over time for parts and service operations because we are creating a contract asset with no alternative use and we have an enforceable right to payment for performance completed to date. Contract assets primarily relate to our right to consideration for work in process not yet billed at the reporting date associated with maintenance and repair services. We use an input method to recognize revenue and measure progress based on labor hours expended to satisfy the performance obligation and average labor rates. We have determined labor hours expended to be the relevant measure of work performed to complete the maintenance and repair service for the customer. As a practical expedient, since repair and maintenance service contracts have an original duration of one year or less, we do not consider the time value of money, and we do not disclose estimated revenue expected to be recognized in the future for performance obligations that are unsatisfied (or partially unsatisfied) at the end of the reporting period or when we expect to recognize such revenue. Contract assets, recorded in Prepaid expenses and other current assets, totaled approximately $2.7 million and $4.0 million as of October 1, 2018 (beginning of the period of adoption of ASC 606) and December 31, 2018, respectively.
 
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We recognize deferred revenue from service operations and slip and storage services over time on a straight-line basis over the term of the contract as our performance obligations are met. We recognize income from the rentals of chartering power and sailing yachts over time on a straight-line basis over the term of the contr act as our performance obligations are met.
Vendor Consideration Received
We account for consideration received from our vendors in accordance with ASU 2014-09, “Revenue from Contracts with Customers (Topic 606)”. ASC 606 requires us to classify interest assistance received from manufacturers as a reduction of inventory cost and related cost of sales as opposed to netting the assistance against our interest expense incurred with our lenders.  Pursuant to ASC 606, amounts received by us under our co-op assistance programs from our manufacturers are netted against related advertising expenses.  Our consideration received from our vendors contains uncertainties because the calculation requires management to make assumptions and to apply judgment regarding a number of factors, including our ability to collect amounts due from vendors and the ability to meet certain criteria stipulated by our vendors.  We do not believe there is a reasonable likelihood that there will be a change in the future estimates or assumptions we use to calculate our vendor considerations which would result in a material effect on our operating results.
Inventories
Inventory costs consist of the amount paid to acquire inventory, net of vendor consideration and purchase discounts, the cost of equipment added, reconditioning costs, and transportation costs relating to acquiring inventory for sale. We state new and used boat, motor, and trailer inventories at the lower of cost, determined on a specific-identification basis, or net realizable value. We state parts and accessories at the lower of cost, determined on an average cost basis, or net realizable value. We utilize our historical experience, the aging of the inventories, and our consideration of current market trends as the basis for determining a lower of cost or net realizable value valuation allowance. Our lower of cost or net realizable value valuation allowance contains uncertainties because the calculation requires management to make assumptions and to apply judgment regarding the amount at which the inventory will ultimately be sold which considers forecasted market trends, model changes, and new product introductions. We do not believe there is a reasonable likelihood that there will be a change in the future estimates or assumptions we use to calculate our lower of cost or net realizable value valuation allowance which would result in a material effect on our operating results. As of September 30, 2018 and December 31, 2018, our lower of cost or net realizable value valuation allowance for new and used boat, motor, and trailer inventories was $1.5 million and $1.8 million, respectively. If events occur and market conditions change, causing the fair value to fall below carrying value, the lower of cost or net realizable value valuation allowance could increase.
Goodwill
We account for goodwill in accordance with FASB Accounting Standards Codification 350, “Intangibles - Goodwill and Other” (“ASC 350”), which provides that the excess of cost over net assets of businesses acquired is recorded as goodwill. In January 2017, we purchased Hall Marine Group, a privately owned boat dealer in the Southeast United States with locations in North Carolina, South Carolina, and Georgia, resulting in the recording of $16.0 million in goodwill. In January 2018, we purchased Island Marine Center, a privately owned boat dealer located in New Jersey resulting in the recording of $1.3 million in goodwill. In total, current and previous acquisitions have resulted in the recording of $27.4 million in goodwill. In accordance with ASC 350, we review goodwill for impairment at least annually and whenever events or changes in circumstances indicate that the carrying value may not be recoverable. Our annual impairment test is performed during the fourth fiscal quarter. If the carrying amount of goodwill exceeds its fair value we would recognize an impairment loss in accordance with ASC 350. As of December 31, 2018, and based upon our most recent analysis, we determined through our qualitative assessment that it is not “more likely than not” that the fair values of our reporting units are less than their carrying values. As a result, we were not required to perform a quantitative goodwill impairment test. The qualitative assessment requires us to make judgments and assumptions regarding macroeconomic and industry conditions, our financial performance, and other factors. We do not believe there is a reasonable likelihood that there will be a change in the judgments and assumptions used in our qualitative assessment which would result in a material effect on our operating results.
Impairment of Long-Lived Assets
FASB Accounting Standards Codification 360-10-40, “Property, Plant, and Equipment - Impairment or Disposal of Long-Lived Assets” (“ASC 360-10-40”), requires that long-lived assets, such as property and equipment and purchased intangibles subject to amortization, be reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of the asset is measured by comparison of its carrying amount to undiscounted future net cash flows the asset is expected to generate. If such assets are considered to be impaired, the impairment to be recognized is measured as the amount by which the carrying amount of the asset exceeds its fair market value. Estimates of expected future cash flows represent our best estimate based on currently available information and reasonable and supportable assumptions. Our impairment loss calculations contain uncertainties because they require us to make assumptions and to apply judgment in order to estimate expected
 
18

future cash flows. Any impairment recognized in accordance with ASC 360-10-40 is permanent and may not be restored. The analysis is performed at a regional level for indicators of permanent impairment given the geographical interdependencies among our locations. Based upon our most recent analysis, we believe no impairment of long-lived assets existed as of December 31, 2018 . We do not believe there is a reasonable likelihood that there will be a change in the future estimates or assumptions used to test for recoverability which would result in a material effect on our operating results .
Stock-Based Compensation
We account for our stock-based compensation plans following the provisions of FASB Accounting Standards Codification 718, “Compensation — Stock Compensation” (“ASC 718”). In accordance with ASC 718, we use the Black-Scholes valuation model for valuing all stock-based compensation and shares purchased under our Employee Stock Purchase Plan. We measure compensation for restricted stock awards and restricted stock units at fair value on the grant date based on the number of shares expected to vest and the quoted market price of our common stock. We recognize compensation cost for all awards in operations, net of estimated forfeitures, on a straight-line basis over the requisite service period for each separately vesting portion of the award. Our valuation models and generally accepted valuation techniques require us to make assumptions and to apply judgment to determine the fair value of our awards. These assumptions and judgments include estimating the volatility of our stock price, expected dividend yield, employee turnover rates and employee stock option exercise behaviors. We do not believe there is a reasonable likelihood that there will be a change in the future estimates or assumptions we use to calculate our stock-based compensation which would result in a material effect on our operating results.
Income Taxes
We account for income taxes in accordance with FASB Accounting Standards Codification 740, “Income Taxes” (“ASC 740”). Under ASC 740, we recognize deferred tax assets and liabilities for the future tax consequences attributable to temporary differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. We measure deferred tax assets and liabilities using enacted tax rates expected to apply to taxable income in the years in which we expect those temporary differences to be recovered or settled.  We record valuation allowances to reduce our deferred tax assets to the amount expected to be realized by considering all available positive and negative evidence.
Pursuant to ASC 740, we must consider all positive and negative evidence regarding the realization of deferred tax assets.  ASC 740 provides for four possible sources of taxable income to realize deferred tax assets: 1) taxable income in prior carryback years, 2) reversals of existing deferred tax liabilities, 3) tax planning strategies and 4) projected future taxable income.  As of December 31, 2018, we have no available taxable income in prior carryback years, limited reversals of existing deferred tax liabilities or prudent and feasible tax planning strategies.  Therefore, the recoverability of our deferred tax assets is dependent upon generating future taxable income.
The determination of releasing valuation allowances against deferred tax assets is made, in part, pursuant to our assessment as to whether it is more likely than not that we will generate sufficient future taxable income against which benefits of the deferred tax assets may or may not be realized. Significant judgment is required in making estimates regarding our ability to generate income in future periods.
During the first quarter of fiscal 2018, the Company recorded a reduction of our beginning deferred tax assets of approximately $889,000 and a corresponding increase in our income tax provision as a result of the Tax Cuts and Jobs Act legislation passed in December 2017 which lowered the federal corporate tax rate from 35% to 21%, among other changes.
The application of income tax law is inherently complex.  Laws and regulations in this area are voluminous and are often ambiguous.  Under ASC 740, the impact of uncertain tax positions taken or expected to be taken on an income tax return must be recognized in the financial statements at the largest amount that is more likely than not to be sustained upon audit by the relevant taxing authority.  An uncertain income tax position will not be recognized in the financial statements unless it is more likely than not of being sustained.  As such, we are required to make subjective assumptions and judgments regarding our effective tax rate and our income tax exposure.  Our effective income tax rate is affected by changes in tax law in the jurisdictions in which we currently operate, tax jurisdictions of new retail locations, our earnings, and the results of tax audits.  We believe that the judgments and estimates discussed herein are reasonable.
Recent Accounting Pronouncements
See Note 3 of the Notes to Unaudited Condensed Consolidated Financial Statements.
 
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Consolidated Results of Operations
The following discussion compares the three months ended December 31, 2018, with the three months ended December 31, 2017 and should be read in conjunction with the unaudited condensed consolidated financial statements, including the related notes thereto, appearing elsewhere in this report.
Three Months Ended December 31, 2018 Compared with Three Months Ended December 31, 2017
Revenue.   Revenue increased $5.0 million, or 2.1%, to $241.9 million for the three months ended December 31, 2018, from $236.9 million for the three months ended December 31, 2017. Of this increase, $1.1 million was attributable to a 0.5% increase in comparable-store sales and an approximate $3.9 million net increase related to stores opened that were not eligible for inclusion in the comparable-store base. The increase in our comparable-store sales was primarily due to incremental increases in new boat sales and incremental increases in storage services, finance and insurance products, service revenue, charter rentals and parts revenue.
Gross Profit.   Gross profit increased $4.3 million, or 7.3%, to $63.5 million for the three months ended December 31, 2018, from $59.2 million for the three months ended December 31, 2017. Gross profit as a percentage of revenue increased to 26.2% for the three months ended December 31, 2018 from 25.0% for the three months ended December 31, 2017. The increase in gross profit as a percentage of revenue was primarily the result of improved margins on new and used boat sales. The increase in gross profit dollars was primarily attributable to the increase in our gross margins. Additionally, our higher margin service and storage services increased as a percentage of revenue, contributing to our overall margins increasing accordingly.
Selling, General, and Administrative Expenses. Selling, general, and administrative expense increased $4.3 million, or 8.6%, to $54.5 million for the three months ended December 31, 2018, from $50.2 million for the three months ended December 31, 2017. Selling, general, and administrative expenses as a percentage of revenue increased to 22.5% for the three months ended December 31, 2018 from 21.2% for the three months ended December 31, 2017. The increase in selling, general, and administrative expenses was primarily attributable to recent acquisitions, new store openings, and the reestablishing of our British Virgin Islands’ Charter business as the business restarted operations after Hurricane Irma, which occurred in September 2017.
Interest Expense.   Interest expense decreased $26,000, or 1.0%, to $2.52 million for the three months ended December 31, 2018 from $2.54 million for the three months ended December 31, 2017. Interest expense as a percentage of revenue decreased to 1.0% for the three months ended December 31, 2018 from 1.1% for the three months ended December 31, 2017. The decrease in interest expense was primarily the result of decreased borrowings.
Income Taxes.    Income tax expense decreased $689,000, or 30.6%, to $1.6 million for the three months ended December 31, 2018 from $2.2 million for the three months ended December 31, 2017. Our effective income tax rate decreased to 24.1% for the three months ended December 31, 2018 from 34.8% for three months ended December 31, 2017. The decrease was mainly due to the passage of the Tax Cuts and Jobs Act legislation in December 2017 which lowered the federal corporate tax rate from 35% to 21%, and required the re-measurement of our beginning deferred tax assets and liabilities which resulted in an additional charge to income tax expense of $889,000 in the first quarter of fiscal 2018.
Liquidity and Capital Resources
Our cash needs are primarily for working capital to support operations, including new and used boat and related parts inventories, off-season liquidity, and growth through acquisitions and new store openings. Acquisitions and new store openings remain important strategies to our company, and we have recently completed certain acquisitions, and we plan to accelerate our growth through these strategies. However, we cannot predict when unfavorable economic or financial conditions will return or the duration of such conditions. We regularly monitor the aging of our inventories and current market trends to evaluate our current and future inventory needs. We also use this evaluation in conjunction with our review of our current and expected operating performance and expected business levels to determine the adequacy of our financing needs.
These cash needs have historically been financed with cash generated from operations and borrowings under the Amended Credit Facility. Our ability to utilize the Amended Credit Facility to fund operations depends upon the collateral levels and compliance with the covenants of the Amended Credit Facility. Any turmoil in the credit markets and weakness in the retail markets may interfere with our ability to remain in compliance with the covenants of the Amended Credit Facility and therefore our ability to utilize the Amended Credit Facility to fund operations. As of December 31, 2018, we were in compliance with all covenants under the Amended Credit Facility. We currently depend upon dividends and other payments from our dealerships and the Amended Credit Facility to fund our current operations and meet our cash needs. As 100% owner of each of our dealerships, we determine the amounts of such distributions subject to applicable law, and currently, no agreements exist that restrict this flow of funds from our dealerships.
 
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For the three months ended December 31, 2018 and 2017 , cash used in operating activities was approximately $ 65.1 million and $ 56 .2 million, respectively.    For the three months ended December 31, 2018 , cash used in operating activities was primarily related to an increase of inventory driven by t iming of boats received, increases in prepaid expenses and other assets, decreases in accounts payable, season al declines in accrued expenses , partially offset by decreases in accounts receivable, increases in customer deposits, and our net income adjusted for non-cash expenses such as depreciation and amortization expense, deferred income tax provision, and stock-based compensation expense . For the three months ended December 31, 2017, cash used in operating activities was primarily related to an increase of inventory driven by timing of boats received, increases in accounts receivable, decreases in accounts payable, seasonal declines in accrued expenses and customer deposits, partially offset by insurance proceeds received as a result of Hurricane Irma and our net income adjusted for non-cash expenses such as depreciation and amortization expense, deferred income tax provision, and stock-based compensation expense
For the three months ended December 31, 2018 and 2017, cash used in investing activities was approximately $3.0 million and $2.5 million, respectively. For the three months ended December 31, 2018, cash used in investing activities was primarily used to purchase property and equipment associated with improving existing retail facilities . For the three months ended December 31, 2017, cash used in investing activities was primarily used to purchase property and equipment associated with improving existing retail facilities and making capital improvements as a result of Hurricane Irma .
For the three months ended December 31, 2018 and 2017, cash provided by financing activities was approximately $57.8 million and $52.3 million, respectively.  For the three months ended December 31, 2018, cash provided by financing activities was primarily attributable to net short-term borrowings as a result of increased inventory levels and proceeds from the issuance of common stock from our stock based compensation plans, partially offset by the repurchase of common stock under the share repurchase program. For the three months ended December 31, 2017, cash provided by financing activities was primarily attributable to net short-term borrowings as a result of increased inventory levels and proceeds from the issuance of common stock from our stock based compensation plans, partially offset by the repurchase of common stock under the share repurchase program and contingent consideration payments from acquisitions.
In October 2018, we amended and restated our Inventory Financing Agreement (the “Amended Credit Facility”), originally entered into in June 2010, as subsequently amended, with Wells Fargo Commercial Distribution Finance LLC (formerly GE Commercial Distribution Finance Corporation). The October 2018 amendment and restatement extended the maturity date of the Credit Facility to October 2020, and the Amended Credit Facility includes two additional one-year extension periods, with lender approval. The October 2018 amendment and restatement, among other things, modified the amount of borrowing availability and maturity date of the Credit Facility. The Amended Credit Facility provides a floor plan financing commitment of up to $400.0 million, an increase from the previous limit of $350 million, subject to borrowing base availability resulting from the amount and aging of our inventory.
The Amended Credit Facility has certain financial covenants as specified in the agreement. The covenants include provisions that our leverage ratio must not exceed 2.75 to 1.0 and that our current ratio must be greater than 1.2 to 1.0. The interest rate for amounts outstanding under the Amended Credit Facility is 345 basis points above the one-month LIBOR. There is an unused line fee of ten basis points on the unused portion of the Amended Credit Facility.
Advances under the Amended Credit Facility are initiated by the acquisition of eligible new and used inventory or are re-advances against eligible new and used inventory that have been partially paid-off. Advances on new inventory will generally mature 1,080 days from the original invoice date. Advances on used inventory will mature 361 days from the date we acquire the used inventory. Each advance is subject to a curtailment schedule, which requires that we pay down the balance of each advance on a periodic basis starting after six months. The curtailment schedule varies based on the type and value of the inventory. The collateral for the Amended Credit Facility is all of our personal property with certain limited exceptions. None of our real estate has been pledged for collateral for the Amended Credit Facility.
As of December 31, 2018, our indebtedness associated with financing our inventory and working capital needs totaled approximately $270.7 million. As of December 31, 2017 and 2018, the interest rate on the outstanding short-term borrowings was approximately 4.7% and 5.5%, respectively. As of December 31, 2018, our additional available borrowings under our Amended Credit Facility were approximately $60.1 million based upon the outstanding borrowing base availability. The aging of our inventory limits our borrowing capacity as defined curtailments reduce the allowable advance rate as our inventory ages.
Except as specified in this "Management's Discussion and Analysis of Financial Condition and Results of Operations" and in the attached unaudited condensed consolidated financial statements, we have no material commitments for capital for the next 12 months. We believe that our existing capital resources will be sufficient to finance our operations for at least the next 12 months, except for possible significant acquisitions.
 
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Impact of Seasonality and Weather on Operations
Our business, as well as the entire recreational boating industry, is highly seasonal, with seasonality varying in different geographic markets. With the exception of Florida, we generally realize significantly lower sales and higher levels of inventories, and related short-term borrowings, in the quarterly periods ending December 31 and March 31. The onset of the public boat and recreation shows in January generally stimulates boat sales and typically allows us to reduce our inventory levels and related short-term borrowings throughout the remainder of the fiscal year. Our business could become substantially more seasonal if we acquire dealers that operate in colder regions of the United States or close retail locations in warm climates.
Our business is also subject to weather patterns, which may adversely affect our results of operations. For example, prolonged or severe winter conditions, drought conditions (or merely reduced rainfall levels) or excessive rain, may limit access to area boating locations or render boating dangerous or inconvenient, thereby curtailing customer demand for our products and services. In addition, unseasonably cool weather and prolonged or severe winter conditions may lead to a shorter selling season in certain locations. Hurricanes and other storms could result in disruptions of our operations or damage to our boat inventories and facilities, as has been the case when Florida and other markets were affected by hurricanes. Although our geographic diversity is likely to reduce the overall impact to us of adverse weather conditions in any one market area, these conditions will continue to represent potential, material adverse risks to us and our future financial performance.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Interest Rate Risk
As of December 31, 2018, all of our short-term debt bore interest at a variable rate, tied to LIBOR as a reference rate. Changes in the underlying LIBOR interest rate on our short-term debt could affect our earnings. For example, a hypothetical 100 basis point increase in the interest rate on our short-term debt would result in an increase of approximately $2.7 million in annual pre-tax interest expense. This estimated increase is based upon the outstanding balance of our short-term debt as of December 31, 2018 and assumes no mitigating changes by us to reduce the outstanding balances and no additional interest assistance that could be received from vendors due to the interest rate increase.
Foreign Currency Exchange Rate Risk
Products purchased from European-based and Chinese-based manufacturers are transacted in U.S. dollars. Fluctuations in the U.S. dollar exchange rate may impact the retail price at which we can sell foreign products. Accordingly, fluctuations in the value of other currencies compared with the U.S. dollar may impact the price points at which we can profitably sell such foreign products, and such price points may not be competitive with other products in the United States. Thus, such fluctuations in exchange rates ultimately may impact the amount of revenue, cost of goods sold, cash flows, and earnings we recognize for such foreign products. We cannot predict the effects of exchange rate fluctuations on our operating results. In certain cases, we may enter into foreign currency cash flow hedges to reduce the variability of cash flows associated with forecasted purchases of boats and yachts from European-based and Chinese-based manufacturers. We are not currently engaged in foreign currency exchange hedging transactions to manage our foreign currency exposure. If and when we do engage in foreign currency exchange hedging transactions, there can be no assurance that our strategies will adequately protect our operating results from the effects of exchange rate fluctuations.
ITEM 4. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
We maintain disclosure controls and procedures that are designed to ensure that material information required to be disclosed by us in Securities Exchange Act reports is recorded, processed, summarized, and reported within the time periods specified in the Securities and Exchange Commission’s rules and forms, and that such information is accumulated and communicated to our management, including the Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.
Our Chief Executive Officer and Chief Financial Officer have evaluated the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934) as of the end of the period covered by this report. Based on such evaluation, such officers have concluded that, as of the end of the period covered by this report, our disclosure controls and procedures were effective at the reasonable assurance level.
Changes in Internal Controls
During the quarter ended December 31, 2018, there were no changes in our internal control over financial reporting that materially affected, or were reasonably likely to materially affect, our internal control over financial reporting.
 
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Limitations on the Effectiveness of Controls
Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures and internal control over financial reporting will prevent all errors and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Although our disclosure controls and procedures are designed to provide reasonable assurance of achieving their objectives, because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of a simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, a control may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
CEO and CFO Certifications
Exhibits 31.1 and 31.2 are the Certifications of the Chief Executive Officer and Chief Financial Officer, respectively. The Certifications are required in accordance with Section 302 of the Sarbanes-Oxley Act of 2002 (the “Section 302 Certifications”). This Item of this report, which you are currently reading is the information concerning the Evaluation referred to in the Section 302 Certifications and this information should be read in conjunction with the Section 302 Certifications for a more complete understanding of the topics presented .

 
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
We are party to various legal actions arising in the ordinary course of business.  While it is not feasible to determine the actual outcome of these actions as of December 31, 2018, we do not believe that these matters will have a material adverse effect on our unaudited condensed consolidated financial condition, result of operations, or cash flows.  
ITEM 1A. RISK FACTORS
Ability of government to fund and conduct its operations.
The impact of a government shutdown for any significant duration could impact discretionary income and financial markets in the US among our customers or potential customers. Also, any significant long term shutdown or under staffing of government agencies who interact with the marine industry could result in a material adverse effect on our business, financial condition, and results of operations. Such a decrease in discretionary income, turbulent financial markets, lack of government agency support, or other yet unknown impacts, could result in a material adverse effect on our business, financial condition, and results of operations.
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
The following table presents information with respect to our repurchase of our common stock during the three months ended December 31, 2018.
 
Period	 	Total Number of  Shares Purchased (1)	 	 	Average Price Paid per share	 	 	Total Number of Shares
Purchased as Part of
Publicly Announced
Plans or Programs	 	 	Maximum Number of
Shares that may
be Purchased Under the
Plans or Programs	 	
October 1, 2018 - October 31, 2018	 	 	-	 	 	 	-	 	 	 	-	 	 	 	342,885	 	
November 1, 2018 - November 30, 2018	 	 	-	 	 	 	-	 	 	 	-	 	 	 	342,885	 	
December 1, 2018 - December 31, 2018	 	 	13,503	 	 	 	16.89	 	 	 	13,503	 	 	 	329,382	 	
Total	 	 	13,503	 	 	$	16.89	 	 	 	13,503	 	 	 	329,382	 	

(1)	Purchases were made pursuant to the share repurchase program announced by the Company on August 2, 2017. Under the terms of the program, the Company is authorized to purchase up to 2.0 million shares of its common stock through September 30, 2019, and 329,382 shares are still available to be purchased under this share repurchase program.	
 
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
ITEM 5. OTHER INFORMATION
None.
 
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ITEM 6. EXHIBITS
 
3.1	 	Articles of Incorporation of MarineMax, Inc., a Florida corporation . (1)	
 	 	 	
3.2	 	Bylaws of MarineMax, Inc., a Florida corporation . (1)	
 	 	 	
4.1	 	Form of Common Stock Certificate . (1)	
 	 	 	
10.21(r)†	 	Fourth Amended and Restated Inventory Financing Agreement, executed on October 25, 2018, by and among MarineMax, Inc. and its subsidiaries, as Borrowers, and Wells Fargo Commercial Distribution Finance LLC, Bank of the West, Inc., M&T Bank and Branch Banking & Trust Company.	
 	 	 	
10.21(s)†	 	Fifth Amended and Restated Program Terms Letter, executed on October 26, 2018, by and among MarineMax, Inc. and its subsidiaries, as Borrowers, and Wells Fargo Commercial Distribution Finance, LLC.	
 	 	 	
31.1	 	Certification of Chief Executive Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.	
 	 	 	
31.2	 	Certification of Chief Financial Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended.	
 	 	 	
32.1	 	Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.	
 	 	 	
32.2	 	Certification pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.	
 	 	 	
101.INS	 	XBRL Instance Document	
 	 	 	
101.SCH	 	XBRL Taxonomy Extension Schema Document	
 	 	 	
101.CAL	 	XBRL Taxonomy Extension Calculation Linkbase Document	
 	 	 	
101.DEF	 	XBRL Taxonomy Extension Definition Linkbase Document	
 	 	 	
101.LAB	 	XBRL Taxonomy Extension Label Linkbase Document	
 	 	 	
101.PRE	 	XBRL Taxonomy Extension Presentation Linkbase Document	

 	(1)	Incorporated by reference to Registrant’s Form 8-K as filed March 20, 2015.	
 	†	   Certain information in this exhibit has been omitted and filed separately with the Securities and Exchange Commission.                    Confidential treatment has been requested with respect to the omitted portions.	

