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CREDIT AGREEMENT $32,500,000.00 Credit Facility

Loan Agreement

CREDIT AGREEMENT $32,500,000.00 Credit Facility | Document Parties: FOREFRONT HOLDINGS, INC. | FOREFRONT HOLDINGS, INC | STANFORD VENTURE CAPITAL HOLDINGS, INC You are currently viewing:
This Loan Agreement involves

FOREFRONT HOLDINGS, INC. | FOREFRONT HOLDINGS, INC | STANFORD VENTURE CAPITAL HOLDINGS, INC

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Title: CREDIT AGREEMENT $32,500,000.00 Credit Facility
Governing Law: Florida     Date: 3/31/2008
Industry: Recreational Products     Sector: Consumer Cyclical

CREDIT AGREEMENT $32,500,000.00 Credit Facility, Parties: forefront holdings  inc. , forefront holdings  inc , stanford venture capital holdings  inc
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Exhibit 10.36

CREDIT AGREEMENT

$32,500,000.00 Credit Facility

by and between

FOREFRONT HOLDINGS, INC.,

a Florida corporation,

“Borrower”

and

STANFORD VENTURE CAPITAL HOLDINGS, INC.,

a Delaware corporation

“Lender”

Dated as of November 21, 2007

 


CREDIT AGREEMENT

THIS CREDIT AGREEMENT (the “ Agreement ” ), dated as of November 21, 2007 (the “ Effective Date ”), is made by and between FOREFRONT HOLDINGS, INC., a Florida corporation (the “ Borrower ”) and STANFORD VENTURE CAPITAL HOLDINGS, INC., a Delaware corporation (the “ Lender ” ).

W I T N E S S E T H

WHEREAS , the Borrower desires to obtain a commitment from the Lender to make loans to the Borrower; and

WHEREAS , the Lender is willing to extend the commitment to the Borrower on the terms and subject to the conditions hereinafter set forth.

NOW, THEREFORE , in consideration of the premises and the mutual covenants and agreements set forth herein, and other good and valuable consideration exchanged between the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I - DEFINITIONS

Section 1.1 Definitions . In addition to terms defined elsewhere in this Agreement, the following terms have the meanings indicated which meanings shall be equally applicable to both the singular and the plural forms of such terms:

1.1.1 “ Affiliate ” shall mean any Person (other than a Subsidiary) which directly or indirectly through one or more intermediaries controls, or is controlled by or is under common control, with a Borrower, or 5% or more of the equity interest of which is held beneficially or of record by the Borrower or a Subsidiary. The term “control” means the possession, directly of indirectly, of the power to cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

1.1.2 “ Agreement ” means this Credit Agreement, as the same may from time to time be amended.

1.1.3 “ Borrower ” has the meaning assigned to that term in the introduction to this Agreement.

1.1.4 “ Borrowing ” shall mean the drawing down by the Borrower of a loan or loans from the Lender on any given Borrowing Date.

1.1.5 “ Borrowing Date ” shall mean the date as of which a Borrowing is consummated.

1.1.6 “ Business Day ” shall mean a day on which commercial banks are open for business in the state of Florida.

 


1.1.7 “ Code ” shall mean the Internal Revenue Code of 1986 as amended from time to time, and the regulations and published interpretations thereof.

1.1.8 “ Commencement Date ” shall mean the date of execution by the Borrower of this Agreement.

1.1.9 “ Commission ” shall mean the Securities and Exchange Commission.

1.1.10 “ Default ” means any event which, with the lapse of time, the giving of notice, or both, would become an Event of Default.

1.1.11 “ Default Rate ” shall mean 24% per annum.

1.1.12 “ Director ” shall mean any member of the Board of Directors of the Borrower.

1.1.13 “ Effective Date ” means the date all parties hereto have executed this Agreement and the Loan Documents and Borrower has complied with all conditions precedent thereto.

