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Document Preview Loan and Security Agreement |
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Title: |
Loan and Security Agreement |
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Entities: |
Datrek Miller International, Inc.; Forefront Group Inc.; Forefront Group Inc. |
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Date: |
2006 |
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Size: |
Preview shows 9KB of 27KB total |
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Price: |
$36 |
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ID: |
#2540320 |
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JOINDER AGREEMENT AND EIGHTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS JOINDER AGREEMENT AND EIGHTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this Agreement) is made and entered into as of the 12th day of September, 2006, among FCC, LLC, d/b/a First Capital, a Florida limited liability company (Lender), FOREFRONT GROUP, INC., a Florida corporation formerly known as Datrek Professional Bags, Inc. (Forefront Group), MILLER GOLF COMPANY, a Florida corporation formerly known as Miller Acquisition, Inc. (Miller), and FOREFRONT BURTON, INC., a Florida corporation (Forefront Burton; Forefront Group, Miller and Forefront Burton are referred to herein individually as a Borrower and collectively as the Borrowers).
WITNESSETH:
WHEREAS, Forefront Group, Miller and Lender entered into that certain Loan and Security Agreement dated as of October 15, 2004 (as amended, restated, supplemented or otherwise modified from time to time, the Loan Agreement); and
WHEREAS, Forefront Group and Miller have requested that Lender consent to the formation of Forefront Burton and the acquisition by Forefront Burton of certain assets and the assumption of certain liabilities of BURTON GOLF, INC., a Florida corporation (Seller), pursuant to that certain Asset Purchase Agreement of even date herewith among Forefront Burton, Forefront Holdings, Inc., a Florida corporation formerly known as Datrek Miller International, Inc., Seller, Donald Ochsenreiter and Terry Andre (the Asset Purchase Agreement; the Asset Purchase Agreement and all agreements, documents, certificates and other items executed and/or delivered in connection therewith are referred to herein as the Acquisition Documents); and
WHEREAS, Borrowers have requested that Lender finance the transaction contemplated by the Acquisition Documents (the Acquisition) and that Lender include the accounts receivable and other assets of Forefront Burton in the borrowing base described in the Loan Agreement to the extent that such assets satisfy the eligibility standards set forth therein; and
WHEREAS, Lender is willing to grant such consent and provide such financing (subject to the terms and conditions of the Loan Agreement) so long as Forefront Burton becomes an additional borrower under the Loan Agreement and causes Lender to have a perfected, first-priority security interest in all of its assets; and
WHEREAS, Forefront Burton is willing to join the Loan Agreement as an additional borrower; and
WHEREAS, Borrowers and Lender desire to amend the Loan Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. All capitalized terms used herein and not otherwise expressly defined herein shall have the respective meanings given to such terms in the Loan Agreement.
2. Amendment to Loan Agreement. The Loan Agreement is amended by deleting clause (d) of the definition of Eligible Accounts set forth in Section 1 and inserting the following in lieu thereof:
(d) Accounts with respect to which the Customer (i) does not maintain its chief executive office in the United States, or (ii) is not organized under the laws of the United States of America or any state thereof; or (iii) is the government of any foreign country or of any state, province, municipality, or other political subdivision thereof; except to the extent that such Account is secured or payable by a letter of credit satisfactory to Lender in its discretion; provided, however, that Accounts owing by Customers with their chief executive office in Canada or which are organized under the laws of Canada or any province thereof shall not be ineligible under this paragraph to the extent that such Accounts do not exceed, in the aggregate, the lesser of (y) 10% of the dollar amount of total Eligible Accounts, and (z) $500,000;
3. Joinder of Forefront Burton as a Borrower. The Loan Agreement is hereby amended such that each reference to Borrower thereunder shall be deemed to be a reference to each Borrower. Forefront Burton hereby acknowledges and agrees that (a) it is familiar with the Loan Agreement and the other Loan Documents, and (b) from and after the date hereof, it is jointly and severally liable with Forefront Group and Miller for all outstanding Obligations. Borrowers acknowledge and agree that Lender is making an accommodation to Borrowers by permitting the addition of Forefront Burton to the Loan Agreement as an additional borrower by means of this Agreement, rather than requiring that Borrowers incur the cost and expense of amending and restating the Loan Agreement. Accordingly, each reference in the Loan Agreement to Borrower shall be construed in the manner most favorable to Lender in determining whether such reference applies to all Borrowers or to any Borrower. For example, the grant of the security interest set forth in Section 5(a) of the Loan Agreement shall be construed to be a grant of a security interest by each Borrower, while Section 13(a)(vi) of the Loan Agreement shall be construed such that a Default shall exist if any Borrower becomes insolvent or institutes (or has instituted against it) a bankruptcy proceeding.
4. Grant of Security Interest by Forefront Burton. Without limiting the generality of Section 3 above, Forefront Burton hereby pledges, assigns and grants to Lender, for the benefit of
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itself and its Affiliates, a lien on and security interest in all right, title and interest of Forefront Burton in and to the Collateral (including, without limitation, all of Forefront Burtons accounts, inventory, equipment, general intangibles, chattel paper, goods, instruments, investment property, letter-of-credit rights, letters of credit and deposit accounts (as such terms are defined in the UCC), in each case whether now owned or existing or hereafter acquired or arising) as security for all of the Obligations.
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