Exhibit 10.26


 


 


AMENDMENT NO. 1


TO


SECOND AMENDED AND RESTATED


FLOOR PLAN CREDIT AGREEMENT


 


 


                This Amendment No. 1 to Second Amended and Restated
Floor Plan Credit Agreement (this “Amendment”) is executed as of October 28, 2004, 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 Second Amended and Restated Floor Plan Credit Agreement, originally dated as of July 15, 1999, amended and
restated as of July 31, 2002, and amended and restated as of May 14, 2004 (the “Agreement”).


 


1.             Purpose.  The purpose of this Amendment is to amend
the Agreement to permit the Company to use the Floor Plan Credit to
finance Eligible New Floor Plan Units (a) to be sold by the Company to the
Federal Emergency Management Agency (“FEMA”) and (b) to be leased by the Company to
non-governmental entities for use as temporary housing for persons affected by
hurricanes in the State of Florida.


 


2.             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.


 


3.             Sales of Eligible
New Floor Plan Units to FEMA.  
The Agreement is amended to permit the Company to use the Floor Plan
Credit to finance the sale of Eligible New Floor Plan Units by the Company to
FEMA on the following terms and conditions:


 


(a)           Curtailments.  Section 8.2 of the Agreement is amended to
add a new subsection (d) as follows:


 


(d)           Sale of Eligible
New Floor Plan Units in Hurricane Program. 
Principal curtailments (repayments) relating to Borrowings
for Eligible New Floor Plan Units sold to FEMA in accordance with this
Agreement shall be due on the earliest of (1) one Business Day from the receipt
of proceeds from the sale of the Floor Plan Unit, or (2) 90 calendar days from
the sale of the Floor Plan Unit.  For
purposes of this Section 8.2(d), the date of sale shall be the earlier of the
date on which FEMA or its representative takes possession of a Floor Plan Unit
or the date on which FEMA acquires a legal right to a Floor Plan Unit.  Payment for all Floor Plan Units sold to
FEMA shall be due in full before the Termination Date.


 


(b)           Sales Contract Terms.  Notwithstanding anything in this Amendment,
the Agreement, or otherwise to the contrary, each sales contract or purchase
order with FEMA must, to the extent commercially practicable, require payment
of the purchase price by electronic payment into the Operating Account.


 


(c)           Reports.  In its daily report to the Agent, the
Company shall identify for the Agent (by notation or otherwise) any Floor Plan
Units sold to FEMA.


 


 


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Exhibit 10.26


 


 


 


4.             Lease of Floor
Plan Units in Program. 
The Agreement is amended to permit the Company to use the Floor Plan
Credit to finance the acquisition of Floor Plan Units by the Company to be
leased for use as temporary housing for persons affected by hurricanes in the
State of Florida on the following terms and conditions:


 


(a)           Curtailments.  Section 8.2 of the Agreement is amended to
add a new subsection (e) as follows:


 


(e)           Lease of
Floor Plan Units in Hurricane Program.  Principal
curtailments (repayments) relating to Borrowings for Eligible New Floor Plan
Units leased to Lessees in accordance with this Agreement shall be due as
follows:  (1) $1,000 of the initial
Borrowing for the Floor Plan Unit shall be paid on the first day of each
calendar month, beginning on the first day of the first calendar month after the
effective date of the applicable lease and (2) the balance of the Borrowing
shall be paid on the one-year anniversary of the effective date of the
applicable lease.  For purposes of this
Section 8.2(e), the effective date of lease shall be the earlier of the date of
the lease, the date on which the Lessee or its representative takes possession
of a Floor Plan Unit, or the date on which the Lessee acquires a legal right to
use a Floor Plan Unit.  Payment for all
Floor Plan Units leased pursuant to the Program shall be due in full before the
Termination Date.


 


(b)           Lease Terms.  Notwithstanding anything in this Amendment,
the Agreement, or otherwise to the contrary, each lease must (1) prohibit the
transfer of the leased Floor Plan Unit outside the State of Florida at any
time, (2) must not constitute a conditional sales contract, (3) must prohibit
the further transfer or encumbrance of any of the lessees’ rights or interests
in the lease or the Floor Plan Unit, and (4) must be for a term of not more
than 12 months.  Each lease of a Floor
Plan Unit pursuant to the Program shall be made pursuant to the terms and
conditions of a form of lease that has been approved in advance in writing by
the Agent.




(c)           Reports.  In its daily report to the Agent, the
Company shall identify for the Agent (by notation or otherwise) all Floor Plan
Units leased under the Program.


 


(d)           Certificates of
Title.  The Company shall
direct the Florida Department of Motor Vehicles to note the lien of the Agent
on each title certificate issued or outstanding with respect to a Floor Plan
Unit leased pursuant to the Program and shall promptly deliver the original
certificate of title for each such Floor Plan Unit to the Agent.


 


(e)           Original Leases.  The Company immediately shall affix the following
legend to the cover page of each lease and, upon request of the Agent, shall
deliver each original lease to the Agent:


 


Lessor has granted a security
interest in the recreational vehicle/towable subject to this Lease and every
right to payment with respect to this Lease (including without limitation every
account, account receivable, instrument, note, draft, acceptance, document, and
chattel paper) to Bank of America, N.A., as Agent.  This Lease and all payments and proceeds of this Lease have been
assigned to Bank of America, N.A., as Agent. 
No further transfer or disposition of the Lease or any payments or
proceeds associated 


 


 


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Exhibit 10.26


 


 


 


with this Lease is permitted.  Any transfer of this Lease or any payments
or proceeds associated with this Lease will violate the Second Amended and
Restated Security Agreement executed by Lazy Days’ R.V. Center, Inc. in favor
of Bank of America, N.A., as collateral agent, as amended, modified, and
restated from time to time.