 

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SIGNAT URES
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 thereunto duly authorized.
 
 	 	 	MARINEMAX, INC.	
 	 	 	 	
January 30, 2019	 	By:	/s/ Michael H. McLamb	
 	 	 	 	
 	 	 	Michael H. McLamb	
 	 	 	Executive Vice President,	
 	 	 	Chief Financial Officer, Secretary, and Director	
 	 	 	(Principal Accounting and Financial Officer)	

 
26

Exhibit 10.21(r)
 
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.
Execution Version
FOURTH AMENDED AND RESTATED
INVENTORY FINANCING AGREEMENT
 
This Fourth Amended and Restated Inventory Financing Agreement (as from time to time amended and together with any Transaction Statements, as hereinafter defined, this “ Agreement ”) is entered into as of October 26, 2018 by and between the persons listed in the section of this Agreement entitled “List of Dealers” (each, individually, a “ Dealer ” and, collectively, “ Dealers ”), Wells Fargo Commercial Distribution Finance, LLC (in its individual capacity, “ CDF ”) as Agent (CDF, in such capacity as agent, is herein referred to as “ Agent ”) for the several financial institutions that are parties to this Agreement or may from time to time become party to this Agreement (collectively, the “ Lenders ” and individually each a “ Lender ”) and for itself as a Lender, and such Lenders.
 
RECITALS
 
(a) Dealers do business together or are related entities.
 
(b) Dealers and CDF are currently parties to that certain Third Amended and Restated Inventory Financing Agreement dated as of May 9, 2017 (as amended, supplemented or otherwise modified from time to time, the “ Existing Financing Agreement ”).
 
(c) Dealers have requested that CDF increase the credit facility under the Existing Financing Agreement and CDF is willing to do so upon the terms and conditions set forth in this Agreement.  
 
(d) This Agreement amends and restates the Existing Financing Agreement in its entirety. The parties acknowledge that the principal amount outstanding under the credit facility as of the close of business on the day prior to the date hereof is $ $229,759,352.53 (the “ Closing Principal Balance ”).
 
 1. Definitions . Capitalized terms not otherwise defined in this Agreement  shall have the following meanings:
“ AAA ” has the meaning set forth in Section 30(b) of this Agreement.
“ Acquired Assets ” has the meaning set forth in Section 6(d)(iv) of this Agreement.
“ Acquired Person ” has the meaning set forth in Section 6(d)(iv) of this Agreement.
“ Advance Date ” has the meaning set forth in Section 2(a)(iv) of this Agreement.
 “ Affiliate ” means any Person that (i) directly or indirectly controls, is controlled by or is under common control of any other Person, (ii) directly or indirectly owns 25% or more of any other Person, (iii) is a director, partner, manager, or officer of any other Person or an affiliate of any other Person, or (iv) any natural person related to any such Person or an affiliate of such Person.
“ Agent ” has the meaning set forth in the Preamble of this Agreement.
 “ Agent Companies ” has the meaning set forth in Section 30(a) of this Agreement.
“ Agent Report ” has the meaning set forth in Section 21(e)(iii) of this Agreement.
“ Aggregate Excess Funding Amount ” of a Non-Funding Lender shall be the aggregate amount of all unpaid obligations owing by such Lender to Agent and other Lenders under the Loan Documents , including such Lender ’s Ratable Share of Loans .
“ Agreement ” has the meaning set forth in the Preamble of this Agreement.
 
Fourth Amended and Restated Inventory Financing Agreement 1
KCP-8393129-10

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.
“ Allocation ” means, with respect to each Lender , the amount set forth opposite such Lender ’s name on Exhibit E hereto, under the heading “ Allocation ”, as such amount may be reduced or increased from time to time in accordance with this Agreement .
“ Approval ” has the meaning set forth in Section 2(c) of this Agreement.
“ Approval Date ” has the meaning set forth in Section 2(a)(iv) of this Agreement.
“ Approved Vendors ” means all of the Vendors (i) from which the Dealers purchase inventory as of the date hereof and set forth on Exhibit A and (ii) all Vendors hereafter added by Dealers by written notice to Agent and accepted by Agent in Agent’s Permitted Discretion, unless, in either case, any such Vendor is disapproved by Agent as provided in Section 2(a)(iii) .  
 “ Assignment ” means an assignment agreement entered into by a Lender, as assignor, and any Person, as assignee, pursuant to the terms and provisions of Section 20 (with the consent of any party whose consent is required by Section 20 ), accepted by Agent.
“ Automatic Default ” has the meaning set forth in Section 12(h) of this Agreement.
“ Availability ” has the meaning set forth in the Program Terms Letter.
 “ Business Day ” means any day the Federal Reserve Bank of Chicago is open for the transaction of business.
“ CDF ” has the meaning set forth in the Preamble of this Agreement.
“ Charges ” has the meaning set forth in Section 10(a) of this Agreement.
“ Closing Date ” means the date of this Agreement.
 “ Closing Principal Balance ” has the meaning set forth in the Recitals of this Agreement.
“ Collateral ” means all personal property of each Dealer, whether such property or such Dealer’s right, title or interest therein or thereto is now owned or existing or hereafter acquired or arising, and wherever located, including without limitation, all Accounts, Inventory, Equipment, other Goods, General Intangibles (including without limitation, Payment Intangibles), Chattel Paper (whether tangible or electronic), Instruments (including without limitation, Promissory Notes), Deposit Accounts, Investment Property and Documents, any cash collateral such Dealer may have paid to Agent, and all Products and Proceeds of the foregoing; provided that “Collateral” shall exclude (a) all Fixtures (other than Goods affixed to Inventory) and (b) all equipment leases and agreements between Dealers and vendors, but only to the extent such leases and agreements prohibit or restrict such Dealers from granting a security interest therein and such prohibition or restriction is not ineffective under Article 9 of the Illinois Uniform Commercial Code or any other applicable law, rule or regulation; provided , further , that “Collateral” shall include (x) all Accounts and General Intangibles arising under such equipment leases and agreements between Dealers and vendors and (y) all payments and other property received or receivable in connection with any sale or other disposition of such leases and agreements.  Without limiting the foregoing, the Collateral includes each Dealer’s right to all Vendor Credits.  Similarly, the Collateral includes, without limitation, all books and records, electronic or otherwise, which evidence or otherwise relate to any of the foregoing property, and all computers, disks, tapes, media and other devices in which such records are stored.  For purposes of this definition only, capitalized terms used in this definition, which are not otherwise defined, shall have the meanings given to them in Article 9 of the Illinois Uniform Commercial Code.
“ Collections ” mean all monies that Agent receives from a Dealer or other sources (other than Lenders) on account of the Obligations.
 “ Contingent Liabilities ” means any obligation, contingent or otherwise, of any Dealer guaranteeing or having the economic effect of guaranteeing any Debt or obligation of another in any manner, whether directly or indirectly, including without limitation any obligation of such Dealer, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or any security for the payment thereof, (b) to purchase
 
Fourth Amended and Restated Inventory Financing Agreement 2
KCP-8393129-10

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.
property or services for the purpose of assuring the owner of such Debt of its payment, or ( c ) to maintain the solvency, working capital, equity, cash flow, fixed charge or other coverage ratio, or any other financial condition of the primary obligor so as to enable the primary obligor to pay any Debt or to comply with any agreement relating to any Debt or obligation.
“ Current Ratio ” means the ratio, calculated for Dealers on a consolidated basis and in accordance with GAAP, of (a) current assets determined in accordance with GAAP to (b) current liabilities determined in accordance with GAAP less balloon payments due on real estate loans which Agent in its reasonable discretion expects to be refinanced.
“ Daily Interest ” means, with respect to a Lender, for each calendar day of each calendar month, the product of: (a) the outstanding principal amount of Outstandings that are actually funded by Lender pursuant to this Agreement, multiplied by (b) the applicable interest rate set forth in Section 2(a)(vi) of this Agreement.
“ Dealer Affiliate ” means any Affiliate of a Dealer.
“ Dealer Representative ” has the meaning set forth in Section 31(b) of this Agreement.
“ Dealers ” has the meaning set forth in the Preamble of this Agreement.
“ Debt ” means all obligations, contingent or otherwise of Dealers which, in accordance with GAAP, should be classified on the balance sheet as liabilities, and in any event including capital leases, Contingent Liabilities that are required to be disclosed and quantified in notes to financial statements in accordance with GAAP, and liabilities secured by any Lien on any property regardless of whether such secured liability is with or without recourse.
“ Default ” has the meaning set forth in Section 12 of this Agreement.
“ Default Notice ” means written notice from a Dealer received by Agent’s account manager for Dealer or any officer of Agent, specifically advising Agent of the existence of a Default.
“ Default Rate ” means the lesser of 3% per annum above the rate in effect immediately prior to the Default or the highest lawful contract rate of interest permitted under applicable law.
“ Disputes ” has the meaning set forth in Section 30(a) of this Agreement.
“ Disqualified Person ” has the meaning set forth in Section 20(b) of this Agreement.
 “ Eligible Inventory Collateral ” has the meaning set forth in Section 6(b)(xiii) of this Agreement.
“ Existing Financing Agreement ” has the meaning set forth in the Recitals of this Agreement
“ FAA ” has the meaning set forth in Section 30(f) of this Agreement.
“ Free Floor Period ” means a period equal to the number of days during which a Vendor agrees to assume the cost of financing Collateral purchased by a Dealer by granting Agent a Vendor Credit.
“ Future Advances ” means any amount that CDF is obligated to pay to a Vendor pursuant to this Agreement within a certain period after an Approval is issued by CDF.
“ GAAP ” means generally accepted accounting principles as of the Closing Date.
“ Governmental Authority ” means any nation, sovereign or government, any state or other political subdivision thereof, any agency, authority or instrumentality thereof and any entity or authority exercising executive, legislative, taxing, judicial, regulatory or administrative functions of or pertaining to government, including any central bank, stock exchange, regulatory body, arbitrator, public sector entity, and supra-national entity.
 
Fourth Amended and Restated Inventory Financing Agreement 3
KCP-8393129-10

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.
“ Internal Policies ” has the meaning set forth in Section 2(a)(iii) of this Agreement .
“ Intervening Default ” has the meaning set forth in Section 2(a)(iv) of this Agreement.
“ Invoice ” means any invoice issued by a Vendor related to an Approval.
“ Lender Affiliate ” means the Affiliate of a Lender.
“ Lender Credit ” has the meaning set forth in Section 3(a) of this Agreement.
“ Lender Rate ” means the Dealer Rate as set forth in the Program Terms Letter less any applicable Performance Rebate as set forth in the Program Terms Letter.
“ Lenders ” has the meaning set forth in the Preamble of this Agreement.
“ Liens ” has the meaning set forth in Section 6(a) of this Agreement.
“ Loan Document ” means this Agreement, any Program Terms Letter or Transaction Statement entered into pursuant to this Agreement, and all documents delivered to Agent and/or any Lender in connection with any of the foregoing.
“ Loans ” has the meaning set forth in Section 2(a)(i) of this Agreement.
“ Material Adverse Effect ” means a material adverse effect in (a) Dealers’ business, operations or financial condition, taken as a whole, (b) the performance and enforceability of this Agreement, (c) any portion of the Collateral in excess of one million dollars ($1,000,000.00), or (d) the perfection and priority of Agent’s Liens in the Collateral.
“ Maximum Aggregate Credit Amount ” means an aggregate total of four hundred million dollars ($400,000,000.00) .
“ Monthly Interest ” means, with respect to each Lender, for each calendar month, the sum of the Daily Interest for each calendar day of such calendar month.
“ Net Eligible Inventory Amount ” has the meaning set forth in the Program Terms Letter.
“ Net Outstandings ” means, at any time, an amount equal to the aggregate unpaid amount of all Outstandings minus the aggregate amount of funds in the [****] (as defined in the [****]) as of such date.
“ Non-Funding Lender ” means any Lender that has (a) failed to fund any payments required to be made by it under the Loan Documents within two (2) Business Days after any such payment is due (excluding expense and similar reimbursements that are subject to good faith disputes), (b) given written notice (and Agent has not received a revocation in writing), to Agent, any Lender, or Dealer, or has otherwise publicly announced (and Agent has not received notice of a public retraction) that such Lender believes it will fail to fund payments required to be funded by it under the Loan Documents or (c) (or any Person that directly or indirectly controls such Lender has), (i) become subject to a voluntary or involuntary case under the Federal Bankruptcy Reform Act of 1978, or any similar bankruptcy laws, (ii) a custodian, conservator, receiver or similar official appointed for it or any substantial part of such Person’s assets, or (iii) made a general assignment for the benefit of creditors, been liquidated, or otherwise been adjudicated as, or determined by any Governmental Authority having regulatory authority over such Person or its assets to be, insolvent or bankrupt, and for this clause (c) , Agent has determined that such Lender is reasonably likely to fail to fund any payments required to be made by it under the Loan Documents.  
“ Obligations ” means all indebtedness and other obligations of any nature whatsoever of each Dealer to Agent, Lenders and/or a Lender Affiliate, arising under this Agreement or any other Loan Document, and whether for principal, interest, fees, expenses, indemnification obligations or otherwise, and whether such indebtedness or other obligations are existing, future, direct, indirect, acquired, contractual, noncontractual, joint and/or several, fixed, contingent or otherwise.
“ One month Libor ” has the meaning set forth in Section 10(a) of this Agreement.
 
Fourth Amended and Restated Inventory Financing Agreement 4
KCP-8393129-10

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.
“ Open Approval ” means any Approval for which CDF has not financed an Invoice for the inventory subject thereto.
“ Other Lender ” has the meaning set forth in Section 22(a)(i) of this Agreement.
“ Other Pre-Owned Sublimit ” has the meaning set forth in Section 2(b) of this Agreement.
“ Outstandings ” means, at any time, an amount equal to the aggregate unpaid amount of all Invoices which have been financed by Agent on behalf of Dealers.
“ Participant Register ” has the meaning set forth in Section 20(h) of this Agreement.
“ Payment Default ” means any failure by Dealers to make any payment with respect to the Obligations by the date due and after any applicable grace period under the applicable Loan Document (such date being the “ Final Payment Date ”; and the failure by Dealers to make such a payment by the Final Payment Date being a “ Missed Payment ”).  Payment Default shall not mean, and shall exclude, any deductions, offsets or other disputes made or asserted by a Dealer which are accepted by or under negotiation with Agent.
“ Performance Rebate ” has the meaning set forth in the Program Terms Letter.
“ Permitted Discretion ” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.
“ Permitted Locations ” has the meaning set forth in Section 6(b)(xiii) of this Agreement.
“ Person ” means any individual, partnership, corporation (including a business trust and a public benefit corporation), joint stock company, estate, association, firm, enterprise, trust, limited liability company, unincorporated association, joint venture and any other entity or Governmental Authority.
“ Pre-Owned Inventory Sublimit ” has the meaning set forth in Section 2(b) of this Agreement.
“ Principal ” has the meaning set forth in Section 31(b) of this Agreement.
“ Program Terms Letter ” means, collectively, any program terms letter or letters executed by the Dealers and Agent from time to time.
“ Ratable Share ” means, with respect to each Lender, the percentage equal to such Lender’s Allocation divided by the Maximum Aggregate Credit Amount, as such percentage is set forth opposite such Lender’s name on Exhibit E hereto, under the heading “Ratable Share”, and as such percentage may be reduced or increased from time to time in accordance with this Agreement.
[****]
“ Related Persons ” means, with respect to any Person, each Affiliate of such Person and each director, officer, employee, agent, trustee, representative, attorney, accountant and each insurance, environmental, legal, financial and other advisor (including those retained in connection with the satisfaction or attempted satisfaction of any condition precedent to the execution of this Agreement) and other consultants and agents of or to such Person or any of its Affiliates.
“ Replacement Lender ” has the meaning set forth in Section 22(b) of this Agreement.
“ Required Lenders ” means Lenders whose aggregate Ratable Share exceeds 50%; provided, however, if there are two or more Lenders, Required Lenders shall mean no less than two Lenders.
“ Reserves ” means, as of any date of determination, reserves that Agent deems necessary or appropriate, in its Permitted Discretion, to establish and maintain against Availability or the Maximum Aggregate Credit Amount.
 
Fourth Amended and Restated Inventory Financing Agreement 5
KCP-8393129-10

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.
“ Sale ” has the meaning set forth in Section 20(b) of this Agreement .
“ Sea Pro ” means Sea Pro Boats, LLC, a South Carolina limited liability company.
“ Settlement Date ” means (a) each Tuesday that this Agreement is in effect or, if such Tuesday is not a Business Day, the next succeeding Business Day, or (b) any other Business Day selected by Agent in its reasonable discretion.
“ Specific Pre-Owned Sublimit ” has the meaning set forth in Section 2(b) of this Agreement.
 “ SPV ” means any Person established by Agent, a Lender or a Lender Affiliate, as a bankruptcy-remote special purpose vehicle and identified as such in a writing by any Lender to Agent.
“ Start Date ” has the meaning set forth in Section 10(a) of this Agreement.
“ Stock ” means all shares of capital stock (whether denominated as common stock or preferred stock), equity interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting.
“ Tangible Net Worth ” means the shareholders’ equity of Dealers on a consolidated basis, determined in accordance with GAAP, minus items treated as intangible assets under GAAP, amounts owing by any employee, officer or other Dealer Affiliate, other than draws to commissioned and seasonally compensated employees and advances made for customary travel expenses incurred in the conduct of Dealers’ business, and any other assets that cannot be identified as tangible assets to Agent’s reasonable satisfaction.
“ Transaction Statement ” has the meaning set forth in Section 3(a) of this Agreement.
“ UCC ” has the meaning set forth in Section 12(j) of this Agreement.
“ USA&M ” has the meaning set forth in Section 30(b) of this Agreement.
“ Vendor Credits ” means all of each Dealer’s rights to any price protection payments, rebates, discounts, credits, factory holdbacks, incentive payments and other amounts which at any time are due a Dealer from a Vendor.
“ Vendors ” means all manufacturers and vendors from which Dealers purchase inventory.
 
2. Extensions of Credit .
 
(a) Floor Plan Advances .  
 
(i) Subject to the terms and conditions of this Agreement (including, without limitation, Sections 2(a)(iv) and (v) below), the Lenders severally and not jointly agree to make available to Dealers extensions of credit (“ Loans ”) in an amount equal to each such Lenders Ratable Share of such Loan to any one or more Dealers on a revolving basis in such amounts as Dealers may from time to time request up to the amount of Availability to purchase inventory, which will be subject to a purchase money security interest in favor of Agent, as collateral agent for Lenders, from Approved Vendors and any additional Vendors acceptable to Agent in Agent’s Permitted Discretion, and for other purposes (including the Pre-Owned Inventory Sublimit).  For the avoidance of doubt, the Closing Principal Balance shall be deemed a Loan outstanding under this agreement, and shall be subject to the funding procedure set forth in Section 2(a)(v) below on the first Settlement Date following the Closing Date. Notwithstanding anything herein or in the Program Terms Letter to the contrary, the sum of all Outstandings and Open Approvals with respect to Sea Pro shall not at any time exceed two million dollars ($2,000,000.00); provided, however, that such amount may be increased from time to time by Agent in writing in its sole and absolute discretion, without the consent of Lenders.  

Fourth Amended and Restated Inventory Financing Agreement 6
KCP-8393129-10

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.
(ii) (A) Repayments from time to time of the outstanding balance of the indebtedness hereunder shall be available to be re-borrowed pursuant to the terms and conditions of this Agreement ; (B) no Loan will be made to the extent such Loan would cause any Lender to have outstanding Loans in a principal amount in excess of such Lender ’s Allocation ; (C) if the Obligations hereunder outstanding at any time or from time to time exceed the lesser of (I) the Maximum Aggregate Credit Amount minus the outstanding amount of Approvals and (II) the Net Eligible Inventory Amount minus the amount of any Reserves , Dealers shall immediately (but in any event within two (2) Business Days ) pay the amount of excess to Agent for the benefit of Lenders ; provided that, in its reasonable discretion, Agent may cause the Lenders to immediately cease to make Loans and/or Agent may immediately cease to issue Approvals until such repayment occurs; and (D) notwithstanding anything else contained in this Agreement , (I) in its reasonable discretion, Agent may cause the Lenders to immediately cease to make any Loans and/or   Agent may immediately cease 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 Agent on behalf of Lenders all Obligations hereunder, plus interest accrued to the date of payment.
 
(iii) Each Approved Vendor may be disapproved at any time in Agent’s Permitted Discretion by written notice from Agent, and following such disapproval shall cease to be an “Approved Vendor” under this Agreement.   If a Vendor is disapproved as set forth above, such disapproval will only affect Dealers’ ability to request, and Lenders’ obligation to make, subsequent Loans and will not require immediate repayment of previous advances with respect to inventory purchased from such disapproved Vendor. Notwithstanding anything herein to the contrary, Agent may disapprove Sea Pro as an Approved Vendor by written notice, and following such disapproval, Sea Pro shall cease to be a Vendor under this Agreement, if Sea Pro is disapproved at any time, in Agent’s sole discretion, as a vendor with respect to Agent’s general portfolio of financing.
 
(iv) Each Lender shall have the obligation to fund its Ratable Share of a Loan upon issuance by CDF of an Approval. Lenders acknowledge and agree that:  (A) CDF typically issues Approvals on a date (each, an “ Approval Date ”) prior to the date CDF is required actually to fund the Loan (each, an “ Advance Date ”) that is based on such Approval, (B) once an Approval has been issued, and the Vendor receiving such Approval shall have shipped its product based thereon, CDF may deem itself obligated to fund the related Loan on the Advance Date, notwithstanding any Automatic Default, Payment Default, Default Notice or other Default that may arise on or prior to an Approval Date (each, an “ Intervening Default ”), and (C) each Lender shall be obligated to fully fund in cash such Lender’s Ratable Share in any Loans which derive from all Approvals issued by CDF in good faith, as well as any Open Approvals and Future Advances based thereon, notwithstanding any Intervening Default.
 
(v) On each Settlement Date on or before 2:00 p.m. central time, Agent shall deliver notice to each Lender of the amount of Loans Lender has funded and such Lender’s Ratable Share multiplied by Net Outstandings, and: (A) if the amount of Loans Lender has funded is less than Lender’s Ratable Share multiplied by the Net Outstandings calculated as of such Settlement Date, then Lender shall remit such deficiency to Agent (on behalf of CDF) by 5:00 p.m. central time on the Business Day immediately following such Settlement Date, and (B) if the amount of Loans Lender has funded is more than Lender’s Ratable Share multiplied by the Net Outstandings calculated as of such Settlement Date, then Agent (on behalf of CDF) will remit such excess to such Lender by 5:00 p.m. central time on the Business Day immediately following such Settlement Date. Each payment due to Agent or Lenders will be paid in immediately available funds according to the electronic transfer instructions set forth on Exhibit F attached hereto, and, if not timely paid in accordance with this Agreement, will bear interest until paid at a rate per annum equal to the Lender Rate.  If CDF is acting as Agent, it shall be deemed to have paid its deficiency or received its excess as set forth above on each Settlement Date.  Each Lender hereby waives any right it may now or in the future have to set-off its obligation to make any payment to CDF or Agent under this Agreement against any obligation of CDF or Agent to such Lender, whether under this Agreement or any other agreement between CDF and such Lender or Agent and such Lender .   
 
 (vi) The amount of Loans each Lender has funded shall bear interest at the Lender Rate, as such rate may change pursuant to the terms of the applicable Program Terms Letter. Interest will be computed on the basis of a 360-day year and assess for the actual number of days elapsed.  Provided Lender is not a Non-Funding Lender, then the amount of Monthly Interest, if any, payable to Lender, less
 
Fourth Amended and Restated Inventory Financing Agreement 7
KCP-8393129-10

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.
any Administrative Fee due to Agent pursuant to a Fee Letter between Agent and Lender , shall be distributed by Agent to Lender monthly in arrears on the latter of: (A) the fifteenth (15 th ) day of the applicable month, or if the fifteenth (15 th ) is not a Business Day , the next succeeding Business Day , or (B) within five (5) Business Days after Agent ’s receipt thereof from all Dealers .  To the extent that Lender is entitled to receive interest income in excess of the Monthly Interest , if such additional interest has not previously been distributed to Lender , then Lender shall be entitled to receive an additional payment from Agent equivalent to Lender ’s Ratable Share of such interest income.  Any amounts due to Lender for income in excess of the Monthly Interest shall be reflected and paid with Monthly Interest as set forth above.   Lenders acknowledge and agree that the rate of return paid on any Loan is dependent on numerous factors, including discounts and subsidies offered by Vendors .  Application of any Collections received by Agent as interest in cash or good collected funds representing payment of interest on the Loans may result in the payment of interest to Lender in excess of the rate set forth in this subsection.
 
(vii) Provided a Lender is not a Non-Funding Lender, any Collections received by Agent in good collected funds representing payment of any part of the Unused Line Fee (as described in the Program Terms Letter) shall be paid by Agent to each Lender in an amount equal to such Lender’s Ratable Share monthly in arrears, with Monthly Interest as set forth in Section 2(a)(vi) .
 
