EXHIBIT 4.4
FINOVA/REGISTERED XXXX/
FINANCIAL INNOVATORS
Rediscount Finance
FIRST AMENDED AND RESTATED SCHEDULE TO
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
BORROWER: FLORIDA FINANCE GROUP INC.
ADDRESS: 0000 X. XXXXXXXXXX
XXXXXXXXXX, XXXXXXX 00000-0000
DATE: APRIL 22, 1997
This First Amended and Restated Schedule ("First Amended Schedule") is
executed in conjunction with a certain Amended and Restated Loan and Security
Agreement ("Agreement") of February 4, 1997, by and between FINOVA Capital
Corporation, as Lender, and the above Borrowers, as Borrower. This First Amended
Schedule is an amendment and restatement of the Schedule to Amended and Restated
Loan and Security Agreement, dated of even date with the Agreement. The terms
and provisions of this First Amended Schedule shall supersede all prior
schedules. All references to Section numbers herein refer to Sections in the
Agreement.
1.13.A. MAXIMUM AMOUNT OF AN ELIGIBLE RECEIVABLE (SECTION 1.13).
The term "Maximum Amount of an Eligible Receivable" shall mean
the sum of Twenty Thousand Dollars ($20,000.00) remaining due
thereon at any date of determination.
1.13.B. MAXIMUM TERM OF AN ELIGIBLE RECEIVABLE (SECTION 1.13).
The "Maximum Term of an Eligible Receivable" shall be
Forty-Eight (48) months remaining until the due date of such
Eligible Receivable at any date of determination.
1.13.C. AGING PROCEDURES AND ELIGIBILITY TEST (SECTION 1.13.)
AGING PROCEDURES FOR A CONTRACTUAL AGING:
1. No payment missed = Current.
2. 1 to 30 days past due = "30 day Account".
3. 31 to 60 days past due = "60 day Account".
4. 61 or more days past due = "60 + day Account"
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ELIGIBILITY TEST:
The term "Eligibility Test" shall mean the test to determine the eligibility of
a Receivable for the purposes of Section 1.13 hereof, that test, being as
follows: no payment due on said Receivable remains unpaid more than sixty (60)
days from the specific date on which such payment was due pursuant to the terms
of said Receivable.
1.15 GUARANTOR (WHETHER ONE OR MORE) (SECTION 1.15)
Smart Choice Holdings, Inc.
Smart Choice Automotive Group, Inc. (formerly known as Xxxxxx
Industires, Inc.)
1.22 MODIFICATION TO THE DEFINITION OF "LEVERAGE RATIO" (SECTION 1.22)
Section 1.22 of the Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"1.22 LEVERAGE RATIO. The term "Leverage Ratio" shall mean, at
any date of determination, total liabilities of Smart Choice
Automotive Group, Inc. ("SMAG"), including the outstanding
balance of the Indebtedness, less the outstanding balance due
pursuant to all subordinated debt which has been subordinated
to all the rights of Lender with respect to the Guaranty
Agreement of SMAG in favor of Lender, in a form and substance
acceptable to Lender ("SMAG Subordinated Debt"), divided by
the sum of the amount of SMAG's tangible net worth, as the
term "tangible net worth" is defined in the Agreement with
respect to Borrower, plus the outstanding balance due pursuant
to all SMAG Subordinated Debt."
2.1.A. AMOUNT OF REVOLVING CREDIT LINE (SECTION 2.1):
Thirty Five Million Dollars ($35,000,000.00)
2.1.B. AVAILABILITY ON ELIGIBLE RECEIVABLES (SECTION 2.1):
The "Availability on Eligible Receivables" shall be an amount
equal to, with respect to all Eligible Receivables, on the
date of determination as follows:
(i) if the date of determination is on or before the
earlier of (a) December 31, 1997, or (b) the
effective date of a public offering for the sale of
securities by Smart Choice Automotive Group, Inc. or
any subsidiary thereof, then with respect to each
Eligible Receivable sixty percent (60%) of the
aggregate unmatured and unpaid amount due to Borrower
from the Account Debtor named thereon, including all
unearned finance charges, time price differentials,
insurance fees, discounts, holdbacks and other fees
and charges pursuant to the Eligible Receivables; or
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(ii) if the date of determination is after the
earlier of (a) December 31, 1997, or (b) the
effective date of a public offering for the sale of
securities by Smart Choice Automotive Group, Inc. or
any subsidiary thereof, then with respect to each
Eligible Receivable fifty-five percent (55%) of the
aggregate unmatured and unpaid amount due to Borrower
from the Account Debtor named thereon, including all
unearned finance charges, time price differentials,
insurance fees, discounts, holdbacks and other fees
and charges pursuant to the Eligible Receivables
Notwithstanding any provision contained in the Loan Documents
to the contrary, if for the twelve (12) calendar month period
immediately prior to any date of determination, the Collateral
Recovery Rate is less than seventy percent (70%), or if on any
date of determination, the Collateral Performance Percentage
is greater than ten percent (10.0%), then in either event,
Lender, in its sole and absolute discretion, may modify the
Availability on Eligible advance percentage set forth above.
2.2. STATED INTEREST RATE (SECTION 2.2).
The lesser of (i) the Governing Rate plus three percent
(3.00%) per annum; or (ii) the Maximum Rate.
