Exhibit
10.27


 


 


COLLATERAL ASSIGNMENT OF LEASES


 


This 
Collateral Assignment of Leases (this “Assignment”), dated as of October 28, 2004, is executed by Lazy Days’ R.V.
Center, Inc., a Florida corporation (the “Company”),  with its mailing address at
6130 Lazy Days Boulevard, Seffner, Florida 33584-2968, and Bank of America, N.A. (as successor by
merger to Banc of America Specialty Finance, Inc.), as collateral agent
(herein, together with its successors in trust under the Second Amended and
Restated Floor Plan Collateral Agency Agreement originally dated as of July 15,
1999, as amended and restated as of July 31, 2002, and as amended and restated
as of May 14, 2004 (the “Agent”)), with its mailing address at 1355 Windward
Concourse, Alpharetta, Georgia 30005-8899, Attention: Joe Sagneri.


 


Background


 


A.           Except as
expressly provided in this Assignment, all capitalized terms used in this
Assignment have the meanings ascribed to them in the Second Amended and Restated Floor Plan 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, and as amended on October 28, 2004 (the “Credit Agreement”).  All terms that are used in this Assignment
that are defined in the Uniform Commercial Code of the State of New York (“UCC”)  have
the meanings ascribed to them in the UCC, unless this Assignment otherwise
specifically provides.


 


B.            The
Credit Agreement provides for the Lenders severally to make Loans or otherwise
extend credit to the Company on the terms and subject to the conditions set
forth in the Credit Agreement.


 


C.            The
Company desires to amend the Credit Agreement to permit the Company to finance
with the Floor Plan Credit the purchase of Eligible New Floor Plan Units that
would be sold by the Company to the Federal Emergency Management Agency or
leased by the Company to certain non-governmental entities in accordance with
the terms and conditions of the Credit Agreement, as amended by Amendment No. 1
to the Credit Agreement.  It is a condition
precedent to the effectiveness of that amendment, and the obligations of the
Lenders to extend credit to the Company thereunder, that the Company enter into
this Assignment.


 


D.            The
Company has determined that the execution and delivery of this Assignment is in
furtherance of its corporate purposes and in its best interest and that it will
derive substantial benefit, whether directly or indirectly, from the execution
of this Assignment, having regard for all relevant facts and circumstances.


 


Operative Terms


 


                The
parties acknowledge the facts and agree to the understandings described in the
background section of this Assignment, and agree as follows:


 


             1.             Collateral
Assignment.  As security for the prompt payment and
performance of all the Obligations, the Company hereby collaterally assigns to
the Agent, for the benefit of the Lenders, all of the Company’s right, title,
and interest in (collectively, the “Lease Collateral”): 
(a) all leases of Floor Plan Units pursuant to the Program, including
without limitation every extension and renewal of the Leases and all the
Company’s rights to amend, modify, or terminate the terms of each Lease, to
waive or release any person from the performance of any obligation under any
Lease, and to assign the Company’s rights under the Lease (collectively, the “Leases”); (b) all
deposits and similar items provided by the lessees of each Lease pursuant to
the Lease; and (c) all rents, income,


 


 


1

















Exhibit
10.27


 


 


 and profits
(including payments made under any option to purchase the Floor Plan Unit)
arising from the Leases and all proceeds of the Leases.


 


             2.             No
Assumption of Obligations.  The parties confirm that, by accepting this
Assignment, neither the Agent nor any of the Lenders has assumed any
responsibility or obligation relating to the Lease Collateral.  The Company shall indemnify and hold the
Agent and each of the Lenders harmless from all costs, losses, expenses,
damages, and liabilities (including attorneys’ fees) that the Agent or any of
the Lenders incurs in connection with holding or disbursing the Lease
Collateral and otherwise as provided in the Credit Agreement.


