FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
FIRST
AMENDMENT TO
FIRST
AMENDMENT,
dated
as of September 29, 2006 (this "Amendment"),
to
the Loan and Security Agreement, dated as of May 14, 2004 (as heretofore amended
or otherwise modified, the "Loan
Agreement"),
by
and between XXXXX
FARGO FOOTHILL,
INC.,
a
California corporation (the "Lender"),
and
LAZY
DAYS' R.V. CENTER, INC.,
a
Florida corporation (the "Borrower").
WHEREAS,
the Borrower and the Lender wish to amend certain terms and conditions of the
Loan Agreement as hereinafter set forth;
NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the parties hereto hereby agree as follows:
1. Capitalized
Terms.
Any
capitalized term used herein and not defined herein shall have the meaning
assigned to it in the Loan Agreement.
2. Definitions.
Section
1.1 of the Loan Agreement is hereby amended as follows:
(a) The
definition of the term "Borrowing Base" is hereby amended in its entirety to
read as follows:
""Borrowing
Base"
means
(i) prior to September 29, 2006, as of any date of determination, the result
of:
(a) the
lesser of
(i) an
amount
equal to the product of (A) 0.5 and (B) EBITDA of Borrower, calculated for
the
trailing twelve month period ended as of the most recently completed quarter,
and
(ii) an
amount
equal to the difference between (A) the product of (x) the EBITDA Multiplier
and
(y) EBITDA of Borrower, calculated for the trailing twelve month period ended
as
of the most recently completed quarter, and (B) the principal amount of all
loans then outstanding under the Floor Plan Financing Agreement, minus
(b) the
aggregate amount of reserves, if any, established by Lender under Section
2.1(b),
and
(ii) on
and
after September 29, 2006, the aggregate amount of the then outstanding Letters
of Credit."
(b) Definitions
of the terms "First Amendment" and "First Amendment Effective Date" are hereby
inserted, in
appropriate alphabetical order, to read as follows:
""First
Amendment"
means
the First Amendment to Loan and Security Agreement, dated as of September 29,
2006."
""First
Amendment Effective Date"
means
the date that the First Amendment becomes effective."
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3. No
Additional Borrowings.
Section
2.1 of the Loan Agreement is hereby amended by adding a new clause (e) at the
end of such Section to read in its entirety as follows:
"(e) Notwithstanding
anything contained in this Section 2, the Borrower shall not be entitled to
request, and the Lender shall not be obligated to make, any Advances on or
after
September 29, 2006; provided,
that
nothing in this clause (e) shall in any way prohibit or affect (i) L/C
Disbursements or Advances made solely in connection with reimbursement
obligations with respect to Letters of Credit issued prior to September 29,
2006, or (ii) the Lender's right to charge the Loan Account pursuant to Sections
2.6(d), 2.10, 4.3, 6.19 and 9.1 hereof or pursuant to any other provision of
the
Loan Agreement, the Fee Letter or any other Loan Document."
4. Unused
Line Fee.
Section
2.11 of the Loan Agreement is hereby amended by deleting clause (a) thereof
and
substituting therefor the following:
"(a) [Intentionally
Omitted]."
5. No
Additional Letters of Credit.
Section
2.12 of the Loan Agreement is hereby amended by adding a new clause (f) at
the
end of such Section to read in its entirety as follows:
"(f) Notwithstanding
anything contained in this Section 2, the Borrower shall not be entitled to
request, and the Lender and Underlying Issuer shall not be obligated to issue,
any Letters of Credit on or after September 29, 2006."
6. Maturity
Date.
Section
3.4 of the Loan Agreement is hereby amended by deleting the date "May 14, 2009"
in the first sentence thereof and substituting "September 29, 2007" in lieu
thereof.
7. Early
Termination by the Borrower.
Section
3.6 of the Loan Agreement is hereby amended by deleting the words "90 days"
in
the first sentence thereof and substituting "15 days" in lieu thereof.
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8. Financial
Covenants.
Section
7.19 of the Loan Agreement is hereby amended as follows:
(a) Section
7.19(a)(i) of the Loan Agreement is hereby amended in its entirety to read
as
follows:
"(i) Minimum
EBITDA.
EBITDA,
measured on a quarter-end basis, of at least the required amount set forth
in
the following table for the applicable period set forth opposite thereto:
|
Applicable
Amount
|
Applicable
Period
|
|
$31,000,000
|
For
the trailing twelve month period ending June 30,
2004
|
|
$31,000,000
|
For
the trailing twelve month period ending September 30,
2004
|
|
$31,000,000
|
For
the trailing twelve month period ending December 31,
2004
|
|
$31,000,000
|
For
the trailing twelve month period ending March 31,
2005
|
|
$31,000,000
|
For
the trailing twelve month period ending June 30, 2005
|
|
$31,000,000
|
For
the tailing twelve month period ending September 30,
2005
|
|
$31,000,000
|
For
the trailing twelve month period ending December 31,
2005
|
|
$33,000,000
|
For
the trailing twelve month period ending March 31, 2006
|
|
$33,000,000
|
For
the trailing twelve month period ending June 30, 2006
|
|
$28,700,000
|
For
the trailing twelve month period ending September 30,
2006
|
|
$26,100,000
|
For
the trailing twelve month period ending December 31,
2006
|
|
$27,000,000
|
For
the trailing twelve month period ending March 31, 2007
|
|
$27,100,000
|
For
the trailing twelve month period ending June 30,
2007
|
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9. Conditions
to Effectiveness.
