exhibit1047.htm


    
      

      

    

    


      Exhibit
10.47

      


      AMENDMENT
NO. 5

      TO

      THIRD
AMENDED AND RESTATED CREDIT AGREEMENT

       

      This
Amendment No. 5 to Third Amended and Restated Credit Agreement (this “Amendment”)
is executed as of December 31, 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, amended January 14, 2008, as amended April
14, 2008, as amended August 30, 2008, and as amended September 1, 2008 (the
“Credit
Agreement”).

       

      1.    Purpose.  The
purpose of this Amendment is to (a) amend Sections 1.1(a) and 2.1 of the Credit
Agreement, (b) amend Schedule A to the
Credit Agreement, and (c) to delete the definition of “Change Date”, to add the
definition of “Adjustment
Date”, to add the definition of “C-Level Management”, and to amend the
definitions of “Current
Liabilities” and “LIBOR
Rate” listed on Schedule B to the
Credit Agreement.

       

      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 Credit Agreement, and those definitions are incorporated by reference into
this Amendment.

       

      3.     Amendment to Section 1.1(a)
of Credit Agreement.  Section 1.1(a) of the Credit Agreement is
hereby deleted in its entirety and replaced as follows:

       

      Section 1.1. Floor Plan
Credit.   (a) General Terms. Subject to the
terms and conditions hereof, each Lender severally agrees to extend a revolving
line of credit (the “Floor
Plan Credit”) to the Company that may
be availed of by the Company from time to time during the period from and
including the date hereof to but not including the Termination Date, at which
time the commitments of the Lenders to extend credit under the Floor Plan Credit
shall expire. The maximum amount of the Floor Plan Credit that each Lender
agrees to extend to the Company shall be as set forth opposite such Lender’s
name on Schedule
A hereto under the heading “Floor Plan Commitment”, as
such amount may be reduced pursuant hereto (collectively for all Lenders, the
“Floor Plan
Commitments”). Notwithstanding
anything in this Agreement, the Notes, or otherwise to the contrary, the
aggregate maximum Floor Plan Commitment through March 31, 2009, will be
$90,000,000, and the aggregate maximum Floor Plan Commitment thereafter will be
$80,000,000, with each Lender’s respective Floor Plan Commitment for those time
periods as specified on Schedule
A.

      


      The Floor
Plan Credit shall be utilized by the Company solely for the purchase of new or
used Floor Plan Units and for Reflooring Borrowings hereinafter referred to and
shall be in the form of loans (individually, a “Floor Plan Loan” and collectively, the
“Floor Plan
Loans”); provided
that (a) the aggregate principal amount of Floor Plan Loans outstanding
at any one time shall not exceed the Floor Plan Commitments (as the same may be
reduced pursuant to this Section 1.1(a) and Section 8.3) minus the aggregate
Unfunded Approved Amounts then outstanding, (b) the aggregate principal amount
of Floor Plan Loans then outstanding and representing Borrowings advanced
against Eligible Used Floor Plan Units referred to in clauses (ii) and (iii)
below (including Reflooring Borrowings made against Eligible Used Floor Plan
Units) shall not at any time exceed $26,000,000, (c) the aggregate principal
amount of Floor Plan Loans outstanding and representing Borrowings advanced
against Floor Plan Units sold to the U.S. Government shall not at any time
exceed $8,000,000, (d) the aggregate principal amount of Floor Plan Loans
outstanding and representing Borrowings advanced against Floor Plan Units leased
under the Program shall not at any time exceed $2,000,000, and (e) each
Borrowing against a particular Floor Plan Unit that is leased under the Program
shall not at any time exceed $35,000.

