Exhibit 10.9
REVOLVING LINE OF CREDIT AGREEMENT
This Revolving Line of Credit Agreement (this "Agreement") is made as of
________, 2007 by and between Inter-Atlantic Financial, Inc., a Delaware
corporation ("Borrower"), and Inter-Atlantic Group ("Lender"), 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,
Lender is 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
and after consummation of the Public Offering (the "Loan").
1. THE LOAN
1.1 Lender agrees 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 $500,000.
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 Lender's 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 Lender of its
termination of this Agreement and the Loan facility, and the payment of all
amounts due hereunder to Lender.
2. CONDITIONS OF ADVANCES. Upon reasonable advance request from Borrower,
Lender 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 Lender, as
applicable;
2.2 The aggregate amount of outstanding advances following such advance
shall not exceed $500,000;
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 Lender 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 Lender may make.
4. BORROWER COVENANTS. For as long as Lender shall have a commitment to make
advances or there shall be any outstanding balance on the Loan, without the
prior consent of Lender, 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, compensation for 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 Lender, provide to Lender copies of all filings with the
Securities and Exchange Commission.
5. NO RECOURSE TO TRUST ACCOUNT
Lender, on behalf of itself and its successors and assigns, hereby acknowledges
and agrees that under no circumstance shall Lender have any right, title or
interest in or to any of the funds in the Trust Account, notwithstanding the
fact that such funds were received for the purchase and sale of securities of
Borrower, or any funds distributed from the Trust Account other than in a
Business Combination Distribution (as defined below), and that their sole
recourse for repayment of any and all amounts due under the Note shall be
against the assets or properties of Borrower never deposited into the Trust
Account or distributed to Borrower from the Trust Account in a Business
Combination Distribution. Lender hereby irrevocably waives any claim that they
might have to funds in the Trust Account, and any funds distributed from the
Trust Account other than in a Business Combination Distribution, at law or in
equity, agree not to make any such claim, and agree to indemnify and hold
Borrower harmless from any such claim made by or on behalf of Lender. For
purposes of this Section 5, a "Business Combination Distribution" means a
distribution from the Trust Account in connection with the consummation of a
Business Combination pursuant to the Trust Agreement. Notwithstanding the
foregoing, Lender may seek repayment of the $500,000 revolving line of credit
prior to the consummation of the business combination, provided such payment is
made solely from the $1,000,000 of interest earned on the Trust Account used to
fund the Company's working capital, and solely to the extent that there is more
than $7.92 per unit in the Trust Account, as described in the final prospectus,
dated ______, 2007.
6. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute
an event of default (an "Event of --------- Default") hereunder and under each
and every other Loan Document: -------
6.1 The Borrower shall fail to pay any principal or any other amount as and
when due and payable under any Loan Document;
6.2 Any representation or warranty which is made or deemed made in any Loan
Document by the Borrower shall prove to have been incorrect or misleading in any
material respect on or as of the date made or deemed made or remade;
6.3 The Borrower shall fail to perform or observe any term, provision,
covenant, or agreement contained in any Loan Document to be performed or
observed by the Borrower (other than any payment obligation) and such failure
shall continue more than 20 days after notice thereof from Lender;
6.4 The Borrower shall (a) generally not, or be unable to, or admit in
writing its inability to, pay its debts as such debts become due, only after the
Company has borrowed the entire $500,000 pursuant hereto; or (b) make an
assignment for the benefit of creditors, or petition or apply to any tribunal
for the appointment of a custodian, receiver, or trustee for it or a substantial
part of its assets; or (c) commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (d)
have any such petition or application filed or any such proceeding commenced
against it in which an order for relief is entered or adjudication or
appointment is made and which remains undismissed for a period of 30 days or
more; or (e) by any act or omission to act indicate consent to, approval of, or
acquiescence in any such petition, application, or proceeding, or order for
relief, or the appointment of a custodian, receiver, or trustee for all or any
such substantial part of its properties; or (f) suffer any such custodianship,
receivership, or trusteeship for all or any substantial part of its properties;
or (g) suffer any such custodianship, receivership, or trusteeship to continue
undischarged for a period of 30 days or more; or
6.5 At any time after execution and delivery of this Agreement, and whether
or not due to any fault of Lender, any Loan Document shall cease to be in full
force and effect and enforceable in accordance with its terms, or shall be
declared null and void.
7. CONSEQUENCES OF DEFAULT. If an Event of Default shall occur, Lender:
7.1 shall have no further obligation to make advances under the Loan
Documents; and
7.2 may declare the Note and all amounts payable under this Agreement and
any other Loan Document to be forthwith due and payable, whereupon the Note and
all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest, or further notice of any kind, all of which are
hereby expressly waived by Borrower.
8. MISCELLANEOUS PROVISIONS
8.1 Notices. All notices, requests, demands and other communications
(collectively, "Notices") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission or
by United States first class, registered or certified mail, addressed to the
following addresses:
If to Borrower: Inter-Atlantic Financial, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to Lender: Inter-Atlantic Group
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails (or on
the seventh day if sent to or from an address outside the United States). Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other party in the manner prescribed in this Section.