1.1.14 “ Entity Authorizations ” shall mean certified copies of Borrower’s articles of incorporation and bylaws and current certificates of good standing and certified resolutions or authorizations as may be required to establish the power and authority of the Borrower to execute, deliver and perform its respective obligations under, as the case may be, the Loan Documents.

1.1.15 “ Event of Default ” has the meaning assigned to that term in Section 7.1 hereof.

1.1.16 “ Exchange Act ” shall mean the Securities and Exchange Act of 1934, as amended.

1.1.17 “ Governmental Authority ” shall mean any court, board, agency, commission, office or authority of any nature whatsoever or any governmental unit (federal, state, county, district, municipal, city or otherwise) whether now or here-after in existence.

1.1.18 “ Indebtedness ” of any Person shall mean (i) all indebtedness or liability for borrowed money or for the deferred purchase price of any property (including accounts payable to trade creditors under customary trade credit terms) or services for which the Person is liable as principal, (ii) all indebtedness (excluding unaccrued finance charges) secured by a Lien on property owned or being purchased by the Person, whether or not such indebtedness shall have been assumed by the Person, (iii) any arrangement (commonly described as a sale-and-leaseback transaction) with any financial institution or other lender or investor providing for the leasing to the Person of property which at the time has been or is to be sold or transferred by the Person to the lender or investor, or which has been or is being acquired from another Person, and (iv) all obligations of partnerships or joint ventures in respect of which the Person is primarily or secondarily liable as a partner or joint venturer or otherwise (provided

 

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that in any event for purposes of determining the amount of the Indebtedness, the full amount of such obligations, without giving effect to the contingent liability or contributions of other participants in the partnership or joint venture, shall be included).

1.1.19 “ Lender ” has the meaning assigned to that term in the introduction to this Agreement.

1.1.20 “ Lien ” shall mean a mortgage, pledge, lien, hypothecation, assignment, security interest or other charge or encumbrance or any segregation of assets or revenues or other preferential arrangement (whether or not constituting a security interest) with respect to any present or future assets, including fixtures, revenues or rights to the receipt of income of the Person referred to in the context in which the term is used.

1.1.21 “ Loan ” shall mean the aggregate principal amount advanced by the Lender as a loan or loans to the Borrower under Article 2 and Article 6 hereof, or, where the context so requires.

1.1.22 “ Loan Documents ” shall mean those documents executed or submitted in connection with the Loan, including, without limitation, (i) the Note; (ii) this Credit Agreement; and (iii) all other documents and instruments executed by the Borrower in connection with the Loan and/or as may be required by Lender or Lender’s counsel, including those referred to in Section 6 hereof.

1.1.23 “ Loan Funding Period ” shall mean the period between the Effective Date and the Maturity Date.

1.1.24 “ Maturity Date ” shall mean September 30, 2009.

1.1.25 “ Note ” shall mean the Subordinated Promissory Note described in Section 2.2 hereof, in the principal amount of $32,500,000.00 dated the initial Borrowing Date and payable to the order of the Lender, substantially in the form of Exhibit “A” attached hereto and made a part hereof, and any modifications, renewals, replacements or substitutions therefor made from time to time hereafter, and to the extent applicable.

1.1.26 “ Obligations ” shall mean any and all liabilities, obligations, covenants, duties and debts, owing by the Borrower to the Lender, arising under this Agreement or any other Loan Document, including without limitation, all interest, charges, indemnities, expenses, fees, attorneys’ fees, filing fees and any other sums chargeable to the Borrower hereunder or under any other Loan Document, or any other contractual agreement between the Lender and the Borrower.

1.1.27 “ Person ” shall mean any natural person, corporation, unincorporated organization, trust, joint-stock company, joint venture, association, company, partnership or government, or any agency or political subdivision of any government, or other entity of whatever nature.

 

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1.1.28 “ Securities Act ” shall mean the Securities Act of 1933, as amended and the rules promulgated thereunder.

