Waiver Agreement



 EXHIBIT 10.1 
  
 WAIVER AND FIFTH AMENDMENT TO 
 LOAN AND SECURITY AGREEMENT 
  
 THIS WAIVER AND FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Agreement”) is made and entered into as of the 18th day of November, 2005, among FCC, LLC, d/b/a First Capital, a Florida limited liability company (“Lender”), DATREK PROFESSIONAL BAGS, INC., a Florida corporation formerly known as Datrek Acquisition,
Inc. (“Datrek”), and MILLER GOLF COMPANY, a Florida corporation formerly known as Miller Acquisition, Inc. (“Miller”; Datrek and Miller are referred to herein individually as a “Borrower” and collectively as the
“Borrowers”). 
  
 W I T N
E S S E T H: 
  
 WHEREAS, Borrowers and Lender are parties to that certain Loan and Security Agreement dated as of October 15, 2004 (as amended, restated, modified or supplemented from time to time, the “Loan Agreement”); and 
  
 WHEREAS, Borrowers are in default of the fixed charge coverage covenant set
forth in the Loan Agreement, Borrowers anticipate that Borrowers will violate such fixed charge covenant for certain future periods, and Borrowers have requested that Lender waive such default and a certain prospective default; and Lender has agreed
to grant such waivers on the terms and conditions set forth herein; and 
  
 WHEREAS, Borrowers and Lender desire to amend the Loan Agreement so on the terms and conditions 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. 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. Borrowers hereby acknowledge and agree that Borrowers are in default under Section 6 of the Loan Agreement
and Item 21 of the Schedule to the Loan Agreement as a result of Borrowers’ failure to comply with the financial covenant described therein (the “Fixed Charge Coverage Covenant”) for Borrowers’ October, 2005
fiscal month (the “Existing Default”). Borrowers hereby notify Lender that Borrowers may not be in compliance with the Fixed Charge Coverage Covenant for Borrowers’ November, 2005 fiscal month (the “Potential Default”).
Lender hereby waives the Existing Default and the Potential Default. Lender reserves its rights and remedies with respect to any other Default, including any violation of the Fixed Charge Coverage Covenant for any fiscal month of Borrowers other
than October, 2005 or November, 2005. 
  
 3. The Loan Agreement is amended by
deleting Item 21 of the Schedule to the Loan Agreement and substituting the following in lieu thereof: 
  
 21. Financial Covenant: 
  
 Borrowers shall maintain, on a consolidated basis, a ratio of Borrowers’ (a) net income (excluding extraordinary gains) before provision for
interest expense, taxes, depreciation and amortization, to (b) interest expense, plus payments of principal actually made or scheduled to be made with respect to indebtedness (other than scheduled but unpaid payments on Subordinated Debt and
principal payments on revolving loans under this Agreement), plus payments with respect to capitalized leases, plus taxes, plus dividends and distributions, plus unfinanced capital expenditures, of at least 1.5 to 1 for each fiscal month of
Borrowers. Such ratio shall be measured as of the end of each fiscal month of Borrowers from and after Borrowers’ December, 2005 fiscal month and shall be calculated (y) for each fiscal month end through and including Borrowers’
February, 2006 fiscal month, for the period from the beginning of Borrowers’ March, 2005 fiscal month through and including the last day of the fiscal month most recently ended, and (z) for each fiscal month end from and after
Borrowers’ March, 2006 fiscal month, for the twelve-month period then ended. 
  

 1 








 4. Except as set forth herein, the Loan Agreement shall be and remain in full force and effect as
originally written, and shall constitute the legal, valid, binding and enforceable obligation of Borrowers to Lender. 
  
 5. Each Borrower hereby restates, ratifies, and reaffirms each and every term, condition representation and warranty heretofore made by it under or in
connection with the execution and delivery of the Loan Agreement, as amended hereby, and the other Loan Documents, as fully as though such representations and warranties had been made on the date hereof and with specific reference to this Agreement
and the Loan Documents. 
  
 6. In consideration of the
accommodations made by Lender hereunder, Borrowers jointly and severally agree to pay to Lender (a) a waiver fee of $2,500 on the date hereof, and (b) on demand all costs and expenses of Lender in connection with the preparation,
execution, delivery and enforcement of this Agreement and the other Loan Documents and any other transactions contemplated hereby and thereby, including, without limitation, the fees and out-of-pocket expenses of legal counsel to Lender. Such waiver
fee shall be fully earned on the date hereof and is not subject to refund or rebate. Such waiver fee constitutes a fee for services and is not interest or a charge for the use of money. 
  