(viii) Lenders acknowledge that Dealers may be entitled to receive a Performance Rebate on a calendar quarter basis pursuant to the terms of the Program Terms Letter.  Notwithstanding anything contained herein to the contrary, if the Performance Rebate is not earned by or otherwise paid to Dealers during any calendar quarter, each Lender may be entitled to receive an additional payment from Agent equivalent to such Lender’s share of such portion of the Performance Rebate not earned by or otherwise paid to Dealers.  Any amounts due to Lenders under this Section 2(a)(viii) shall be reflected in a notice to be delivered in the manner set forth in Section 2(a)(v) of this Agreement within forty-five (45) days following the end of the applicable calendar quarter.
 
(ix) As of the Closing Date, all outstanding advances under the Existing Financing Agreement shall be deemed Loans under this Agreement.
 
(x) Agent may, in its Permitted Discretion, adjust any advance rates for Approved Vendors set forth in the Program Terms Letter and implement Reserves if Dealers’ Tangible Net Worth is less than the greater of (A) [****] or (B) [****].  
 
(b) Pre-Owned Inventory Advances and Sublimits .  Subject to the overall Maximum Aggregate Credit Amount set forth above and the terms and conditions of this Agreement, on and after the Closing Date, Lenders severally and not jointly may make Loans 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 Aggregate Credit Amount hereunder, the total amount of Loans outstanding with respect to used or pre-owned inventory shall not exceed forty-five million dollars ($45,000,000.00) (the “ Pre-Owned Inventory Sublimit ”).  Within such Pre-Owned Inventory Sublimit, (i) any Loans 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), (ii) no more than thirty-five million dollars ($35,000,000.00) of such Pre-Owned Inventory Sublimit shall be used by Dealers to finance pre-owned inventory with applicable valuations of less than five hundred thousand dollars ($500,000.00) (the “ Other Pre-Owned Sublimit ”), and (iii) no more than twenty million dollars ($20,000,000.00) of such Pre-Owned Inventory Sublimit shall be used by Dealers to finance used or pre-owned inventory with applicable valuations of five hundred thousand dollars ($500,000.00) or more (the “ Specific Pre-Owned Sublimit ”).
 
(c) Advance Rates; Approvals .  The advance rates with respect to pre-owned inventory as well as additional details of the financing program are set forth in the Program Terms Letter, the terms of which are incorporated herein by this reference. Upon thirty (30) days’ notice to Dealers, Agent may adjust the advance rates set forth in the Program Terms Letter (i) for Approved Vendors as provided in Section 2.1(a)(x) and (ii) for all other Vendors in Agent’s Permitted Discretion.  This Agreement concerns the extension of credit, and not the provision of goods or services.  An “ Approval ” shall be defined as Agent’s indication to a Vendor that the Lenders will provide financing to Dealers with respect to a particular Invoice or Invoices.  
 
 (d) Re-Advances .  Subject to the overall Maximum Aggregate Credit Amount set forth above and the terms and conditions of this Agreement, on and after the Closing Date, Lenders severally and not jointly agree to make Loans to Dealers with respect to units of inventory (excluding used or pre-owned inventory) financed by
 
Fourth Amended and Restated Inventory Financing Agreement 8
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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.
Lenders pursuant to Section 2(a) or 2(b) of this Agreement for which Dealers may have previously made payments to Agent on behalf of Lenders ; provided that such units of inventory have not previously been repaid in full, and further provided such cash advances shall not exceed ( i ) 100% of the original invoice amount with respect to such units, less ( ii ) any curtailment amounts that 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; 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 Aggregate Credit Amount within any thirty (30) day period.
 
3. Financing Terms .
 
(a) Certain financial terms of any Loan made under this Agreement are set forth in the Program Terms Letter.  In connection with financing an item of inventory for any Dealer, Agent, on behalf of the Lenders, will transmit or otherwise make available to such Dealer and Lenders a “ Transaction Statement ” which is a record that may be transmitted by Agent to such Dealer from time to time which identifies the Collateral financed and/or the advance made and the terms and conditions of repayment of such advance as provided in this Agreement.  Dealers agree that a Dealer’s failure to notify Agent in writing of any objection to a Transaction Statement within thirty (30) days after a Transaction Statement is transmitted or otherwise sent to such Dealer shall constitute Dealers’ (i) acceptance thereof, (ii) agreement that the Lenders are financing such inventory at Dealers’ request, and (iii) agreement that such Transaction Statement will be incorporated herein by reference to the extent not inconsistent with the terms hereof.  To the extent any Transaction Statement is inconsistent with the terms hereof, this Agreement (including any applicable Program Terms Letter) shall govern and control.  If any Dealer objects to any Transaction Statement, such Dealer and Agent, on behalf of Lenders, will work in good faith to resolve such objection within sixty (60) days after the applicable Transaction Statement is transmitted or otherwise sent to such Dealer.  However, notwithstanding such objection, Dealers will pay Agent on behalf of Lenders for such inventory in accordance with this Agreement.  With respect to any advance made to a Vendor on behalf of a Dealer, Agent, on behalf of any one or more Lenders, may apply against any such amount owed to Vendor any amount such Lender or Lenders is owed from such Vendor with respect to Free Floor Periods (each, a “ Lender Credit ”) or any other amounts such Lender or Lenders is owed from such Vendor.  Notwithstanding the foregoing, Dealers agree to pay the full amount reflected on any Transaction Statement.
 
(b) Upon receipt by Agent of a request for a Loan under and pursuant to CDF’s standard advance request procedures and the issuance of a Transaction Statement by Agent as set forth in Section 3(a) above, each Lender shall follow the funding procedures established by Agent, from time to time, and shall, as and when requested by Agent, advance funds to Agent to fund such Loan in amounts equal to such Lender’s Ratable Share of such Loan.
 
4. Security Interest .
 
(a) Each Dealer hereby grants to Agent, as collateral agent for the Lenders, a security interest in all of the Collateral as security for all Obligations under this Agreement.
 
(b) Agent will not exercise sole dominion and control over any Deposit Account included in the Collateral except as contemplated by Section 13 of this Agreement after a Default.
 
5. Representations and Warranties . Each Dealer represents and warrants that at the time of execution of this Agreement and at the time of each Approval and each advance hereunder:
 
(a) such Dealer is in good standing in its jurisdiction of organization and is qualified to transact business in each other jurisdiction in which the nature of its business or property requires such qualification, unless failure to so qualify could not result, individually or in the aggregate, in a Material Adverse Effect;
 
(b) such Dealer does not conduct business under any trade styles or trade names except as disclosed by such Dealer to Agent in writing and except to the extent that such conduct could not result, individually or in the aggregate, in a Material Adverse Effect;
 
 (c) such Dealer has all the necessary authority to enter into and perform this Agreement, and the execution, delivery and performance of this Agreement 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
 
Fourth Amended and Restated Inventory Financing Agreement 9
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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.
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 ;
 
(d) this Agreement and each other Loan Document to which any such Dealer is a party constitute the legal, valid and binding obligations of each such Dealer, enforceable against such Dealer in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability;
 
(e) such Dealer keeps its records respecting accounts and chattel paper at its chief executive office identified below and keeps the Collateral only at locations permitted by Section 6(b)(xiii) of this Agreement;
 
(f) this Agreement correctly sets forth such Dealer’s true legal name, the type of its organization, the jurisdiction in which such Dealer is incorporated or otherwise organized, and such Dealer’s organizational identification number, if any, in each case, as of the date hereof;
 
(g) all information supplied by such Dealer to Agent or any Lender, including any financial, credit or accounting statements or application for credit, in connection with this Agreement is true, correct and complete in all material respects;
 
(h) all advances and other transactions hereunder are for business purposes and not for personal, family, household or any other consumer purposes;
 
(i) such Dealer has good title to all Collateral in which it purports to have any interest;
 
(j) there are no actions or proceedings pending or threatened against Dealers which could reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect; and
 
(k) on the Closing Date, 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, at the time of each Approval and each advance hereunder, a Default has not occurred and is not continuing.  
 
6. Covenants .
 
(a) Until sold as permitted by this Agreement, each Dealer shall own all of its Collateral free and clear of all liens, security interests, claims and other encumbrances, whether arising by agreement or operation of law (collectively “ Liens ”), other than:
 
(i) Liens in favor of Agent;
 
(ii) purchase money Liens on Dealers’ new inventory manufactured by Vendors that have been disapproved by Agent;
 
(iii) Liens on Dealers’ new, used and pre-owned inventory manufactured by Vendors that have been disapproved by Agent; provided that such Liens are subject to subordination or intercreditor agreements in form and substance acceptable to Agent, in its sole discretion, whereby Agent subordinates its Liens in such inventory;
 
(iv) Liens for taxes, assessments or other governmental charges that are not due or payable or that are due or payable, but are being diligently contested in good faith by appropriate proceedings; provided that such contested taxes, assessments or other governmental charges do not exceed five hundred thousand dollars ($500,000.00) in aggregate at any time;
 
(v) Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred in the ordinary course of business for sums not yet due or payable; provided , however , that Liens of landlords are permitted only to the extent that such Liens are subordinate to the Liens in favor of Agent pursuant to an agreement in form and substance acceptable to Agent or if such subordination is not required pursuant to the terms of the Program Terms Letter;
 
(vi) Liens incurred in the ordinary course of business in connection with workers’ compensation, unemployment insurance or other forms of governmental insurance or benefits;
 
Fourth Amended and Restated Inventory Financing Agreement 10
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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.
 
(vii) existing Liens identified in Exhibit B to this Agreement, but only to the extent securing the indebtedness identified in such Exhibit; provided that the amount of such indebtedness does not exceed the outstanding amounts thereof on the Closing Date;
 
(viii) Liens for capital leases and equipment financing in a combined aggregate amount not exceeding ten million dollars ($10,000,000.00), but only to the extent encumbering the property leased under such capital leases or acquired with the proceeds of such equipment financing; and
 
(ix) Liens on or with respect to cash collateral to secure (a) obligations to depository institutions with respect to deposit and treasury management services provided by such institutions to Dealers of up to one million dollars ($1,000,000.00) in the aggregate, and (b) reimbursement obligations under letters of credit of up to three million five hundred thousand dollars ($3,500,000.00) in the aggregate; provided that the amount of cash collateral securing the obligations described in clauses (a) and (b) of this Section 6(a)(ix) shall not exceed three million five hundred thousand dollars ($3,500,000.00) in the aggregate at any time.
 
(b) Each Dealer will:
 
(i) keep all Collateral at Permitted Locations and keep all tangible Collateral in good order, repair and operating condition and insured as required herein;
 
(ii) promptly file all tax returns required by law and promptly pay all taxes, fees, and other governmental charges for which it is liable, including without limitation all governmental charges against the Collateral or this Agreement;
 
(iii) permit Agent and its designees, without notice, to inspect the Collateral (including, without limitation, each certificate of title or statement of origin issued for Collateral financed by Lenders) during normal business hours and at any other time Agent deems desirable (and such Dealer hereby grants Agent and its designees an irrevocable license to enter such Dealer’s business locations during normal business hours without notice to such Dealer to account for and inspect all Collateral and to examine and copy such Dealer’s books and records related to the Collateral);
 
(iv) keep complete and accurate records of its business, including inventory, accounts and sales; and permit Agent and its designees to inspect and copy such records upon request;
 
(v) furnish Agent and Lenders with such additional information regarding the Collateral and such Dealer’s business and financial condition as Agent or any Lender may from time to time reasonably request (including without limitation financial statements and projections more frequently than set forth below);
 
(vi) immediately notify Agent of any material adverse change in the Dealers’ business, operations or financial condition taken as a whole or any reduction in the aggregate value of the Collateral of five hundred thousand dollars ($500,000.00) or more;
 
(vii) execute (or cause any third party in possession of Collateral to execute) all documents Agent requests to perfect and maintain the security interest in the Collateral granted to Agent, on behalf of Lenders, hereunder;
 
(viii) upon Agent’s request, (i) at any time the aggregate Obligations with respect to any Collateral or Dealer located in Ohio exceeds ten million dollars ($10,000,000.00), deliver to Agent immediately upon such request (and Agent may retain) each certificate of title or statement of origin issued for such Collateral and (ii) at any time during the continuance of a Default, deliver to Agent immediately upon such request (and Agent may retain) each certificate of title or statement of origin issued for Collateral financed by any one or more Lenders;
 
(ix) at all times be duly organized, existing, in good standing, qualified and licensed to do business in each jurisdiction in which the nature of its business or property so requires;
 
(x) notify Agent of the commencement of any material legal proceedings against such Dealer;
 
Fourth Amended and Restated Inventory Financing Agreement 11
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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.
 
(xi) comply with all laws, rules and regulations applicable to such Dealer, including without limitation, the USA PATRIOT ACT and all  laws, rules and regulations relating to  import or export controls or anti-money laundering;
 
(xii) conduct business only under such trade styles and trade names as such Dealer has disclosed to Agent in writing prior to such conduct;
 
(xiii) only permit Collateral consisting of inventory (“ Eligible Inventory Collateral ”) to be located at, or in-transit domestically to and from, locations described in Exhibit C to this Agreement and at such other locations in the United States disclosed to Agent in writing at least fifteen (15) days prior to such Dealer’s use of such location (but excluding the locations of any consigned inventory), unless Agent otherwise agrees to such location or consignment in writing (collectively, the “ Permitted Locations ”); provided that such fifteen (15) day notice and Agent approval shall not be required for inventory (including consigned inventory not financed by Agent hereunder) with an aggregate invoice amount of less than five million dollars ($5,000,000.00) located at other locations (including locations outside of the United States, but excluding boat shows) for up to thirty (30) days per unit and, provided , further , that such notice shall be reduced to one (1) day and Agent approval shall not be required for inventory (excluding consigned inventory) with an aggregate invoice amount of less than five million dollars ($5,000,000.00) located at boat shows for up to thirty (30) days;
 
(xiv) provide to Agent or any Lender, when requested by Agent or such Lender, a copy of such Dealer’s organizational documents, and will provide to Agent or any requesting Lender any subsequent amendments thereto bearing indicia of filing from the appropriate Governmental Authority, or such other documents verifying such Dealer’s true and correct legal name as Agent may request from time to time; and
 
(xv) only permit MarineMax Vacations, Ltd. to hold Eligible Inventory Collateral with an aggregate invoice amount of not more than two million dollars ($2,000,000); provided that such inventory shall at all times be used by MarineMax Vacations, Ltd. in connection with its charter business or businesses directly related thereto.
 
(c) Financial Covenants .  Dealers covenant and agree that, so long as any of the Obligations to Agent and any Lenders remain outstanding or this Agreement remains in effect, even if no Obligations to Agent or any Lenders are outstanding, Dealers shall:
 
(i) maintain at all times a ratio of Debt to Tangible Net Worth of not more than 2.75 to 1.0 measured as of fiscal quarter end June 30, 2013 and each successive fiscal quarter end thereafter; and
 
(ii) maintain at all times a Current Ratio of not less than 1.2 to 1.0 as of fiscal quarter end June 30, 2013 and each successive fiscal quarter end thereafter.
 
(d) No Dealer will, without Agent’s prior written consent:
 
(i) use (except for demonstration purposes), rent, lease, sell, transfer, consign (except consigned inventory located at Permitted Locations), license, encumber or otherwise dispose of any Collateral except for sales of inventory at retail in the ordinary course of such Dealer’s business and except for (A) Collateral with an aggregate value not exceeding five hundred thousand dollars ($500,000.00) in any one calendar year and (B) transfers of inventory to other dealers of such inventory to the extent consented to by Agent in writing in its Permitted Discretion;
 
(ii) sell or otherwise transfer inventory to a Dealer Affiliate, except in accordance with Section 6(e) of this Agreement;
 
(iii) engage in any other material transaction not in the ordinary course of such Dealer’s business with respect to the Collateral or which would result, individually or in the aggregate, in a Material Adverse Effect;
 
 (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
 
Fourth Amended and Restated Inventory Financing Agreement 12
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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.
identification number, if any, or acquire any Person (an “ Acquired Person ”) or a substantial portion of the assets of any Person (“ Acquired Assets ”), except that Dealers may acquire an Acquired Person or Acquired Assets , if (A) Dealers provide Agent 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 6(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 Agent such documents and agreements as Agent may reasonably require, at Dealers ’ cost and expense, (C) immediately after any such acquisition of Acquired Assets , Agent shall continue to have, on behalf of Lenders 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 Agent pursuant to clause (A) above, Dealers shall be in compliance with the financial covenants set forth in Section 6(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 Agent shall not unreasonably withhold its consent to such acquisition, and (G) at the time of such acquisition, Availability shall be at least five million dollars ($ 5,000,000) and the sum of Dealers ’ cash, plus the balance of the [****] (as defined in the [****] ), plus Availability shall be at least fifteen million dollars ($ 15,000,000); provided , however , that notwithstanding anything in this Section to the contrary, MarineMax Vacations, Ltd. shall not be required to become a party to this Agreement as a Dealer .
 
(v) change its name or conduct business under a trade style or trade name other than those disclosed by such Dealer to Agent in writing without giving Agent at least thirty (30) days’ prior written notice thereof;
 
(vi) change its chief executive office or office where it keeps its records with respect to accounts or chattel paper;
 
(vii) change the state in which it is incorporated or otherwise organized (except upon thirty (30) days’ prior written notice to Agent);
 
(viii) finance on a secured basis with any Vendor or any third party the acquisition of inventory of the same brand as any new inventory financed or to be financed by Agent;
 
(ix) store Collateral financed by Lenders with any third party except for Collateral at Permitted Locations;
 
(x) incur secured or unsecured Debt in excess of one hundred thirty million dollars ($130,000,000.00), excluding Debt incurred pursuant to this Agreement; or
 
(xi) pay cash dividends or make other cash distributions with respect to or repurchase Stock of Dealers in an aggregate amount during the term of this Agreement in excess of Dealers’ cumulative net income (incurred from March 31, 2013 through the term hereof) plus thirty million dollars ($30,000,000.00).  
 
(e) Notwithstanding the provisions of Section 6(d)(ii) of this Agreement, a Dealer may sell or otherwise transfer inventory to another Dealer who is a signatory to this Agreement.  The parties agree that any such inventory that is sold or otherwise transferred at any time by one Dealer to another shall be and remain Collateral and shall continue to secure the Obligations.
 
 (f) Each Dealer, within sixty (60) days of the end of each calendar year, will provide a list of all locations where Collateral is or may be kept, including information as to whether the property is owned or leased, any Liens or other encumbrances on such property, and if leased, the name of the lessor, the lease term, and any other information Agent shall request.  If any Collateral location is subject to a mortgage, deed of trust, or other Lien in favor of any Person other than Agent, except any Lien permitted by Section 6(a) of this Agreement, Dealers agree to promptly obtain an agreement from such Person, waiving such Person’s Lien on the Collateral and providing
 
Fourth Amended and Restated Inventory Financing Agreement 13
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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.
Agent reasonable access thereto, in form and substance acceptable to Agent and duly executed and delivered by such Person .
 
7. Insurance .
 
(a) All risk of loss, damage to or destruction of Collateral shall at all times be on Dealers. Each Dealer shall keep all of its tangible Collateral insured for full value against all insurable risks, under policies delivered to Agent, on terms and with insurers reasonably acceptable to Agent, with loss payable to Agent on behalf of Lenders (with respect to any claim in excess of two hundred fifty thousand dollars ($250,000.00) per occurrence), assignee or additional insured, as appropriate.  Such insurance shall be subject to cancellation or change only (i) upon ten (10) days written notice to Agent for non-payment of premium or (ii) upon thirty (30) days written notice to Agent for all other reasons, and shall provide that Agent’s interests will not be impaired by any failure of Dealers to comply with the terms of such insurance or by any exercise of remedies by Agent with respect to the property insured.  With respect to any claim during the continuance of any Default, Agent is authorized, but not required, to act as attorney‑in‑fact for each Dealer in adjusting and settling any insurance claims under any such policy and in endorsing any checks or drafts drawn by insurers.  To facilitate the exercise of such rights by Agent, each Dealer has executed and delivered to Agent a Power of Attorney, which Agent agrees not to exercise any rights under unless a Default has occurred and is continuing.  In addition, at any time (before and after the occurrence of any Default), (A) each Dealer shall promptly remit to Agent in the form received, with all necessary endorsements, all proceeds of such insurance which such Dealer may receive, and (B) Agent, at its election, shall either apply any proceeds of insurance it may receive toward payment of the Obligations or pay such proceeds to such Dealer or any other Dealer.
 
(b) Except as otherwise required by Section 7(a) of this Agreement, Dealers shall (i) keep their insurable property adequately insured at all times by financially sound and reputable insurers to such extent and against such risks, including fire and other risks insured against by extended coverage, as is customary with companies similarly situated and in the same or similar businesses, (ii) maintain in full force and effect public liability and workers compensation insurance, in amounts customary for such similar companies to cover normal risks, by insurers reasonably satisfactory to Agent, and (iii) maintain such other insurance as may be required by law or reasonably requested by Agent.  Dealers shall deliver evidence of renewal of each insurance policy on or before the date of its expiration, and from time to time shall deliver to Agent, on or before the date hereof, and thereafter upon demand, evidence of the maintenance of such insurance.  Dealers shall delivery promptly to Agent copies of all reports provided to insurers by any Dealer.
 
(c) The following notice is given pursuant to Section 180/10 of the Collateral Protection Act set forth in Chapter 815 Section 180/1 of the Illinois Compiled Statutes; nothing contained in such notice shall be deemed to limit or modify the terms of this Agreement:   UNLESS EACH DEALER PROVIDES EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY SUCH DEALER’S AGREEMENT WITH AGENT AND LENDERS, AGENT MAY PURCHASE INSURANCE AT SUCH DEALER’S EXPENSE TO PROTECT AGENT’S AND LENDERS’ INTEREST IN SUCH DEALER’S COLLATERAL.  THIS INSURANCE MAY, BUT NEED NOT, PROTECT SUCH DEALER’S INTEREST.  THE COVERAGE THAT AGENT PURCHASES MAY NOT PAY ANY CLAIM THAT SUCH DEALER MAKES OR ANY CLAIM THAT IS MADE AGAINST SUCH DEALER IN CONNECTION WITH THE COLLATERAL.  SUCH DEALER MAY LATER CANCEL ANY INSURANCE PURCHASED BY AGENT, BUT ONLY AFTER PROVIDING AGENT EVIDENCE THAT SUCH DEALER HAS OBTAINED INSURANCE AS REQUIRED UNDER THIS AGREEMENT.  IF AGENT PURCHASES INSURANCE FOR ANY COLLATERAL, DEALERS WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING THE INSURANCE PREMIUM, INTEREST AND ANY OTHER CHARGES AGENT MAY IMPOSE IN CONNECTION WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE INSURANCE.  THE COSTS OF THE INSURANCE MAY BE ADDED TO DEALERS’ TOTAL OUTSTANDING BALANCE OR OBLIGATION.  THE COSTS OF THE INSURANCE MAY BE MORE THAN THE COST OF INSURANCE A DEALER MAY BE ABLE TO OBTAIN ON ITS OWN.  
 
 8. Financial Statements .  Unless waived by Agent, Dealers will deliver to Agent, in a form reasonably satisfactory to Agent: (a) Dealers’ audited year-end balance sheet and audited annual profit and loss statement for each fiscal year after the date hereof, prepared on a consolidated basis, within twenty (20) days after the same are prepared but in no event later than one hundred and twenty (120) days after the end of each fiscal year, accompanied by an unqualified opinion of independent certified public accountants acceptable to Agent; (b) within sixty (60) days after the end of each of such Dealers’ fiscal quarters, a reasonably detailed balance sheet and income statement as of the last day of such quarter covering Dealers’ operations on a consolidated basis for such quarter; (c) within thirty (30) days after the end of Dealers’ fiscal months, a reasonably detailed balance sheet and income statement as of the last day of such month covering Dealers’ operations for such month, on a consolidated basis; (d) within thirty (30) days prior to Dealers’ year-end, Dealers’ financial projections for the
 
Fourth Amended and Restated Inventory Financing Agreement 14
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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.
next fiscal year on a consolidated basis; (e) concurrently with the delivery of the financial statements required to be delivered under clauses (a) and (b) , above, a compliance certificate in the form attached hereto as Exhibit D , executed by an officer of Dealers , (f) within ten (10) days after Agent ’s reasonable request, any other information relating to the Collateral or the financial condition of any Dealer or Dealers and (g) concurrently with the delivery of the financial statements required to be delivered under clauses (a) and (b) , above, a trigger compliance certificate in the form attached hereto as Exhibit G (the “ Trigger Compliance Certificate ”), setting forth a calculation of Fixed Charge Coverage Ratio and   TTM EBITDA (each as defined in the Program Terms Letter ) and Tangible Net Worth , executed by an officer of Dealers . Each Dealer represents that all financial statements and information which have been or may hereafter be delivered by Dealers are and will be true and correct in all material respects and, with respect to all quarterly and annual financial statements, prepared in accordance with GAAP consistently applied in all material respects, and there has been no material adverse change in the financial or business condition of Dealers , taken as a whole, since the submission to Agent of such financial statements, and Dealers acknowledge Agent ’s reliance thereon.
 
