|
Exhibit 10.2
JOINDER AGREEMENT AND NINTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS JOINDER AGREEMENT AND NINTH AMENDMENT TO LOAN AND SECURITY
AGREEMENT (this "Agreement") is made and entered into as of the
20th day of December, 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"), FOREFRONT BURTON, INC. , a
Florida corporation ("ForeFront Burton"), and FOREFRONT DEVANT,
INC. , a Florida corporation ("ForeFront Devant"; ForeFront
Group, Miller, ForeFront Burton and ForeFront Devant are referred
to herein individually as a "Borrower" and collectively as the
"Borrowers").
W I T N E
S S E T H :
WHEREAS, ForeFront Group, Miller, ForeFront Burton 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, Miller and ForeFront Burton have
requested that Lender consent to the formation of ForeFront Devant
and the acquisition by ForeFront Devant of certain assets and the
assumption of certain liabilities of Devant, Ltd., a North Carolina
corporation ("Seller"), pursuant to that certain Asset Purchase
Agreement of even date herewith among ForeFront Devant, ForeFront
Holdings, ForeFront Group, Seller, James M. Sheppard, Jr., Mary Ann
Sheppard Chambers, Rebecca Sheppard Roberts and Deborah Ann
Sheppard (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 Devant 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 Devant 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 Devant 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. Joinder of ForeFront Devant 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 Devant 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, Miller and ForeFront Burton
for all outstanding Obligations. Borrowers acknowledge and agree
that Lender is making an accommodation to Borrowers by permitting
the addition of ForeFront Devant 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.
3. Grant of Security Interest by ForeFront Devant .
Without limiting the generality of Section 2 above, ForeFront
Devant hereby pledges, assigns and grants to Lender, for the
benefit of itself and its Affiliates, a lien on and security
interest in all right, title and interest of ForeFront Devant in
and to the Collateral (including, without limitation, all of
ForeFront Devant’s accounts, inventory, equipment, general
intangibles, chattel paper, goods, documents, 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.
4. Representations and Warranties Regarding Seller, ForeFront
Devant and Acquisition . Borrowers represent and warrant to
Lender as follows:
(a) the following information is true and correct with respect
to Seller:
Exact Legal Name: Devant, Ltd.
Type of Organization: Corporation
State of Organization: North Carolina
State Organizational Identification Number: 0040705
2
(b) The chief executive office and substantially
all of the property of Seller is located at 3011 Walkup Avenue,
Monroe, North Carolina 28110. Other than the address specified in
this clause (b), Seller has not maintained its chief executive
office or any property at any other location in the past five
years.
(c) The following information is true and correct with respect
to ForeFront Devant:
Exact Legal Name: ForeFront Devant, Inc.
Type of Organization: Corporation
State of Organization: Florida
State Organizational Identification Number: P06000138585
(d) The chief executive office of ForeFront Devant is located at
835 Bill Jones Industrial Drive, Springfield, Tennessee 37172.
(e) ForeFront Devant is duly organized and validly existing
under the laws of its state of organization; the execution,
delivery, and performance of this Agreement, the Loan Agreement and
the other Loan Documents to which ForeFront Devant is a party are
within ForeFront Devant’s corporate powers, have been duly
authorized, do not violate ForeFront Devant’s constituent
documents or any law or regulation, including without limitation,
any law or regulation relating to occupational health and safety or
protection of the environment, applicable to ForeFront Devant, or
any indenture, agreement, or undertaking to which ForeFront Devant
is a party or by which ForeFront Devant or ForeFront Devant’s
property is bound; and this Agreement, the Loan Agreement and the
other Loan Documents to which ForeFront Devant is a party
constitute valid, binding and enforceable obligations of ForeFront
Devant in accordance with the terms hereof and thereof, except as
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, moratorium or other similar laws applicable to
creditors’ rights generally or by generally applicable
equitable principles affecting the enforcement of creditors’
rights.
(f) ForeFront Group owns 100% of the outstanding capital stock
of ForeFront Devant, and ForeFront Devant has no subsidiaries.
(g) Borrowers have furnished to Lender true, complete and
correct copies of all of the Acquisition Documents (including any
schedules, exhibits and annexes thereto) as in effect on the date
hereof. None of the Acquisition Documents has been amended,
supplemented or modified, and the Acquisition Documents constitute
the complete understanding among the parties thereto in respect of
the Acquisition and the other matters and transactions covered
thereby. Each Acquisition Document has been duly executed and
delivered by the parties thereto and is a legal, valid and binding
obligation of each such party, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors’ rights generally or
by general equitable principles.
(h) On the date hereof, the transactions contemplated by the
Acquisition Documents will have been consummated in accordance with
all applicable laws and, except as consented to in
3
writing by Lender, in the manner provided therein
in accordance with the terms thereof without any material waivers
or amendments thereto, and each of the material conditions to such
consummation set forth in the Acquisition Documents shall have been
fulfilled without any waiver of any thereof.
5. Multiple Borrower Matters .
(a) Borrowers’ Agent . Borrowers hereby appoint
ForeFront Group, and ForeFront Group shall act under the Loan
Agreement and the other Loan Documents as, the agent,
attorney-in-fact and legal representative of all Borrowers for all
purposes, including requesting advances and receiving account
statements and other notices and communications to Borrowers (or
any of them) from Lender. Lender may rely, and shall be fully
protected in relying, on any request for an advance, disbursement
instruction, report, information or any other notice or
communication made or given by ForeFront Group, whether in its own
name, as Borrowers’ Agent, or on behalf of one or more
Borrowers, and Lender shall not have any obligation to make any
inquiry or request any confirmation from or on behalf of any other
Borrower as to the binding effect on it of any such request,
instruction, report, information, other notice or communication,
nor shall the joint and several character of Borrowers’
obligations under the Loan Agreement and the other Loan Documents
be affected, provided, that the provisions of this paragraph shall
not be construed so as to preclude any Borrower from taking actions
permitted to be taken by a "Borrower" under the Loan Agreement or
any other Loan Document.
(b) Joint and Several Liability .
(i) All loan advances made to or for the benefit of Borrowers by
Lender and all of the other Obligations of Borrowers, including all
interest, fees, costs and expenses with respect thereto, shall
constitute one joint and several direct and general obligation of
all Borrowers. Notwithstanding anything to the contrary contained
herein or in any other Loan Document, each Borrower shall be
jointly and severally, with each other Borrower, directly and
uncondition
|
