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Exhibit 4.9.1
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Rediscount Finance
FIRST AMENDED AND RESTATED SCHEDULE TO
SECOND AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
BORROWER: FLORIDA FINANCE GROUP INC.
LIBERTY FINANCE COMPANY
FIRST CHOICE AUTO FINANCE, INC.
ADDRESS: 0000 X. XXXXXXXXXX
XXXXXXXXXX, XXXXXXX 00000-0000
BORROWER: SMART CHOICE RECEIVABLES HOLDING COMPANY
ADDRESS: P. O. XXX 00000
XXXXXXXXX, XXXXXX 00000
DATE: NOVEMBER 18, 1999
This First Amended and Restated Schedule to Second Amended and
Restated Loan and Security Agreement ("First Amended Schedule") is executed in
conjunction with a certain Second Amended and Restated Loan and Security
Agreement ("Agreement") dated November 9, 1998, and as an amendment and
restatement of that certain Schedule to Second Amended and Restated Loan and
Security Agreement, dated November 9, 1998 ("Schedule"), by and between FINOVA
Capital Corporation, as Lender, and the above Borrowers, as Borrower. 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.A. BORROWERS (SECTION 1).
All references to "Borrower" in any and all Loan Documents
shall mean all Borrowers, as co-borrowers, jointly and
severally, except as otherwise specifically set forth herein:
Florida Finance Group, Inc. - "FFG" or "Lead Borrower"
Liberty Finance Company - "Liberty"
Smart Choice Receivables Holding Company "Smart Choice Receivables"
First Choice Auto Finance, Inc. "First Choice"
The term "Receivable Borrowers" shall mean FFG, Liberty and
Smart Choice Receivables.
The term "Inventory Borrower" shall mean First Choice.
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1.4 MODIFICATION TO THE DEFINITION OF "CHARGE OFFS" (SECTION 1.4)
The definition of "Charge Offs" is hereby deleted and the
following is substituted in lieu thereof:
"1.4 CHARGE OFFS. The term "Charge Offs" shall mean
the principal amount due pursuant to a Receivable on
the date that Borrower charges off such Receivable
as uncollectible, pursuant to Borrower's policies
and/or procedures."
1.7 MODIFICATION OF THE DEFINITION OF "COLLATERAL PERFORMANCE PERCENTAGE
(SECTION 1.7)
Section 1.7 of the Agreement is hereby deleted and the
following is substituted in lieu thereof:
" 1.7 COLLATERAL PERFORMANCE PERCENTAGE. The term
"Collateral Performance Percentage" shall mean, on
any date of determination, the percentage determined
by the aggregate of all of the outstanding balances,
including accrued interest, for all Receivables that
are thirty-one (31) days or more past due or are
otherwise ineligible Receivables divided by the
aggregate of all of the outstanding balances,
including accrued interest, for all Receivables."
1.8 MODIFICATION OF THE DEFINITION OF "COLLATERAL RECOVERY RATE"
(SECTION 1.8).
The definition of "Collateral Recovery Rate" is hereby
deleted and the following is substituted in lieu thereof:
"1.8 COLLATERAL RECOVERY RATE. The term "Collateral
Recovery Rate" shall mean, for any period of
determination, (i) the total cash collected of
principal payments from all Receivables (including
but not limited to all principal cash proceeds from
charge off recoveries, with such charge off
recoveries calculated at actual sales price of
vehicle sold at auction or, if vehicle is not sold
at auction, at a value not greater than "average
value" Black Book of such vehicle, pursuant to the
most current edition of the "Black Book" as
published by National Auto Research Division, Hearst
Business Media Corporation, for the market area of
Borrower ), divided by (ii) the sum of (a) the total
cash collected of principal payments from all
Receivables (excluding all cash proceeds from charge
off recoveries) plus (c) the aggregate of all Charge
Offs for that period."
1.13.A. MAXIMUM MILEAGE OF ELIGIBLE INVENTORY (SECTION 1.13)
The term "Maximum Mileage of Eligible Inventory" shall not be
applicable hereunder and shall not be a restriction with
respect to an Eligible Inventory.
1.13.B. MAXIMUM AGE OF ELIGIBLE INVENTORY (SECTION 1.13)
The term "Maximum Age of Eligible Inventory" shall not be
applicable hereunder and shall not be a restriction with
respect to an Eligible Inventory.
1.13.C. MAXIMUM COST OF ELIGIBLE INVENTORY (SECTION 1.13)
The term "Maximum Cost of Eligible Inventory" shall not be
applicable and shall not be a restriction with respect to an
Eligible Inventory.