      


      Each Borrowing of Floor Plan Loans
shall be advanced against individual Floor Plan Units on a specific
identification basis, with each Borrowing against an:

      


      (i)           Eligible
New Floor Plan Unit to be equal to 100% of the face amount manufacturer invoice
(including freight charges), as specified by the applicable manufacturer to the
Agent of such Eligible New Floor Plan Unit;

       

      


      (ii)            Eligible
Used Floor Plan Unit that is of the then current model year or the previous
seven model years to be equal to the lesser of (x) the actual purchase price of
such Floor Plan Unit and (y) 85% of the low wholesale value (as determined by
reference to the most recently published National Automotive Dealers Association
R.V. Industry Appraisal Guide or, if such guide is no longer published, such
comparable report or source of information reasonably designated by the Agent)
of such Eligible Used Floor Plan Unit; and

      


      (iii)           Eligible
Used Floor Plan Unit that is of the previous eighth, ninth, or tenth model year
to be equal to the lesser of (x) the actual purchase price of such Floor Plan
Unit, and (y) 65% of the low wholesale value (as determined by reference to the
most recently published National Automotive Dealers Association R.V. Industry
Appraisal Guide or, if such guide is no longer published, such comparable report
or source of information reasonably designated by the Agent) of such Eligible
Used Floor Plan Unit.

      


      Each
Borrowing of Floor Plan 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.

      


      4.    Amendment to Section 2.1 of
Credit Agreement.  Section 2.1 of the Credit Agreement is
hereby deleted in its entirety and replaced as follows:

       

      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 a rate equal
to the Adjusted LIBOR Rate or, if the Lenders determine that the LIBOR Rate at
any time is unavailable, at a rate equal to the Adjusted Prime
Rate.  For purposes of this Agreement, (a) “Adjusted LIBOR Rate” means
the total of the LIBOR Rate plus 4.25% (if the Current Ratio for the immediately
preceding calendar month is 1.30 or greater) or the LIBOR Rate plus 4.50% (if
the Current Ratio for the immediately preceding calendar month is less than
1.30), and (b) “Adjusted Prime
Rate” means the total of the Prime Rate plus a margin to be determined by
the Lenders from time to time in their sole discretion.

       

      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 month (the “Adjustment Date”) and remain
fixed until the next Adjustment Date.  If the Adjustment Date in any
particular month would otherwise fall on a day that is not a Business Day then,
at the Agent’s option, the Adjustment Date for that particular month will be the
first Business Day immediately following thereafter.  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.

       

      5.           Amendment to Schedule A of
Credit Agreement.  Schedule A to the
Credit Agreement is replaced in its entirety with the Schedule A attached
to this Amendment.

       

      6.           Amendments to Schedule B of
Credit Agreement.  Schedule B of the
Credit Agreement is amended as follows:

       

      (a)           The
definition of “Change
Date” on Schedule B to the
Credit Agreement is deleted.

       

      (b)           The
following definitions of “Adjustment Date” and “C-Level Management” are
added in alphabetical order to the list of defined terms on Schedule
B:

       

      “Adjustment Date” is defined
in Section 2.1.

       

      “C-Level Management” means
the Chief Executive Officer and the Chief Financial Officer or the substantive
equivalent thereof.

       

      (c)           The
definition of “Current
Liabilities” on Schedule B to the
Credit Agreement is hereby deleted and replaced in its entirety as
follows:

       

      “Current Liabilities” is to
be calculated in accordance with GAAP, except that unearned income and deferred
rent are to be excluded and the following amounts are to be included: (a) 40% of
the Company’s LIFO reserve, (b) to the extent not duplicative of inclusions in
accordance with GAAP, Current Maturities of Funded Debt, and (c) amounts due to
officers, directors, shareholders, employees, and Affiliates of the Company
(unless specifically subordinated to Lenders in a writing acceptable to the
Lenders (in their sole discretion)).  Additionally, so long as the
Company does not reduce the outstanding principal balance of any of the New
Notes by paying any cash to the holders of the New Notes (directly or
indirectly) or pay the accrued and unpaid interest under the New Notes in cash,
no portion of the payments due under the New Notes will be included in Current
Liabilities to the extent, and only to the extent, that they would be classified
as long-term liabilities in the absence of a default under the New Notes (as
defined in the New Notes).

