Exhibit 10.67
CASTLE BRANDS INC.
CREDIT AGREEMENT
FEBRUARY 12, 2007
CASTLE BRANDS INC.
CREDIT AGREEMENT
This Credit Agreement (this "AGREEMENT") is made as of the 12th day of
February, 2007 by and among Castle Brands Inc., a Delaware corporation (the
"COMPANY") and the Frost Nevada Investments Trust, a Nevada business trust (the
"LENDER").
RECITAL
The Company desires to borrow from the Lender, and the Lender desires to
loan to the Company up to an aggregate principal amount of $5,000,000 (the
"Commitment"), pursuant to the terms set forth in this Agreement.
AGREEMENT
In consideration of the mutual promises contained herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties to
this Agreement agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following capitalized terms have the
following meanings:
"ADVANCE" means the amount of US Dollars advanced pursuant to this
Agreement and as evidenced by the Note.
"AFFILIATE" means, with respect to any Person, a Person that owns or
controls directly or indirectly such Person, any Person that controls or is
controlled by or is under common control with such Person, and each of that
Person's senior executive officers, directors, partners and, for any Person that
is a limited liability company, that Person's managers and members;
"AGREEMENT" means this Credit Agreement, as amended from time to time;
"BUSINESS DAY" means any day other than a day on which commercial banks in
New York are required or permitted by law to be closed;
"CLOSING" means the closing of the issuance of the Note;
"COMMON STOCK" means the shares of common stock, $.01 par value, per share,
of the Company;
"COMPANY" has the meaning set forth in the introductory paragraph above;
"EVENT OF DEFAULT" has the meaning set forth in Section 7 below;
"EXCESS AMOUNT MATURITY DATE" shall have the meaning set forth in the Note;
"EXCHANGE ACT" has the meaning set forth in Section 3.5 below;
"MATERIAL ADVERSE EFFECT" means a change or effect that is materially
adverse to the financial condition, assets, or operations of the Company, or
will prevent the transactions contemplated by this Agreement;
"MATURITY DATE" shall have the meaning set forth in the Note;
"NOTE" means the promissory note issued pursuant to this Agreement at the
Closing, in substantially the form attached to this Agreement as Exhibit A;
"PERSON" shall mean and include any individual, partnership, corporation
(including a business trust), joint stock company, limited liability company,
unincorporated association, joint venture, governmental entity or other entity;
"LENDER" has the meaning set forth in the introductory paragraph above; and
"SECURITIES ACT" means the Securities Act of 1933, as amended;
"SEC" has the meaning set forth in Section 3.5 below; and
"SEC DOCUMENTS" has the meaning set forth in Section 3.5 below.
2. AMOUNT AND TERMS OF CREDIT
2.1 CLOSING AND ADVANCES. (a) Subject to the terms and conditions of
this Agreement and the Note, the Lender agrees to make advances (the
"ADVANCE(S)") to the Company, from time to time from the date of this Agreement
until the Maturity Date (as such terms are defined in the Note), at such times
as the Company may request in writing. Each Advance, up to the Commitment, shall
be in increments of $1,000,000. Each Advance to the Company shall be made on ten
days prior written notice by the Company to the Lender at its address as set
forth on the signature page herein. Subject to the terms and conditions of this
Agreement and the Note, the Lender agrees to make any requested Advance to the
Company on the date specified in the Advance Notice.
(b) The Company shall execute and deliver to the Lender the Note
to evidence the Commitment and the Advances, dated the date hereof, and
substantially in the form of Exhibit A hereto (the "NOTE"). The Note shall
represent the obligation of the Company to pay the amount of the Commitment or,
if less, the aggregate unpaid principal amount of all Advances made by the
Lender to the Company. The date and amount of each Advance and any payment of
principal with respect thereto shall be recorded by the Company on its books and
records, and by the Lender on the grid portion of the Note.
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(c) At the Closing, the Lender shall deliver to the Company a
validly executed IRS Form W-9 or, if applicable, Form W-8 BEN.
(d) At the Closing, the Company shall pay the Lender a facility
fee of US $150,000. Upon receipt by the Company of its first Advance under this
Credit Agreement, the Company shall promptly pay the Lender an additional
facility fee of US $200,000.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Lender that:
3.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and authority to carry on its business as presently conducted or proposed
to be conducted. The Company or its representatives are duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure so to qualify would have a Material Adverse Effect.
