AMENDMENT NO. 2 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT
NO. 2
TO
THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
This
Amendment No. 2 to Third Amended and Restated Credit Agreement (this “Amendment”)
is executed as of April 15, 2008, by LAZY DAYS’ R.V. CENTER, INC., a Florida
corporation (the “Company”),
BANK OF AMERICA, N.A. (successor by merger to Banc of America Specialty Finance,
Inc.), as Administrative Agent and as Collateral Agent, and BANK OF AMERICA,
N.A. (successor by merger to Banc of America Specialty Finance, Inc.) and
KEYBANK NATIONAL ASSOCIATION, as Lenders, to amend the THIRD AMENDED AND
RESTATED CREDIT AGREEMENT, originally dated as of July 15, 1999, amended and
restated as of July 31, 2002, amended and restated as of May 14, 2004, amended
and restated as of February 22, 2007 and amended January 14, 2008 (the “Agreement”).
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1.
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Purpose. The
purpose of this Amendment is to amend Sections 2.1, 3.2, 10.2, and 10.4 of
the Agreement.
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2.
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Capitalized
Terms. Except as expressly provided in this Amendment,
all capitalized terms used in this Amendment have the meanings ascribed to
them in the Agreement, and those definitions are incorporated by reference
into this Amendment.
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3.
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Amendments.
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(a)
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Section
2.1 is hereby deleted in its entirety and replaced as
follows:
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Section 2.1. Floor Plan
Interest Rate. Subject to all of the terms and
conditions of this Section 2, the Company hereby promises to pay interest
on the principal balance of the Floor Plan Loans from time to time
outstanding hereunder at the rate per annum equal to the Adjusted Prime
Rate or Adjusted LIBOR Rate, as designated by the Company in accordance
with this Section 2.1. Each calendar quarter, on the date the
Company delivers to the Agent the monthly financial statements required by
Section 7.1(a) for the months ending March 31, June 30, September 30, and
December 31, the Company shall provide written notice to the Agent
designating whether the Company desires the Adjusted Prime Rate or the
Adjusted LIBOR Rate to apply to all Floor Plan Loans advanced or otherwise
outstanding on or after the Change Date until the next Change
Date. For purposes of this Agreement, the “Change Date” means the
first day of the first calendar month beginning after the Agent receives
the monthly financial statements required by Section 7.1(a) for the months
ending March 31, June 30, September 30, and December 31, and the foregoing
rate selection notice. The Agent shall calculate the applicable
interest rate using the monthly financial statements required by Section
7.1(a) for the last day of such quarter and shall promptly notify the
Lenders of the applicable interest rate after it completes that
calculation. The interest rate selected by the Company for a
Change Date (whether the Adjusted Prime Rate or the Adjusted LIBOR Rate)
shall apply to all Floor Plan Loans advanced or otherwise outstanding
beginning on the Change Date and continuing until the next Change
Date. If the Company fails to provide written notice to the
Agent in accordance with this Section 2.1 with respect to a particular
Change Date designating whether the Company desires the Adjusted Prime
Rate or the Adjusted LIBOR Rate to apply to all Floor Plan Loans advanced
or otherwise outstanding until the next Change Date, the Company waives
its right to change the rate and the rate then in effect will continue
until the next Change Date.
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For
purposes of this Agreement, (a) “Adjusted LIBOR Rate”
means the total of the LIBOR Rate plus the margin specified in column (ii)
below based on the Interest Coverage Ratio on the last day of the
applicable calendar quarter (whether March 31, June 30, September 30, or
December 31), and (b) “Adjusted Prime Rate”
means the total of the Prime Rate plus the margin specified in column
(iii) below based on the Interest Coverage Ratio on the last day of the
applicable calendar quarter (whether March 31, June 30, September 30, or
December 31). During each period in which the Adjusted LIBOR
Rate applies to the Floor Plan Loans, that rate will be adjusted on the
first day of each one (1) month period to reflect any changes in the LIBOR
Rate since the last monthly adjustment date, provided however, if that day
is not a Business Day, at the Agent’s option, the adjustment will be
effective on the next succeeding Business Day. Likewise, during
each period in which the Adjusted Prime Rate applies to the Floor Plan
Loans, that rate will be adjusted and take effect on the first day of the
next billing cycle after the public announcement of a change in the Prime
Rate.
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Notwithstanding
anything in this Section 2.1 to the contrary, the interest rate per annum
applicable to all Floor Plan Loans outstanding during the period beginning on
March 1, 2008, through May 31, 2008, will be the LIBOR Rate plus
1.50%.