1.13.D. MAXIMUM OWNERSHIP (SECTION 1.13)
The term "Maximum Ownership" shall mean one hundred twenty
(120) days from (i) the date of the invoice that evidences
the purchase of each vehicle of Inventory by First Choice and
(ii) the date a repossessed or trade-in vehicle is listed in
First Choice's inventory and ready for retail sale.
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1.14.A. MAXIMUM AMOUNT OF AN ELIGIBLE RECEIVABLE (SECTION 1.14).
The term "Maximum Amount of an Eligible Receivable" shall
mean the sum of Nineteen Thousand Dollars ($19,000.00)
remaining due thereon at any date of determination.
1.14.B. MAXIMUM TERM OF AN ELIGIBLE RECEIVABLE (SECTION 1.14).
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.
1.14.C. AGING PROCEDURES AND ELIGIBILITY TEST (SECTION 1.14.)
AGING PROCEDURES FOR A CONTRACTUAL AGING:
1. No payment missed or due = 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"
For the purpose only of calculating the aging of any Receivable hereunder,
provided any such extension is after one hundred eighty (180) days of any
Receivable from the origination date of such Receivable, Borrower may grant an
Account Debtor one (1) extension of the principal portion of a monthly payment
due on any Receivable within any twelve (12) month period that would allow such
Receivable to avoid being classified in a different "past due or missed"
payment category set forth above. All extensions within any twelve (12) month
period in excess of one (1) will not be used to delay or defer aging of such
Receivable. This extension exception shall be applicable to extensions granted
on or after November 9, 1998.
ELIGIBILITY TEST:
The term "Eligibility Test" shall mean the test to determine the eligibility of
a Receivable for the purposes of Section 1.14 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)
SC Holdings, Inc.
Smart Choice Automotive Group, Inc. (formerly known as Xxxxxx
Industries, Inc.)
Crown Group, Inc. (limited)
1.40 ADDITIONAL DEFINITIONS (SECTION 1.40 AND 1.41)
The following definitions are hereby added to the Agreement:
"1.40 CASH SALES PERCENTAGE. The term "Cash Sales
Percentage" shall mean the percentage determined by
dividing the aggregate sales price of all sales that
did not include a Receivable during the period of
determination, by the aggregate sales price of all
sales by Borrower during the same period of
determination.
1.41 NET CASH FLOW. The term "Net Cash Flow" shall
mean, for any period of determination, as reflected
on the financial statements of Borrower supplied to
Lender pursuant to Section 6.4, hereof, the result
of (i) the sum of all cash receipts, including, all
collections on Receivables, repossession recoveries,
cash down payments and trade-ins values (with
trade-ins and repossessions valued at actual sales
price of
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sold vehicle at auction or, if vehicle is not sold at
auction, at a value not greater than "average value"
Black Book of such vehicle, pursuant to the most
current edition of the "Black Book" as published by
National Auto Research Division, Hearst Business
Media Corporation, for the market area of Borrower),
less (ii) the sum of all cash operating expenses,
including, interest expenses and taxes and the
"replacement cost of liquidated Receivables" (the
"replacement cost of liquidated Receivables" shall be
the amount equal to, for the period of determination,
(a) the percentage determined by dividing the
aggregate actual cost of all vehicles sold during the
period of determination by the aggregate sales price
of all vehicles sold during the same period of
determination, multiplied by (b) the aggregate
principal payments received by Borrower and Charge
Offs with respect to all Receivables during the
period of determination)."
2.1.A. AMOUNT OF REVOLVING CREDIT LINE (SECTION 2.1):
The Amount of Revolving Credit Line shall be One Hundred
Million Dollars ($100,000,000.00)
The Amount of the Inventory Credit Line shall be Ten Million
Dollars ($10,000,000.00)
2.1.B. AVAILABILITY ON ELIGIBLE RECEIVABLES (SECTION 2.1):
The "Availability on Eligible Receivables" shall be an amount
equal to the following:
(i) if the date of determination is before July 1, 2001,
eighty-five percent (85%) of the aggregate unmatured and
unpaid amount due to Borrower from the Account Debtor named
thereon, excluding all unearned finance charges, pursuant to
the Eligible Receivables.
(ii) if the date of determination is on or after July 1,
2001, but before January 1, 2003, seventy-seven percent (77%)
of the aggregate unmatured and unpaid amount due to Borrower
from the Account Debtor named thereon, excluding all unearned
finance charges, pursuant to the Eligible Receivables.