8.2 No Waivers; Remedies Cumulative. No failure or delay by a party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies provided herein shall be cumulative and not exclusive of
any rights or remedies provided by law.
8.3 Amendments and Waivers. Any provision of this Agreement may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed
by Borrower and Lender and such amendment is approved by the Board of Directors
of Borrower.
8.4 Successors and Assigns. Borrower may not assign its right or duties
hereunder without the prior written consent of Lender, which consent Lender may
deny, withhold or delay in its sole and absolute discretion.
8.5 Governing Law. This Agreement has been made and entered into in the
State of Delaware and shall be construed in accordance with the laws of the
State of Delaware without giving effect to the principles of conflicts of law
thereof.
8.6 Prior Understandings. This Agreement supersedes all prior understandings
and agreements (whether written, oral or otherwise) pertaining to the subject
matter hereof, and constitutes the entire agreement between the parties hereto
relating to the subject matter hereof and the transactions provided for herein.
8.7 Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be deemed an original and all of which shall
constitute one and the same agreement with the same effect as if all parties had
signed the same signature page. The parties shall accept facsimile signatures as
the equivalent of original ones.
8.8 Severability. If any provision of this Agreement or the application of
such provision to any Person or circumstance will be held invalid, the remainder
of this Agreement or the application of such provision to Persons or
circumstances other than those to which it is held invalid will not be affected
thereby.
8.9 Additional Documents and Acts. Borrower shall execute and deliver such
additional documents and instruments and shall perform such additional acts as
may be necessary or appropriate to effectuate, carry out and perform all of the
terms, provisions, and conditions of this Agreement and the transactions
contemplated by this Agreement.
8.10 Survival. All indemnities, rights, remedies, representations and
warranties contained herein shall survive the expiration or termination of this
Agreement, and no termination or expiration hereof shall relieve either party
from liability for any breach of this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement to
one another as of the date first above written.
BORROWER: INTER-ATLANTIC FINANCIAL, INC.
---------
By:
-----------------------
LENDER: INTER-ATLANTIC GROUP
-------
By:
-----------------------
EXHIBIT A
REVOLVING LINE OF CREDIT NOTE
NOT TO EXCEED $500,000 IN PRINCIPAL , 2007
For value received, the undersigned INTER-ATLANTIC FINANCIAL, INC., a
Delaware corporation ("Borrower"), promises to pay, in lawful money of the
United States, to the order of , together with his successors and assigns
("Holder"), at such address as Holder may direct, the principal sum of Five
Hundred Thousand Dollars ($500,000) and any interest accrued thereto at the
federal funds rate, or so much thereof as shall have been
advanced and shall remain unpaid hereunder.
This Note is delivered pursuant to, and is subject to all of the terms and
conditions of, that certain Revolving Line of Credit Agreement dated ,
2007 (the "Loan Agreement") between Borrower and Inter-Atlantic Group
("Lender"). Unless otherwise defined in this Note, capitalized terms used in
this Note shall have the meanings ascribed to them in the Loan Agreement, and in
the event of any conflict between the terms of this Note and the terms of the
Loan Agreement, the terms of the Loan Agreement shall govern.
1. MATURITY. This Note shall mature and become due and payable upon the earlier
of an Event of Default (after the expiration of any cure period), upon
consummation of a Business Combination, or two (2) years after the effective
date of a Registration Statement, as described in Section 1 of the Loan
Agreement.
2. PREPAYMENT. This Note may be repaid in whole or in part at any time without
penalty or premium.
3. EVENT OF DEFAULT. Should an Event of Default occur, Lender shall have the
rights set forth in Section 7 of the Loan Agreement.
4. BORROWER'S ACKNOWLEDGEMENT. Borrower acknowledges that Holder is extending
the credit contemplated hereby solely as an accommodation to Borrower, and is
willing to do so in reliance upon Borrower's monetary and non-monetary covenants
contained herein and in the Loan Agreement.
5. HOLDER'S ACKNOWLEDGEMENT. The Holder acknowledges and agrees that, as
specified in Section 5 of the Loan Agreement, the Holder has limited recourse
against Borrower for repayment of any and all amounts due and owing under this
Note.
6. MISCELLANEOUS. If this Note (or any payment due hereunder) is not paid when
due, Borrower promises to pay all costs and expenses of collection and
reasonable attorneys' fees incurred by the Holder hereof on account of such
collection whether or not suit is filed hereon. Borrower consents to renewals,
replacements and extensions of time for payment hereof, before, at, or after
maturity, consents to the acceptance, release or substitution of security for
this Note, and waives demand and protest. The indebtedness evidenced hereby
shall be payable in lawful money of the United States. In any action brought
under or arising out of this Note, Borrower, including successor(s) or
assign(s), hereby consents to the application of Delaware law, to the
jurisdiction of any competent court within the State of Delaware, and to service
of process by any means authorized by Delaware law. No single or partial
exercise of any power hereunder, or under any other Loan Document in connection
herewith, shall preclude other or further exercises thereof or the exercise of
any other such power.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note as of the date
first above written.
INTER-ATLANTIC FINANCIAL, INC.
By :
-----------------------------------
Name:
Title:
