AMENDMENT NO. 3 TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT
NO. 3
TO
THIRD
AMENDED AND RESTATED CREDIT AGREEMENT
This
Amendment No. 3 to Third Amended and Restated Credit Agreement (this “Amendment”)
is executed as of August 30, 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, and amended
April 14, 2008 (the “Credit
Agreement”).
1. Purpose. The
purpose of this Amendment is to amend Sections 1.1(a), 1.1(g), 2.1, 3.2, 3.6,
4.4, 10.2, and 10.4 of the Credit Agreement, to add a new Section 10.29 to the
Credit Agreement, to amend Schedule A to the
Credit Agreement, and to add a new definition to 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. Amendments to Credit
Agreement.
(a) 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
$100,000,000, 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 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.
(b) Section
1.1(g) of the Credit Agreement is hereby deleted in its entirety and replaced as
follows:
(g) Request for Increased Floor Plan
Credit Commitments. At any time after March 31, 2009, and
before the Termination Date, the Company may request in writing that the Lenders
increase the aggregate Floor Plan Credit Commitments from $80,000,000 to
$100,000,000. The Lenders may make that decision in their sole
and absolute discretion and, if they elect to increase the Floor Plan
Commitments, may impose any conditions precedent to that increase that they
determine are advisable, necessary, or appropriate. Nothing in this
Agreement, any other Financing Document, or otherwise commits the Lenders to
increase the Floor Plan Credit Commitments or entitles the Company to any
increase in the Floor Plan Commitments at any time.
(c) 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) an
Adjusted LIBOR Rate per annum equal to the LIBOR Rate plus 2.25% (if the Current
Ratio for the immediately preceding calendar month is 1.30 or greater) or the
LIBOR Rate plus 2.50% (if the Current Ratio for the immediately preceding
calendar month is less than 1.30) for the period beginning September 1, 2008,
and ending June 30, 2009, and (b) thereafter 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.
For each calendar quarter beginning
July 1, 2009, 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.
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 for the period beginning July 1, 2009, through June 30, 2010,
plus .25% 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 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), and for the period beginning July 1, 2009, through June 30, 2010,
plus .25% if the
Current Ratio for the immediately preceding calendar month is less than
1.30.
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.
For the
period beginning on July 1, 2009, and thereafter:
(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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Less
than 1.25
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2.25%
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-.10%
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Greater
than or equal to 1.25, but less than 1.35
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1.90%
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-.45%
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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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*plus
..25% if the Current Ratio for the immediately preceding calendar month is less
than 1.30 during the period July 1, 2009, through June 30, 2010.
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.
(d) Section
3.2 of the Credit Agreement is hereby deleted in its entirety and replaced as
follows:
Section 3.2. Unused Floor Plan Line
Fee. For the period from and including September 1, 2008,
through June 30, 2010, the Company shall pay to the Agent for the benefit of the
Lenders an unused floor plan line fee at a per annum rate equal to .20%
(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. For the period from and including July 1,
2010, 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:
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.
(e)
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Section
3.6 of the Credit Agreement is deleted and replaced in its entirety as
follows:
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Section 3.6 Unused Revolving Credit
Line Fee. For the period from and including July 1, 2008,
through September 30, 2008, the Company shall pay to the Agent for the benefit
of the Lenders an unused revolving credit line fee at a per annum rate equal to
..20% (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 the
Lender’s Revolving Line of Credit Commitment. For the period from and
including October 1, 2008, to but not including the Termination Date, the
Company shall pay to the Agent for the benefit of the Lenders an unused
revolving credit line fee at a per annum rate equal to .30% (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 the Lender’s Revolving Line of
Credit Commitment. That unused line fee will be computed on and
payable quarterly in arrears on the last day of each calendar quarter
(commencing July 1, 2008), and on the Termination Date. The Agent
shall provide the Company with a statement showing the calculation of the fee in
reasonable detail at the time of the invoicing of the fee.
(f)
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Section
4.4 of the Credit Agreement is hereby deleted in its
entirety.
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(g)
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Section
10.2 of the Credit Agreement is hereby deleted and replaced in its
entirety as follows:
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Section
10.2 Interest Coverage Ratio. The Company is not subject
to any minimum Interest Coverage Ratio for the period beginning August 1,
2008, through June 30, 2009. Thereafter, the Company will not
permit the Interest Coverage Ratio at the end of the each calendar month
to be less than: (a) 1.00 for each of the full calendar months
beginning July 1, 2009, and through September 30, 2009; (b) 1.05 for each
of the calendar months beginning October 1, 2009, through December 31,
2009; (c) 1.10 for each of the full calendar months beginning January 1,
2010, through March 31, 2010; (d) 1.15 for each of the full calendar
months beginning April 1, 2010, through June 30, 2010; and (e) 1.25 for
any calendar month thereafter.
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(h)
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Section
10.4 of the Credit Agreement is hereby deleted and replaced in its
entirety as follows:
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Section
10.4 Current Ratio. During the period beginning on
September 1, 2008, and ending June 30, 2010, the Company will not permit
the Current Ratio at the end of each calendar month to be less than
1.25. During the period beginning July 1, 2010, the Company
will not permit the Current Ratio (a) at the end of any 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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(i)
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A
new Section 10.29 is added to the Credit Agreement immediately after
Section 10.28:
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Section 10.29 Working
Capital. During the period beginning September 1, 2008,
through June 30, 2010, the Company shall not permit its Working Capital at the
end of any calendar month to be less than $26,000,000.
(j)
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Schedule
A to the Credit Agreement is replaced in its entirety with the Schedule A
attached to this Amendment.
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(k)
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A
definition of “Working
Capital” is added to Schedule B to the Credit Agreement in the
appropriate place in alphabetical
order:
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“Working Capital” means the
amount by which Current Assets exceeds Current Liabilities as of the end of any
calendar month.
4. 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:
(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).
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. 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
August 30, 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 to the Agent an amendment fee of $250,000.00, (c) the Company shall have
paid all fees, costs, and expenses of counsel to the Agent and the Lenders, 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/ Xxxxx
Xxx
Xxxxx Xxx, 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: /s/ Xxx
Xxxxxxx
Its: Senior Vice
President
KEYBANK NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxxxx
XxXxxxxx
Its: Vice
President
Schedule
A
(Revised
August 30, 2008)
to
Third
Amended and
Restated
Credit Agreement
NAME AND
ADDRESS OF LENDERS
Notices:
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Bank of America, N.A.
(successor by merger to Banc of America Specialty Finance,
Inc.)
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxx
Telecopier No.: (000) 000-0000
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Payments:
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Account No.: 000 000 0000 (re: LAZY DAYS R.V. CENTER,
INC.)
ABA No.: 1110000012
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Floor Plan Commitment:
|
September 1, 2008, through March 31, 2009 –
$53,000,000
April 1, 2009 through Termination Date – $42,400,000
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Revolving Line of
Credit Commitment:
|
$7,941,000
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Notices:
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KeyBank National Association
Mailcode: OH-01-49-0422
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx XxXxxxxx
Telecopier No.: (000) 000-0000
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Payments:
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Account No.: 3057 (re: LAZY DAYS R.V. CENTER, INC.)
ABA No: 000000000
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Floor Plan Commitment:
|
September 1, 2008, through March 31, 2009 –
$47,000,000
April 1, 2009 through Termination Date – $37,600,000
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Revolving Line of
Credit Commitment:
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$7,059,000
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Notices with respect
to payments:
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KeyBank National Association
Specialty Finance Service
Reference: Lazy Days’ R.V. Center, Inc.
Attn: Xxxxx Xxxxx
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