9. Payment Terms .  Each Dealer will pay Agent for the benefit of Lenders, the principal amount of the Obligations owed by such Dealer on each item of Collateral financed by Lenders upon the occurrence of any of the following events, subject to the Program Terms Letter: (a) when such Collateral is lost, stolen or materially damaged and such loss or damage is the subject of an insurance claim payable to Agent as loss payee for the benefit of Lenders, (i) a portion of the principal amount of the Obligations with respect to such Collateral equal to such principal amount, minus the insurance claim amount (net of any applicable deductible) immediately after such loss or damage or after the determination of the claim amount or the deductible amount, as applicable, and (ii) the remaining principal amount of the Obligations with respect to such Collateral immediately upon the earlier of (A) receipt of any proceeds of such insurance (including, without limitation, receipt of any proceeds made payable to such Dealer and Agent jointly) or rejection or denial of such claim and (B) thirty (30) days (or such later date as Agent may agree in writing) after such loss or damage; (b) when such Collateral is lost, stolen or materially damaged and such loss or damage is not the subject of an insurance claim payable to Agent as loss payee for the benefit of Lenders, immediately after such loss or damage; (c) when Collateral is sold, transferred, rented, leased, consigned (unless Dealer has complied with Agent’s documentation requirements and Agent has consented in writing to such consignment arrangement), otherwise disposed of, or its payment term has matured, immediately upon the earlier of (i) Dealer’s receipt of the proceeds thereof, and (ii) seven (7) calendar days after such occurrence; and (d) when otherwise required under the terms of this Agreement.  In addition, each Dealer will pay Agent the required principal amount of the Obligations owed Lenders on each item of Collateral financed by Lenders in strict accordance with any curtailment schedule or other curtailment or repayment provisions for such Collateral as described in the Program Terms Letter.  The initial payment terms, curtailment terms and advance rates with respect to Dealers’ financing program hereunder are set forth in the Program Terms Letter.  Subsequent financing program terms, or changes to Dealers’ then current financing program terms, may be set forth in an amended Program Terms Letter executed by the parties thereto.  If a Dealer is required to make immediate payment to Agent of any past due obligation discovered during any Collateral review, or at any other time, Agent’s acceptance of such payment shall not be construed to have waived or amended the terms of its financing program.  Each Dealer will send all payments to Agent as directed.  Agent may apply: (1) payments to reduce finance charges first and then principal, regardless of a Dealer’s instructions; and (2) principal payments to the oldest (earliest) Invoice for Collateral financed by Lenders, but, in any event, all principal payments, may, in Agent’s sole discretion, first be applied to such Collateral which is sold, lost, stolen, damaged, rented, leased, or otherwise disposed of or unaccounted for.  Any Vendor Credit granted to any Dealer for any Collateral will not reduce the Obligations Dealers owe Lenders until Agent has received payment therefor in cash.  Each Dealer will: (A) pay Agent even if any Collateral is defective or fails to conform to any warranties extended by any third party; and (B) indemnify and hold Agent and each Lender harmless against all claims and defenses asserted by any buyer of any Collateral.  Each payment under the Loan Documents shall be paid in U.S. dollars and without setoff, recoupment, counterclaim or deduction of any kind. Each Dealer waives all rights of setoff such Dealer may have against Agent or any Lender.  Any payment hereunder which would otherwise be due on a day which is not a Business Day, shall be due on the next succeeding Business Day, with such extension of time included in any calculation of applicable finance charges.  In addition to the other provisions of this Agreement, in order to adequately secure Dealers’ Obligations to Agent and Lenders, Dealers shall, at Agent’s request, immediately pay Agent the amount necessary to reduce the sum of outstanding advances hereunder to an amount which does not exceed the amount available to be borrowed pursuant to the provisions of the Program Terms Letter.  
 
10. Calculation of Charges .
 
 (a) Dealers shall pay fees, charges and interest (collectively, “ Charges ”) with respect to each advance in accordance with this Agreement and pursuant to the terms of the Program Terms Letter.  Dealers shall pay Agent its customary Charges for any check or other item which is returned unpaid to Agent.  Unless otherwise provided in this Agreement, the following additional provisions shall be applicable to Charges:  (i) any reference to “ One month Libor ” rate shall mean for any calendar month the “One month Libor” rate published in the “Money Rates” column of The Wall Street Journal on the first Business Day of such month; (ii) all Charges shall be paid by Dealers monthly pursuant to the terms of the billing statement in which such Charges appear; (iii) interest on each
 
Fourth Amended and Restated Inventory Financing Agreement 15
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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.
advance and principal amount of the Obligations related thereto shall be computed each calendar month on the sum of the daily balances thereof during such month divided by thirty (30) and (A) in the case where a monthly rate of interest is provided for, multiplied by the monthly rate provided for in this Agreement ; or (B) in the case where an annual rate of interest is provided for, multiplied by one-twelfth of the annual rate provided for in this Agreement ; or (C) in the case where a daily rate of interest is provided for, multiplied by such daily rate and multiplied by thirty (30); (iv) interest on an advance shall begin to accrue on the “ Start Date ” which shall be defined as the earlier of: (A) the invoice date referred to in the Vendor ’s Invoice ; or (B) the ship date referred to in the Vendor ’s Invoice ; or (C) the date any one or more Lenders make such advance; provided , however , if a Vendor fails to fully pay, by honoring or paying any Lender Credit or otherwise, the interest or other cost of financing such inventory during the period between the Start Date and the end of the Free Floor Period , then Dealers shall pay such interest to Agent   on behalf of Lenders on demand as if there were no Free Floor Period with respect to such inventory; (v) for the purpose of computing Charges , any payment will be credited pursuant to Agent ’s payment recognition policy, as in effect from time to time; and (vi) advances or any part thereof not paid when due (and Charges not paid when due, at the option of Agent , shall become part of the principal amount of the Obligations and) shall bear interest at the Default Rate .
 
(b) Agent and Lenders intend to strictly conform to the usury laws governing this Agreement. Regardless of any provision contained herein, in any Transaction Statement, or in any other document, neither Agent nor any Lender shall ever be deemed to have contracted for, charged or be entitled to receive, collect or apply as interest, any amount in excess of the maximum amount allowed by applicable law.  If Agent or any Lender ever receives any amount which, if considered to be interest, would exceed the maximum amount permitted by law, Agent or such Lender will apply such excess amount to the reduction of the unpaid principal balance which any Dealer owes, and then will pay any remaining excess to such Dealer.  In determining whether the interest paid or payable exceeds the highest lawful rate, Dealers, Agent and each Lender shall, to the maximum extent permitted under applicable law, (i) characterize any non-principal payment (other than payments which are expressly designated as interest payments hereunder) as an expense or fee rather than as interest, (ii) exclude voluntary pre-payments and the effect thereof, and (iii) spread the total amount of interest throughout the entire term of this Agreement so that the interest rate is uniform throughout such term. Agent will recognize and credit payments made by check, ACH, federal wire, or other acceptable means, according to its payment recognition policies from time to time in effect, or as otherwise agreed.  Information regarding Agent payment recognition policies is available from Dealers’ CDF representative or the Agent website, or will be communicated by Agent to Dealers by mail, courier or electronically in a separate writing or website posting, or set forth in a Transaction Statement and/or a monthly billing statement.  
 
11. Billing Statement/Fees; Right to Modify Charges and Other Terms .
 
(a) Agent will transmit or otherwise send to each Dealer a monthly billing statement identifying all charges due on such Dealer’s account pursuant to this Agreement.  The charges specified on each billing statement will be (1) due and payable no later than the fifteenth (15 th ) day of the month in which such billing statement is transmitted to or received by Dealer, and (2) an account stated, unless Agent receives a Dealer’s written objection thereto within fifteen (15) days after it is transmitted or otherwise sent to Dealers.  If Agent does not receive, by the 25 th day of any given month, payment of all charges accrued to a Dealer’s account with any one or more Lenders during the immediately preceding month, Dealers will (to the extent allowed by law and if requested by Agent) pay Agent a late fee equal to the greater of five dollars ($5.00) or five percent (5%) of the amount of such charges (payment of such fee does not waive the default caused by the late payment).  Agent may adjust the billing statement at any time to conform to applicable law and this Agreement.
 
(b) Agent may charge one or more fees in connection with the servicing and administration of a Dealer’s account, for its own account as set forth herein and in the Program Terms Letter (and for the avoidance of doubt, Lenders other than CDF, in its capacity as Agent, shall have no interest in any such fees).  
 
12. Default .  The occurrence of one or more of the following events shall constitute a default by Dealers (a “ Default ”):
 
(a) a Dealer shall either (1) fail to pay any principal amount of Obligations owed to Agent when due (without any grace period) or (2) fail to pay any interest or other Obligations owed to Agent within fifteen (15) days after the due date therefore;
 
(b) any representation made to Agent or any Lender by or on behalf of Dealers shall not be true when made;

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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.
(c) if a Dealer shall breach any covenant (other than any covenant contained in Section 6(c) of this Agreement ), warranty or agreement in this Agreement or in any other Loan Document to or with Agent and/or an y Lender and such breach shall not be cured within thirty (30) days after the earlier of (i) knowledge thereof by an officer of any Dealer and (ii) written notice of such breach is delivered by Agent to any Dealer ; provided that, if such breach is subject to cure and Dealers are diligently pursuing cure by appropriate means at the end of such thirty (30) days, then Dealers shall have an additional thirty (30) days thereafter to complete the cure of such breach;
 
(d) Dealers shall breach any covenant contained in Section 6(c) of this Agreement;
 
(e) a Dealer (including, if a Dealer is a partnership or limited liability company, any partner or member of a Dealer) shall become insolvent or generally fail to pay its debts as they become due or, if a business, shall cease to do business as a going concern other than mergers or consolidations permitted by Section 6(d)(iv) of this Agreement;
 
(f) any letter of credit provided by a Dealer to Agent with respect to any Obligations or Collateral shall terminate or not be renewed at least sixty (60) days prior to its stated expiration or maturity;
 
(g) a Dealer abandons any Collateral with an aggregate value exceeding five hundred thousand dollars ($500,000.00) in any twelve (12) month period;
 
(h) a Dealer shall make an assignment for the benefit of creditors, or commence a proceeding with respect to itself under any bankruptcy, reorganization, arrangement, insolvency, receivership, dissolution or liquidation statute or similar law of any jurisdiction, or any such proceeding shall be commenced against it or any of its property and such proceeding commenced against it or any of its property shall not be dismissed or otherwise discharged within sixty (60) days thereafter (an “ Automatic Default ”);
 
(i) an attachment, sale or seizure shall be issued or shall be executed against assets of any Dealer with a value exceeding five hundred thousand dollars ($500,000.00) in the aggregate in any twelve (12) month period;
 
(j) a Dealer shall file or authorize the filing of any correction or termination statement with respect to any Uniform Commercial Code (the “ UCC ”) filing made by Agent in connection herewith;
 
(k) any third party shall file any correction or termination statement with respect to any UCC filing made by Agent in connection herewith and Dealers shall fail to perfect Agent’s security interest in the Collateral and re-establish the first-priority thereof within thirty (30) days after the filing of such correction or termination statement;
 
(l) a material adverse change shall occur in the business, operations or financial condition of Dealers, taken as a whole;
 
(m) (i) a Dealer fails to make any payment in excess of [****] when due with respect to any Debt owed to any third party (including Lender Affiliates) of [****] or more in the aggregate and such failure shall continue after any applicable notice, grace or cure period therefor; or (ii) a default shall occur, or a Dealer shall give or receive notice of default, with respect to any Debt owed to any third party (including Lender Affiliates) of [****] or more in the aggregate and such default shall entitle such third party to declare such Debt due and payable prior to its stated maturity or to exercise any other right or remedy or take any adverse action with respect thereto; or (iii) a default shall occur, or a Dealer shall give or receive notice of default, with respect to any Debt owed to any third party (including Lender Affiliates) of [****] or more in the aggregate and such third party shall have declared such Debt due and payable prior to its stated maturity or exercised any other right or remedy or taken any adverse action with respect thereto;
 
(n) any final judgment against any Dealer for the payment of [****] or more in excess of insurance, and such judgment shall remain unstayed and unpaid for over thirty (30) days; or
 
(o) any events shall occur which, but for the dollar thresholds set forth in this Section 12 , would constitute Defaults hereunder and, in the aggregate, such events relate to asset values, Collateral values, or payments in excess of [****] in any twelve (12) month period.

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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.
13. Rights and Remedies Upon Default .
 
(a) Upon the occurrence of a Default, Agent, acting on behalf of Lenders pursuant to Section 21(a) , shall have all rights and remedies of a secured party under the UCC as in effect in any applicable jurisdiction and other applicable law and all the rights and remedies set forth in this Agreement.  Upon the occurrence of a Default, Agent may, and at the direction of the Required Lenders shall:
 
(i) terminate any obligations Agent or any Lender has under this Agreement and any outstanding Approvals immediately and/or declare any and all Obligations immediately due and payable without notice or demand;
 
(ii) exercise control over any Deposit Accounts (as defined in Article 9 of the Illinois Uniform Commercial Code) included in the Collateral and apply any balances on deposit therein to the Obligations in such order and amount as Agent may elect;
 
(iii) enter any premises of any one or more of Dealers, with or without process of law, without force, to search for, take possession of, and remove the Collateral, or any part thereof;
 
(iv) take possession of the Collateral or any part thereof on any one or more of Dealers’ premises and cause it to remain there at Dealers’ expense, pending sale or other disposition;  
 
(v) apply the Default Rate, without regard to whether Agent has accelerated any Obligations, and without notice to Dealers.
 
Each Dealer waives notice of intent to accelerate, and of acceleration of any Obligations.  If Agent requests, each Dealer shall cease disposition of and shall assemble the Collateral and make it available to Agent, at Dealers’ expense, at a convenient place or places designated by Agent.  Each Dealer agrees that the sale of inventory by Agent to a Person who is liable to Agent under a guaranty, endorsement, repurchase agreement or the like shall not be deemed to be a transfer subject to UCC §9-618 or any similar provision of any other applicable law, and each Dealer waives any provision of such laws to that effect.  Each Dealer agrees that the repurchase of inventory by a Vendor pursuant to a repurchase agreement with Agent shall be a commercially reasonable method of disposition. Dealers shall be jointly and severally liable to Agent for any deficiency resulting from Agent’s disposition of any Collateral, including without limitation a repurchase by a Vendor, regardless of any subsequent disposition thereof.  No Dealer is a beneficiary of, nor has any right to require Agent to enforce, any repurchase agreement. Any notice of a disposition shall be deemed reasonably and properly given if given to a Dealer at least ten (10) days before such disposition.  If a Dealer fails to perform any of its obligations under this Agreement, Agent may perform the same in any form or manner Agent in its reasonable discretion deems necessary or desirable, and all monies paid by Agent in connection therewith shall be additional Obligations and shall be immediately due and payable without notice together with interest payable on demand at the Default Rate.  All of Agent’s rights and remedies shall be cumulative.  At Agent’s request, or without request in the event of an Automatic Default, each Dealer shall pay all Vendor Credits to Agent as soon as the same are received for application to the Obligations.  Each Dealer authorizes Agent to collect such amounts directly from Vendors and, upon request of Agent, shall instruct Vendors to pay Agent directly.  Each Dealer irrevocably waives any requirement that Agent retain possession and not dispose of any Collateral until after an arbitration hearing, arbitration award, confirmation, trial or final judgment or appeal thereof.  During the continuation of a Default, Agent’s election to make or not make a Loan to a Dealer is solely at Agent’s discretion.    
 
(b) All Collections received by Agent after acceleration, a Default (including, without limitation, a Payment Default or a Specified Default) or demand for payment of all of the Obligations, in connection with any workout of the Obligations including any forbearance arrangement, or after the initiation by or against any Dealer of a bankruptcy or other insolvency proceeding or other proceedings for collection of the Obligations, whether received pursuant to such demand or as a result of legal proceedings against any Dealer or through payment by or action against any other Person in any way liable for the Obligations, shall be applied, so far as the same will reach, in the following order:
 
(i) First, to the costs and expenses, including attorneys’ fees, incurred solely by Agent in effecting such recovery, in enforcing any right or remedy under the Loan Documents, or in any way related to the Loans, the Outstandings, the Loan Documents, this Agreement, the Future Advances, Open Approvals or Collections;

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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.
(ii) Second, to accrued interest, ratably in accordance with each Lender ’s respective Ratable Share of such interest being calculated at the interests rates set forth in Section 2(a)(vi) hereof; and
 
(iii) Third, to unpaid principal, ratably in accordance with each Lender’s Ratable Share, subject to such Lender’s obligation to fund Loans made by Agent based upon financed Invoices related to Open Approvals.
 
14. Power of Attorney .  Each Dealer authorizes Agent to: (a) file financing statements describing Agent as “Secured Party,” such Dealer as “Debtor” and indicating the Collateral (including, without limitation, the indication of the Collateral as “all assets”); (b) authenticate, execute or endorse on behalf of such Dealer any instruments, chattel paper, certificates of title, manufacturer statements of origin, builder’s certificate, financing statements and amendments thereto, or other notices or records comprising or related to Collateral or evidencing financing under the Agreement or evidencing or maintaining the perfection of the security interest granted hereby, as attorney‑in‑fact for such Dealer; and (c) supply any omitted information and correct errors in any documents between Agent, such Dealer and, if applicable, Lenders.  This power of attorney and the other powers of attorney granted herein are irrevocable and coupled with an interest.  
 
15. Collection and Other Costs .  Dealers shall pay to Agent, on behalf of itself and the other Lenders, on demand all reasonable attorneys’ fees and legal expenses and other costs and expenses incurred by Agent in connection with establishing, perfecting, maintaining perfection of, protecting and enforcing its Lien on the Collateral and collecting any Obligations, or in connection with the negotiation and execution of this Agreement and any modification thereof, any Default or in connection with any action or proceeding under any bankruptcy or insolvency laws or incurred pursuant to an arbitration proceeding involving a Dealer or any Collateral.  All fees, expenses, costs and other amounts described in this Section 15 shall constitute Obligations, shall be secured by the Collateral and interest shall accrue thereon at the Default Rate.
 
16. Information .  Each Dealer irrevocably authorizes Agent and each Lender to investigate and make inquiries in a commercially reasonable manner of former, current, or future creditors or other persons and credit bureaus regarding or relating to Dealers (including, to the extent permitted by law, any equity holders of any Dealer, unless the equity of such Dealer is publicly-traded on a recognized exchange).  Information requested to be provided by Dealer shall be requested through Agent and provided to Agent for distribution to Lenders.  Agent and each Lender may provide to any Lender Affiliate or any third parties any financial, credit or other information regarding Dealers that Agent or such Lender may at any time possess, whether such information was supplied by Dealers or otherwise obtained by such Agent or Lender, and such information shall be provided on a confidential basis to the extent it is otherwise confidential.  Further, each Dealer irrevocably authorizes and instructs any third parties (including without limitation, any Vendors or customers of Dealers) to provide to Agent any credit, financial or other information regarding Dealers that such third parties may at any time possess, whether such information was supplied by any Dealer to such third parties or otherwise obtained by such third parties.
 
 17. Amendments and Waivers  .
 
 (a) Except as specifically set forth herein (including without limitation in Sections 2(a)(x) and 2(c) of this Agreement), no amendment or waiver of any provision of this Agreement, the Program Terms Letter or the [****], and no consent with respect to any departure by any Dealer therefrom, shall be effective unless the same shall be in writing and signed by Agent, Required Lenders (or by Agent with the consent of Required Lenders), and the Dealers, and then such waiver shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such waiver, amendment, or consent shall, unless in writing and signed by all the Lenders directly affected thereby (or by Agent with the consent of all the Lenders directly affected thereby), in addition to Agent and Required Lenders (or by Agent with the consent of Required Lenders) and the Dealers  , do any of the following:
 
 (i) increase or extend the Allocation of any Lender to make a Loan or otherwise finance any Collateral  ;
 (ii) postpone or delay any date fixed for, or reduce or waive, any scheduled installment of principal or any payment of interest, fees or other amounts (other than principal) due to any one or more Lenders hereunder or under any Transaction Statement, or extend the term of this Agreement as set forth in Section 19 below  ;
 (iii) reduce the principal  of, or the rate of interest specified herein or the amount of interest payable in cash specified herein or in any Transaction Statement, or of any fees or other amounts payable hereunder or under any Transaction Statement;
 
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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.
(iv) change the definition of Required Lenders  ;
 (v) amend any provision providing for consent or other action by all Lenders  ; or
 (vi) discharge any Dealer from its respective payment Obligations, or release all or substantially all of the Collateral, except as otherwise may be provided in this Agreement;
 it being agreed that all Lenders shall be deemed to be directly affected by an amendment or waiver of the type described in the preceding clauses (iv)  , (v) and (vi).
 
 (b) If Agent desires to take any action described in this Section 17 requiring one or all Lender’s consent, Agent will furnish Lender with a written notice specifying the action to be taken.  If Lender declines to give its consent to any such action, it must notify Agent in writing of such fact within ten (10) Business Days thereafter.  If Lender fails to give such notice within such ten (10) Business Day period, its consent to such action shall be deemed to have been not given.  
 
(c) No amendment, waiver or consent shall, unless in writing and signed by Agent, affect the rights or duties of Agent under this Agreement or any Transaction Statement.
 
18. Dealers’ Claims Against Vendors .  No Dealer will assert against Agent or any Lender any claim or defense such Dealer may have against any Vendor whether for breach of contract, warranty, misrepresentation, failure to ship, lack of authority, or otherwise, including without limitation claims or defenses based upon charge backs, credit memos, rebates, price protection payments or returns. Any such claims or defenses or other claims or defenses a Dealer may have against a Vendor shall not affect Dealers’ liabilities or obligations to Agent or Lenders.
 
19. Term and Termination .  Unless sooner terminated as provided in this Agreement, the term of this Agreement shall commence on the date hereof and continue until October 30 , 2021 and, if Agent provides written notice to Dealers of Agent’s intent to renew the current term at least (ninety) 90 days prior to the end of the then current term, at Agent’s election, subject to Section 17(a)(ii) above, the term of this Agreement shall automatically renew for up to two successive one year periods thereafter.  Upon termination of this Agreement, all Obligations shall become immediately due and payable without notice or demand.  Upon any termination, Dealers shall remain fully and jointly and severally liable to each Lender for all Obligations owed to such Lender, including without limitation all fees, expenses and charges, arising prior to or after termination, and each Lender’s rights and remedies and security interest, if any, shall continue until all Obligations to such Lender hereunder are paid and all obligations of Dealers are performed in full.  All waivers and indemnifications in Agent’s and each Lender’s favor, and the agreement to arbitrate, set forth in this Agreement will survive any termination of this Agreement.
 