(iii) if the date of determination is on or after January 1,
2003, but before January 1, 2004, seventy-five percent (75%)
of the aggregate unmatured and unpaid amount due to Borrower
from the Account Debtor named thereon, excluding all unearned
finance charges, pursuant to the Eligible Receivables.
(iv) if the date of determination is on or after January 1,
2004, seventy percent (70%) of the aggregate unmatured and
unpaid amount due to Borrower from the Account Debtor named
thereon, excluding all unearned finance charges, pursuant to
the Eligible Receivables.
Notwithstanding any provision contained in the Loan Documents
to the contrary, upon the occurrence of any of the following
events, Lender, in its sole and absolute discretion, may
modify the Availability on Eligible Receivables advance
percentage set forth above or the Availability on Eligible
Inventory set forth in SCHEDULE SECTION 2.1.C.:
(a) the Collateral Recovery Rate is less than the following:
(1) seventy-three percent (73%), if the date of
determination is on or before November 30, 2000,
with the first period for which such the Collateral
Recovery Rate is determined shall be the immediately
preceding one (1) calendar month beginning with the
month of November, 1999, and thereafter the period
of determination shall increase one (1) calendar
month for each calendar month subsequent to
November, 1999, until the period of determination is
the twelve (12) calendar months immediately prior to
the date of determination,
(2) seventy-seven percent (77%), for the twelve (12)
calendar month period immediately prior to any date
of determination, if the date of determination is
after November 30, 2000, but on or before November
30, 2001, and
(3) seventy-nine percent (79%) for the twelve (12)
calendar month period immediately prior to any date
of determination, if the date of determination is
after November 30, 2001.
(b) on any date of determination, the Collateral Performance
Percentage is greater than ten percent (10.0%)
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(c) for the twelve (12) calendar month period immediately
prior to any date of determination, the Cash Sales Percentage
is greater than ten percent (10%), or
(d) the aggregate Net Cash Flow is less than One Dollar
($1.00), for the twelve (12) calendar months immediately
preceding the date of determination, with each date of
determination for the aggregate Cash Flow being the last day
of each fiscal quarter, beginning the fiscal quarter ending
October 31, 2000, (notwithstanding the foregoing to the
contrary the first period of determination shall be the nine
[9] months immediately preceding the fiscal quarter ending
October 31, 2000, and thereafter each period of determination
shall be the twelve [12] calendar months immediately
preceding the date of determination).
2.1.C. AVAILABILITY ON ELIGIBLE INVENTORY (SECTION 2.1)
The "Availability on Eligible Inventory" shall be the lesser
of (i) the Amount of the Inventory Credit Line, or (ii) the
aggregate amount with respect to all Eligible Inventory equal
to the sum of (a) seventy percent (70%) of the invoice cost,
as evidence by a xxxx of sale or other documents evidencing
the purchase price of such Inventory from an entity that is
not affiliated with Borrower or Guarantors, excluding
trade-ins and repossessions and (b) with respect to
trade-ins, repossessions (not withstanding the definition of
"Eligible Inventory" set forth in the Agreement, repossessed
Inventory shall be eligible if such Inventory otherwise meets
the requirement of the definition of "Eligible Inventory")
and Inventory purchased from an entity affiliated with
Borrower or Guarantors, seventy percent (70%) of the actual
value, but not greater than the "average value" Black Book of
such Inventory (pursuant to the most current edition of the
"Black Book" as published by National Auto Research Division,
Hearst Business Media Corporation, for the market area of
Borrower).
2.2. STATED INTEREST RATE (SECTION 2.2).
The Receivables Stated Interest Rate shall be the lesser of
(i) the Governing Rate plus (a) if the date of determination
is before July 1, 2001, two and one-quarter percent (2.25%)
per annum, (b) if the date of determination is before January
1, 2003, but on or after July 1, 2001, two percent (2.00%)
per annum, and (c) if the date of determination is on or
after January 1, 2003, one and three-quarters percent (1.75%)
per annum or (ii) the Maximum Rate.
The Inventory Stated Interest Rate shall be the lesser of (i)
the Governing Rate plus (a) if the date of determination is
before July 1, 2001, two and one-quarter percent (2.25%) per
annum, (b) if the date of determination is before January 1,
2003, but on or after July 1, 2001, two percent (2.00%) per
annum, and (c) if the date of determination is on or after
January 1, 2003, one and three-quarters percent (1.75%) per
annum or (ii) the Maximum Rate.
2.3.B. MATURITY DATE (SECTION 2.3.C).