       

      (d)           The
definition of “LIBOR Rate”
on Schedule
B to the Credit Agreement is hereby deleted and replaced in its entirely
as follows:

       

      “LIBOR Rate” means the rate
of interest equal to the rate per annum equal to the British Bankers Association
LIBOR Rate (the “BBA
LIBOR”), as published by Reuters (or other commercially available source
providing quotations of BBA LIBOR, as selected by the Agent from time to time)
as determined for each Adjustment Date at approximately 11:00 a.m. London time
two (2) London Banking Days before the Adjustment Date, for U.S. Dollar deposits
(for delivery on the first day of such interest period) with a term of one
month; as adjusted from time to time in the Agent’s sole discretion for reserve
requirements, deposit insurance assessment rates, and other regulatory
costs.  For purposes of the definition of LIBOR Rate, a “London Banking Day” is a day
on which banks in London are open for business and dealing in offshore
dollars.

       

      7.          General Amendments to Credit
Agreement.

       

      (a)   Cash
Outlays.  Notwithstanding anything to the contrary in the
Credit Agreement or any other Financing Document and until otherwise approved in
writing by all the
Lenders, the Company (i) shall not make any Maintenance Capital Expenditures or
Expansion Capital Expenditures that, in the aggregate,
exceed  $1,000,000 per calendar year, (ii) shall defer and shall not
make (but shall accrue) any payments under the Management Agreement or pay any
other management fees and expenses, (iii) shall not pay any cash bonuses to
C-Level Management of the Company, (iv) shall not increase the salaries or other
compensation of any of its C-Level Management employees, and (v) shall not
declare or make, or incur any liability to declare or make, any
Distributions.   A violation of any of the foregoing covenants
will constitute an Event of Default under the Credit Agreement and the other
Financing Documents.

       

                  (b)   Additional Event of
Default.  Notwithstanding anything to the contrary in the
Credit Agreement or any other Financing Document, in addition to any other event
or condition defined as an “Event of Default” in the
Credit Agreement or any other Financing Document, an “Event of Default” will exist
under the Credit Agreement and the other Financing Documents if, before March
31, 2009 (the “New Note
Deadline”), the Company has not fully cured its failure to pay the
November 15, 2008, interest payment under the New Notes and all other breaches,
defaults, and events of default under the New Notes and the
Indenture.  By letter agreement to the Company that is executed by all
the Lenders (which is incorporated by reference), the Lenders may extend the New
Note Deadline, in their sole discretion, from time to time in up to 30-day
increments.  The Lenders and the Agent are under no obligation to the
Company or any other Person, however, to extend the New Note Deadline beyond
March 31, 2009.

       

       (c)   Suspension of Reflooring
Borrowings.  Notwithstanding anything in this Amendment, the
Credit Agreement, or any other Financing Document to the contrary, until
otherwise approved in writing by all the Lenders, the Company may not engage in
any Reflooring Borrowing.

       

      8.           Affirmations;
Representations and Warranties of the Company.  The Company
confirms to the Lenders and the Agent that (a) except as the Company has
otherwise  notified the Lenders in writing, 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) 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).

       

      The
Company acknowledges that, if the payments due under the Notes and Indenture are
accelerated or the holders of the Notes or the Trustee under the Indenture
otherwise exercise any rights or remedies under the Notes or the Indenture, the
Agent and the Lenders may exercise all rights and remedies available to them
under the Credit Agreement and the other Financing Documents, including without
limitation declaring an Event of Default under the Credit Agreement and the
other Financing Documents and ceasing to fund or limiting the amount of funding
permitted under the Credit Agreement.  Nothing in this Amendment
(including without limitation the revision to the definition of “Current Liabilities”)
affects or should be construed to affect the rights and remedies of the Agent
and the Lenders.  The Lenders and the Agent do not waive, and nothing
in this Amendment should be construed as a waiver of, any of their respective
current or future rights or remedies under the Credit Agreement.  The
Lenders and the Agent reserve all of their respective current and future rights
and remedies under the Credit Agreement.