 20. Assignments  and Participations; Binding Effect.
 (a) Binding Effect .  This Agreement shall become effective when it shall have been executed by the Dealers, Agent and the Lenders and when Agent shall have been notified by each Lender that such Lender has executed it.  Thereafter, it shall be binding upon and inure to the benefit of, but only to the benefit of Dealers, Agent and each Lender and, in each case, their respective successors and permitted assigns.  Except as expressly provided herein, no Dealer shall have the right to assign any rights or obligations  hereunder or any interest herein.
 (b) Right to Assign .  Each Lender may sell, transfer, negotiate or assign (a “ Sale ”) all or a portion of its rights and obligations hereunder (including all or a portion of its Allocation and its rights and obligations with respect to any Loan pursuant to any Loan Document) to (i) any existing Lender, (ii) any Affiliate of any existing Lender or (iii) any other Person (other than a Disqualified Person) approved in writing by Agent and a Dealer, which Dealer approval shall not be unreasonably withheld and shall be deemed to have been given if no Dealer provides a response to a request for approval within ten (10) Business Days after such request is sent (provided that no Dealer approval shall be required if any Default has occurred and is continuing); provided, however, that (w) for each Loan pursuant to this Agreement or any Loan Document, the aggregate outstanding principal amount (determined as of the effective date of the applicable assignment) of the Allocation subject to any such Sale shall be in a minimum amount of $5,000,000, unless such Sale is made to an existing Lender or an Affiliate of any existing Lender, is of the assignor’s (together with its Affiliates) entire interest in such facility or is made with the prior consent of Agent, (x) such Sales shall be effective only upon the acknowledgement in writing of such Sale by Agent, and (y) interest accrued prior to and through the date of any such Sale  may not be assigned.  “ Disqualified Person ” means any business competitor of any Dealer that is in the same or similar line of business as any Dealer (other than the business of providing financial services) and such competitor has been identified as such in a writing by any Dealer
 
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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.
delivered to Agent .  In addition, notwithstanding anything to the contr ary contained in this Section 20 , any Lender may disclose on a confidential basis any non-public information relating to its Loans to any prospective assignee, SPV or rating agency rating the obligations of such Lender .  Notwithstanding the foregoing, CDF , as Agent and/or a Lender , has the right to complete a Sale of all or any portion of its interest in the Loan and Loan Documents to any Person in connection with a sale or other transfer of all or a material portion of CDF ’s business to a third party, without the consent of any Dealer or any Lender .
 (c) Procedure .  The parties to each Sale made in reliance on clause (b) above (other than those described in clause (e) or (f) below) shall execute and deliver to Agent an Assignment via an electronic settlement system designated by Agent (or, if previously agreed with Agent, via a manual execution and delivery of the Assignment) evidencing such Sale, together with any existing Loan Document subject to such Sale, any tax forms required by the assignee to be delivered and payment of an assignment fee in the amount of $3,500 to Agent, unless waived or reduced by Agent; provided, that (i) if a Sale by a Lender is made to an Affiliate of such assigning Lender, then no assignment fee shall be due in connection with such Sale, and (ii) if a Sale by a Lender is made to an assignee that is not an Affiliate of such assignor Lender, and concurrently to one or more Affiliates of such assignee, then only one assignment fee of $3,500 shall be due in connection with such Sale (unless waived or reduced by Agent).  Upon receipt of all the foregoing, and conditioned upon such receipt and, if such Assignment is made in accordance with clause (iii) of Section 20(b) , upon Agent (and Dealers, if applicable) consenting to such Assignment, from and after the effective date specified in such Assignment, Agent shall record or cause the information contained in such Assignment to be recorded in a record of ownership kept by Agent  .
 (d) Effectiveness .  Subject to the recording of an Assignment by Agent in a record of ownership, (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under this Agreement and the applicable Transactions Statement have been assigned to such assignee pursuant to such Assignment, shall have the rights and obligations of a Lender and (ii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment, relinquish its rights (except for the payment in full of the Obligations) and be released from its obligations under this Agreement and the Transaction Statements, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment covering all or the remaining portion of an assigning Lender’s rights and obligations under the Loan Documents, such Lender shall cease to be a party hereto). 
 (e) Participants and Grant of Option to Fund to SPVs .  In addition to the other rights provided in this Section 20 , each Lender may, (i) with notice to Agent, grant to an SPV the option to make all or any part of any Loan that such Lender would otherwise be required to make hereunder (and the exercise of such option by such SPV and the making of Loans pursuant thereto shall satisfy the obligation of such Lender to make such Loans hereunder) and such SPV may assign to such Lender the right to receive payment with respect to any Obligation and (ii) without notice to or consent from Agent or the Dealers, sell participations to one or more Persons in or to all or a portion of its rights and obligations under the Loan Documents; provided, however, that, whether as a result of any term of any Loan Document or of such grant or participation, (A) no such SPV or participant shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and, except as provided in the applicable option agreement, none shall be liable for any obligation of such Lender hereunder, (B) such Lender’s rights and obligations, and the rights and obligations of the Dealers and other Lenders towards such Lender, under any Loan Document shall remain unchanged and each other party hereto shall continue to deal solely with such Lender, which shall remain the holder of the Obligations in any register maintained by Agent, except that each such SPV may receive other payments that would otherwise be made to such Lender with respect to Loans funded by such SPV to the extent provided in the applicable option agreement and set forth in a notice provided to Agent by such SPV and such Lender, provided, however, that in no case shall an SPV granted an option pursuant to this clause (e) or participant have the right to enforce any of the terms of any Loan Document, and (C) the consent of such SPV or participant shall not be required (either directly, as a restraint on such Lender’s ability to consent hereunder or otherwise) for any amendments, waivers or consents with respect to any Loan Document or to exercise or refrain from exercising any powers or rights such Lender may have under or in respect of the Loan Documents (including the right to enforce or direct enforcement of the Obligations), except for those described in clauses (ii), (iii) and (v) of Section 17(a) with respect to amounts, or dates fixed for payment of amounts, to which such participant would otherwise be entitled.  
 (f) Assignments to Affiliate SPVs .  In addition to the other rights provided elsewhere in this Section 20 , each Lender that is an Affiliate of the Agent may, with notice to Agent in such form as shall be acceptable to the Agent (but without the consent of any Person and without compliance with any limitation or procedure specified in subsection 20(b) or 20(c) ), sell, transfer, negotiate or assign all or any portion of its rights, title or interests hereunder
 
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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.
with respect to any Loans or other Obligations (including any interest accrued or to accrue thereon) to an SPV that is an Affiliate of such Lender , and such SPV may thereafter, with notice to Agent , assign such Obligation to any other SPV that is an Affiliate of such Lender or re-assign all or a portion of its interests in any Obligations to the Lender holding the related Allocation .  Upon any assignment pursuant to this clause (f) , any assignee SPV shall have all the rights of a Lender hereunder, including the right to receive all payments with respect to the assigned Obligations ; provided, however, that, whether as a result of any term of any Loan Document or of such assignment , no such assignee SPV shall have a commitment, or be deemed to have made an offer to commit, to make Loans hereunder, and such Lender (and not such SPV ) shall be liable for any obligation of such Lender to continue to make Loans hereunder.    
(g) Agreements with Respect to SPVs . No party hereto shall institute against any SPV that funds or purchases any Obligation pursuant to clauses (e) or (f) any bankruptcy, reorganization, insolvency, liquidation or similar proceeding, prior to the date that is one year and one day after the payment in full of all outstanding indebtedness of such SPV; provided, however, that each Lender having designated an SPV as such agrees to indemnify each Indemnitee against any Liability that may be incurred by, or asserted against, such Indemnitee as a result of failing to institute such proceeding (including a failure to be reimbursed by such SPV for any such Liability).  The agreement in the preceding sentence shall survive the termination of the Loans and the payment in full of the Obligations.  In addition, notwithstanding anything to the contrary contained in this Section 20 , any SPV may disclose on a confidential basis any non-public information relating to its Loans to any rating agency rating the obligations of such SPV.  For the avoidance of doubt, an SPV that is a securitization trust formed by or at the direction of a Lender or an Affiliate of a Lender, as depositor, shall be deemed to be an Affiliate of such Lender.  
(h) Participant Register . Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Dealers, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loans or other obligations under the Loan Documents (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person other than Agent except to the extent that such disclosure is necessary to establish that such commitment, loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, Agent shall have no responsibility for maintaining a Participant Register.
 21.  Agent
 (a)  Appointment and Duties.  
 (i) Each Lender hereby appoints CDF as Agent (together with any successor Agent pursuant to Section 21(i) ) as Agent hereunder and authorizes Agent to (A) execute and deliver this Agreement and the other Loan Documents and accept delivery thereof on its behalf from any Dealer, (B) take such action on its behalf and to exercise all rights, powers and remedies and perform the duties as are expressly delegated to Agent under such Loan Documents and (C)  exercise such powers as are incidental thereto.
 (ii) Without limiting the generality of clause (i) above, Agent shall have the sole and exclusive right and authority (to the exclusion of the Lenders), and is hereby authorized, to (A) act as the disbursing and collecting agent for the Lenders with respect to all payments and collections arising in connection with any Loan Documents (including in bankruptcy, insolvency or similar proceeding), and each Person making any payment in connection with this Agreement or any other Loan Document is hereby authorized to make such payment to Agent, (B) file and prove claims and file other documents necessary or desirable to allow the claims of the Lenders with respect to any Obligation in any bankruptcy, insolvency or similar proceeding (but not to vote, consent or otherwise act on behalf of such Person), (C) act as collateral agent for each Lender for purposes of the perfection of all Liens created by such agreements and all other purposes stated therein, (D) manage, supervise and otherwise deal with the Collateral, (E) take such other action as is necessary or desirable to maintain the perfection and priority of the Liens created or purported to be created by this Agreement or the other Loan Documents, (F) except as may be otherwise specified in any Loan Document, exercise all remedies given to Agent and the other Lenders with respect to the Collateral, whether under the Loan Documents, applicable law or otherwise and (G) execute any amendment, consent or waiver
 
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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.
under the Loan Documents on behalf of any Lender that has consented in writing to such amendment, consent or waiver; provided, however, that Agent hereby appoints, authorizes and directs each Lender to act as collateral sub- agent for Agent , the Lenders for purposes of the perfection of Liens with respect to any deposit account maintained by a Dealer with, and cash and cash equivalents held by, such Lender ,  and may further authorize and direct the Lenders to take further actions as collateral sub-agents for purposes of enforcing such Liens or otherwise to transfer the Collateral subject thereto to Agent , and each Lender  hereby agrees to take such further actions to the extent, and only to the extent, so authorized and directed.
 (iii) Under this Agreement and the other Loan Documents, Agent (A) is acting solely on behalf of the Lenders , with duties that are entirely administrative in nature, notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent” and “collateral agent” and similar terms in any Loan Document to refer to Agent, which terms are used for title purposes only, (B) is not assuming any obligation under any Loan Document other than as expressly set forth therein or any role as agent, fiduciary or trustee of or for any Lender or any other Person and (C) shall have no implied functions, responsibilities, duties, obligations or other liabilities under any Loan Document, and each Lender, by accepting the benefits of the Loan Documents, hereby waives and agrees not to assert any claim against Agent based on the roles, duties and legal relationships expressly disclaimed in clauses (A) through (C)  above.
 (b) Binding Effect .  Each Lender, by accepting the benefits of this Agreement and the other Loan Documents, agrees that (i) any action taken by Agent in accordance with the provisions of the Loan Documents, (ii) any action taken by Agent in reliance upon the instructions of Lenders and (iii) the exercise by Agent or of the powers set forth herein or therein, together with such other powers as are incidental thereto, shall be authorized and binding upon all of the Lenders  .
 (c)  Use of Discretion.
 (i) Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Agent is required to exercise as directed in writing by the Lenders; provided, that Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Agent to liability or that is contrary to any Loan Document  or applicable law.
 (ii) Agent shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Dealer or Dealer Affiliate that is communicated to or obtained by Agent or any of its Affiliates  in any capacity.
 (iii) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Lenders or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, Agent in accordance with the Loan Documents for the benefit of all the Lenders; provided that the foregoing shall not prohibit (A) Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Agent) hereunder and under the other Loan Documents or (B) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Dealer under any bankruptcy or other debtor relief law; and provided further that if at any time there is no Person acting as Agent hereunder and under the other Loan Documents, then the Lenders shall have the rights otherwise ascribed to Agent under Section 13  .
 (d) Delegation of Rights and Duties . Agent may, upon any term or condition it specifies, delegate or exercise any of its rights, powers and remedies under, and delegate or perform any of its duties or any other action with respect to, any Loan Document by or through any trustee, co-agent, employee, attorney-in-fact and any other Person (including any Lender).  Any such Person shall benefit from this Section 21 to the extent provided by Agent  .  For the avoidance of doubt, this provision is not intended to permit Agent to be replaced hereunder.
 (e)  Reliance and Liability.
 (i) Agent may, without incurring any liability hereunder, (A) consult with any of its Related Persons (including advisors to, and accountants and experts engaged by, any Dealer) and (B) rely and act
 
Fourth Amended and Restated Inventory Financing Agreement 23
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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.
 upon any document and information (including those transmitted by electronic transmission) and any telephone message or conversation, in each case believed by it to be genuine and transmitted, signed or otherwise authenticated by the appropriate parties.
 (ii) None of Agent and its Affiliates shall be liable for any action taken or omitted to be taken by any of them under or in connection with any Loan Document, and each Lender and each Dealer hereby waive and shall not assert (and each Dealer shall cause each other Dealer to waive and agree not to assert) any right, claim or cause of action based thereon, except to the extent of liabilities resulting primarily from the gross negligence or willful misconduct of Agent or, as the case may be, such Related Person (each as determined in a final, non-appealable judgment by a court of competent jurisdiction) in connection with the duties expressly set forth herein.  Without limiting the foregoing, Agent:
 (A) shall not be responsible or otherwise incur liability for any action or omission taken in reliance upon the instructions of the Lenders or for the actions or omissions of any of its Related Persons selected with reasonable care (other than employees, officers and directors of Agent, when acting on behalf of Agent);
 
 (B) shall not be responsible to any Lender or other Person for the due execution, legality, validity, enforceability, effectiveness, genuineness, sufficiency or value of, or the attachment, perfection or priority of any Lien created or purported to be created under or in connection with, any Loan Document;
 
 (C) makes no warranty or representation, and shall not be responsible, to any Lender or other Person for any statement, document, information, representation or warranty made or furnished by or on behalf of any Dealer or any Related Person of any Dealer in connection with any Loan Document or any transaction contemplated therein or any other document or information with respect to any Dealer, whether or not transmitted or (except for documents expressly required under any Loan Document to be transmitted to the Lenders) omitted to be transmitted by Agent, including as to completeness, accuracy, scope or adequacy thereof, or for the scope, nature or results of any due diligence performed by Agent in connection with the Loan Documents;
 
 (D) shall not have any duty to ascertain or to inquire as to the performance or observance of any provision of any Loan Document, whether any condition set forth in any Loan Document is satisfied or waived, as to the financial condition of any Dealer or as to the existence or continuation or possible occurrence or continuation of any Default and shall not be deemed to have notice or knowledge of such occurrence or continuation unless it has received a notice from any Dealer, any Lender describing such Default clearly labeled “notice of default” (in which case Agent shall promptly give notice of such receipt to all Lenders);
 
 For each of the items set forth in clauses (A) through (D) above, each Lender and each Dealer hereby waives and agrees not to assert (and each Dealer shall cause each other Dealer to waive and agree not to assert) any right, claim or cause of action it might have against Agent  based thereon.
 
 (iii) Each Lender (A) acknowledges that it has performed and will continue to perform its own diligence and has made and will continue to make its own independent investigation of the operations, financial conditions and affairs of the Lenders and (B) agrees that is shall not rely on any audit or other report provided by Agent or its Related Persons (an “ Agent Report ”).  Each Lender further acknowledges that any Agent Report (i) is provided to the Lenders solely as a courtesy, without consideration, and based upon the understanding that such Lender will not rely on such Agent Report, (ii) was prepared by Agent or its Related Persons based upon information provided by the Lenders solely for Agent’s own internal use, (iii) may not be complete and may not reflect all information and findings obtained by Agent or its Related Persons regarding the operations and condition of the Lenders.  Neither Agent nor any of its Related Persons makes any representations or warranties of any kind with respect to (i) any existing or proposed financing, (ii) the accuracy or completeness of the information contained in any Agent Report or in any related documentation, (iii) the scope or adequacy of Agent’s and its Related Persons’ due diligence, or the presence or absence of any errors or omissions contained in any Agent Report or in any related documentation, and (iv) any work performed by Agent or Agent’s Related Persons in connection with or using any Agent Report  or any related documentation.
 
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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.
(iv) Neither Agent nor any of its Related Persons shall have any duties or obligations in connection with or as a result of any Lender receiving a copy of any Agent Report . Without limiting the generality of the forgoing, neither Agent nor any of its Related Persons shall have any responsibility for the accuracy or completeness of any Agent Report , or the appropriateness of any Agent Report for any Lender ’s purposes, and shall have no duty or responsibility to correct or update any Agent Report or disclose to any Lender any other information not embodied in any Agent Report , including any supplemental information obtained after the date of any Agent Report .  Each Lender releases, and agrees that it will not assert, any claim against Agent or its Related Persons that in any way relates to any Agent Report or arises out of any Lender having access to any Agent Report or any discussion of its contents, and agrees to indemnify and hold harmless Agent and its Related Persons from all claims, liabilities and expenses relating to a breach by any Lender arising out of such Lender ’s access to any Agent Report  or any discussion of its contents.
 (f) Agent Individually . Agent and its Affiliates may make loans and other extensions of credit to, acquire Stock of, engage in any kind of business with, any Dealer or Affiliate thereof as though it were not acting as Agent and may receive separate fees and other payments therefor.  To the extent Agent or any of its Affiliates makes any Loan or otherwise becomes a Lender hereunder, it shall have and may exercise the same rights and powers hereunder and shall be subject to the same obligations and liabilities as any other Lender and the term “Lender” and any similar terms shall, except where otherwise expressly provided in any Loan Document, include, without limitation, Agent or such Affiliate, as the case may be, in its individual capacity as Lender  .
 (g) Lender Credit Decision .  Each Lender acknowledges that it shall, independently and without reliance upon Agent, any Lender or any of their Related Persons or upon any document (including any offering and disclosure materials in connection with the syndication of the Loans) solely or in part because such document was transmitted by Agent or any of its Related Persons, conduct its own independent investigation of the financial condition and affairs of each Dealer and make and continue to make its own credit decisions in connection with entering into, and taking or not taking any action under, any Loan Document or with respect to any transaction contemplated in any Loan Document, in each case based on such documents and information as it shall deem appropriate.  Except for documents expressly required by any Loan Document to be transmitted by Agent to the Lenders, Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any Dealer or any Affiliate of any Dealer that may come in to the possession of Agent or any of its Related Persons  .
 (h) Expenses; Indemnities; Withholding  .  
 (i) Each Lender agrees to reimburse Agent and each of its Related Persons (to the extent not reimbursed by any Dealer) promptly upon demand, severally and ratably, for any costs and expenses (including fees, charges and disbursements of financial, legal and other advisors and other expenses paid in the name of, or on behalf of, any Dealer) that may be incurred by Agent or any of its Related Persons in connection with the preparation, syndication, execution, delivery, administration, modification, consent, waiver or enforcement of, or the taking of any other action (whether through negotiations, through any work-out, bankruptcy, restructuring or other legal or other proceeding (including, without limitation, preparation for and/or response to any subpoena or request for document production relating thereto) or otherwise) in respect of, or legal advice with respect to its rights or responsibilities under, any Loan Document  .
 (ii) Each Lender further agrees to indemnify Agent and each of its Related Persons (to the extent not reimbursed by any Dealer), severally and ratably, from and against Liabilities (including, to the extent not indemnified by Dealer pursuant to this Agreement or any other Loan Document, taxes, interests and penalties imposed for not properly withholding or backup withholding on payments made to or for the account of any Lender) that may be imposed on, incurred by or asserted against Agent or any of its Related Persons in any matter relating to or arising out of, in connection with or as a result of any Loan Document or any other act, event or transaction related, contemplated in or attendant to any such document, or, in each case, any action taken or omitted to be taken by Agent or any of its Related Persons under or with respect to any of the foregoing; provided, however, that no Lender shall be liable to Agent or any of its Related Persons to the extent such liability has resulted primarily from the gross negligence or willful misconduct of Agent or, as the case may be, such Related Person  , as determined by a court of competent jurisdiction in a final non-appealable judgment or order.
 (iii) To the extent required by any applicable law, Agent may withhold from any payment to any Lender under a Loan Document an amount equal to any applicable withholding tax.  If the IRS or any
 
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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.
other Governmental Authority asserts a claim that Agent did not properly withhold tax from amounts paid to or for the account of any Lender (because the appropriate certification form was not delivered, was not properly executed, or fails to establish an exemption from, or reduction of, withholding tax with respect to a particular type of payment, or because such Lender failed to notify Agent or any other Person of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), or Agent reasonably determines that it was required to withhold taxes from a prior payment but failed to do so, such Lender shall promptly indemnify Agent fully for all amounts paid, directly or indirectly, by such Agent as tax or otherwise, including penalties and interest, and together with all expenses incurred by Agent , including legal expenses, allocated internal costs and out-of-pocket expenses. Agent may offset against any payment to any Lender under a Loan Document , any applicable withholding tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts for which Agent is entitled to indemnification from such Lender pursuant to this Agreement or any other Loan Document  .
 (i) Release of Collateral or Guarantors .  Each Lender hereby consents to the release and hereby directs Agent to release (or, in the case of clause (ii) below, release or subordinate) any Lien held by Agent for the benefit of the Lenders against (i) any Collateral that is sold, transferred, conveyed or otherwise disposed of by a Dealer in a transaction permitted by the Loan Documents (including pursuant to a waiver or consent), (ii) any property subject to a Lien permitted as a “purchase money security interest” hereunder or under any other Loan Document, and (iii) all of the Collateral and all Lenders, upon (A) termination of this Agreement, (B) payment and satisfaction in full of all Loans and all other Obligations under the Loan Documents that Agent has theretofore been notified in writing by the holder of such Obligation are then due and payable, (C) deposit of cash collateral with respect to all contingent Obligations, in amounts and on terms and conditions and with parties satisfactory to Agent and each Lender that is, or may be, owed such Obligations (excluding contingent Obligations as to which no claim has been asserted) and (D) to the extent requested by Agent, receipt by Agent and the Lenders of liability releases from the Lenders each in form and substance acceptable to Agent.
22. Non-Funding Lenders; Replacement of Lenders.
(a) Non-Funding Lenders .
(i) Responsibility .  The failure of any Non-Funding Lender to make any Loan or any payment required by it under any Loan Document on the date specified therefor shall not relieve any other Lender (each such other Lender , an “ Other Lender ”) of its obligations to make such Loan or make any other such required payment on such date, and neither Agent nor, other than as expressly set forth herein, any Other Lender shall be responsible for the failure of any Non-Funding Lender to make a Loan or make any other required payment under any Loan Document .
(ii) Voting Rights .  Notwithstanding anything set forth herein to the contrary, a Non-Funding Lender shall not have any voting or consent rights under or with respect to any Loan Document or constitute a “ Lender ” (or be, or have its Loans included in the determination of “ Required Lenders ”) for any voting or consent rights under or with respect to any Loan Document , provided that (A)  the Allocation of a Non-Funding Lender may not be increased, extended or reinstated, (B) the principal of a Non-Funding Lender ’s Loans may not be reduced or forgiven, and (C) the interest rate applicable to Obligations owing to a Non-Funding Lender may not be reduced in such a manner that by its terms affects such Non-Funding Lender more adversely than other Lenders , in each case without the consent of such Non-Funding Lender .  
 (iii) Payments to a Non-Funding Lender .   Agent shall be authorized to use all payments received by Agent for the benefit of any Non-Funding Lender pursuant to this Agreement to pay in full the Aggregate Excess Funding Amount to the appropriate Lenders .  Following such payment in full of the Aggregate Excess Funding Amount, Agent shall be entitled to hold such funds as cash collateral in a non-interest bearing account up to an amount equal to such Non-Funding Lender ’s unfunded Allocation and to use such amount to pay such Non-Funding Lender ’s funding obligations hereunder until the Obligations are paid in full in cash and this Agreement terminated.  Upon any such unfunded obligations owing by a Non-Funding Lender becoming due and payable, Agent shall be authorized to use such cash collateral to make such payment on behalf of such Non-Funding Lender .  With respect to such Non-Funding Lender ’s failure to fund Loans , any amounts applied by Agent to satisfy such funding shortfalls shall be deemed to constitute a Loan and, if necessary to effectuate the foregoing, the proceeds of such Loans shall be applied to pay the unpaid principal of the Loans owing to the other Lenders until such time as the aggregate amount of the Loans are held by the Lenders in accordance with their Ratable Shares .  Any amounts owing by a Non-
 
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Funding Lender to Agent which are not paid when due shall accrue interest at the interest rate applicable during such period to the Loans . In the event that Agent is holding cash collateral of a Non-Funding Lender that cures pursuant to clause (iv) below or ceases to be a Non-Funding Lender pursuant to the definition of Non-Funding Lender , Agent shall return the unused portion of such cash collateral to such Lender .
(iv) Cure .  A Lender may cure its status as a Non-Funding Lender under clause (a) of the definition of Non-Funding Lender if such Lender (A) fully pays to Agent the Aggregate Excess Funding Amount, plus all interest due thereon and (B) timely funds the next Loan required to be funded by such Lender or makes the next reimbursement required to be made by such Lender .  Any such cure shall not relieve any Lender from liability for breaching its contractual obligations hereunder.
(v) Fees .  A Lender that is a Non-Funding Lender pursuant to clause (a) of the definition of Non-Funding Lender shall not earn and shall not be entitled to receive, and the Dealers shall not be required to pay, such Lender ’s portion of the Unused Line Fee (set forth in the Program Terms Letter ) during the time such Lender is a Non-Funding Lender pursuant to clause (a) thereof.  
(b) Replacement of Lenders .  Within forty-five (45) days after any failure by any Lender other than Agent or an Affiliate of Agent to consent to a requested amendment, waiver or modification to any Loan Document in which Required Lenders have already consented to such amendment, waiver or modification but the consent of each Lender (or each Lender directly affected thereby, as applicable) is required with respect thereto, Dealers may, at their option, notify Agent and such non-consenting Lender of Dealers’ intention to obtain, at Dealers’ expense, a replacement Lender (“ Replacement Lender ”) for such non-consenting Lender, which Replacement Lender shall be reasonably satisfactory to Agent.  In the event the Dealers obtain a Replacement Lender within sixty (60) days following notice of its intention to do so, such non-consenting Lender shall sell and assign its Loans and remaining Allocation to such Replacement Lender, at par, provided that the Dealers have reimbursed such non-consenting Lender for its costs for which it is entitled to reimbursement under this Agreement through the date of such sale and assignment.  In the event that a replaced Lender does not execute an Assignment pursuant to Section 20(c) of this Agreement within five (5) Business Days after receipt by such replaced Lender of notice of replacement pursuant to this section and presentation to such replaced Lender of an Assignment evidencing an assignment pursuant to this section, the Dealers shall be entitled (but not obligated) to execute such an Assignment on behalf of such replaced Lender, and any such Assignment so executed by the Dealers, the Replacement Lender and Agent, shall be effective for purposes of this Section 22(b) and Section 20(c) .  Upon any such Assignment and payment and compliance with the other provisions of Section 20(c) , such replaced Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such replaced Lender to indemnification hereunder shall survive.
 
