Exhibit 10.18
AMENDED AND
RESTATED
SUBORDINATED
REVOLVING
LINE OF CREDIT
AGREEMENT
This Amended and Restated
Subordinated Revolving Line of Credit Agreement dated as of May 10,
2006 (this “ Agreement ”) amends and restates in
its entirety the Subordinated Revolving Line of Credit Agreement
entered into as of May 2, 2006 by and between HD Partners
Acquisition Corporation, a Delaware corporation (“
Borrower ”), and the individuals and entities set
forth on Schedule A (“ Lenders ”), with
reference to the following facts.
(a) Borrower has been
organized for the purpose of effecting a merger, capital stock
exchange, asset acquisition or other similar business combination
with an operating business (a “ Business Combination
”).
(b) Borrower proposes to:
(a) make a public offering (the “ Public Offering
”) of its securities pursuant to a registration statement
(the “ Registration Statement ”) filed with and
declared effective by the Securities and Exchange Commission (the
“ SEC ”); (b) deposit the proceeds from the
Public Offering into a trust account (the “ Trust
Account ”) for the benefit of the purchasers of
securities in the Public Offering, net of offering costs,
underwriting discounts, to be held and disbursed in accordance with
the terms of the Investment Management Trust Agreement to be
entered into between Borrower and Corporate Stock Transfer, Inc. as
trustee (the “ Trust Agreement ”); and
(c) utilize the funds in the Trust Account in connection with
a Business Combination.
(c) Borrower may need
funds to pay costs and expenses prior to consummation of a Business
Combination.
(d) On the terms and
subject to the conditions set forth in this Agreement, Lenders are
willing to make available to Borrower a revolving line of credit to
pay certain costs and expenses that may arise prior to a Business
Combination (the “ Loan ”).
1. The Loan
1.1 Lenders agree to make
advances to Borrower, and Borrower agrees to repay such advances,
from time to time in accordance with the terms and conditions of
this Agreement and the form of revolving promissory note attached
hereto as Exhibit A (the “ Note ”);
provided, however, that notwithstanding anything to the contrary in
this Agreement, at no time shall the aggregate of all advances and
readvances outstanding under the Loan at any time exceed $750,000.
Each Lender shall be obligated to advance or readvance his pro-rata
share to the Borrower, up to $150,000 per Lender.
This Agreement and the Note are each
sometimes referred to in this Agreement individually as a “
Loan Document ,” and are sometimes collectively
referred to as the “ Loan Documents
.”
1.2 Lenders’ obligation to make
advances shall expire upon the first to occur of the
following:
1.2.1 Upon a material
breach or default of any representation, warranty or agreement of
Borrower that is not cured or corrected within 20 days of notice of
such breach from any Lender;
1.2.2 Upon consummation
of a business combination;
1.2.3 Two years after the
effective date of the Registration Statement;
1.2.4 Thirty days after Borrower
provides written notice to Lenders of its termination of this
Agreement and the Loan facility, and the payment of all amounts due
hereunder to Lenders.
2. Conditions of Advances
. Upon reasonable advance request from Borrower, Lenders
shall make advances to or as directed by Borrower, provided that
each and all of the following conditions is satisfied:
2.1 Borrower shall have
executed and delivered the Note to Lenders, as
applicable;
2.2 The aggregate amount
of outstanding advances following such advance shall not exceed
$750,000;
2.3 The representations
and warranties of Borrower in the Loan Documents shall be true and
correct in all material respects;
2.4 Borrower shall have
complied in all material respects with each of its agreements in
the Loan Documents;
2.5 The advances shall be
used only for such purposes as are set forth in Section 4.1 of
this Agreement; and
2.6 Borrower shall have
completed the Public Offering.
3. Borrower
Representations
3.1 Borrower represents
and warrants as follows:
3.1.1 Borrower has full
power and authority to execute and deliver this Agreement and the
other Loan Documents to be executed and delivered by it pursuant
hereto and to perform its obligations hereunder and thereunder.
This Agreement and such Loan Documents constitute the valid and
legally binding obligations of the Borrower and are enforceable
against Borrower in accordance with their terms.
3.1.2 Neither the
execution and the delivery of the Loan Documents by Borrower, nor
the consummation of the transactions contemplated by the Loan
Documents, nor the borrowing by Borrower, will
(a) violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which Borrower is subject or any provision of the Amended and
Restated Certificate of Incorporation or Bylaws of Borrower, or
(b) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any entity or
natural person (each, a “ Person ”) the right to
accelerate, terminate, modify, or cancel, any agreement, contract,
lease, license, instrument, or other arrangement to which Borrower
is a party or by which it is bound or to which any of its assets
are subject (or result in the imposition of any security interest
upon any of its assets), in each case other than where such
violation, conflict, breach, default, acceleration or creation of
right would not reasonably be expected to have a material adverse
effect on the ability of Borrower to repay amounts due under the
Note in accordance with the terms of the Loan Documents. (a “
Material Adverse Effect ”).
3.1.3 Borrower does not
need to give any notice to, make any filing with, or obtain any
authorization, permit, certificate, registration, consent, approval
or order of any government or governmental agency in order for the
parties to consummate the transactions contemplated by
this
Agreement, except where the failure would not
reasonably be expected to have a Material Adverse
Effect.
3.1.4 The conditions to
the obligation of Lenders to make the advance, as set forth in
Section 2, shall be satisfied.
3.2 Each and every
representation and warranty made by Borrower in this Agreement
shall be deemed renewed and remade upon the making of each and
every advance or readvance under the Note that Lenders may
make.
4. Borrower Covenants
. For as long as Lenders shall have a commitment to make
advances or there shall be any outstanding balance on the Loan,
without the prior consent of Lenders, Borrower shall:
4.1 use the proceeds of
any advance made hereunder only for ordinary and reasonable
operating costs and expenses during the period Borrower seeks to
identify, investigate, negotiate and consummate a Business
Combination, including Borrower’s reporting obligations with
the SEC, the audit and review of Borrower’s financial
statements, identifying and investigating potential targets for a
Business Combination, deposits, down payments or funding of
“no-shop” provisions in connection with a particular
Business Combination, negotiating and closing the Business
Combination, legal and other professional fees and expenses, fees,
salaries and compensation for directors, officers, employees,
consultants and advisors, and insurance premiums;
4.2 not declare or pay
any dividend or distribution with respect to, or repurchase or
redeem any shares of, the capital stock of Borrower, provided that
this shall not prohibit payments from the Trust Account to
stockholders of Borrower in accordance with the Trust
Agreement;
4.3 not engage in any
business other than identifying, investigating, negotiating and
closing a Business Combination;
4.4 not make any material
capital expenditure or purchase any material property or asset
(other than office supplies and equipment); and
4.5 upon request of
Lenders, provide to Lenders copies of all filings with the
Securities and Exchange Commission.
5. No Recourse to Trust
Account
Lenders, on behalf of themselves and their
successors and assigns, hereby a