 


             3.             Representations
and Warranties.  The Company represents and warrants to the
Agent and the Lenders that: 
(a) the Company is the sole owner of the Lease Collateral
(including all the leasehold rights created by the Leases), free and clear of
all Liens (except the security interest created by this Assignment and Liens
expressly permitted by the Credit Agreement); (b) the Company has the full
power and right to pledge, assign, and grant a security interest in the Lease
Collateral to the Agent in accordance with this Assignment and will defend its
title or interest in the Lease Collateral against any and all Liens (other than
Permitted Liens); and (c)  no action has been brought or threatened that
would interfere with the Company’s right to execute this Assignment and perform
all its other obligations under the Leases and this Assignment.


 


             4.             Covenants.  The Company covenants that it
shall: (a) prosecute or defend any action arising from any Lease; (b)
permit the Agent on demand to examine and inspect the Leases (and each
modification or amendment to each Lease) at any time and from time to time; (c) promptly
notify the Agent of any written claim of default under any Lease;
(d) enforce, at the Company’s expense, the performance of each material
term, covenant, and condition of each Lease; 
(e) deliver to the Agent, at the Agent’s request, an executed copy
(and each authorized amendment or modification) of each Lease; (f) promptly pay
when due all taxes and assessments on the Leases, the underlying Floor Plan
Units, or this Assignment; (g) not release any person from the performance
of the person’s obligations under any Lease or terminate, cancel, amend, or
modify any Lease without Agent’s advance written consent; (h) refrain from
modifying, supplementing, replacing, or amending any of the terms of the Leases
or agree to or consent to any subletting under any Lease (whether or not in
accordance with its terms); (i) fully perform every term, covenant, and
condition required of the Company by the Leases and indemnify the Agent and the
Lenders and hold them harmless from the consequences of the Company’s failure
to do so; and (j) not borrow on the security of the Lease Collateral or grant a
Lien on, or assign, transfer, pledge, or in any way dispose of or encumber any
interest in, any of the Lease Collateral.


 


             5.             Perfection
of Security Interest.  To perfect the Agent’s security interest in
the Lease Collateral, the Company shall hold in trust for  the Agent the properly executed original
(and each original, fully executed modification or amendment) of each Lease
executed by the Company and the lessee. 
At any time, the Agent may take possession of all Leases (and
modifications and amendments to them).  
In addition, from time to time at the request of the Agent, the Company
shall execute such financing statements and other documents (and pay the cost
of filing and recording the same in all public offices and places considered
necessary or desirable by the Agent) and do such other acts and things as the
Agent may request to establish and maintain valid perfected security interest
in the Lease Collateral, free from all Liens (other than Permitted Liens).


 


             The
Company represents and warrants to the Agent that there is not on file in any
public office a financing statement covering any of the Lease Collateral,
except in favor of the Agent and except as disclosed and permitted by this
Assignment and the Credit Agreement. 
The Company 


 


 


2

















Exhibit
10.27


 


 


authorizes the Agent to file, in jurisdictions
where this authorization will be given effect, a financing statement filed only
by the Agent and describing the Lease Collateral.


 


             6.             Default
and Remedies.  The occurrence of any Event of Default under
the Credit Agreement constitutes a “Default” under this Assignment.  Upon the occurrence of a Default, the Agent
may (but is not obligated to): 
(a) exercise all the remedies available to the Agent under the UCC
and the Financing Documents; (b) sue in the Company’s name or in the
Agent’s name to enforce, or perform in the Company’s or the Agent’s name the
Company’s rights under, the Leases (including the Company’s rights to ask,
require, and receive any deposit or other money that may become due or owing to
the Company thereunder) and apply any proceeds collected against costs and
expenses, including reasonable attorneys’ fees, of fulfilling the Company’s
obligations under the Leases; (c) perform the Company’s obligations under
any Lease; and (d) defend, in the Company’s or the Agent’s name, any
action affecting any Lease.  The Company
irrevocably appoints the Agent as its attorney-in-fact to, after a Default,
demand, receive, and enforce payment of, or to enforce the performance of all
obligations under each Lease, either in the name of the Agent or the Company,
with the same force and effect as the Company could do if this Assignment were
not made.


