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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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