1.1.29 “ Subsidiary ” shall mean any Person in which the Borrower may own, directly or indirectly, an equity interest of more than 50%, or which may effectively be controlled by the Borrower, during the term of this Agreement.

Section 1.2 Accounting Terms . Accounting terms not specifically defined in this Agreement shall have the meaning given to them under accounting principles and practices generally accepted in the United States, applied on a consistent basis with the financial statements referred to in Section 3.3 hereof, and shall be determined both as to classification of items and amounts in accordance therewith. All Subsidiaries shall be consolidated to the fullest extent permitted by such principles and practices, and any accounting terms, financial covenants and financial statements referred to herein shall be determined and prepared on the basis of such consolidation.

Section 1.3 Other Definitional Provisions . The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section, Subsection and Exhibit references are to this Agreement unless otherwise specified.

ARTICLE II - LOAN

Section 2.1 Loan . Lender shall loan to the Borrower a gross amount of $32,500,000.00 in accordance with draw requests made by the Borrower from time to time. The Borrower shall submit each draw request to Lender at least four weeks before the desired funding date. All draw requests shall be subject to approval by Lender in its sole and absolute discretion.

Section 2.2 Note . In consideration of the Loan, the Borrower shall execute and deliver in favor of Lender a subordinated promissory note in the form and content substantially the same as Exhibit “A” attached hereto (the “ Note ”).

Section 2.3 Use of Proceeds . The Borrower will use the net proceeds of the Loan (i) to refinance the loans from Lender to the Borrower in the outstanding principal amount of $5,950,000 initially made by Stanford International Bank Limited (“ SIBL ”) to the Borrower; (ii) to refinance the loan of $5,030,000 from SIBL to the Borrower in connection with various corporate restructuring transactions consummated in September 2007; (iii) to pay all of Lender’s reasonable costs and expenses incurred in connection with the Loan as described in Section 2.4, below; (iv) for the general working capital purposes of Forefront Group, Inc., the Borrower’s Subsidiary.

Section 2.4 Expenses . Immediately upon the execution of this Agreement, Borrower shall pay all of Lender’s reasonable costs and expenses including, without limitation, reasonable attorneys’ fees, incurred in connection with the Loan.

 

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ARTICLE III - REPRESENTATIONS AND WARRANTIES

In order to induce the Lender to enter into this Agreement and to make the Loan provided for herein, the Borrower makes the following representations and warranties to the Lender, all of which are true and correct as of the date hereof and shall be true and correct as of the date of each draw of Loan funds, and all of which shall survive the execution and delivery of this Agreement, the Note and the other Loan Documents:

Section 3.1 Corporate Existence and Power . The Borrower is duly organized validly existing and in good standing under the laws of its state of organization and is duly qualified or licensed to transact business in all places where such qualification or license is necessary. The Borrower has the power to enter into and perform this Agreement and the Loan Documents, to the extent that it has executed such documents, and this Agreement does, and the Loan Documents when duly executed and delivered for value will, constitute the legal, valid and binding obligations of the Borrower enforceable in accordance with their respective terms.

Section 3.2 Authority . The making and performance by the Borrower of this Agreement, the Note, the Loan Documents, and any additional documents pursuant hereto, has been duly authorized by all necessary legal action of the Borrower, and does not and will not violate any provision of law or regulation, or any writ, order or decree of any court, governmental, regulatory authority or agency, and does not and will not, with the passage of time or the giving of notice, result in a breach of, or constitute a default or require any consent under, or result in the creation of any lien, charge or encumbrance upon any property or assets of the Borrower, pursuant to any instrument or agreement to which the Borrower is a party or by which the Borrower or its properties may be bound or affected.