For the
period beginning on June 1, 2008, and ending on December 31, 2008:
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(i)
If
the Interest Coverage
Ratio
on the last day of the
applicable calendar quarter
is:
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(ii)
The
Adjusted
LIBOR
Rate
is LIBOR plus:
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(iii)
The
Adjusted
Prime
Rate is
Prime Rate Plus:
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Greater
than or equal to 1.15, but less than 1.20
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2.25%
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-.10%
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Greater
than or equal to 1.20, but less than 1.25
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1.90%
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-.45%
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Greater
than or equal to 1.25, but less than 1.40
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1.75%
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-.60%
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Greater
than or equal to 1.40
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1.50%
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-.85%
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For the
period beginning January 1, 2009, and ending on December 31, 2009:
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(i)
If
the Interest Coverage
Ratio
on the last day of the
applicable calendar quarter
is:
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(ii)
The
Adjusted
LIBOR
Rate
is LIBOR plus:
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(iii)
The
Adjusted
Prime
Rate is
Prime Rate Plus:
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Greater
than or equal to 1.25, but less than 1.40
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1.75%
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-.60%
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Greater
than or equal to 1.40
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1.50%
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-.85%
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For the
period beginning on January 1, 2010, and thereafter:
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(i)
If
the Interest Coverage
Ratio
on the last day of the
applicable calendar quarter
is:
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(ii)
The
Adjusted
LIBOR
Rate
is LIBOR plus:
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(iii)
The
Adjusted
Prime
Rate is
Prime Rate Plus:
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Greater
than or equal to 1.35, but less than 1.40
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1.75%
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-.60%
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Greater
than or equal to 1.40
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1.50%
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-.85%
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Notwithstanding
anything in this Section 2.1 to the contrary, if the Interest Coverage Ratio at
the end of any calendar month is less than the ratio permitted by Section 10.2
for the applicable calendar month, the Overdue Rate will apply.
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(b)
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Section
3.2 is hereby deleted in its entirety and replaced as
follows:
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Section 3.2. Unused Floor Plan
Line Fee. For the period from and including March 1,
2008, to but not including the Termination Date, the Company shall pay to
the Agent for the benefit of the Lenders an unused floor plan line fee
(based on the Company’s Interest Coverage Ratio) at the following per
annum rates, as applicable (computed on the basis of a year of 360 days,
as the case may be, for the actual number of days elapsed), on the average
daily unused portion of such Lender’s Floor Plan
Commitment:
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If the Interest Coverage Ratio
is:
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The
applicable per
annum rate will be:
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Less
than 1.20
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.25%
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Greater
than or equal to 1.20, but less than 1.25
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.20%
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Greater
than or equal to 1.25, but less than 1.35
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.15%
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Greater
than or equal to 1.35
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.15%
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Such
unused line fee shall be computed on and payable quarterly in arrears on the
last day of each calendar quarter and on the Termination Date. The
Agent shall provide the Company with a statement showing the calculation of such
fee in reasonable detail at the time of the invoicing of such fee.
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(c)
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Section
10.2 is hereby deleted and replaced in its entirety as
follows:
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Section
10.2 Interest Coverage Ratio. The Company will not
permit the Interest Coverage Ratio at the end of the each calendar month
to be less than: (a) 1.15 for each of the full calendar months
beginning March 1, 2008, and through December 2008, (b) 1.25 for each of
the calendar months ending during the calendar year 2009, and (c) 1.35 for
any calendar month thereafter.
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(d)
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Section
10.4 is hereby deleted and replaced in its entirety as
follows:
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Section
10.4 Current Ratio. During calendar year 2008, the
Company will not permit the Current Ratio (a) at the end of each calendar
quarter ending March 31, June 30 or September 30, to be less than 1.30,
and (b) at the end of the calendar quarter ending December 31 to be less
than 1.27. During calendar year 2009, the Company will not
permit the Current Ratio (i) at the end of each calendar quarter ending
March 31, June 30, or September 30, to be less than 1.25, and (ii) at the
end of the calendar quarter ending December 31 to be less than
1.20. After January 1, 2010, the Company will not permit the
Current Ratio (A) at the end of each calendar quarter ending March 31,
June 30 or September 30, to be less than 1.20, and (B) at the end of each
calendar quarter ending December 31 to be less than
1.17.
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4.