 7. To induce Lender to enter into this Agreement, each Borrower (a) acknowledges and agrees that no right of offset,
defense, counterclaim, claim or objection exists in favor of any Borrower against Lender arising out of or with respect to the Loan Agreement, the other Loan Documents, the Obligations, or any other arrangement or relationship between Lender and one
or more Borrowers, and (b) releases, acquits, remises and forever discharges Lender and its affiliates and all of their past, present and future officers, directors, employees, agents, attorneys, representatives, successors and assigns from any
and all claims, demands, actions and causes of action, whether at law or in equity, whether now accrued or hereafter maturing, and whether known or unknown, which any Borrower now or hereafter may have by reason of any manner, cause or things to and
including the date of this Agreement with respect to matters arising out of or with respect to the Loan Agreement, the other Loan Documents, the Obligations, or any other arrangement or relationship between Lender and one or more Borrowers.

  
 8. Each Borrower acknowledges that (a) except as
expressly set forth herein, Lender has not agreed to (and has no obligation whatsoever to discuss, negotiate or agree to) any restructuring, modification, amendment, waiver or forbearance with respect to the Obligations or any of the terms of the
Loan Documents, (b) no understanding with respect to any other restructuring, modification, amendment, waiver or forbearance with respect to the Obligations or any of the terms of the Loan Documents shall constitute a legally binding agreement
or contract, or have any force or effect whatsoever, unless and until reduced to writing and signed by authorized representatives of each Borrower and Lender, and (c) the execution and delivery of this Agreement has not established any course
of dealing among the parties hereto or created any obligation or agreement of Lender with respect to any future restructuring, modification, amendment, waiver or forbearance with respect to the Obligations or any of the terms of the Loan Documents.

  
 9. To induce Lender to enter into this Agreement, each
Borrower hereby represents and warrants that, as of the date hereof, and after giving effect to the terms hereof, there exists no Default under the Loan Agreement or any of the other Loan Documents other than the Existing Default. 
  
 10. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same instrument. 
  
 11. This Agreement shall be binding upon and inure to the benefit of the
successors and permitted assigns of the parties hereto. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, other than its laws respecting choice of law. 
  
 [SIGNATURES BEGIN ON NEXT PAGE] 
  

 2 








 IN WITNESS WHEREOF, Borrowers and Lender have caused this Agreement to be duly executed as of the date first above
written. 
  

			
	DATREK PROFESSIONAL BAGS, INC., a Florida corporation f/k/a Datrek Acquisition, Inc.
		
	By:	 	 /s/ Michael S. Hedge


	Name:	 	Michael S. Hedge
	Title:	 	President
	
	MILLER GOLF COMPANY, a Florida corporation f/k/a Miller Acquisition, Inc.
		
	By:	 	 /s/ Michael S. Hedge


	Name:	 	Michael S. Hedge
	Title:	 	President
	
	FCC, LLC, d/b/a First Capital
		
	By:	 	 /s/ Evan G. Jones


	 	 	Evan G. Jones, Senior Vice President


  
 Each of the undersigned
acknowledges the foregoing and agrees that the respective Information and Support Agreement to which by each of the undersigned is party dated as of October 15, 2004 in favor of Lender remains in full force and effect, subject to no right of
offset, claim or counterclaim. 
  
 /s/ Dennis Ryan 

 DENNIS RYAN 
  
 /s/ Deborah Ryan 

 DEBORAH RYAN 
  
 /s/ Michael Hedge 

 MICHAEL HEDGE 
  

			
	STANFORD VENTURE CAPITAL HOLDINGS, INC.
		
	By:	 	 /s/ James M. Davis


	Name:	 	James M. Davis
	Title:	 	President

  
 The undersigned acknowledges the
foregoing and agrees that the Guaranty of the undersigned dated as of October 15, 2004 in favor of Lender and all documentation with respect to cash collateral of the undersigned pledged to Lender remains in full force and effect, subject to no
right of offset, claim or counterclaim. 
  

			
	DATREK MILLER INTERNATIONAL, INC.
		
	By:	 	 /s/ Michael S. Hedge


	Name:	 	Michael S. Hedge
	Title:	 	Chief Executive Officer

  

 3