The
effectiveness of this Amendment is subject to the fulfillment, in a manner
satisfactory to the Lender, of each of the following conditions precedent (the
date such conditions are fulfilled hereafter referred to as the "First
Amendment Effective Date"):
(a) The
representations and warranties contained herein, in Section 5 of the Loan
Agreement and in each other Loan Document and certificate or other writing
delivered to the Lender pursuant hereto on or prior to the First Amendment
Effective Date shall be true and correct in all material respects on and as
of
the First Amendment Effective Date as though made on and as of such date, except
to the extent that such representations and warranties expressly relate solely
to an earlier date (in which case such representations and warranties shall
be
so true and correct on and as of such date).
(b) No
Default or Event of Default shall have occurred and be continuing on the First
Amendment Effective Date, or result from this Amendment becoming effective
in
accordance with its terms.
(c) The
Lender shall have executed this Amendment and received a counterpart of this
Amendment, which bears the signature of the Borrower.
(d) The
Borrower shall have paid to the Lender a nonrefundable amendment fee equal
to
$25,000, which fee shall be earned in full on the date of this Amendment.
(e) The
Lender shall have received an acknowledgment and consent, in the form attached
as Exhibit A to this Amendment, duly executed by each Guarantor.
(f) The
Lender shall have received a written consent of the Floor Plan Agent and the
Floor Plan Finance Lenders (in form and substance satisfactory to the Lender,
in
its sole discretion) confirming their consent to this Amendment.
10. Representations
and Warranties.
The
Borrower hereby represents and warrants to the Lender as follows:
(a) The
representations and warranties
herein,
in Section 5 of the Loan Agreement and in each other Loan Document and
certificate or other writing delivered to the Lender pursuant hereto on or
prior
to the First Amendment Effective Date are true and correct in all material
respects on and as of the First Amendment Effective Date as though made on
and
as of such date, except to the extent that such representations and warranties
expressly relate solely to an earlier date (in which case such representations
and warranties are so true and correct on and as of such date).
(b) No
Default or Event of Default has occurred and is continuing or would result
from
this Amendment becoming effective in accordance with its terms.
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(c) The
Borrower (i) is duly organized
and
existing
and in good standing under the laws of the jurisdiction of its organization,
(ii) has all requisite power and authority to execute, deliver and perform
this Amendment and to perform the Loan Agreement, as amended hereby, and
(iii) is duly qualified to do business in each jurisdiction in which the
character of the properties owned or leased by it or in which the transaction
of
its business makes such qualification necessary except where the failure to
be
so qualified could not be expected to have a Material Adverse
Change.
(d) The
execution, delivery and performance by the Borrower of this Amendment and the
performance by the Borrower of the Loan Agreement, as amended by this Amendment,
(i) have been duly authorized by all necessary action, and (ii) do not
and will not contravene the Borrower's Governing Documents.
(e) The
execution, delivery, and performance by the Borrower of this Amendment and
the
performance by the Borrower of the Loan Agreement, as amended by this Amendment,
do not and will not require any registration with, consent, or approval of,
or
notice to, or other action with or by, any Governmental Authority or other
Person (other than the Floor Plan Agent and the Floor Plan
Lenders).
(f) This
Amendment and the Loan Agreement, as amended by this Amendment, when executed
and delivered by the Borrower will be the legally valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with their
respective terms.
11. Miscellaneous.
(a) Interest,
Fees and other Payments.
For the
avoidance of doubt, the Borrower hereby confirms that, although the Lender
has
the right to charge all interest, fees, Lender Group Expenses, costs and other
payments as and when due and payable under any Loan Document to the Borrower's
Loan Account, if the Lender chooses not to charge the Loan Account for any
such
amount due, the Borrower shall be obligated, in accordance with the terms of
the
Loan Agreement, to make such payments, in cash, to the Lender as and when due
and payable. The Borrower hereby further agrees that any amounts charged to
the
Loan Account in respect of interest, fees, L/C Disbursements, Lender Group
Expenses, costs or other amounts on or after the First Amendment Effective
Date
shall be paid in full, in cash, by the Borrower to the Lender within five (5)
Business Days of the date such amounts are charged to the Loan Account.
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(b) Applicable
Prepayment Premium.
Notwithstanding anything to the contrary set forth in Section 3.6 of the Loan
Agreement, no Applicable Prepayment Premium shall be due and payable upon the
Borrower's termination of the Loan Agreement.