23. Notices .  Except as required by law or as otherwise provided herein, all notices or other communications to be given under the Agreement or under the UCC shall be in writing served either personally, by deposit with a reputable overnight courier with charges prepaid, or by deposit in the United States mail, first‑class postage prepaid or provided for, addressed, as applicable, to (a) Dealers at their chief executive offices shown below or to any office to which Agent sends billing statements, (b) to Agent at its address shown beneath its signature hereunder, to the attention of its Credit Department, (c) to any Lender at the address such Lender shall designate on the Loan Document, or (d) at such other address designated by such party by notice to the other.  Any such communication shall be deemed to have been given upon delivery in the case of personal delivery, one Business Day after deposit with an overnight courier or three (3) Business Days after deposit in the United States mail except that any notice of change of address shall not be effective until actually received.  
 
24. Severability .  If any provision of this Agreement or its application is invalid or unenforceable, the remainder of this Agreement will not be impaired or affected and will remain binding and enforceable.
 
25. Receipt of Agreement .  Each Dealer acknowledges that it has received a true and complete copy of this Agreement.  Each Dealer has read and understands this Agreement. Notwithstanding anything herein to the contrary, Agent and each Lender may rely on any facsimile copy, electronic data transmission, or electronic data storage of: this Agreement, any Transaction Statement, billing statement, financing statement, authorization to pre-file financing statements, invoice from a Vendor, financial statements or other reports, which will be deemed an original, and the best evidence thereof for all purposes.
 
26. Acceptance by Agent .  If Agent is the sole Lender, Agent may accept this Agreement by issuance of an Approval to a Vendor for the purchase of inventory by Dealers or by making an advance hereunder.  
 
 27. Miscellaneous . Time is of the essence regarding each Dealer’s performance of its obligations to Agent and Lenders.  Each Dealer’s liability to Agent and Lenders is direct and unconditional and will not be affected by the release or
 
Fourth Amended and Restated Inventory Financing Agreement 27
KCP-8393129-10

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.
nonperfection of any security interest granted hereunder. Subject to the consent of each Lender , Agent may refrain from or postpone enforcement of this Agreement or any other agreements between Agent and a Dealer without prejudice, and the failure to strictly enforce these agreements will not create a course of dealing which waives, amends or modifies such agreements. Any waiver by Agent of a Default shall only be effective if approved by Lenders pursuant to Section 17(a) and transmitted to a Dealer in a writing signed by Agent .  The express terms of this Agreement will not be modified by any course of dealing, usage of trade, or custom of trade which may deviate from the terms hereof.  If a Dealer fails to pay any taxes, fees or other obligations which may materially impair Agent ’s or any Lender ’s interest in the Collateral , or fails to keep any Collateral insured, Agent , on behalf of itself and the other Lenders ,  may, but shall not be required to, pay such amounts.  Such paid amounts will be: (a) additional Obligations which Dealers owe under this Agreement , which are subject to finance charges as provided herein and shall be secured by the Collateral ; and (b) due and payable immediately in full upon demand to Dealers .  Section titles used herein are for convenience only, and do not define or limit the contents of any Section.  All words used herein shall be understood and construed to be of such number and gender as the circumstances may require.  This Agreement may be validly executed in one or more multiple counterpart signature pages.  This Agreement shall be construed without presumption for or against any party who drafted all or any portion of this Agreement .  No modification of this Agreement shall bind Agent or Lenders unless in a writing signed by Agent and each Lender (or by Agent with the consent of each Lender ) and transmitted to Dealers .  Among other symbols, Agent hereby adopts “ Wells Fargo Commercial Distribution Finance, LLC ,” “ Wells Fargo Commercial Distribution Finance,” “WF CDF,” “ CDF ” or “ Agent ” as evidence of its intent to authenticate a record in its capacity as Agent .  

28. List of Dealers .  The following persons are parties to this Agreement as Dealers:

DEALER NAME	TYPE OF ENTITY	JURISDICTION	
MarineMax, Inc.	 	corporation	 	Florida	
MarineMax East, Inc.	 	corporation	 	Delaware	
MarineMax Services, Inc.	 	corporation	 	Delaware	
MarineMax Northeast, LLC	 	limited liability company	 	Delaware	
Boating Gear Center, LLC	 	limited liability company	 	Delaware	
US Liquidators, LLC	 	limited liability company	 	Delaware	
Newcoast Financial Services, LLC
My Web Services, LLC
MarineMax Charter Services, LLC
[****]	 	limited liability company
limited liability company
limited liability company
limited liability company	 	Delaware
Delaware
Delaware
Florida	
Gulfport Marina, LLC	 	limited liability company	 	Delaware	

29. Limitation of Remedies and Damages .  In the event there is any dispute under this Agreement, the aggrieved party shall not be entitled to exemplary or punitive damages so that the aggrieved party’s remedy in connection with any action arising under or in any way related to this Agreement shall be limited to a breach of contract action and any damages in connection therewith are limited to actual and direct damages, except that Agent may seek equitable relief in connection with any judicial repossession of, or temporary restraining order with respect to, the Collateral.

Fourth Amended and Restated Inventory Financing Agreement 28
KCP-8393129-10

30. BINDING ARBITRATION .
 
(a) Arbitrable Claims . Except as otherwise specified below, all actions, disputes, claims and controversies under common law, statutory law or in equity of any type or nature whatsoever, whether arising before or after the date of this Agreement, and whether directly or indirectly relating to: (i) this Agreement and/or any amendments and addenda hereto, or the breach, invalidity or termination hereof; (ii) any previous or subsequent agreement between Agent and any one or more Lenders and/or any one or more Dealers; (iii) any act committed by Agent or by any parent company, subsidiary or affiliated company of Agent (the “ Agent Companies ”), or by any employee, agent, officer or director of an Agent Company whether or not arising within the scope and course of employment or other contractual representation of the Agent Companies provided that such act arises under a relationship, transaction or dealing between and any one or more Lenders and/or any one or more Dealers; and/or (iv) any other relationship, transaction or dealing between or among Agent and any one or more Dealers (collectively the “ Disputes ”), will be subject to and resolved by binding arbitration.  Notwithstanding the foregoing, the parties agree that either party may pursue claims against the other that do not exceed fifteen thousand dollars ($15,000.00) in the aggregate in a court of competent jurisdiction.  Service of arbitration claims shall be acceptable if made by U.S. mail or overnight delivery to the address for the party described herein.
 
(b) Administrative Body .  All arbitration hereunder will be conducted in accordance with the Commercial Arbitration Rules of either: (i) The American Arbitration Association (“ AAA ”); or (ii) United States Arbitration & Mediation (“ USA&M ”).  The party first filing an arbitration claim shall designate which arbitration forum and rules are to be applied for all disputes between the parties. The arbitration rules are currently found at www.adr.org for AAA, and at www.usam-midwest.com for USA&M. AAA claims may be filed in any AAA office.  Claims filed with USA&M shall be filed in its Midwest office located at 720 Olive Street, Suite 2020, St. Louis, Missouri 63101.  All arbitrator(s) selected will be attorneys with at least five (5) years secured transactions experience.  A panel of three arbitrators shall hear all claims exceeding one million dollars ($1,000,000.00), exclusive of interest, costs and attorneys’ fees.  The arbitrator(s) will decide if any inconsistency exists between the rules of the applicable arbitral forum and the arbitration provisions contained herein.  If such inconsistency exists, the arbitration provisions contained herein will control and supersede such rules.  The arbitrator shall follow the terms of this Agreement and the applicable law, including without limitation, the attorney-client privilege and the attorney work product doctrine.
 
(c) Hearings .  Each party hereby consents to a documentary hearing for all arbitration claims by submitting the dispute to the arbitrator(s) by written briefs and affidavits, along with relevant documents. However, arbitration claims will be submitted by way of an oral hearing if any party requests an oral hearing within forty (40) days after service of the claim and that party remits the appropriate deposit for fees and arbitrator compensation within ten (10) days of making the request.  Each party agrees that failure to timely pay all fees and arbitrator compensation billed to the party requesting the oral hearing will be deemed such party’s consent to submitting the Dispute to the arbitrator on documents and such party’s waiver of its request for an oral hearing.  The site of all oral arbitration hearings will be in the Division of the Federal Judicial District in which the designated arbitration association maintains a regional office that is closest to Dealers.
 
(d) Discovery .  Discovery permitted in any arbitration proceeding commenced hereunder is limited as follows. No later than forty (40) days after the filing and service of a claim for arbitration, the parties in contested cases will exchange detailed statements setting forth the facts supporting the claim(s) and all defenses to be raised during the arbitration, and a list of all exhibits and witnesses. No later than twenty-one (21) days prior to the oral arbitration hearing, the parties will exchange a final list of all exhibits and all witnesses, including any designation of any expert witness(es) together with a summary of their testimony; a copy of all documents and a detailed description of any property to be introduced at the hearing. Under no circumstances will the use of interrogatories, requests for admission, requests for the production of documents or the taking of depositions be permitted. However, in the event of the designation of any expert witness(es), the following will occur: (i) all information and documents relied upon by the expert witness(es) will be delivered to the opposing party; (ii) the opposing party will be permitted to depose the expert witness(es); (iii) the opposing party will be permitted to designate rebuttal expert witness(es); and (iv) the arbitration hearing will be continued to the earliest possible date that enables the foregoing limited discovery to be accomplished.
 
(e) Exemplary or Punitive Damages .  The arbitrator(s) will not have the authority to award exemplary or punitive damages.
 
 (f) Confidentiality of Awards .  All arbitration proceedings, including testimony or evidence at hearings, will be kept confidential, although any award or order rendered by the arbitrator(s) pursuant to the terms of this Agreement may be confirmed as a judgment or order in any state or federal court of competent jurisdiction within the federal judicial district which includes the residence of the party against whom such award or order was entered. This Agreement concerns transactions involving commerce among the several states. The Federal Arbitration Act,
 
Inventory Financing Agreement 29
KCP-8393129-10

Title 9 U.S.C. Sections 1 et seq., as amended (“ FAA ”) will govern all arbitration(s) and confirmation proceedings hereunder.
 
(g) Prejudgment and Provisional Remedies .  Nothing herein will be construed to prevent Agent’s or a Dealer’s use of bankruptcy, receivership, injunction, repossession, replevin, claim and delivery, sequestration, seizure, attachment, foreclosure, and/or any other prejudgment or provisional action or remedy relating to any Collateral for any current or future Debt owed by either party to the other. Any such action or remedy will not waive Agent’s or a Dealer’s right to compel arbitration of any Dispute.
 
(h) Attorneys’ Fees .  If either a Dealer or Agent brings any other action for judicial relief with respect to any Dispute (other than those set forth in Sections 30(a) or 30(g) of this Agreement), the party bringing such action will be liable for and immediately pay all of the other party’s costs and expenses (including attorneys’ fees) incurred to stay or dismiss such action and remove or refer such Dispute to arbitration. If either a Dealer or Agent brings or appeals an action to vacate or modify an arbitration award and such party does not prevail, such party will pay all costs and expenses, including attorneys’ fees, incurred by the other party in defending such action.  Additionally, if a Dealer sues Agent or institutes any arbitration claim or counterclaim against Agent in which Agent is the prevailing party, Dealers will pay all costs and expenses (including attorneys’ fees) incurred by Agent in the course of defending such action or proceeding.
 
(i) Limitations .  Any arbitration proceeding must be instituted: (i) with respect to any Dispute for the collection of any Debt owed by either party to the other, within two (2) years after the date the last payment by or on behalf of the payor was received and applied in respect of such Debt by the payee; and (ii) with respect to any other Dispute, within two (2) years after the date the incident giving rise thereto occurred, whether or not any damage was sustained or capable of ascertainment or either party knew of such incident.  Failure to institute an arbitration proceeding within such period will constitute an absolute bar and waiver to the institution of any proceeding, whether arbitration or a court proceeding, with respect to such Dispute.  Notwithstanding the foregoing, this limitations provision will be suspended temporarily as of the date any of the following events occur and will not resume until the date following the date either party is no longer subject to (A) bankruptcy, (B) receivership, (C) any proceeding regarding an assignment for the benefit of creditors, or (D) any legal proceeding, civil or criminal, which prohibits either party from foreclosing any interest it might have in the collateral of the other party.  
 
(j) Survival After Termination .  The agreement to arbitrate will survive the termination of this Agreement.
 
31. Multiple Dealers; Joint and Several Liability; Designation of Authorized Representatives .
 
(a) All Loans and advances by Lenders to any Dealer and all other Obligations of any Dealer shall constitute one general obligation of all of the Dealers. Notwithstanding anything herein to the contrary, the Dealers shall be primarily and jointly and severally liable for all Obligations of any Dealer under this Agreement and any other Loan Document. Notwithstanding the foregoing, if and to the extent a Dealer is deemed to be a guarantor of another Dealer hereunder, such Dealer’s liability for any credit extended to or for the benefit of such other Dealer shall be deemed to be a guaranty of payment and performance, and not merely a guaranty of collection. To the fullest extent permitted by law, each Dealer hereby waives promptness, diligence, notice of acceptance, and any other notices of any nature whatsoever with respect to any of the Obligations, and any requirement that Agent protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against any other Dealer, any other Person or any Collateral. Each Dealer agrees that any rights of subrogation, indemnification, reimbursement or any similar rights it may have against any other Dealer with respect to its liability hereunder or otherwise, whether such rights arise under an express or implied contract or by operation of law, shall be subject, junior and subordinate in all respect to all Obligations of such Dealer under this Agreement and any other Loan Document and that the enforcement of such rights shall be stayed until such time as the Dealers shall have indefeasibly paid in full all of the Obligations and neither Agent nor any Lender shall be under any duty to make a Loan to or for the benefit of any Dealer. The liability of each Dealer shall be absolute and unconditional irrespective of (i) any change in the time, manner or place of payment of, or in any other term of, any of the Obligations, or any other amendment or waiver of or any consent to departure from this Agreement or any other agreement between or among Agent, Dealers and, if applicable, Lenders (ii) any exchange, release or non-perfection of any Collateral or any release or amendment or waiver of or consent to departure from any other guaranty or any release of any guarantor or any other Person liable in whole or in part for all or any of the Obligations, (iii) the disallowance or avoidance of all or any portion the claim(s) of Agent or any Lender for repayment of the Obligations of any guarantor to Agent or any interest of Agent or any Lender in any security for such Obligations, or (iv) any other circumstance which might otherwise constitute a defense available to, or discharge of, a Dealer or a guarantor or any other surety.

Fourth Amended and Restated Inventory Financing Agreement 30
KCP-8393129-10

(b) Each Dealer (each, a “ Principal ”) hereby appoints each other Dealer (each, a “ Dealer Representative ”) as the Principal ’s agent and attorney-in-fact ( i ) to take any action, ( ii ) to execute any document or instrument, ( iii ) to consent or agree to any amendment or other modification of this Agreement and/or any other agreements between or among any one or more of the Dealers and Lender and/or any waiver of or departure from any of the terms hereof or thereof, ( iv ) to perform any Obligation of the Principal , and ( v ) to give or receive any notice by or to any Dealer hereunder or thereunder; and in each case without regard to whether any such action is done in the name of a Dealer Representative or a Principal and, if done in the name of a Dealer Representative , without regard to whether such Dealer Representative’s capacity as agent or attorney-in-fact is so designated. Without limiting the generality of the foregoing, an Dealer Representative may request extensions of credit to or on behalf of any one or more of the Dealers and/or incur any other Obligations for the account of any one or more of the Dealers , and in any such event all of the Dealers shall be fully and jointly and severally bound by and liable for the actions of such Dealer Representative . Lender shall be entitled to rely absolutely and without duty of inquiry or investigation upon any agreement , request, communication or other notice given by a Dealer Representative under this Agreement and/or any other agreements between or among any one or more of the Dealers and Lender (including without limitation, any request by a Dealer Representative to make credit extensions to or on behalf of itself and/or any one or more other Dealers) until three (3) Business Days after Lender shall have received written notice from each Principal of the revocation of this agency and power of attorney, which revocation shall constitute a Default .
 
(c) Each Dealer hereby authorizes any officer (and the Cash Manager and Treasury Manager in connection with (i) remittances to and from the [****], and (ii) requests pre-owned inventory advances pursuant to Section 2(b) of this Agreement) to act on behalf of such Dealer in connection with this Agreement, the certificates and documents contemplated hereby, and the transactions referenced herein and therein.  Agent and each Lender shall be entitled to rely absolutely and without duty of inquiry or investigation upon any agreement, request, communication or other notice given by such authorized persons under this Agreement and/or any other agreements between or among any one or more of the Dealers and Agent (including without limitation, any request by such authorized representative to make credit extensions to or on behalf of such Dealer) until three (3) Business Days after Agent shall have received written notice from such Dealer of the revocation of such Person’s authority and the identity of each additional Person authorized to act on behalf of such Dealer thereafter.
 
32. Governing Law .  This Agreement and all agreements between or among Agent and any one or more Lenders and/or any one or more Dealers have been substantially negotiated and will be substantially performed in the state of Illinois. All Disputes will be governed by, and construed in accordance with, the laws of such state, except to the extent inconsistent with the provisions of the FAA, which will control and govern all arbitration proceedings hereunder.
 
33. INVALIDITY/UNENFORCEABILITY OF BINDING ARBITRATION . IF THIS AGREEMENT IS FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL PROCEEDING WITH RESPECT TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE WITHOUT A JURY.  DEALERS AND AGENT WAIVE ANY RIGHT TO A JURY TRIAL IN ANY SUCH PROCEEDING.  SIMILARLY, IF THIS AGREEMENT OR A PARTICULAR DISPUTE HEREUNDER IS NOT SUBJECT TO ARBITRATION, DEALERS HEREBY CONSENT TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN ILLINOIS AND WAIVE ANY OBJECTION WHICH DEALERS MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY ACTION OR PROCEEDING IN ANY SUCH COURT.
 
[Remainder of page blank]

Fourth Amended and Restated Inventory Financing Agreement 31
KCP-8393129-10

THIS CONTRACT CONTAINS BINDING ARBITRATION,
JURY WAIVER AND PUNITIVE DAMAGE WAIVER PROVISIONS.

Signature Page to
Fourth Amended and Restated Inventory Financing Agreement

 
 
DATED AS OF THE DATE FIRST ABOVE WRITTEN

MARINEMAX, INC.,
a Florida corporation	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	Executive Vice President, Chief Financial Officer, Secretary	 	
Tax ID:	59-3496957	 	
Org. ID (if any):   2849981 8100	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

MARINEMAX EAST, INC.,
a Delaware corporation	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	
Tax ID:	94-3382331	 	
Org. ID (if any):   3332179 8100	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

MARINEMAX SERVICES, INC.,
a Delaware corporation	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	Vice President, Secretary, Treasurer	 	
Tax ID:	74-2979572	 	
Org. ID (if any):   3331764 8100	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

			

MARINEMAX NORTHEAST, LLC,
a Delaware limited liability company
By: MARINEMAX EAST, INC.
      the sole member of MarineMax Northeast, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	
Tax ID:	26-0668571	 	
Org. ID (if any):   4402087 8100	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

Signature Page to
Fourth Amended and Restated Inventory Financing Agreement

 

 BOATING GEAR CENTER, LLC,
a Delaware limited liability company	 	
By: MARINEMAX EAST, INC.,
      the sole member of Boating Gear Center, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	
Tax ID:	20-2113374	 	
Org. ID (if any):   3908460 8100	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

US LIQUIDATORS, LLC	 	
a Delaware limited liability company
By: MARINEMAX, INC.
      the sole member of US Liquidators, LLC
 	 	
By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	Executive Vice President, Chief Financial Officer, Secretary	 	
Tax ID:	20-5817473	 	
Org. ID (if any):   4242668 8100	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

 
MY WEB SERVICES, LLC,
a Delaware limited liability company
			
By: MARINEMAX EAST, INC.,
       the sole member of My Web Services, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary and Treasurer	 	
Tax ID:	27-4689836	 	
Org. ID (if any):   4933499	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	
MARINEMAX CHARTER SERVICES, LLC,
a Delaware limited liability company
			
By: MARINEMAX EAST, INC.,
       the sole member of MarineMax Charter Services,
       LLC	 	
 	 	
By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	
Tax ID:	45-3265782	 	
Org. ID (if any):   5037331	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

NEWCOAST FINANCIAL SERVICES, LLC,	 	
 
Signature Page to
Fourth Amended and Restated Inventory Financing Agreement

			
a Delaware limited liability company
By: MARINEMAX EAST, INC.
      the sole member of Newcoast Financial Services, Inc.
 	 	
By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	
Tax ID:	59-3529057	 	
Org. ID (if any):   2920730 8100	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

[****]
a Florida limited liability company
 
By: MY WEB SERVICES, LLC,
       the sole member of [****]
			
       By: MARINEMAX EAST, INC.,
       the sole member of My Web Services, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary and Treasurer	 	
Tax ID:	27-4689836	 	
Org. ID (if any):   4933499	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

GULFPORT MARINA, LLC,
a Delaware limited liability company
			
By: MARINEMAX EAST, INC.,
       the sole member of My Web Services, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary and Treasurer	 	
Tax ID:	27-4689836	 	
Org. ID (if any):   4933499	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

 

Signature Page to
Fourth Amended and Restated Inventory Financing Agreement

 

 
AGENT AND LENDER:

 
WELLS FARGO COMMERCIAL DISTRIBUTION FINANCE, LLC	

By:	/s/ Thomas M. Adamski	
Print Name:	Thomas M. Adamski	
Title:	Duly Authorized Signatory	

LENDERS:

 
BANK OF THE WEST, INC.	

By:	/s/ Tim McKevitt	
Print Name:	Tim McKevitt	
Title:	VP – Relationship Manager	

M&T BANK	

By:	/s/ Brendan Kelly	
Print Name:	Brendan Kelly	
Title:	VP	

 	
BRANCH BANKING & TRUST COMPANY
 	
By:	/s/ David Miller	
Print Name:	David Miller	
Title:	VP	

 
Signature Page to
Fourth Amended and Restated Inventory Financing Agreement

 
 
Exhibit A
Existing Approved Vendors

Vendor	Brand	
Azimut Benetti Group	AZIMUT and ATLANTIS	
Pontoon Boat, LLC	BENNINGTON	
Brunswick Corporation or affiliates thereof	BOSTON WHALER	
Crest Marine, LLC	CREST	
Grady-White Boats, Inc.	GRADY-WHITE	
Brunswick Corporation or affiliates thereof	HARRIS FLOTEBOTE	
Tracker Marine, L.L.C.		
Brunswick Corporation or affiliates thereof	MERCURY	
Seminole Marine, Inc.	SAILFISH	
Rec Boat Holdings, LLC	SCARAB	
Scout Boats, Inc.	SCOUT	
Sea Hunt Boat Manufacturing Company, Inc.	SEA HUNT	
[****]	[****]	
Brunswick Corporation or affiliates thereof	SEA RAY	
Nautique Boat Company, Inc.	SKI NAUTIQUE	
Sportsman Boats Manufacturing, Inc.	SPORTSMAN	
Cobalt Boats, LLC	COBALT	
MasterCraft Boat Company, LLC	MASTERCRAFT	
Nautic Star, LLC	NAUTICSTAR	
Tige Boat, Inc.	TIGE	
 	 	
Trailer Vendors	 	
EZ Loader Boat Trailers, Inc.
EZ Loader Custom Boat Trailers, Inc.	EZ LOADER	
Knight Bros., Inc.	HERITAGE	
Karavan Trailers, Inc.	KARAVAN	
Magic Tilt Trailers Inc.	MAGIC TILT	
McClain Trailers, Inc.	MCCLAIN	
Northeast Marine Industries, Inc.	NORTHEAST	
Roadrunner Trailers of Texas, Inc.	ROADRUNNER TRAILER	
Lippert Components, Inc.	ZIEMAN	
BoatMate Trailers, LLC	BOATMATE	
Load Rite Trailers, LLC	LOADRITE	
Marine Master Trailers, LLC	MARINE MASTER	
Phoenix Trailers, LLC	PHOENIX	
Ram-Lin Custom Trailers, Inc.	RAM-LIN	
Venture Trailers	VENTURE	
W.C. Manufacturing & Specialty Co.
 	WESCO
CAROLINA TRAILERS	

A-1
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
 
Exhibit B
Existing Liens

Debtor	Secured Party	Lease or Collateral Description	Jurisdiction	Amount of Indebtedness	Filing Date	Financing Statement Number	
MarineMax, Inc.	Saxon Business Services	Equipment financed by Saxon Business Systems under Lease Agmt. No. 7738338-001	Delaware	N/A – Precautionary filing	10/01/2012	23770015	
MarineMax, Inc.	IKON Financing Services	Equipment leased in Master Lease No. 1010158ML	Delaware	N/A – Precautionary filing	12/16/2014	45103445	
MarineMax, Inc.	IKON Financing Services	Equipment leased in Master Lease No. 1010158ML	Delaware	N/A – Precautionary filing	12/17/2014	45120308	
MarineMax East, Inc.	Sea Ray Division of Brunswick Corporation	2014 Sea Ray 510FIY Hull # 502 Hin # SERP8208K314	Delaware	$720,000.00	10/06/16	2016 6143091	