 


             The
Company shall promptly pay all costs incurred by the Agent in its efforts to
collect any of the Obligations and to enforce any of its rights under this
Assignment, including attorneys’ fees and expenses.  Neither the Agent nor any Lender is liable for any losses
sustained by the Company resulting from the Agent’s failure to perform on
behalf of the Company any obligation under the Leases or for any other act or
omission of the Agent or Lenders relating to the Lease Collateral unless the
loss is caused by the gross negligence or willful misconduct of the Agent.  The Agent is not obligated to perform or
discharge any duty or obligation of the Company under the Leases.  In addition, the Company releases the Agent
and shall indemnify and hold it harmless from and against all costs, loss,
damage, expense, and liability (including attorneys’ fees and expenses in
defraying or settling any claims) that are incurred by the Agent under any
Lease or by reason of this Assignment. 
All amounts for which the Agent is entitled to indemnification from the
Company are secured by this Assignment, and the Company shall reimburse the
Agent for those amounts upon demand by the Agent.  Neither the Agent’s performance of the Company’s obligations nor
the Agent’s enforcement of the Company’s rights under the Leases shall
constitute a cure of the Company’s Default.


 


             7.             Miscellaneous.  The validity, interpretation,
construction, and enforceability of this Assignment are governed by the laws of
the State of New York, excluding the laws of that state governing the
resolution of conflicts with the laws of other jurisdictions.  Wherever possible, each provision of this
Assignment should be construed and interpreted so that it is valid and
enforceable under applicable law. 
However, if a provision of this Assignment is held by a court to be
invalid or unenforceable under applicable law, that provision will be deemed
separable from the remaining provisions of this Assignment and will not affect
the validity, interpretation, or effect of the other provisions of this
Assignment or the application of that provision to other circumstances in which
it is valid and enforceable.  When any
provision of this Assignment requires or prohibits action to be taken by a
person, the provision applies regardless of whether the action is taken
directly or indirectly by the person.


 


             Time
is of the essence of this Assignment. 
This Assignment will become effective as of its stated date of
execution.  A waiver, amendment,
modification, or termination of this Assignment will be valid and effective
only if it is in writing and signed by each party.  In addition, a written waiver by the Agent of a Default under any
provision of this Assignment will not operate as a waiver of any other Default
or of a succeeding Default under the same provision or as a waiver of 


 


 


3

















Exhibit
10.27


 


 


the provision itself.  A delay, omission, or course of dealing on the part of the Agent
in exercising any right, power, or remedy will not operate as a waiver of it,
except when this Assignment expressly requires the right, power, or remedy to
be exercised within a specified time, and a single or partial exercise by the
Agent of any right, power, or remedy does not preclude any further exercise of
it or the exercise of any other right, power, or remedy.  The exercise or nonexercise by the Agent of
any of the rights granted in this Assignment does not constitute a waiver of
any default by the Company under this Assignment.  This Assignment inures to the benefit of the Agent’s assignees
and successors and is binding on the Company’s assignees and successors.  This Assignment will terminate upon the
satisfaction in full of all the Obligations (other than contingent indemnification
obligations and expense reimbursement obligations to the extent those expenses
and obligations have not yet been incurred).


 


In Witness Whereof, the parties have caused this Assignment to be duly executed as of the
date first above written.


 


 


	
   

  	
  Lazy Days’ R.V. Center, Inc.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles L. Thibault

  
	
   

  	
   

  	
  Name:

  	
  Charles L. Thibault

  
	
   

  	
   

  	
  Title:

  	
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  Bank of America, N.A., as
  Agent

  
	
   

  	
  (as successor by
  merger to Banc

  
	
   

  	
  of America Specialty
  Finance, Inc.)

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 


 


 


 


4