       

      Additionally,
the Company represents and warrants to the Agent and the Lenders
that:

       

      (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
Credit 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).

       

      9.           Funding.  The
Lenders hereby confirm that the failure to make the approximately $8 million
payment of interest (the “Interest
Payment”) that was due November 15, 2008, under the New Notes within the
30-day grace period provided by the New Notes, alone, will not impair the
Company’s continuing ability to borrow before the New Note Deadline or give rise
to the application of the Overdue Rate, under the Credit Agreement, so long as
payments under the New Notes are not accelerated, the holders of the New Notes
do not otherwise exercise any rights or remedies under the terms of the New
Notes and the related Indenture based on a breach, default, or event of default
under the New Notes or the Indenture (whether based on the failure to make the
Interest Payment or otherwise), and no other condition exists that would
constitute a breach, default, or Event of Default under the Credit Agreement or
other Financing Documents. The Company acknowledges that, if the payments due
under the New Notes and Indenture are accelerated or the holders of the New
Notes otherwise exercise any rights or remedies under the New Notes or the
Indenture, the Agent and the Lenders may exercise all rights and remedies
available to them under the Credit Agreement and the other Financing Documents,
including without limitation declaring an Event of Default under the Credit
Agreement and the other Financing  Documents and ceasing to fund or
limiting the amount of funding permitted under the Credit
Agreement.

       

      10.           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
December 31, 2008, when (a) the Agent shall have received a signature page to
this Amendment from each of the parties to this Amendment, (b) the Company shall
have paid all fees, costs, and expenses of counsel to the Agent and the Lenders,
(c) the Company has delivered to the Lenders a fully executed copy of its
forbearance agreement with the holders of the New Notes, and (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.

       

      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.

      


      


      By:           /s/ Randy
Lay_________________

      Randy Lay, 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:           Joe
Sagneri___________________

      Its:           Senior Vice
President____________

      


      


      KEYBANK NATIONAL ASSOCIATION,
as Lender

      


      


      By:           Brian
McDevitt________________

      Its:           Vice
President_________________

      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      Schedule
A

      (Revised
December 31, 2008)

       to

      Third
Amended and

      Restated
Credit Agreement

      


      NAME AND
ADDRESS OF LENDERS

      


      Notices:                                                Bank
of America, N.A.

      (successor by merger to Banc of
America Specialty Finance, Inc.)

      1355
Windward Concourse

      Alpharetta,
GA 30005-8899

      Attention:  Joe
Sagneri

      Telecopier
No.: (678) 339-9120

      


      Payments:                                            
Account No.: 375 320 7600 (re: LAZY DAYS R.V. CENTER,

      INC.)

      ABA No: 1110000012

      


      Floor
Plan
Commitment:                      January
1, 2009, through March 31, 2009 – $47,700,000

      April 1, 2009 through Termination Date
– $42,400,000 

      


      Revolving
Line of

          Credit
Commitment:                        
$7,941,000

                                                                                                     
____________________

      


      Notices:                                                KeyBank
National Association

      Mailcode: OH-01-49-0422

      4900 Tiedeman Road

      Brooklyn, OH 44144

      Attention: Brian McDevitt, Key
Recreation Lending

      Telecopier No.: (216)
813-6414

      


      Payments:                                             Account
No.: 3057 (re: LAZY DAYS R.V. CENTER, INC.)

      ABA No: 041001039

      


      Floor
Plan
Commitment:                      January
1, 2009, through March 31, 2009 – $42,300,000

      April 1, 2009 through Termination Date
– $37,600,000

      


      Revolving
Line of

          Credit
Commitment:                         $7,059,000

      


      Notices
with respect

      to
payments:                                        KeyBank
National Association

      Specialty Finance Service

      Reference: Lazy Days’ R.V. Center,
Inc.

      Attn: Wavia Jones