Section 3.3 Financial Condition . The financial statements of the Borrower set forth in the periodic filings made by the Borrower with the Commission through the quarter ended September 30, 2006 were prepared in accordance with generally accepted accounting principles consistently applied, are complete and correct and fairly present the consolidated financial condition of the Borrower, and its Subsidiaries, as of that date. Monthly unaudited balance sheets and statements of income and cash flow for the Borrower as of and for the months ended on October 31, 2006 through September 30, 2007 have been provided to the Lender (the “ Interim Financial Statements ”). All such Interim Financial Statements are true, complete and correct in all material respects, were prepared in accordance with accounting practices and procedures historically used by the Borrower applied on a consistent basis throughout the periods covered thereby and present fairly the financial condition of the Borrower as of such dates and the results of operations and cash flows for the periods then ended. Other than as disclosed by the financial statements described in this Section 3.3, the Borrower has no direct or contingent obligations or liabilities which would be material to the financial position of the Borrower or any material unrealized or anticipated losses from any commitments of the Borrower. Since the date of such financial statements, there has been no material adverse change in the business or financial condition of the Borrower.

Section 3.4 Full Disclosure . The financial statements referred to in Section 3.3 do not, nor does this Agreement, nor any written statement furnished by the Borrower to the Lender in connection with the negotiation of this Agreement or the Loan, contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or herein not misleading.

 

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There is no fact which the Borrower has not disclosed to the Lender in writing which materially and adversely affects nor, so far as the Borrower can now foresee, is reasonably likely to prove to materially and adversely affect the business or financial condition of the Borrower or the ability of the Borrower to perform this Agreement, the Note or any other Loan Document.

Section 3.5 Litigation . Except to the extent disclosed in Schedule 3.5 attached hereto, there are no suits, actions or proceedings pending, or to the knowledge of the Borrower, threatened before any court or by or before any governmental or regulatory authority, commission, bureau or agency or public regulatory body against or affecting the Borrower which, if adversely determined, would have a material adverse effect on the business or financial condition of the Borrower.

Section 3.6 Payment of Taxes . As of the date of execution of this Agreement, federal income tax returns of the Borrower have been filed with Internal Revenue Service and no deficiencies have been assessed. The Borrower has filed or caused to be filed, or has obtained extensions to file all federal, state and local tax returns which are required to be filed, and have paid or caused to be paid, or have reserved on their books amounts sufficient for the payment of, all taxes as shown on said returns or on any assessment received by them, to the extent that the taxes have become due, except as otherwise permitted by the provisions hereof. The Borrower has established reserves which are reasonably believed by the Borrower to be adequate for the payment of said taxes for the years that have not been audited by the respective tax authorities.

Section 3.7 No Adverse Restrictions or Defaults . Except as set forth in Schedule 3.7 attached hereto, the Borrower is not a party to any agreement or instrument or subject to any court order or judgment, governmental decree, charter or other restriction adversely or materially affecting its business, properties or assets, operations or condition (financial or otherwise). The Borrower is not in material default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement or instrument to which it is a party or by which the Borrower and its properties, may be bound or affected, or under any material law, regulation, decree, order or the like, which default would have a material adverse effect on the Borrower.

Section 3.8 Authorizations . All material authorizations, consents, approvals and licenses required under applicable law or regulation for the ownership or operation of the property owned or operated by the Borrower or for the conduct of business in which the Borrower is engaged, have been duly issued and are in full force and effect, and to the best of Borrower’s knowledge, the Borrower is not in default under any material order, decree, ruling, regulation, closing agreement or other decision or instrument of any government commission, bureau or other administrative agency or public regulatory body having jurisdiction over the Borrower, which default would have a material adverse effect on the Borrower. No approval, consent or authorization of or filing or registration with any governmental commission, bureau or other regulatory authority or agency is required with respect to the execution, delivery or performance of this Agreement, the Note or any of the Loan Documents executed in connection with the making of the Loan, other than filings required under applicable securities laws which shall have been duly made by the Borrower as of the Effective Date.

 

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