SECOND AMENDMENT TO SECOND AMENDED AND RESTATED INVENTORY FINANCING AGREEMENT, FIRST AMENDMENT TO THIRD AMENDED AND RESTATED PROGRAM TERMS LETTER [****]

Exhibit 10.21(t)

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.

SECOND AMENDMENT TO SECOND AMENDED AND RESTATED INVENTORY FINANCING AGREEMENT, FIRST AMENDMENT TO THIRD AMENDED AND RESTATED PROGRAM TERMS LETTER [****]

THIS AMENDMENT (the “Amendment”), dated this ___ day of June, 2016, is a Second Amendment to that certain Second Amended and Restated Inventory Financing Agreement dated October 30, 2015 (as amended, supplemented or otherwise modified form time to time, the “Financing Agreement”), a First Amendment to that certain Third Amended and Restated Program Terms Letter dated October 30, 2015 (as amended, supplemented or otherwise modified from time to time, the “PTL”) [****] entered into by and among the undersigned Dealers (each, individually, a “Dealer” and, collectively, “Dealers”), Wells Fargo Commercial Distribution Finance LLC f/k/a GE Commercial Distribution Finance Corporation (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 the Financing Agreement or may from time to time become party to the Financing Agreement (collectively, the “Lenders” and individually each a “Lender”) and for itself as a Lender, and such Lenders.

WHEREAS, the parties hereto desire to amend the Financing Agreement, the PTL [****] in certain respects;

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

1.Exhibit C of the Financing Agreement (Permitted Locations) is hereby amended and restated in its entirety in form and substance as set forth in Exhibit C to the Financing Agreement attached hereto.

2.Exhibit E of the Financing Agreement (Lenders’ Allocations and Ratable Share) is hereby amended and restated in its entirety in form and substance as set forth in Exhibit E to the Financing Agreement attached hereto. For the avoidance of doubt, the revised Lenders’ Allocations and Ratable Shares shall be effective as of the first Settlement Date following the date hereof.

3.Exhibit G of the Financing Agreement (Form of Trigger Compliance Certificate) is hereby added to the Financing Agreement in form and substance as set forth in Exhibit G to the Financing Agreement attached hereto.

4.Exhibit C to the PTL (Form of Inventory Certificate) is hereby amended and restated in its entirety in form and substance as set forth in Exhibit C to the PTL attached hereto.

5.The definition of “Maximum Aggregate Credit Amount” in the Financing Agreement is hereby deleted in its entirety and replaced by the following:

"‘Maximum Aggregate Credit Amount' means an aggregate total of Three Hundred Million Dollars ($300,000,000.00).”

6.The following subclause (g) is hereby added to Section 8 of the Financing Agreement:

“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), executed by an officer of Dealers.”

7.Section 19 of the Financing Agreement is hereby deleted in its entirety and replaced by the following:

“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, 2019 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 sole election and subject to Dealer’s consent, 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.”

8.The introductory paragraph under the Performance Rebate heading in the PTL is hereby deleted in its entirety and replaced by the following:

“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 June 30, 2016, and for each calendar quarter thereafter, Agent, on behalf of Lenders, will [****] in an amount equal to [****] 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 “[****]”).  Such [****] will be subject to the following:”

9.The sixth paragraph under the Floorplan Advance Rate heading in the PTL is hereby deleted in its entirety and replaced by the following:

“For [****] brand new inventory: 75% of invoice amount for all inventory that is [****] feet or less and [****] of invoice amount for all inventory that is greater than [****] feet, subject to a maximum of [****] in the aggregate advanced at any one time, and further subject to Availability.”

10.The seventh paragraph under the Floorplan Advance Rate heading in the PTL is hereby deleted in its entirety and replaced by the following:

“As used herein, ‘Availability’ shall mean:

(i)  the lesser of:

(a)  the Maximum Credit Amount, minus the outstanding amount of Approvals, and

(2) if the Fixed Charge Coverage ratio is less than [****] 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) [****] of Total Eligible Inventory shown on such inventory certificate,

(ii)  minus, the aggregate outstanding amount of Obligations.”

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 (to the extent not financed) to (b) Fixed Charges.

‘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.”

11.The second paragraph under the Concentration Limits heading in the PTL is hereby deleted in its entirety and replaced by the following:

“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 > [****] exceed [****] in the aggregate (of which no more than [****] in the aggregate may be [****]), 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 [****] inventory).  In no event shall any one or more Lenders finance more than the greater of [****] units or [****] of such inventory that exceeds [****] ft., and which are not Pre-Sold.”

12.[****]

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

14.Each Dealer hereby ratifies and confirms the Financing Agreement, the PTL [****], as amended hereby, and each other Document executed by such Dealer in all respects. 

15.Each Dealer hereby unconditionally releases, acquits, waives, and forever discharges Agent and the Lenders and their successors, assigns, directors, officers, agents, employees, representatives and attorneys from any and all liabilities, claims, causes of action or defenses, if any, and for any action taken or for any failure to take any action, existing at any time prior to the execution of this Amendment.

16.This Amendment shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their participants, successors and assigns.  

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

[Signature Page Follows]

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

Signature Page to Second Amendment to Second Amended and Restated IFA

MY WEB SERVICES, LLC,

a Delaware limited liability company

Signature Page to Second Amendment to Second Amended and Restated IFA

MARINEMAX CHARTER SERVICES, LLC,

a Delaware limited liability company

Signature Page to Second Amendment to Second Amended and Restated IFA

AGENT AND LENDER:

LENDERS:

Signature Page to Second Amendment to Second Amended and Restated IFA

Exhibit C

to Financing Agreement

Permitted Locations

Exhibit E

to Financing Agreement

Lenders’ Allocations and Ratable Shares

Exhibit G

to Financing Agreement

Form of Trigger Compliance Certificate

Exhibit C

to PTL

Form of Inventory Certificate

[****]