3.2 AUTHORIZATION.
All corporate actions on the part of the Company, its officers, directors
and holders of Equity Securities necessary for (i) the authorization, execution
and delivery of this Agreement and the Note, (ii) the performance of all
obligations of the Company under this Agreement and the Note and (iii) the
authorization, issuance and delivery of the Note have been taken or will be
taken prior to the Closing, and this Agreement and the Note, when executed and
delivered by the Company, shall constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, or other laws of general
application relating to or affecting the enforcement of creditors' rights
generally, or (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
3.3 COMPLIANCE WITH OTHER INSTRUMENTS; NO EVENTS OF DEFAULT.
The Company is not in violation or default of any provisions of its
Certificate of Incorporation, as amended, or Bylaws, as amended, or of any
instrument, judgment, order, writ, or decree, or under any note, indenture,
mortgage, lease, agreement, contract or purchase order to which it is a party or
by which it is bound or of any provision of state or federal statute, rule or
regulation applicable to the Company, the violation of which would have a
Material Adverse Effect. The execution, delivery and performance of this
Agreement, the issuance of the Note and the consummation of the transactions
contemplated hereby or thereby will not result in any such violation or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either a default under any such provision, instrument, judgment, order,
writ, decree or contract
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or an event which results in the creation of any lien, charge or encumbrance
upon any assets of the Company in either case which would have a Material
Adverse Effect. No Event of Default shall have occurred or occur as a result of
the Company's execution of this Agreement or the Note.
3.4 DISCLOSURE.
The Company has made available to the Lender such information as the Lender
has requested for deciding whether to acquire the Note.
3.5 FINANCIAL STATEMENTS.
Since the date of the initial public offering of its common stock, the
Company has filed all reports required to be filed by it under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), including pursuant to
Section 13(a) or 15(d) thereof (the foregoing materials, together with the
Company's registration statement on Form S-1, Registration No. 333-128676
(together with all amendments thereto), being collectively referred to herein as
the "SEC DOCUMENTS")) and has filed any such SEC Documents in a timely fashion.
As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act and the Exchange Act and
the rules and regulations of the United States Securities and Exchange
Commission (the "SEC") promulgated thereunder, and none of the SEC Documents,
when filed, contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. All material agreements to which the Company is a party or
to which the property or assets of the Company are subject have been
appropriately filed as exhibits to the SEC Documents as and to the extent
required under the Exchange Act. The financial statements of the Company
included in the SEC Documents comply in all material respects with applicable
accounting requirements and the rules and regulations of the SEC with respect
thereto as in effect at the time of filing, were prepared in accordance with
GAAP applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto, or, in the case of unaudited statements as
permitted by Form 10-Q of the SEC), and fairly present in all material respects
(subject in the case of unaudited statements, to normal, recurring audit
adjustments) the financial position of the Company as of the dates thereof and
the results of its operations and cash flows for the periods then ended. The
Common Stock is traded on the American Stock Exchange.
4. REPRESENTATIONS AND WARRANTIES OF THE LENDER.
The Lender hereby represents and warrants to the Company that:
4.1 AUTHORIZATION.
The Lender has full power and authority to enter into this Agreement. This
Agreement, when executed and delivered by the Lender, will constitute a valid
and legally binding obligation of the Lender, enforceable in accordance with its
terms, except
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as limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, and any other laws of general application affecting
enforcement of creditors' rights generally, and as limited by laws relating to
the availability of a specific performance, injunctive relief, or other
equitable remedies.
4.2 PURCHASE ENTIRELY FOR OWN ACCOUNT.
This Agreement is made with the Lender in reliance upon the Lender's
representation to the Company, which by the Lender's execution of this
Agreement, the Lender hereby confirms, that the Note to be acquired by the
Lender will be acquired for investment for the Lender's own account, not as a
nominee or agent, and not with a view to the resale or distribution of any part
thereof, and that the Lender has no present intention of selling, granting any
participation in, or otherwise distributing the same. By executing this
Agreement, the Lender further represents that the Lender does not presently have
any contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Note. The Lender has not been formed for the specific
purpose of acquiring the Note.
4.3 KNOWLEDGE.
The Lender is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Note.
4.4 RESTRICTED SECURITIES.
The Lender understands that the Note has not been, and will not be,
registered under the Securities Act, by reason of a specific exemption from the
registration provisions of the Securities Act which depends upon, among other
things, the bona fide nature of the investment intent and the accuracy of the
Lender's representations as expressed herein. The Lender understands that the
Note is "restricted security" under applicable U.S. federal and state securities
laws and that, pursuant to these laws, the Lender must hold the Note
indefinitely unless it is registered with the Securities and Exchange Commission
and qualified by state authorities or an exemption from such registration and
qualification requirements is available. The Lender acknowledges that the
Company has no obligation to register or qualify the Note for resale. The Lender
further acknowledges that if an exemption from registration or qualification is
available, it may be conditioned on various requirements including, but not
limited to, the time and manner of sale, the holding period for the Note, and on
requirements relating to the Company which are outside of the Lender's control,
and which the Company is under no obligation and may not be able to satisfy.