B-1
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

Exhibit C	
Permitted Locations	
 	
Location Name	Lot Code	Address Line 1	City	State	Zip Code	Phone Numbers	
MarineMax Gulf Shores Parkway	OB	3829 Gulf Shores Parkway	Gulf Shores	AL	36542	251-981-1113	
MarineMax Norwalk	CT1	130 Water Street	Norwalk	CT	06854	888-254-1796	
MarineMax Connecticut	CT2	627 Boston Post Road	Westbrook	CT	06498	860-399-5581	
MarineMax Brevard (Cocoa)	BVD	1410 King Street	Cocoa	FL	32922	321-636-3142	
MarineMax Sarasota Retail Sales	CIT	1601 Ken Thompson Parkway	Sarasota	FL	34236	941-388-4411	
MarineMax Clearwater	CW	18025 US 19 North	Clearwater	FL	33764	727-536-2628	
MarineMax Jacksonville Beach	FL3	2079 Beach Boulevard	Jacksonville Beach	FL	32250	904-338-9970	
MarineMax Panama City	FL7	3605 Thomas Drive	Panama City Beach	FL	32408	850-234-6533	
MarineMax Ft Myers	FT	14070 McGregor Boulevard	Fort Myers	FL	33919	239-481-8200	
MarineMax Ft Myers	FT	14030 McGregor Boulevard	Fort Myers	FL	33919	239-454-2628	
MarineMax Ft Lauderdale	HAT	2301 SE 17th Street, Pier 66 Marina	Fort Lauderdale	FL	33316	954-779-1905	
MarineMax Pensacola	KM	1901 Cypress Street	Pensacola	FL	32502	850-477-1112	
MarineMax Miami	MIA	700 NE 79th Street	Miami	FL	33138	305-758-5786	
MarineMax - Miami Service	MIA	840 NE 78th Street	Miami	FL	33138	305-758-5786	
Corporate Headquarters	MM	2600 McCormick Drive, Suite 200	Clearwater	FL	33759	727-531-1700	
MarineMax St Petersburg Yacht and Service Center	MYSC	6810 Gulfport Boulevard	South Pasadena	FL	33707	727-343-6520	
MarineMax Dania Beach	MYSD	490 Taylor Lane	Dania Beach	Fl	33004	954-926-0309	
MarineMax Naples Retail Sales	NAP	1146 6th Avenue South	Naples	FL	34102	239-262-1000	
MarineMax Palm Beach	NPB	2385 PGA Boulevard	Palm Beach Gardens	FL	33410	561-694-5815	
MarineMax of Orlando	OLN	455 S Lake Destiny Road	Orlando	FL	32810	407-660-2628	
MarineMax Ocean Reef	ORC	2 Fishing Village Drive	Key Largo	FL	33037	305-367-3969	
MarineMax Cape Haze (Palm Island)	PMI	7090 Placida Road	Cape Haze	FL	33946	941-697-2161	
MarineMax Pompano Beach Retail Sales	POM	700 South Federal Highway	Pompano Beach	FL	33062	954-783-9555	
MarineMax Pompano Yacht Center	PYC	750 South Federal Highway	Pompano Beach	FL	33062	954-618-0440	
MarineMax Stuart Sales and Service	STU	2370 SW Palm City Road	Stuart	FL	34994	772-287-4495	
MarineMax Venice Retail Sales	VEN	1485 S Tamiami Trail	Venice	FL	34285	941-485-3388	
C-1
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
Exhibit C	
Permitted Locations	
 	
Location Name	Lot Code	Address Line 1	City	State	Zip Code	Phone Numbers	
MarineMax Cumming	SM2	1860 Bald Ridge Marine Road	Cumming	GA	30041	770-781-9370	
MarineMax Buford	SM7	5800 Lanier Islands Parkway	Buford	GA	30518	770-614-6968	
MarineMax Danvers	NE2	10 Hutchinson Drive	Danvers	MA	01923	781-395-0050	
MarineMax Hingham	NE4	335 Lincoln Street	Hingham	MA	02043	781-875-3619	
MarineMax at Bay Bridge Marina	MD3	357 Pier One Road	Stevensville	MD	21666	410-827-7371	
MarineMax Baltimore Yacht Sales and Service Center	MD4	1800 S Clinton Street	Baltimore	MD	21224	410-732-1260	
MarineMax Bayport	CMB	200 Fifth Avenue South	Bayport	MN	55003	651-351-9621	
MarineMax Rogers	CMR	20300 County Road 81, PO Box 250	Rogers	MN	55374	763-428-4126	
MarineMax Excelsior	CMZ	141 Minnetonka Boulevard	Excelsior	MN	55331	952-346-4857	
MarineMax Branson	KIC	611 Rock Lane	Branson	MO	65616	417-739-2500	
MarineMax Lake Ozark	LOZ	3070 Bagnell Dam Boulevard	Lake Ozark	MO	65049	573-365-5382	
MarineMax Osage Beach	MCP	4543 Osage Beach Parkway	Osage Beach	MO	65065	573-348-1299	
MarineMax Southport Marina	NC6	606 West Street, Suite 107	Southport	NC	28461	201-515-4122	
MarineMax Wrightsville Beach	SB	130 Short Street	Wrightsville Beach	NC	28480	910-256-8100	
MarineMax Brick	BNJ	1500 Riverside Dr.	Brick	NJ	08724	732-840-2100	
MarineMax Lake Hopatcong	HOP	134 Espanong Road	Lake Hopatcong	NJ	07849	973-663-2045	
MarineMax Brant Beach Service	MBB	20 W 44th Street	Brant Beach	NJ	08008	609-494-2838	
MarineMax Ship Bottom	MLB	214 W 9th Street	Ship Bottom	NJ	08008	609-494-2102	
MarineMax Mays Landing Service	MML	1201 Somers Point, Route 559	Egg Harbor	NJ	08234	609-625-1099	
MarineMax Somers Point	MSP	600 Bay Avenue	Somers Point	NJ	08244	609-926-0600	
MarineMax Monmouth Beach	CHE	33 West Street	Mounmouth Beach	NJ	7750	732-874-7196	
MarineMax Lindenhurst Marina and Yacht Center	NY1	846 S Wellwood Avenue	Lindenhurst	NY	11757	631-957-5900	
MarineMax Copiague	NY4	750 Merrick Road	Copiague	NY	11726	631-842-5900	
MarineMax Huntington	NY5	155 West Shore Road	Huntington	NY	11743	631-424-2710	
MarineMax Manhattan	NY6	Chelsea Piers, Pier 59, 23rd Street and the Hudson River	New York	NY	10011	212-336-7873	
MarineMax Catawba Island	TCM	1991 NE Catawba Road	Port Clinton	OH	43452	419-797-4492	
MarineMax Grand Lake	GLC	451107 E 320 Road	Afton	OK	74331	918-782-3277	
MarineMax Wakefield	NE3	362 Pond Street	Wakefield	RI	02879	781-875-3619	
MarineMax Newport	RI1	10 Bowen's Wharf	Newport	RI	02840	401-849-2243	
C-2
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
Exhibit C	
Permitted Locations	
 	
Location Name	Lot Code	Address Line 1	City	State	Zip Code	Phone Numbers	
MarineMax Rhode Island	RI2	1 Masthead Drive	Warwick	RI	02886	410-886-7899	
MarineMax Lewisville/Dallas	DAL	1490 N Stemmons Freeway	Lewisville	TX	75067	972-436-9979	
MarineMax Lewisville Yachts and Service	LLV	1481 E Hill Park Road	Lewisville	TX	75056	972-436-9979	
MarineMax Lake Texoma	LTX	120 Texoma Harbor Drive	Pottsboro	TX	75076	972-436-9979	
MarineMax Seabrook	NAS	3001 NASA Parkway	Seabrook	TX	77586	281-326-4224	
MarineMax Lake Wylie	HM2	310 Blucher Circle	Lake Wylie	SC	29710	803-831-2101	
MarineMax Thunderbolt	HM7	3518 Old Tybee Road	Thunderbolt	GA	31410	912-897-9881	
MarineMax Thunderbolt	HM7	188 Old Tybee Road	Thunderbolt	GA	31410	912-897-9881	
MarineMax Cornelius	HM1	9209 Westmoreland Road	Cornelius	NC	28031	704-892-9676	
MarineMax Greenville	HM3	14 Burty Road	Greenville	SC	29605	864-236-9005	
MarineMax Irmo	HM4	7459 Broad River Road	Irmo	SC	29063	803-732-1104	
MarineMax Charleston	HM5	142 Sportsman's Island Drive	Charleston	SC	29492	843-747-1889	
MarineMax Island Marine Center	IM1	2602 Shore Rd. (Rte 9)	Oceanview	NJ	08230	609-624-1117	
MarineMax Boston	NE1	64 Washington St.	Quincy	MA	02169	617-288-1000	
MarineMax Miami Beach Marina	MIB	300 Alton Rd	Miami Beach	FL	33139	305-921-0002	
[no location name]	TCM	4235 East Beachclub Rd	Port Clinton	OH	43452	419-797-4492	
MarineMax North Somers Point	IM1	7 Kapella Ave.	Somers Point	NJ	08244	 	
[no location name]	 	28251 S. 561 Road	Monkey Island	OK	74331	 	
[no location name]	 	56300E. 280 Road	Monkey Island	OK	74331	 	

 
C-3
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
Exhibit D
Form of Compliance Certificate
 
All calculations based on Financial Statement dated MM/DD/YY
Calculation of Tangible Net Worth

a) Consolidated Shareholders equity of Dealers	 	 	 	$               -	
Less:	GAAP Intangibles	 	 	 	 	 	 	
 	i) Goodwill	 	 	 	 	 	$               -	
 	ii) Patents	 	 	 	 	 	$               -	
 	iii) Trademarks	 	 	 	 	 	$               -	
 	iv) Other Intangibles	 	 	 	 	$               -	
b) Less: Total Intangibles	 	(i + ii + iii + iv)	 	 	 	$               -	
c) Less: Related party accounts receivable and loans excluding allowed draws	$               -	
d) Tangible Net Worth	 	(a - b - c)	 	 	 	$               -	
 
Calculation of Debt

e) Total Consolidated Debt of Dealers	 	 	 	 	$               -	
f) Plus: Contingent liabilities	 	 	 	 	 	$               -	
 
D-1
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
									
g) Debt	 	 	 	(e + f)	 	 	 	$               -	
 
Leverage Ratio Covenant – 6(c)(i)

									
ab) Cash	 	 	 	 	 	 	 	$               -	
ac) Liquid Investments	 	 	 	 	 	$               -	
ad) Contracts in Transit	 	 	 	 	 	$               -	
ae) Accounts Receivable	 	 	 	 	 	$               -	
af) Inventory	 	 	 	 	 	 	$               -	
ag) Prepaid Expenses	 	 	 	 	 	$               -	
ah) Deferred Tax Assets	 	 	 	 	 	$               -	
ai) Current Assets per GAAP	 	(ab + ac + ad + ae + af + ag + ah)	 	 	 	$               -	
 	 	 	 	 	 	 	 	 	
aj) Current Liabilities per GAAP	 	 	 	 	$               -	
ak) Less: Balloon Payments due on real estate loans within 12 months	 	$               -	
al) Current Liabilities per Agreement	(aj - ak)	 	 	 	$               -	
 	 	 	 	 	 	 	 	 	
am) Ratio	 	 	 	(ai / al)	 	 	 	#DIV/0!	
 	 	 	 	 	 	 	 	 	
In compliance?	 	 	 	 	 	 	#DIV/0!	
 
The undersigned hereby certifies that I have no knowledge that a material Default or Event of Default has occurred and is continuing.
MarineMax, Inc.
By:____________________________________
Title:__________________________________
 
D-2
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 

 
D-3
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
EXHIBIT E
Lender’s Allocations and Ratable Share

Lender	Allocation	Ratable Share	
CDF	$225,000,000	56.250000000%	
Bank of the West, Inc.	$45,000,000	11.250000000%	
M&T Bank	$100,000,000	25.000000000%	
Branch Banking & Trust Company	$30,000,000	7.500000000%	
TOTAL	$400,000,000	100.000000000%	

 
E-1
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
EXHIBIT F
Agent Wire Instructions
[****]

F-1
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
EXHIBIT G
Trigger Compliance Certificate

Calculations Based on trailing twelve month (TTM) period ended:	MM/DD/YY	 	 	 	
 	 	 	 	 	
 	PYTD	FYE	CYTD	TTM	
 	MM/DD/YY	MM/DD/YY	MM/DD/YY	MM/DD/YY	
net income	 	 	 	                    -  	
add back: taxes	 	 	 	                    -  	
add back: interest	 	 	 	                    -  	
add back: depreciation / amortization	 	 	 	                    -  	
add back: one-time acquisition costs	 	 	 	                    -  	
add back: non-cash stock-based compensation	 	 	 	                    -  	
less: non-recurring gains / non-cash items / tax credits	 	 	 	                    -  	
EBITDA	 	 	 	                    -  	
less: Capital Expenditures	 	 	 	                    -  	
EBITDA less Capital Expenditures	 	 	 	                    -  	
 	 	 	 	 	
cash interest	 	 	 	                    -  	
scheduled principal payments	 	 	 	 	
cash income taxes	 	 	 	                    -  	
dividends / distributions	 	 	 	                    -  	
Fixed Charges	 	 	 	                    -  	
 	 	 	 	 	
FCCR	 	 	 	#DIV/0!	
 	 	 	 	 	
a) Consolidated Shareholders Equity of the Borrowers	 	 	                  -  	 	
Less: GAAP Intangibles	 	 	 	 	
i) Goodwill	 	 	                  -  	 	
ii) Patents	 	 	                  -  	 	
 
G-1
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

 
					
iii) Trademarks	 	 	                  -  	 	
iv) Other Intangibles	 	 	                  -  	 	
b) Total Intangibles (I + ii + iii + iv)	 	 	                  -  	 	
c) Related accounts receivable and loans excluding allowed draws	 	 	                  -  	 	
d) Tangible Net Worth (a - b - c)	 	 	                  -  	 	
 	 	 	 	 	
Net Income (cumulative, after 6/30/18)	 	 	                  -  	 	
multiply by 75%	 	 	                  -  	 	
plus: $200MM	 	 	       200,000	 	
Required TNW	 	 	       200,000	 	
 	 	 	 	 	
 	Compliant?	 	 	 	
EBITDA Trigger [****]	NO	 	 	 	
FCCR Trigger [****]	#DIV/0!	 	 	 	
TNW Trigger [****]	NO	 	 	 	
 	 	 	 	 	
MarineMax, Inc.	 	 	 	 	
By:     _________________________________________	 	 	 	 	
Title:  _________________________________________	 	 	 	 	

 
 
G-2
Fourth Amended and Restated Inventory Financing Agreement
KCP-8393129-10

Exhibit 10.21(s)
 
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.
 
Execution Version
 
FIFTH AMENDED AND RESTATED
PROGRAM TERMS LETTER
 
Ocotber 26, 2018
 
MarineMax, Inc.
MarineMax East, Inc.
MarineMax Services, Inc.
MarineMax Northeast LLC
Boating Gear Center, LLC
US Liquidators, LLC
Newcoast Financial Services, LLC
My Web Services, LLC
MarineMax Charter Services, LLC
[****]
Gulfport Marina, LLC
2600 McCormick Drive
Clearwater, FL  33759
Attn: Mike McLamb

RE:  Wholesale Marine Products Finance Program
 
Dear Mike:
 
This Program Terms Letter outlines the terms of your marine financing program with Wells Fargo Commercial Distribution Finance, LLC (in its individual capacity, “ CDF ”) as Agent (CDF, in such capacity as agent, is herein referred to as “ Agent ”) for the several financial institutions that are parties to this Agreement or may from time to time become party hereto (collectively, the “ Lenders ” and individually each a “ Lender ”) and for itself as a Lender.  This program will apply to all outstanding invoices financed by any one or more Lenders pursuant to that certain Fourth Amended and Restated Program Terms Letter dated May 9, 2017, among CDF and you (as amended from time to time, the “ Existing PTL ”) and to all invoices financed on or after the date hereof.  This Program Terms Letter amends and restates the Existing PTL in its entirety.
 
This Program Terms Letter supplements that certain Fourth Amended and Restated Inventory Financing Agreement, dated as of October 26, 2018, among Agent, Lenders and you (the “ Inventory Financing Agreement ”).  Capitalized terms used but not defined herein shall have the meanings assigned to them in the Inventory Financing Agreement.
 
The following sets forth the terms of your financing program:

A. Rates and Terms	 	
 	 	
Effective Program Dates:	Applies to all outstanding invoices financed by any one or more Lenders pursuant to the Original PTL and all invoices financed by any one or more Lenders on or after the date hereof.    	
 	 	
Subsidy Period:	As determined by manufacturer program (if applicable).	
 	 	
Eligible Products:	New and pre-owned marine products, subject to a perfected first priority Lien in favor of Agent for the benefit of Lenders and free and clear of all other Liens not permitted by the Inventory Financing Agreement.  Consigned products shall be excluded unless you comply with Agent’s documentation requirements with respect thereto and Agent otherwise agrees in writing.	

Fifth Amended and Restated Program Terms Letter
KCP-8407528-91

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.

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 plus 3.45%.  
 
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.
 	
Performance Rebate:

 	So long as Dealer remains in compliance with all the terms and conditions of the Inventory Financing Agreement, this Program Terms Letter and all other agreements or instruments by and between Dealer, Agent and any one or more Lenders, beginning the date hereof through the calendar quarter ending September 30, 2018, and for each calendar quarter thereafter, Agent, on behalf of Lenders, will pay you a rebate to be paid quarterly in an amount equal to 1.15% of (i) the average daily balance of outstanding Obligations owed to Lenders for the prior quarter less (ii) the average daily balance of the [****] for the prior quarter (the “ Performance Rebate ”).  Such rebate will be subject to the following:
 
1. Such rebates will be paid within 30 days following the end of the applicable quarter.
2. The average daily balance of outstanding Obligations will be calculated as the sum of the daily balance of outstanding Obligations for each day in the applicable quarter divided by the number of days in the applicable quarter.
3. The average daily balance of the [****] will be calculated as the sum of the daily balance of the [****] for each day in the applicable quarter divided by the number of days in the applicable quarter.	
 	
Unused Line Fee:	Dealer will be charged a monthly Unused Line Fee in an amount equal to 0.10% multiplied by the Unused Line, calculated based on the actual number of days in the calendar month in a year of 360 days.  Unused Line is the Maximum Aggregate Credit Amount, minus the average daily balance of outstanding Obligations owed to Agent and Lenders, plus the average daily balance of the [****].  Billed monthly.	
 	
Maturity Period:	Invoices financed for new inventory by any one or more Lenders are considered due in full at 1080 days from original invoice date, except that invoices financed by any one or more Lenders related to all Azimut-Benetti S.p.A., Galeon, LLP., Alexander Marine Company, Ltd., and Sino Eagle Yacht Co., Ltd. are considered due in full at 1080 days from the original funding date.
 
Invoices financed for pre-owned (trade in or used) inventory by any one or more Lenders are considered due in full at 361 days from the date Dealer acquires such unit (“ Acquisition Date ”).	
 	 	
Fifth Amended and Restated Program Terms Letter
KCP-8407528-92

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.

Advance Request:	Each advance with respect to pre-owned inventory or re-advance shall be made pursuant to a completed written advance request in the form attached hereto as Exhibit A (together with all attachments required thereby, an “ Advance Request Form ”) or such other form as Agent and Dealers may agree.
 
In addition, each advance with respect to any advance request for Aquila brand inventory, Ocean Alexander brand inventory, or Galeon brand inventory shall be requested as follows and accompanied by the following documentation for each item of such inventory:
 
(a) Each advance request for Aquila brand inventory or Galeon brand inventory shall be requested within fifteen (15) Business Days of clearing United States Customs
(b)   Each advance request for Ocean Alexander brand inventory shall be requested within the earlier of:  
(i) fifteen (15) Business Days following payment in full to Alexander Marine Company, Ltd, or
          (ii) delivery of the inventory to Dealer
(c)     A copy of the original invoice from:
(i)  Sino Eagle Yacht Co., Ltd. for Aquila brand inventory
(ii) Alexander Marine Company, Ltd. for Ocean Alexander brand inventory
(iii) Galeon, LLP for  Galeon brand inventory
(d) Either a Manufacturer’s Statement of Origin (MSO) or Builder’s  Certificate
(e)  Evidence that each such item of inventory has cleared United States Customs
(f)     Evidence that MarineMax has paid:
(i) Sino Eagle Yacht Co., Ltd. in full for each such item of Aquila brand inventory,
(ii) Alexander Marine Company, Ltd. in full for each such item of Ocean Alexander brand inventory
(iii) Galeon, LLP.  in full for each such item of Galeon brand inventory	
 	 	
Fifth Amended and Restated Program Terms Letter
KCP-8407528-93

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.

Fifth Amended and Restated Program Terms Letter
KCP-8407528-94

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.

Floorplan Advance Rate:	For new inventory (excluding Azimut brand new inventory, Aquila brand new inventory, Ocean Alexander brand new inventory, and Galeon brand new inventory), 100% of invoice amount, including freight (if included on original invoice), subject to Availability.
 
For Azimut brand new inventory (except Azimut Pre-Sold Inventory): 85% of invoice amount for all inventory that is 72 feet or less and 75% of invoice amount for all inventory that is greater than 72 feet, subject to Availability.
 
The advance rate for Azimut Pre-Sold inventory shall be 90% of the invoice amount, as verified by Agent, subject to Availability. As used herein, “ Pre-Sold ” means under contract to a retail customer pursuant to an Acceptable Contract.  “ Acceptable Contract ” means a fully executed bona fide contract with a retail customer, on terms that are commercially reasonable, including a deposit.
 
For Aquila brand new inventory, 75% of invoice amount, subject to a maximum of [****] in the aggregate advanced at any one time, and further subject to Availability.
 
For Ocean Alexander brand new inventory: 75% of invoice amount for all inventory that is 72 feet or less and 50% of invoice amount for all inventory that is greater than 72 feet, subject to a maximum of [****] in the aggregate advanced at any one time, and further subject to Availability.
 
For Galeon brand new inventory: 75% of invoice amount for all inventory that is 72 feet or less and 50% of invoice amount for all inventory that is greater than 72 feet, subject to a maximum of [****] in the aggregate advanced at any one time, and further subject to Availability.
 
As used herein, “ Availability ” shall mean:
(i)  the lesser of:
(a)  the Maximum Aggregate Credit Amount minus the outstanding amount of Approvals, and
(b) (1) if the Fixed Charge Coverage ratio is equal to or greater than 1.2x and TTM EBITDA is equal to or greater than [****], in each case as shown on the most recent Trigger Compliance Certificate delivered pursuant to Section 8(g) of the Inventory Financing Agreement, 100% of the Eligible Inventory Collateral shown on the most recent inventory certificate (‘ Total Eligible Inventory ’), or
(2) if the Fixed Charge Coverage ratio is less than 1.2x or TTM EBITDA is less than [****], in each case as shown on the most recent Trigger Compliance Certificate delivered pursuant to Section 8(g) of the Inventory Financing Agreement, 100% of Total Eligible Inventory shown on the most recent inventory certificate, less the lesser of (x) [****] and (y) 10% of Total Eligible Inventory shown on such inventory certificate ((b)(1) or (2), as applicable, the “ Net Eligible Inventory Amount ”),
(ii)  minus, the aggregate outstanding amount of Obligations, and
(iii)  minus the amount of any Reserves.
 
As used in the definition of Availability, the below terms have the following meanings:
 
“ Capital Expenditures ” shall mean with respect to any Person, all expenditures (by the expenditure of cash or the incurrence of Debt) by such Person during any measuring period for any fixed assets or improvements or for replacements, substitutions or additions thereto that have a useful life of more than one year and that are required to be capitalized under GAAP, but excluding from such calculation expenditures made with the cash proceeds received by Dealer from any insurance claim payable by reason of theft, loss, physical damage or similar event with respect to any of Dealer’s respective property or assets.
 
“ Fixed Charge Coverage Ratio ” shall mean the ratio of (a) TTM EBITDA less Capital Expenditures for the trailing twelve month period (to the extent not financed) to (b) Fixed Charges for the trailing twelve month period.
 
“ Fixed Charge ” shall mean cash interest plus scheduled principal payments plus income taxes paid in cash plus dividends and distributions.
 
“ TTM EBITDA ” shall mean consolidated net income plus the sum of taxes, interest, depreciation and amortization, and one-time costs related to acquisitions permitted pursuant to the Inventory Financing Agreement plus non-cash stock-based compensation less non-recurring gains or non-cash items increasing net income and tax credits to the extent they increased net income for the trailing twelve month period.  
 
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.
 
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:
 
75% MarineMax Pre-owned Inventory Cost 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), which reflects the 10% curtailment as described in the “Floorplan Curtailments” section below; 0% Day 361+ (after Acquisition Date).
“ MarineMax Pre-owned Inventory Cost ” shall be Dealer’s internal valuation for pre-owned inventory (as set forth on the monthly inventory certificate and  borrowing base).  
 
All models of pre-owned inventory are eligible, provided low wholesale values can be determined via NADA, Yachtworld.com, survey, or other source acceptable to Agent.
 
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 [****], any advance to Dealers in excess of [****] for such Specific Pre-Owned Item shall be in Agent’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 MarineMax Pre-owned Inventory Cost of such pre-owned inventory.  Agent may, on behalf of Lenders, implement a Pre-Owned Inventory Reserve against the pre-owned inventory to reduce the availability of eligible pre-owned inventory.  “ Pre-Owned Inventory Reserve ” is defined and calculated as the low wholesale value determined via NADA, Yachtworld.com, survey or other source acceptable to Agent minus the MarineMax Pre-owned Inventory Cost, divided by the low wholesale value determined via NADA, Yachtworld.com, survey or other source acceptable to Agent, as a percentage.
 