 


The Company shall not retain
any copies of any lease without the foregoing legend.


 


(h)           Agent’s Lien.  The Company acknowledges that the Agent and
Lenders will permit the lease of Floor Plan Units financed with the Floor Plan
Credit solely as provided in this Amendment, but do not release their interests
in the Floor Plan Unit, Receivables, or otherwise.  The Company shall not transfer or attempt to transfer, directly
or indirectly, any other interest in any Floor Plan Unit leased pursuant to the
Program, expect as provided in this Amendment, or any lease, right to payment,
or other property associated with any Floor Plan Unit leased pursuant to the
Program.


 


(i)            Insurance.  During any period of time in which the
Company is leasing Floor Plan Units to Lessees pursuant to the Program, the
Company shall maintain, in addition to the insurance required by the Agreement,
lessor liability coverage in an amount equal to at least $1,000,000 per Floor
Plan Unit that is leased.


 


                5.             General
Provisions.


 


(a)           Sub-limits.  Section 1.1 of the Agreement is amended to
add the following text to the end of that section:


 


Each Borrowing of Loans
under the Program shall be advanced against individual Floor Plan Units on a
specific identification basis and will be subject to all the limits specified
in this Section.  Additionally, the
aggregate principal amount of Loans outstanding and representing Borrowings
advanced against Floor Plan Units sold to FEMA shall not at any time exceed
$5,000,000.  Further, the aggregate
principal amount of Loans outstanding and representing Borrowings advanced
against Floor Plan Units leased under the Program shall not at any time exceed
$5,000,000 and each Borrowing against a particular Floor Plan Unit shall not at
any time exceed $35,000.


 


(b)           Reports.  Each month during the term of this Amendment
and until all Borrowings pursuant to the Program have been paid in full, the
Company shall deliver to the Agent a monthly report of (1) Floor Plan Units
sold for which payment is still outstanding, and (2) Floor Plan Units that are
leased as part of the Program.  Those
reports will include VIN, purchaser/lessee, purchase price/lease payments, and
lease term.   Additionally, all listings
of assets delivered to the Agent or the Lenders pursuant to the Agreement must
clearly identify the Floor Plan Units that are subject to the Program.


 


(c)           Expenses.  The Company will pay all expenses incurred
by the Agent and the Lenders in negotiating, documenting, and administering the
Program and this Amendment.


 


 


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Exhibit 10.26


 


 


 


                (d)           Representations
and Warranties.  The
Company reaffirms the representations and warranties in the Agreement, as of
the date of this Amendment. 
Additionally, the Company represents and warrants to the Agent and the
Lenders that (a)  its implementation of
the Program as provided by this Amendment will comply with all laws,
ordinances, and governmental rules or regulations to which it is subject, and
that the Company has obtained and will maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to implement the Program, (b) this Amendment has been duly authorized
by all necessary corporate action on the part of the Company and 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 applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors’ rights generally and
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at
law), and (c) the execution, delivery, and performance by the Company of this
Amendment and the implementation and operation of the Program will not (i)
contravene, result in any breach of, or constitute a default under, or result
in the creation of any Lien (other than under the Security Documents and Liens
securing the WF Credit Facilities permitted by Section 10.9 of the Agreement)
in respect of any Property of the Company under, any indenture, mortgage, deed
of trust, loan, purchase or credit agreement, lease, corporate charter or
bylaws, or any other agreement or instrument to which the Company is a party or
by which the Company or any  of its Properties may be bound or
affected, (ii) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to the Company, or (iii)
violate any provision of any statute or other rule or regulation of any
Governmental Authority known to be applicable to the Company.


 


(e)           Leases
of Floor Plan Unit Generally. 
The Company will not lease any Floor Plan Units financed by the Floor
Plan Credit other than as provided in this Amendment.


 


(f)            Confirmations.  Agent, the Lenders, and the Company confirm
that sales of Floor Plan Units to FEMA and leases of Floor Plan Units to
Lessees in accordance with the terms of the Agreement, as amended by this
Amendment, will not violate section 10.13 of the Agreement, and that,
notwithstanding that the definitions of “New Floor Plan Units” and “Used Floor
Plan Units” in the Agreement require that the Units be located at Lazy’ Day’s
Seffner, Florida, location, the Floor Plan Units sold or leased through the
Program still constitute Floor Plan Units as long as they meet all the other
requirements of the Agreement, as amended by the Amendment.


 


(g)           Schedule
B.  Schedule B of the
Agreement is amended to add the following definitions:


 


“FEMA” means the
United States Federal Emergency Management Agency and any successor agency.


 


“Lessees” means the
entities to which the Company leases Floor Plan Units pursuant to the terms and
conditions of Amendment No. 1 to the Agreement, dated as of October 28,
2004, for use of those units as temporary housing for persons affected by
hurricanes in the State of Florida.


 


 


4

















Exhibit 10.26


 


 


 


“Program” means the
sales and leasing program described in Amendment No. 1 to the Agreement, dated
as of October 28, 2004, for use of Floor Plan Units as temporary housing
for persons affected by hurricanes in the State of Florida.


 


5.             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. 
Except as amended by this Amendment, the Agreement remains in full force
and effect.


                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.


 


	
   

  	
  Lazy Days’
  R.V. Center, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Charles L. Thibault

  
	
   

  	
   

  	
  Charles L. Thibault, Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  Bank of
  America, N.A.  (as successor by

  
	
   

  	
  merger to Banc of America Specialty

  
	
   

  	
  Finance, Inc.), as Administrative Agent,

  
	
   

  	
  as Collateral Agent, and as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KeyBank
  National Association, as

  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


 


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