SECOND AMENDMENT TO DEALER CAPITAL
LOAN AND SECURITY AGREEMENT
This Second Amendment to Dealer Capital Loan and Security Agreement
("Amendment"), effective as of the day of July, 1998 (the "Effective Date"), by
and between NISSAN MOTOR ACCEPTANCE CORPORATION ("NMAC") and FIRST CHOICE STUART
1, INC., a Florida corporation d/b/a Stuart Nissan ("Dealer").
W I T N E S S E T H:
WHEREAS, NMAC and B & B Florida Enterprises, Inc., a Florida corporation
("B & B") entered into that certain Nissan Motor Acceptance Corporation Dealer
Capital Loan and Security Agreement, dated October 12, 1995 (the " Original Loan
Agreement"), whereby NMAC agreed to advance to B & B the maximum sum of ONE
MILLION TWO HUNDRED THOUSAND AND NO/100 ($1,200,000.00) DOLLARS, upon
fulfillment of the terms and conditions thereof by B & B; and
WHEREAS, the Original Loan Agreement was subsequently amended September 1,
1997 and again on June 8, 1998 pursuant to that certain Extension Agreement (the
Original Loan Agreement, as subsequently amended, the "Loan Agreement") and
Dealer and NMAC wish to further amend the Loan Agreement as provided herein.
NOW THEREFORE, in consideration of the premises, Ten and No/100 ($10.00)
Dollars and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
1. The recitations set forth above are true and correct.
2. The principal outstanding balance (exclusive of interest) owed to NMAC
under the Loan Agreement is, as of the Effective Date of this Amendment,
Six Hundred Seventy-Six Thousand Ninety Dollars and Eighty Cents
($676,090.80).
3. The second sentence of Article I of the Loan Agreement is hereby deleted in
its entirety and the following is substituted therefore:
"From the Effective Date of this Dealer Capital Loan and Security
Agreement through June 30, 1998 (the "Interest Only Period") accrued
interest together with all other fees, costs and charges shall be paid
monthly under this Agreement. Commencing with the first month
following the expiration of the Interest Only Period and continuing
each month thereafter, successive monthly principal installments of
Eleven Thousand Two Hundred Sixty-Eight Dollars and Eighteen Cents
($11,268.18) each together with all accrued and unpaid interest and
all other fees, costs and charges shall be paid under this Agreement
commencing with the payment due August 15, 1998, followed by one final
installment on July 15, 2003 equal to the then unpaid Principal, all
accrued and unpaid interest and all other fees, costs and charges due
and owing under this Loan. Interest shall be calculated on a daily
basis, computed on the actual number of days elapsed over a year of
365 or 366 days, commencing on the date the Principal is funded.
4. NMAC's waiver of any term, provision, condition, covenant or agreement of
the Loan Agreement prior to the Effective Date hereof shall not be
construed, in any manner, to be NMAC's consent to such waiver on or after
the Effective Date of this Amendment. No waiver of any term, provision,
condition, covenant or agreement herein contained or contained in the Loan
Agreement shall be effective unless set forth in writing signed by NMAC and
any such waiver shall be effective only to the extent set forth in such
writing.
5. Dealer agrees to pay any and all documentary stamps and all penalties, if
any, which are assessed by the State of Florida on account of the execution
and/or delivery of the Loan Agreement and/or this Amendment. Dealer shall
pay such sums immediately upon receipt of notice of such amounts from NMAC.
If the Dealer fails to pay such sums to NMAC, NMAC may (and without waiving
such Event of Default), at its option, pay such taxes and penalties) and
any such payment made by NMAC shall be added to the indebtedness hereof and
shall bear interest from the date advanced at the rate of the lesser of
eighteen (18%) percent per annum or the maximum rate permissible under
Florida law.
6. The Dealer hereby represents, ratifies and affirms to NMAC that NMAC has
acted in good faith and has fulfilled and fully performed its obligations
under the Loan Agreement and all of its obligations with respect to the
administration and disbursement of the loan proceeds.
7. Except as specifically provided in this Amendment, no part of the Loan
Agreement or any other instrument securing the Loan Agreement is in any way
altered, amended or changed.
8. The parties hereto intend that this Amendment will not disturb the existing
lien priority of NMAC and that this Amendment will retain the same lien and
priority as the Loan Agreement which this Amendment modifies.
9. This Amendment shall be governed by and construed and the rights and
obligations of the parties under this Amendment shall be determined in
accordance with the laws of the State of Florida.
10. This Amendment and the Loan Agreement shall be binding upon and shall enure
to the benefit of the parties hereto and their respective personnel,
representatives, heirs, successors and assigns.
11. Each party to this Amendment acknowledges that it has reviewed this
Amendment and hereby declares that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Amendment. In the event
that any terms or provisions of this Amendment are held invalid or
unenforceable, the remaining terms and conditions of this Amendment shall
continue to be fully enforceable without change, and this Amendment shall
be interpreted as if the unenforceable provision had not been a part
hereof.
12. NMAC and Dealer each hereby knowingly, voluntarily and intentionally waive
any and all right either may have to a trial by jury in respect of any
litigation (including, but not limited to, any claims, cross-claims or a
third-party claims) arising out of, under or in connection with this
Amendment, the Loan Agreement or any other agreement contemplated to be
executed in conjunction herewith or therewith, or any course of conduct,
course of dealing, statements (whether written or verbal) or actions of any
party hereto. This provision is a material inducement for NMAC to enter
into this Amendment. The Dealer hereby certifies that no representative or
agent of NMAC nor NMAC's counsel has represented, expressly or otherwise,
that NMAC would not, in the event of such litigation, seek to enforce this
waiver of right to jury trial provision.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Signed, sealed and delivered in NISSAN MOTOR ACCEPTANCE CORPORATION
the presence of:
/s/ Xxxxxxxxx Xxxx By: /s/ Xxxx Doi
------------------ ---------------
Witness Print Name: Xxxx Doi
Print Name: Xxxxxxxxx Xxxx Title: Commercial Credit Manager
/s/ Xxx Xxxxxx
--------------
Witness
Print Name: Xxx Xxxxxx
FIRST CHOICE STUART 1, INC.,
a Florida corporation d/b/a Stuart Nissan
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxx
---------------------------- -----------------------------------------
Witness Print Name: Xxxxx X .Xxxxxx
Print Name: Xxxxxx X. Xxxxxxx Title: Vice President/Asst. Secretary
/s/ Xxxx X. Xxx
----------------------------
Witness
Print Name: Xxxx X. Xxx
By execution hereof, the following Guarantors, in their capacity as
guarantors of the obligations of Dealer to NMAC under their respective
Continuing Guaranty Agreement (Corporation) previously delivered to NMAC, hereby
approve and consent to the execution and delivery of this Amendment and
acknowledge and agree that, notwithstanding the execution and delivery of this
Amendment, each Guarantor shall have continuing liability under their respective
Continuing Guaranty Agreement (Corporation) for the obligations of Dealer as
modified by this Amendment.
SMART CHOICE AUTOMOTIVE GROUP,
INC., a Florida corporation
By: /s/ Xxxxxx X. Xxxx
----------------------
Print Name: Xxxxxx X. Xxxx
Title: Executive Vice President and
Chief Financial Officer
SMART CARS, INC., a Florida corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Print Name: Xxxxx X .Xxxxxx
Title: Vice President/Asst. Secretary