 Dealers are required to submit a borrowing base certificate in the form attached hereto as Exhibit B on the date hereof and monthly by the 10 th day of the month (or the first
business day following the 10 th day of each month if the 10 th day is not a business day) based on the balances of pre-owned inventory as of the date of the certificate .   The monthly b orrowing 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 the borrowing base reflected on the most recent borrowing base certificate requires submission of an updated borrowing base certificate 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 Agent on behalf of Lenders 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 Agent may agree in writing) after such loss or damage.	
 	 	
Concentration Limits:
 
 	If the number of units of inventory (new and pre-owned) financed by any one or more Lenders which are not Pre-Sold and which have an Outstanding Amount > $250,000.00 exceeds [****] of total number of units of inventory financed by such Lender or Lenders, then immediate payment shall be required and applied to the oldest units of such inventory financed by such Lender or Lenders to the extent required to reduce the number of such units to [****] or less.  “ Outstanding Amount ” means the outstanding amount financed by any one or more Lenders for such unit, minus any portion of the Required Amount (as defined in the [****]) funded to the [****] with respect to curtailments for such unit.  For purposes of determining the concentration limits, units of inventory financed by any one or more Lenders shall include, without limitation, each unit of pre-owned inventory with a valuation < $500,000.00 identified on the current borrowing base certificate.  
 
If the units of inventory (new and pre-owned) financed by any one or more Lenders which are not Pre-Sold and which have an Outstanding Amount > $750,000.00 exceed [****] in the aggregate (of which no more than [****] in the aggregate may be Azimut brand), then immediate payment shall be required and applied to the oldest units of such inventory financed by such Lender or Lenders to the extent required to reduce the Outstanding Amount to [****] or less for such inventory (or [****] or less for Azimut brand inventory).  In no event shall any one or more Lenders finance more than the greater of [****] units or [****] of such inventory that exceeds 72 ft., and which are not Pre-Sold.
 
Notwithstanding anything herein to the contrary, the sum of all Outstandings and Open Approvals with respect to Azimut brand inventory shall not at any time exceed ninety million dollars [****]; provided, however, that such amount may be increased from time to time by Agent in writing in its sole and absolute discretion, without the consent of Lenders.	
 	 	
Fifth Amended and Restated Program Terms Letter
KCP-8407528-95

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.

Inventory Reporting:
 
 	 A monthly inventory certificate in the form attached hereto as Exhibit C or in such other form as Dealers and Agent may agree, together with supporting documentation requested by Agent, shall be required to be provided by the 10 th day of each month (or the first business day following the 10 th day of each month if the 10 th day is not a
business day) based on the balances as of the date of the certificate.  All inventory to be included (new, pre-owned) is t o be provided on ad-hoc basis upon Agent request.	
 	 	
Floorplan Curtailments:
 
 	Curtailment payments on invoices financed by any one or more Lenders will be due pursuant to the following schedule:
 
For all Azimut-Benetti S.p.A, Ocean Alexander, Galeon, and Aquila inventory, a curtailment payment of 10% of the initial amount financed is due and payable on each item of new inventory at each of the following points in time:  181, 361, 541, 721 and 900 days from the original funding date and the full remaining balance of the advance is due and payable on each item of Azimut-Benetti S.p.A, Ocean Alexander, Galeon, and Aquila inventory when it is aged 1080 days from the original funding date.  
 
For all other new and Pre-Sold inventory, a curtailment payment of 10% of the initial amount financed is due and payable on each item of new inventory at each of the following points in time: 181, 361, 541, 721 and 900 days from the date of the respective original invoice and the full remaining balance of the advance is due and payable on each item of inventory when it is aged 1080 days from the date of the original invoice.
 
For pre-owned (trade in or used) inventory < $500,000.00 low NADA wholesale value, a curtailment payment of 10% of the amount financed is due and payable at day 181 after the Acquisition Date; for pre-owned (trade in or used) inventory > $500,000.00 low NADA wholesale value, a curtailment payment of 10% of the amount financed is due and payable at day 181 after the Acquisition Date; and the advances with respect to all such items of inventory will be due in full at day 361 after the Acquisition Date.  
 
All curtailment payments will be billed monthly and due in a single payment on the last day of such month. The failure to remit curtailment payments when due shall be considered a Default under the terms of the Inventory Financing Agreement and any such late curtailment payments shall be subject to interest at the Default Rate until paid in full.
 
Curtailment payments unpaid after the due date may be offset by an amount equal to the lesser of (i) the Required Amount set forth in the [****], (ii) the [****] balance set forth in the [****], and (iii) [****] (provided the [****] has a balance of at least [****]).  Notwithstanding such offset, the entire amount of curtailment payments will be paid no later than 20 days following the due date thereof.	
 	 	
[****]:
 
 	[****] can be funded for curtailments due (up to a maximum of [****]) and other amounts subject to the cap on the amount of [****] equal to the lesser of (i) [****] of the then outstanding loan balance or (ii) [****].
1. Maximum of [****] removal of funds per week (Dealer may not remove funds required to maintain the Required Amount)
2. Maximum of [****] contributions of funds per week (unless otherwise needed for minimum requirements)
3. Not intended for direct application for unit payoffs

Inventory Re-Advance
Capability:

 	New inventory may be paid down to a minimum floorplan balance of $1,000.00 per unit; permitted to re-advance up to maximum allowable advance rate (original invoice amount less curtailments due)  subject to:
1. Request must aggregate at least $100,000.00 (refinance amount)
2. Maximum ‘re-book’ advance is limited to 25% of Maximum Aggregate Credit Amount within any 30 day period or, if [****] is terminated at Agent’s option, 50% of Maximum Aggregate Credit Amount within any 30 day period (such limit, the “ Re-Advance Sublimit ”)
3. Limited to Brunswick and Azimut product
4. Delivery of an Advance Request Form and certification of applicable inventory values	
 	 	
Fifth Amended and Restated Program Terms Letter
KCP-8407528-96

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.

Landlord Lien Waivers:
 
 	If any Eligible Inventory Collateral is held at a location leased by you and you have not delivered to Agent a landlord lien waiver or subordination in form acceptable to Agent, as an alternative, you will be required to fund a reserve equal to 3 months of base rent, which will be placed in the [****] pursuant to the terms of the [****], as a “required” minimum amount.  	
 	 	
B. General Terms	 	
 	 	
Audit/Inspection Fees:
 	Pre-closing and annual audit costs will be paid by Dealers.  Actual floorcheck expenses for inventory inspections will be paid by Agent, provided that if results of the inspections are not satisfactory to Agent, in its reasonable discretion, then additional inspection expenses will be paid by Dealers.	
 	 	
MSO’s/Titles:	All Pre-owned titles and documentation must show all prior liens released.	
 	 	
Insurance Certificates:	On or before the date hereof, Dealer shall deliver to Agent certificates of insurance satisfying the requirements set forth in Section 6 of the Inventory Financing Agreement.	
 	 	
Audit/Inspection Frequency:	8 x per year
 
All locations with an average outstanding Total Eligible Inventory (calculated semi-annually based on inventory reports provided to Agent by Dealers) > $1,000,000 will be inspected quarterly at a minimum
 
All locations with an average outstanding Total Eligible Inventory (calculated semi-annually based on inventory reports provided to Agent by Dealers) < $1,000,000 will be inspected semi-annually at a minimum
 
During each inspection, Agent will inspect multiple locations wherein at least 48% of Total Eligible Inventory is located.  During each calendar quarter, Agent will inspect multiple locations wherein at least 98% of Total Eligible Inventory is located.
 
MSO and Preowned Title audits to be conducted every 120 days
 
and additional audits/inspections at any other time at Agent’s discretion.	
 	 	
COMS Non-Usage Fee:	Dealers will be charged $1,000 in the aggregate per month for any month during which Dealers do not use the CDF COMS on-line payment system for Dealers’ primary method of payment to Agent.	
 	 	
Late Payment Fee:	Under the terms of your financing agreement with Agent and Lenders, you are to remit payment to Agent on behalf of Lenders immediately upon the earlier of (i) your receipt of the proceeds of any sale or other disposition of any unit of collateral financed by any one or more Lenders, and (ii) 7 calendar days after such sale or other disposition.  If it is discovered that a unit of collateral is sold or otherwise disposed of without payment remitted to Agent on behalf of Lenders (Sold out of Trust “ SOT ”), whether as the result of an inventory collateral inspection or otherwise, Agent may, in its sole discretion, charge you the following late payment fee on a monthly basis for each SOT item:
 	
 	Day 1- 7 after the retail sale of the unit	 	On the 8 th day after the retail sale of the unit	
	$0.00	 	.25% of the outstanding invoice amount per unit per month	
 	 	
NSF Fee:	You will be charged a fee of $25 for each check or other item that is returned unpaid.	
 
Please note that the fees and charges referred to above such as the Late Payment Fee and NSF Fee are not intended to be Agent’s or any Lender’s sole remedies for those events, and if you fail to meet any of your obligations under your agreements with or Agent and/or any one or more Lenders, Agent and each Lender specifically reserves all other rights and remedies legally available to it.
 
Fifth Amended and Restated Program Terms Letter
KCP-8407528-9 7

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.

Customer Online Management System (COMS) :
Agent encourages use of COMS, our Internet payment/floorplan system.  Agent will assist you in the installation of the system and provide you with training, free of charge.  Internet payments are processed via an ACH transaction and at no cost to you.  You can view the system’s capabilities at www.gecdf.com/coms.
 
Application of Terms:   
•	The terms set forth in this Program Terms Letter shall apply only to loans by Lenders under the Inventory Financing Agreement (defined above), and will not apply to any other Wells Fargo Commercial Distribution Finance, LLC platform or joint venture (i.e. RV, Yamaha, Suzuki, Polaris Acceptance, Brunswick Acceptance Company, LLC, etc.) or any loans with any Lender Affiliate.	
 
Confidentiality Agreement:
The rates and terms set forth in this letter are for your benefit and shall be held in the strictest confidence by you; provided that you may disclose the terms hereof to the extent required by applicable laws or regulations if you provide Agent with prior written notice of such disclosure, work with Agent in good faith to redact any information herein requested by Agent, and provide Agent with an opportunity to seek a protective order with respect to such information.  Subject to the foregoing, you will take all reasonable precautions to assure the confidentiality of this information is not released to any third party.  
 
PLEASE ACKNOWLEDGE YOUR ACCEPTANCE OF YOUR FINANCING TERMS AND RETURN TO KEVIN BLITZ.
 
THANK YOU FOR THE OPPORTUNITY TO FINANCE YOUR INVENTORY NEEDS.
 
WELLS FARGO COMMERCIAL DISTRIBUTION FINANCE, LLC,
as Agent for Lenders
 
By: ______________________________________________
Name:
Title: Duly Authorized Signatory

Fifth Amended and Restated 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.
 
ACCEPTED AS OF THE DATE FIRST ABOVE WRITTEN :

			
MARINEMAX, INC.,
a Florida corporation	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	Executive Vice President, Chief Financial Officer, Secretary	 	

MARINEMAX EAST, INC.,
a Delaware corporation	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	

MARINEMAX SERVICES, INC.,
a Delaware corporation	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	Vice President, Secretary, Treasurer	 	

			

MARINEMAX NORTHEAST, LLC,
a Delaware limited liability company
By: MARINEMAX EAST, INC.
      the sole member of MarineMax Northeast, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	

BOATING GEAR CENTER, LLC,
a Delaware limited liability company	 	
By: MARINEMAX EAST, INC.,
      the sole member of Boating Gear Center, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	

 

Signature Page to Fifth Amended and Restated 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.

			
 
US LIQUIDATORS, LLC	 	
a Delaware limited liability company
By: MARINEMAX, INC.
      the sole member of US Liquidators, LLC
 	 	
By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	Executive Vice President, Chief Financial Officer, Secretary	 	

MY WEB SERVICES, LLC,
a Delaware limited liability company

By: MARINEMAX EAST, INC.,
       the sole member of My Web Services, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary and Treasurer	 	

MARINEMAX CHARTER SERVICES, LLC,
a Delaware limited liability company
			
By: MARINEMAX EAST, INC.,
       the sole member of MarineMax Charter Services,
       LLC	 	
 	 	
By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	

NEWCOAST FINANCIAL SERVICES, LLC,	 	
a Delaware limited liability company
By: MARINEMAX EAST, INC.
      the sole member of Newcoast Financial Services, LLC
 	 	
By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary, Treasurer	 	
 
[****],
a Florida limited liability company
 
By: MY WEB SERVICES, LLC,
       the sole member of [****]
			
       By: MARINEMAX EAST, INC.,
       the sole member of My Web Services, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary and Treasurer	 	
Tax ID:	27-4689836	 	
Org. ID (if any):   4933499	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
Signature Page to Fifth Amended and Restated 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.

 	Clearwater, FL 33759	

Signature Page to Fifth Amended and Restated 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.
 
GULFPORT MARINA , LLC ,
a Delaware limited liability company
			
By: MARINEMAX EAST, INC.,
       the sole member of My Web Services, LLC	 	

By:	/s/ Michael H. McLamb	 	
Print Name:	Michael H. McLamb	 	
Title:	President, Secretary and Treasurer	 	
Tax ID:	27-4689836	 	
Org. ID (if any):   4933499	 	
Chief Executive Office and Principal Place of Business:	2600 McCormick Drive	
 	Clearwater, FL 33759	

Signature Page to Fifth Amended and Restated 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.

Exhibit A
Advance Request Form
 
Wells Fargo Commercial Distribution Finance, LLC
10 S. Wacker Dr., 20th Floor
Chicago, IL 60606
 
Re:	Fourth Amended and Restated Inventory Financing Agreement, dated October 26, 2018, among MarineMax, Inc. (“ Dealer Agent ”), the other Dealers party thereto (collectively, together with Dealer Agent, “ Dealers ”) Wells Fargo Commercial Distribution Finance, LLC (in its individual capacity, “ CDF ”) as Agent (CDF, in such capacity as agent, is herein referred to as “ Agent ”) for the several financial institutions that are parties thereto or that may from time to time become party to thereto (collectively, the “ Lenders ” and individually each a “ Lender ”) and for itself as a Lender, and such Lenders, as amended, modified, restated or replaced from time to time (the “ Agreement ”)	
Ladies and Gentlemen:
The undersigned is agent for Dealers under the Agreement and as such is authorized to make and deliver this advance request (this “ Request ”) on behalf of Dealers pursuant to Section 1 of the Agreement.  All capitalized terms used, but not defined, herein have the meanings provided in the Agreement.
Dealers hereby request that Lenders make an advance on ________________, 20____ of $______________________ to Dealers under the terms of the Agreement with respect to the following (check one):

 	__________	pre-owned inventory units with applicable valuations of five hundred thousand dollars ($500,000.00) or more (“ Specific Pre-Owned Items ”), subject to the Pre-Owned Inventory Sublimit and Availability (as defined in the Program Terms Letter).	
 	__________	pre-owned inventory units with applicable valuations of less than five hundred thousand dollars ($500,000.00) (“ Other Pre-Owned Items ”), subject to the Pre-Owned Inventory Sublimit and Availability.	
 	__________	units of inventory (excluding used or pre-owned inventory) for which Dealers have previously made payments to Agent on behalf of Lenders (“ Re-Advance Items ”), subject to the Re-Advance Sublimit and Availability.	
The undersigned hereby represents, warrants and certifies that, as of the date hereof,

	(a)each representation and warranty made to Agent and Lenders by or on behalf of any Dealer is true and correct as of the date hereof, except to the extent that such representation or warranty expressly relates to an earlier date, in which event such representation or warranty was true and correct as of such earlier date;	
 
	(b)neither a Default nor any event which with the giving of notice, the passage of time or both would result in a Default has occurred and is continuing or would reasonably be expected to result after giving effect to the advance requested hereby [except _______ ______________________];	
 
	(c)after giving effect to the advance requested hereby, the aggregate outstanding amount of the Obligations (i) will not exceed the lesser of (I) the Maximum Aggregate Credit Amount minus the outstanding amount of Approvals and (II) the Net Eligible Inventory Amount minus the amount of any Reserves, (ii) with respect to pre-owned inventory will not exceed the Pre-Owned Inventory Sublimit, (iii) with respect to Specific Pre-Owned Items will not exceed the Specific Pre-Owned Sublimit, (iv) with respect to Other Pre-Owned Items will not exceed the Other Pre-Owned Sublimit, and (v) with respect to Re-Advance Items, will not exceed the Re-Advance Sublimit;	
 
	 (d)if this Request relates to Specific Pre-Owned Items, Exhibit A hereto sets forth, for each Specific Pre-Owned Item, (i) the Dealer who owns such item, (ii) the location of such item, (iii) the year, make and model,	
Program Terms Letter – Exhibit A A - 1
KCP-8407528-9

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.
 
	serial number, engine model, horsepower and serial for such item, (iv) the NADA low wholesale value and the advance amount requested therefor, and (v) copies of the reports and documents listed on Exhibit A as “Required Documents”;	
 
	(e)if this Request relates to Other Pre-Owned Items, Exhibit B hereto sets forth (i) the date of the most recent borrowing base certificate and the borrowing base amount shown thereon, (ii) borrowing base availability as of the date hereof, and (ii) borrowing base availability after the advance request hereby;	
 
	(f)if this Request relates to Re-Advance Items, Exhibit C hereto sets forth (i) the specific Re-Advance Items supporting such advance, identified by manufacturer, original invoice number, and original invoice date and (ii) the original invoice amount, outstanding amount of Obligations with respect to such Re-Advance Item, and the re-advance amount requested therefor;	
 
(g) each Specific Pre-Owned Item, Other Pre-Owned Item and Re-Advance Item, as applicable, is owned by the Dealer identified on the Exhibits attached hereto, free and clear of all Liens, and Agent holds a first and prior Lien on such Collateral as collateral agent for the Lenders pursuant to the Agreement, and such Collateral is in good saleable condition (normal wear and tear excepted); and
(h) The terms and conditions of the Agreement apply to this Request.
Executed this ____ day of _______________, _____.
MarineMax, Inc.,
a Florida corporation
 
By:
Its:
Typed Name:
 
Program Terms Letter – Exhibit A A - 2
KCP-8407528-9

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.
 
Exhibit A to Advance Request Form
Specific Pre-Owned Items
 
RE:  USED       TRADE-IN           ( CIRCLE ONE )
 
AGENT FOR DEALERS      MARINE MAX                            DEALER NUMBER____________
 
UNIT LOCATION  ___________________________________________________________________________
 
YEAR   ________ MAKE/MODEL __________________________________________________
 
BOAT SERIAL NUMBER______________________________________________________________________
 
ENGINE MODEL, HORSEPOWER & SERIAL

NADA (ABOS or BUC) LOW WHOLESALE VALUE FOR BOAT & ENGINE $____________ VALUE X          %
 
$_____________
 
DOLLAR AMOUNT OF USED/TRADE REQUEST TO BE ADVANCED $ ____________________
 
REQUIRED DOCUMENTS:                                                                                                              
*Attach copy of customer contract for trade-in units/bill of sale and proof of payment for used units.                                  
*Attach copy of completed Title Documents(front and rear) evidencing the boat is free and clear of all liens.
*Attach copy of survey/internal condition report
*Attach copy of internal valuation report
*Attach copy of Coast Guard documentation, abstract of title, and bill of sale
 
Specific Pre-Owned Sublimit $ 20,000,000 (1)
 
Outstanding Amount with Respect to Specific
Pre-Owned Items ____________________(2)
 
Amount of Advance Requested
[not > $2,500,000.00] ____________________(3)
 
Outstanding Amount with Respect to Specific Pre-Owned
After Requested Advance
[(2) + (3)] ____________________(4)
 
Specific Pre-Owned Sublimit Availability After
Requested Advance
[(1) – (4)] ____________________(5)
 
Pre-Owned Inventory Sublimit $ 45,000,000 (6)
 
Outstanding Amount with Respect to Other Pre-Owned
Items ____________________(7)
 
Outstanding Amount with Respect to Specific Pre-Owned
Items and Other Pre-Owned Items After Requested Advance
[(5) + (7)] ____________________(8)
 
Pre-Owned Inventory Sublimit Availability After
Requested Advance
Program Terms Letter – Exhibit A A - 3
KCP-8407528-9

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.
 
[(6) – (8)] ____________________ (9)

 
Program Terms Letter – Exhibit A A - 4
KCP-8407528-9

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.
 
Exhibit B to Advance Request Form
Other Pre-Owned Items
 
Borrowing Base Certificate Date   ____________________
 
Borrowing Base Amount ____________________(1)
 
Other Pre-Owned Sublimit $3 5,000,000 (2)
 
Other Pre-Owned Line of Credit
[Lesser of (1) or (2)] ____________________(3)
 
Outstanding Amount with Respect to Other Pre-Owned ____________________(4)
 
Borrowing Base Availability (Payment Required)
[(3) - (4)] ____________________(5)
 
Amount of Advance Requested ____________________(6)
 
Outstanding Amount with Respect to Other Pre-Owned
After Requested Advance
[(4) + (6)] ____________________(7)
 
Percentage of Borrowing Base Amount
[(7) / (1)] (must be ≤ 80% if certificate date not request
date and ≤ 100% if certificate date is request date) ____________________%(8)
 
Borrowing Base Availability After Requested Advance
[(1) – (7)] ____________________(9)
 
Pre-Owned Inventory Sublimit $4 5,000,000 (10)
 
Outstanding Amount with Respect to Specific Pre-Owned
Items ____________________(11)
 
Outstanding Amount with Respect to Specific Pre-Owned
Items and Other Pre-Owned Items After Requested Advance
[(7) + (11)] ____________________(12)
 
Pre-Owned Inventory Sublimit Availability
[(10) – (12)] ____________________(13)

Program Terms Letter – Exhibit A A - 5
KCP-8407528-9

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.
 
Exhibit C to Advance Request Form
Re-Advance Items
 
DEALER NAME _________________________________________    DEALER NUMBER____________
 
UNIT LOCATION  ___________________________________________________________________________
 
MANUFACTURER ___________________________________________________________________________
BOAT SERIAL NUMBER______________________________________________________________________
 
BOAT MODEL& SERIAL ______________
 
ORIGINAL INVOICE NUMBER ______________________________
 
ORIGINAL INVOICE DATE ______________________________
 
ORIGINAL INVOICE AMOUNT ______________________________
 
OUTSTANDING AMOUNT WITH
RESPECT TO RE-ADVANCE ITEM ______________________________
 
RE-ADVANCE AMOUNT REQUESTED ______________________________

 
Re-Advance Sublimit ____________________ (1)
 
Re-Advance Amounts within prior 30 Days ____________________(2)
 
Amount of Advance Requested ____________________(3)
 
Re-Advance Amounts within prior 30 Days After
Requested Advance
[(2) + (3)] ____________________(4)
 
Re-Advance Sublimit Availability After Requested
Advance
[(1) – (4)] ____________________(5)

 
Program Terms Letter – Exhibit A A - 6
KCP-8407528-9

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.

Exhibit B
Borrowing Base Certificate Form

 

 
Program Terms Letter – Exhibit B            
KCP-8407528-9

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.

Exhibit C
Monthly Inventory Certificate Form

 
[****]
Program Terms Letter – Exhibit C            
KCP-8407528-9

Exhibit 31.1
CERTIFICATION
I, W. Brett McGill, certify that:
 	1.	I have reviewed this quarterly report on Form 10-Q of MarineMax, Inc.;	
 	2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;	
 	3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;	
 	4.	The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:	
 	a)	designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;	
 	b)	designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;	
 	c)	evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and	
 	d)	disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and	
 	5.	The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):	
 	a)	all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and	
 	b)	any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.	
 
 	/s/  W. BRETT McGILL	
 	W. Brett McGill	
 	Chief Executive Officer and President	
 	(Principal Executive Officer)	
 	 	
Date: January 30, 2019	 	

Exhibit 31.2
CERTIFICATION
I, Michael H. McLamb, certify that:
 	1.	I have reviewed this quarterly report on Form 10-Q of MarineMax, Inc.;	
 	2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;	
 	3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;	
 	4.	The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:	
 	a)	designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;	
 	b)	designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;	
 	c)	evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and	
 	d)	disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and	
 	5.	The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):	
 	a)	all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and	
 	b)	any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.	

 	/s/  MICHAEL H. MCLAMB	
 	Michael H. McLamb	
 	Chief Financial Officer	
 	(Principal Financial Officer)	
 	 	
Date: January 30, 2019	 	

Exhibit 32.1
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the quarterly report of MarineMax, Inc., (the “Company”) on Form 10-Q for the quarterly period ended December 31, 2018 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, W. Brett McGill, Chief Executive Officer of the Company, certify, to my best knowledge and belief, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
 	(1)	The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a) or 78o(d)); and	
 	(2)	The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.	

 	/s/  W. BRETT McGILL	
 	W. Brett McGill	
 	Chief Executive Officer	
 	 	
Date: January 30, 2019	 	

Exhibit 32.2
CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the quarterly report of MarineMax, Inc., (the “Company”) on Form 10-Q for the quarterly period ended December 31, 2018 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Michael H. McLamb, Chief Financial Officer of the Company, certify, to my best knowledge and belief, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
 	(1)	The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a) or 78o(d)); and	
 	(2)	The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.	

 	/s/  MICHAEL H. MCLAMB	
 	Michael H. McLamb	
 	Chief Financial Officer	
 	 	
Date: January 30, 2019