Exhibit 10.67.1
SECOND AMENDMENT TO DEALER EQUIPMENT
LOAN AND SECURITY AGREEMENT
This Second Amendment to Dealer Equipment Loan and Security Agreement
("Amendment"), effective as of the 29th 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 Equipment Loan and Security Agreement, dated October 12, 1995
(the " Original Loan Agreement"), whereby NMAC agreed to advance to B & B the
maximum sum of TWO HUNDRED FIFTY THOUSAND AND NO/100 ($250,000.00) 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, One Hundred
Sixty-Eight Thousand, Eighty-one Dollars and Thirty-nine Cents ($168,081.39).
3. Section 2.2 of the Loan Agreement is hereby deleted in its entirety and the
following is substituted therefore:
"From the Effective Date of this Dealer Equipment 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 on the 15th day thereof
under this Loan. Commencing with the first month following the
expiration of the Interest Only Period and continuing each
month thereafter, successive monthly principal installments of
Five Thousand Six Hundred Two Dollars and Seventy-One Cents
($5,602.71) each together with all accrued and unpaid interest
and all other fees, costs and charges due and owing under this
Loan shall be paid on the 15th day of each
month, commencing with the payment due August 15, 1998,
followed by one final installment on January 15, 2001 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 contained in this Agreement 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.
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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.
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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:
___________________________ By:________________________________
Witness Print Name:________________________
Print Name:_________________ Title:_____________________________
____________________________
Witness
Print Name:_________________
FIRST CHOICE STUART 1, INC.,
a Florida corporation d/b/a Stuart
Nissan
_____________________________ ___________________________________
Witness Print Name:________________________
Print Name:__________________ Title:_____________________________
_____________________________
Witness
Print Name:__________________
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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:___________________________________
Print Name:____________________________
Title:_________________________________
SMART CARS, INC., a Florida corporation
By:___________________________________
Print Name:____________________________
Title:_________________________________
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