(c) Continued
Effectiveness of the Loan Agreement.
Except
as otherwise expressly provided herein, (i) the Loan Agreement and the other
Loan Documents are, and shall continue to be, in full force and effect and
are
hereby ratified and confirmed in all respects, except that
on
and
after the First Amendment Effective Date (A) all references in the Loan
Agreement to "this Agreement", "hereto", "hereof", "hereunder" or words of
like
import referring to the Loan Agreement shall mean the Loan Agreement as amended
by this Amendment and (B) all references in the other Loan Documents to the
"Loan Agreement", "thereto", "thereof", "thereunder" or words of like import
referring to the Loan Agreement shall mean the Loan Agreement as amended by
this
Amendment, (ii) to the extent that the Loan Agreement or any other Loan Document
purports to pledge to the Lender, or to grant to the Lender a security interest
in or lien on, any collateral as security for the Obligations, such pledge
or
grant of a security interest or lien is hereby ratified and confirmed in all
respects, and (iii) the execution, delivery and effectiveness of this Amendment
shall not operate as an amendment of any right, power or remedy of the Lender
under the Loan Agreement or any other Loan Document, nor constitute an amendment
of any provision of the Loan Agreement or any other Loan Document.
(d) Counterparts.
This
Amendment may be executed in counterparts and by different parties hereto in
separate counterparts, each of which shall be deemed to be an original, but
all
of which taken together shall constitute one and the same agreement.
Delivery
of an executed counterpart of this Amendment by telefacsimile or electronic
mail
shall be equally as effective as delivery of an original executed counterpart
of
this Amendment.
(e) Headings.
Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
(f) Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the law of
the
State of New York.
(g) Costs
and Expenses.
The
Borrower agrees to pay within five (5) Business Days of demand all reasonable
fees, costs and expenses of the Lender in connection with the preparation,
execution and delivery of this Amendment and any other related agreements,
instruments and documents.
(h) Amendment
as Loan Document.
The
Borrower hereby acknowledges and agrees that this Amendment constitutes a "Loan
Document" under the Loan Agreement. Accordingly, it shall be an Event of Default
under the Loan Agreement if (1) any representation or warranty made by the
Borrower under or in connection with this Amendment shall have been untrue,
false or misleading in any material respect when made, or (2) the Borrower
shall
fail to perform or observe any term, covenant or agreement contained in this
Amendment.
(i) Waiver
of Jury Trial.
THE
PARTIES HERETO HEREBY IRREVOCABLY WAIVE
THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS AMENDMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL
OTHER COMMON LAW OR STATUTORY CLAIMS.
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IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be executed and delivered as of
the
date first above written.
BORROWER:
LAZY
DAYS' R.V. CENTER, INC.
By:
/s/
Xxxx
Xxxxxx
Name:
Xxxx
Xxxxxx
Title:
Chief
Executive Officer
LENDER:
XXXXX
FARGO FOOTHILL, INC.
By:
/s/
Xxxxxx X.
Xxxxxx
Name:
Xxxxxx
X. Xxxxxx
Title:
Vice
President
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EXHIBIT
A
ACKNOWLEDGMENT
AND CONSENT
The
undersigned, as a party to one or more Loan Documents, as defined in the Loan
and Security Agreement dated as of May 14, 2004 (as heretofore amended or
otherwise modified, the "Loan
Agreement"),
by
and between XXXXX
FARGO FOOTHILL,
INC.,
a
California corporation (the "Lender"),
and
LAZY
DAYS' R.V. CENTER, INC.,
a
Florida corporation (the "Borrower"),
hereby (i) acknowledges and consents to the First Amendment dated the date
hereof (the "Amendment",
all
terms defined therein being used herein as defined therein) to the Loan
Agreement; (ii) confirms and agrees that each Loan Document to which it is
a
party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that on and after the First
Amendment Effective Date all references in any such Loan Documents to "the
Loan
Agreement", "thereto", "thereof", "thereunder" or words of like import referring
to the Loan Agreement shall mean the Loan Agreement as amended by the Amendment;
and (iii) confirms and agrees that to the extent that any such Loan Document
purports to assign or pledge to the Lender, or to grant to the Lender a security
interest in or lien on, any collateral as security for the obligations of any
Guarantor from time to time existing in respect of the Loan Documents, such
pledge, assignment and/or grant of a security interest or lien is hereby
ratified and confirmed in all respects as security for, in addition to the
other
obligations secured thereby, all obligations of such Guarantors outstanding
upon
the taking effect of the Amendment.
Dated:
September 29, 2006
RV
ACQUISITION INC.
a
Delaware corporation
By:
/s/
Xxxx
Xxxxxx
Name:
Xxxx
Xxxxxx
Title:
Chief
Executive Officer
LD
HOLDINGS, INC.
a
Delaware corporation
By:
/s/
Xxxx
Xxxxxx
Name:
Xxxx
Xxxxxx
Title:
Chief
Executive Officer
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