The primary term of this Agreement shall expire on November
30, 2004. 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:
(i) if on or before November 30, 2000, if Borrower pays the
balance of the Indebtedness in full and Borrower requests
Lender to terminate Lender's security interest in the
Collateral, an amount equal to three percent (3%) of the
Amount of the Revolving Credit Line;
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(ii) if on or before November 30, 2001, but after November 30,
2000, if Borrower pays the balance of the Indebtedness in
full and Borrower requests Lender to terminate Lender's
security interest in the Collateral, an amount equal to two
percent (2%) of the Amount of the Revolving Credit Line;
(iii) if on or before November 30, 2003, but after November 30,
2001, if Borrower pays the balance of the Indebtedness in
full and Borrower requests Lender to terminate Lender's
security interest in the Collateral, an amount equal to one
percent (1%) of the Amount of the Revolving Credit Line;
(iv) if before August 31, 2004, but after November 30, 2003, if
Borrower pays the balance of the Indebtedness in full and
Borrower requests Lender to terminate Lender's security
interest in the Collateral, an amount equal to one-half
percent (.50%) of the Amount of the Revolving Credit Line;
and
(v) if after August 31, 2004, if 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 Zero Dollars ($0.00).
2.8. MODIFICATION OF SECTION 2.8. (SECTION 2.8)
Section 2.8 of the Agreement is hereby deleted and the
following is substituted in lieu thereof:
"2.8. INTEREST AFTER DEFAULT Upon the occurrence
and after the
continuation of an
Event of Default and
after sixty (60) days
prior written notice
from Lender, Borrower
shall pay Lender
interest on the daily
outstanding balance of
Borrower's loan
account at a rate per
annum which is greater
of (not to exceed the
Maximum Rate): (i) the
four percent (4%) in
excess of the highest
Stated Interest Rate
which would otherwise
be applicable thereto
pursuant to the
Schedule (SCHEDULE
SECTION 2.2), or (ii)
sixteen percent
(16%)."
2.14 TERMINATION FEE (SECTION 2.14).
None
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).
None.
6.2.B. MINIMUM NET INCOME (SECTION 6.2.K).
Section 6.2.K of the Agreement is hereby deleted.
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6.2.C. DISTRIBUTIONS LIMITATION (SECTION 6.2.L).
Maximum Distributions shall be seventy-five percent (75%) of
Net Income of the fiscal year of Borrower in which such
Distributions are made.
6.3.C. ANNUAL FINANCIAL STATEMENTS (SECTION 6.3).
Annual consolidated audited financial statements, including
PAACO Automotive Group, Inc. and Premium Auto Acceptance
Corporation, shall be prepared by independent certified
public accountants, reasonably acceptable to Lender.
8.1. REIMBURSEMENT OF EXPENSES (SECTION 8.1).
None, except as otherwise set forth in the Loan Documents.
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.
Liberty Finance Company
First Choice Auto Finance, Inc.
0000 X. Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopy No.:000-000-0000
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Borrower: Smart Choice Receivables Holding Company
P. O. Xxx 00000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Guarantors: SC Holdings, Inc.
Smart Choice Automotive Group, Inc.
0000 X. Xxxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Telephone: 000-000-0000
Telecopy No.:000-000-0000
Guarantor: Crown Group, Inc.
0000 Xxxxx XxxXxxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
Attn: Xxxxxx X. XxXxxxxx, President
with a copy to: X. X. Xxxxxxx, III,
Executive Vice President and General
Counsel
9.16. AGENT FOR SERVICE OF PROCESS (SECTION 9.16).
Xxxxxx X. XxXxxxxx, whose address is 0000 Xxxxx XxxXxxxxx
Xxxx., Xxxxx 0000, Xxxxxx, Xxxxx 00000, with a copy to: X. X.
Xxxxxxx, III, Executive Vice President and General Counsel.
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:
Xxxxxxx X. Xxxxxx, Vice President (Date)
BORROWERS:
FLORIDA FINANCE GROUP INC.
By: President (Date)
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LIBERTY FINANCE COMPANY
By: President (Date)
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SMART CHOICE RECEIVABLES HOLDING COMPANY
By: President (Date)
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FIRST CHOICE AUTO FINANCE, INC.
By: President (Date)
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GUARANTORS:
SC HOLDINGS, INC.
By: President (Date)
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SMART CHOICE AUTOMOTIVE GROUP, INC.
By: President (Date)
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CROWN GROUP, INC.
By:
Xxxxxx X. XxXxxxxx, President (Date)
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