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Affirmations;
Representations and Warranties. The Company confirms to
the Lenders and the Agent that (a) all representations and warranties of
the Company in the Financing Documents, except in each case for those that
relate specifically to any earlier date, are correct in all Material
respects, (b) the Company has performed and complied with all agreements
and conditions contained in the Financing Documents required to be
performed or complied with by it before the date of this Amendment, (c)
after giving effect to this Amendment, no Default or Event of Default,
violations, or other default exists under the Agreement or the Financing
Documents as of the date of this Amendment, (d) the Company has not
changed its jurisdiction of incorporation since July 15, 1999, and (e) the
Company and RV Acquisition have not been parties to any merger,
recapitalization, share exchange, or consolidation and have not succeeded
to all or any substantial part of the liabilities of any other Person, at
any time following July 15, 1999, except for the Related Transactions and
the Related Transactions (as defined in the First Amended and Restated
Credit Agreement). Additionally, the Company represents and
warrants to the Agent and the Lenders
that:
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(i) the
Company has the legal capacity to execute, deliver, and perform its obligations
pursuant to this Amendment and to perform its obligations pursuant to the
Financing Documents, as amended by this Amendment;
(ii) the
performance by the Company of its obligations pursuant to the Financing
Documents, as amended by this Amendment, and the execution and delivery of
this Amendment by the Company, require no authorization or approval or other
action by, and no notice to or filing with, or other consent by, any
Governmental Authority or other Person and do not (A) contravene, or
constitute a default under, any provision of any applicable law or regulation,
or any agreement, indenture, judgment, order, decree, or other instrument
binding upon the Company or its properties, or (B) result in the creation
or imposition of any Lien (except those in favor of the Agent) on any asset of
the Company;
(iii) this
Amendment has been duly executed and delivered by the Company; and
(iv) the
Agreement, as amended by this Amendment, constitutes the legal, valid, and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by (A) applicable
bankruptcy, insolvency, reorganization, moratorium, or other similar laws
affecting the enforcement of creditors’ rights generally, and (B) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or in law).
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5.
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Miscellaneous. This
Amendment shall be governed by the laws of the State of New York and the
federal laws of the United States of America, excluding the laws of those
jurisdictions pertaining to resolution of conflicts with laws of other
jurisdictions. The Company shall pay on demand all fees, costs,
and expenses of the Agent and the Lenders in connection with the
preparation, execution, and delivery of this Amendment and all other
agreements, instruments, and other documents related to the foregoing,
including without limitation the fees, charges, and other expenses of
counsel to the Agent and the Lenders. Except as amended by this
Amendment, the Agreement remains in full force and effect. This
Amendment will be effective as of April 15, 2008, when (a) the Agent shall
have received a signature page hereto from each of the parties to this
Amendment, (b) the Company shall have paid to the Agent an amendment fee
of $75,000, (c) the Company shall have paid all fees, costs, and expenses
of counsel to the Agent and the Lenders, (d) the Company shall have
delivered to the Agent a Certificate of its Corporate Secretary that the
attached resolutions were adopted by a majority of the Board of Directors
of the Company authorizing the execution, delivery, and performance of
this Amendment by the Company, and (e) the Company shall have delivered to
the Agent a true, correct, and complete copy of the resolutions adopted by
the majority of the board of directors of the Company authorizing the
execution, delivery, and performance of Amendment No. 1 to the Agreement,
the Renewal and Amended and Restated Floor Plan Credit Note in the
original principal amount of $53,000,000 payable by the Company to Bank of
America, N.A., the Renewal and Amended and Restated Floor Plan Credit Note
in the original principal amount of $47,000,000 payable by the Company to
KeyBank National Association, and all documents delivered by the Company
in connection with that Amendment.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered (in each of their respective capacities (including agency
capacities)) as of the day and year first above written.
[SIGNATURES
ON NEXT PAGE]
| Lazy Days' R.V. Center, Inc. | |||
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Date
April 15, 2008
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By:
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/s/ Xxxxx Xxx | |
| Name Xxxxx Xxx | |||
| Title Chief Financial Officer | |||
| Bank of America, N.A. (as successor by merger to Banc of America Specialty Finance, Inc. | |||
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Date
April 15, 2008
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By:
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/s/ Xxxxxx Xxxxxxx | |
| Name Xxxxxx Xxxxxxx | |||
| Title Senior Vice President | |||
| Keybank National Association | |||
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Date
April 15, 2008
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By:
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/s/ Xxxxx XxXxxxxx | |
| Name Xxxxx XxXxxxxx | |||
| Title Vice President | |||