2.3. MATURITY DATE (SECTION 2.3.C).
The primary term of this Agreement shall expire on December
31, 1999. If Borrower desires to extend the primary term or
any term thereafter of this Agreement, Borrower shall give
Lender notice of its intent to extend the term no earlier than
one hundred and eighty (180) days and no later than one
hundred and fifty (150) days prior to any expiration date of
this Agreement. Upon the receipt by Lender of Borrower's
notice to extend the term of this Agreement, if Lender desires
to renew and extend the term of this Agreement, Lender shall
give Borrower notice of Lender's intent to extend the term of
this Agreement, within sixty (60) days of Lender's receipt of
Borrower's notice to extend. If Lender does not give Borrower
notice of Lender's intent to extend the term of this Agreement
within the sixty (60) days period, then it shall be deemed
that Lender does not intend to renew and extend the term of
this Agreement. Notwithstanding the foregoing, the Borrower's
obligation pursuant to this Agreement shall remain in full
force and effect until the Indebtedness due and owing to
Lender has been paid in full.
2.6. LIQUIDATED DAMAGES (SECTION 2.6).
The amount of "Liquidated Damages" shall be as follows:
(i) if on or prior to December 31, 1997, Borrower pays the
balance of the Indebtedness in full and Borrower requests
Lender to terminate Lender's security interest in the
Collateral, the amount of "Liquidated Damages" shall be an
amount equal to three percent (3%) of the Amount of Revolving
Credit Line;
(ii) if on or prior to December 31, 1998, but on or after
January 1, 1998, Borrower pays the balance of the Indebtedness
in full and Borrower requests Lender to terminate Lender's
security interest in the Collateral, the amount of "Liquidated
Damages" shall be an amount equal to two percent (2%) of the
Amount of Revolving Credit Line;
(iii) if prior to December 31, 1999, but on or after January
1, 1999, Borrower pays the balance of the Indebtedness in full
and Borrower requests Lender to terminate Lender's security
interest in the Collateral, the amount of "Liquidated Damages"
shall be an amount equal to one percent (1%) of the Amount of
Revolving Credit Line.
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2.13. FACILITY FEE (SECTION 2.13).
A Facility Fee shall not be due for any calender month ending
on or after April 30, 1997.
3.2. BUSINESS LOCATIONS OF BORROWER (SECTIONS 3.2, 3.6 AND 5.1.N.).
All locations are as set forth on the attach List of Locations
5.1.B. BORROWER'S TRADENAMES (WHETHER ONE OR MORE)(SECTION 5.1.B.)
As set forth in List of Tradenames attached hereto
6.2.A. LEVERAGE RATIO LIMIT (SECTION 6.2.J).
The term "Leverage Ratio Limit" shall mean 4.0 : 1.0
6.2.B. MINIMUM NET INCOME (SECTION 6.2.K).
The Minimum Net Income shall be One Dollar ($1.00) for each
fiscal year of Borrower, beginning with fiscal year ending
December 31, 1997.
6.2.C. DISTRIBUTIONS LIMITATION (SECTION 6.2.L).
The Maximum Distributions shall not exceed twenty-five percent
(25%) of Net Income of the fiscal year in which such
Distributions are made.
6.3.C. ANNUAL FINANCIAL STATEMENTS (SECTION 6.3).
Annual audited financial statements shall be prepared by
independent certified public accountants, reasonably
acceptable to Lender.
8.1. REIMBURSEMENT OF EXPENSES (SECTION 8.1).
None other then as set forth in the Loan Documents.
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9.1. NOTICES (SECTION 9.1).
Lender: FINOVA Capital Corporation
(copy each office below with all notices)
CORPORATE FINANCE OFFICE:
FINOVA Capital Corporation
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Senior Vice President
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
CORPORATE OFFICE:
FINOVA Capital Corporation
0000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. X'Xxxxx, Senior Counsel
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
REDISCOUNT FINANCE OFFICE:
FINOVA Capital Corporation
00000 Xxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx (Account Executive)
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Borrower: Florida Finance Group Inc.
0000 X. Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopy No.:000-000-0000
Guarantors: Smart Choice Holdings, Inc.
Smart Choice Automotive Group, Inc.
0000 X. Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopy No.:000-000-0000
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9.16. AGENT FOR SERVICE OF PROCESS (SECTION 9.16).
Xxxx Xxxxx, whose address is 0000 X. Xxxxxxxxxx,Xxxxxxxxxx, Xxxxxxx
00000-0000 (Agent)
IN WITNESS WHEREOF, the parties have executed this Schedule on the day and
year first set forth above.
LENDER:
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:/s/ J. XXXXXX XXXXXXX 4-22-97
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J. Xxxxxx Xxxxxxx, Vice President (Date)
BORROWERS:
FLORIDA FINANCE GROUP INC.
By:/s/ XXXX XXXXX 4-22-97
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Xxxx Xxxxx, President (Date)
GUARANTOR:
SMART CHOICE HOLDINGS, INC.
By:/s/ XXXX XXXXX 4-22-97
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Xxxx Xxxxx, President (Date)
SMART CHOICE AUTOMOTIVE GROUP, INC.
By:/s/ XXXX XXXXX 4-22-97
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Xxxx Xxxxx, President (Date)
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