4.5 NO PUBLIC MARKET.
The Lender understands that, except for the Common Stock, no public market
now exists for any of the securities issued by the Company and the Company has
made no assurances that a public market will ever exist for any of the Company's
securities.
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4.6 ACCREDITED INVESTOR.
The Lender is an accredited investor as defined in paragraphs (a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) of Rule 501(a) of Regulation D promulgated
under the Securities Act and is a business trust having a net asset value of at
least $5,000,000 and was not formed to invest in the Company.
5. CONDITIONS TO THE LENDER'S OBLIGATIONS TO MAKE ANY ADVANCE.
The obligation of the Lender to make an Advance under the Note is subject
to the fulfillment of each of the following conditions, unless otherwise waived
by the Lender:
5.1 REPRESENTATIONS AND WARRANTIES.
The representations and warranties of the Company contained in Section 3
shall be true on and as of each applicable Advance with the same effect as
though such representations and warranties had been made on and as of the date
of such Advance;
5.2 COMPLIANCE WITH AGREEMENTS.
The Company shall have performed under and complied in all material
respects with each agreement, covenant and obligation required by this Agreement
to be so performed by or complied with by the Company on or before any Advance;
5.3 CONSENTS.
The obtaining of all third party consents, approvals and waivers required
for the Company to consummate the transactions contemplated by this Agreement;
5.4 COMPLIANCE WITH LAWS.
Compliance by the Company with all applicable federal and state securities
laws with respect to the issuance of the Note.
6. AFFIRMATIVE COVENANTS OF THE COMPANY.
The Company will do all of the following for so long as the Note is
outstanding:
6.1 TAXES.
Make timely payment of all material federal, state, and local taxes or
assessments other than any taxes or assessments that the Company is contesting
in good faith and deliver to the Lenders, on demand, appropriate certificates
attesting to such payment.
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6.2 CORPORATE EXISTENCE AND COMPLIANCE WITH LAWS.
Maintain its and its operating subsidiaries corporate existence and good
standing under the laws of their state of incorporation and remain in good
standing in each jurisdiction in which the failure to do so would have a
Material Adverse Effect.
7. EVENTS OF DEFAULT.
Any one of the following is an "EVENT OF DEFAULT":
7.1 PAYMENT DEFAULT.
If the Company fails to pay (i) any of the principal amount of and accrued
interest on the Note on the Maturity Date or, if applicable, the Excess Amount
Maturity Date, of the Note or (ii) any fees or interest related to the Note when
due, and such failure to pay such fees or interest remains unremedied after the
Company has received ten (10) Business Days prior written notice.
7.2 COVENANT DEFAULT.
If the Company fails to perform any obligation under Section 6 and as to
any default that can be cured, has failed to cure such default within thirty
(30) days after the occurrence thereof; provided, however, that if the default
cannot by its nature be cured within the thirty (30) day period or cannot after
diligent attempts by the Company be cured within such thirty (30) day period,
and such default is likely to be cured within a reasonable time, then the
Company shall have an additional reasonable period (which shall not in any case
exceed sixty (60) additional days) to attempt to cure such default, and within
such reasonable time period the failure to have cured such default shall not be
deemed an Event of Default;
7.3 INSOLVENCY.
If the Company becomes insolvent or if the Company begins an insolvency
proceeding or an insolvency proceeding is begun against the Company and not
dismissed or stayed within ninety (90) days;
8. MISCELLANEOUS.
8.1 SUCCESSORS AND ASSIGNS.
Subject to the limitations set forth herein, the Lender may assign this
Agreement and the rights and obligations conferred hereby, in whole or in part,
only to eligible financial institutions and only upon the written consent of the
Company. Any assignment made in violation of this Section 8.1 is null and void.
The terms and conditions of this Agreement shall be binding upon and inure to
the benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies,
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obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
8.2 GOVERNING LAW.
This Agreement and all acts and transactions pursuant hereto and the rights
and obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the laws of the State of New York, without giving
effect to principles of conflicts of law.
8.3 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute one
instrument.
8.4 TITLES AND SUBTITLES.
The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this Agreement.
8.5 NOTICES.
Any notice required or permitted by this Agreement shall be in writing and
shall be deemed sufficient upon receipt, when delivered personally or by
courier, overnight delivery service or confirmed facsimile, or 48 hours after
being deposited in the U.S. mail as certified or registered mail with postage
prepaid, if such notice is addressed to the party to be notified at such party's
address or facsimile number as set forth below or as subsequently modified by
written notice.
8.6 AMENDMENTS AND WAIVERS.
Any term of this Agreement may be amended or waived only with the written
consent of the Company and the holder of the Note.
8.7 SEVERABILITY.
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, the parties agree to renegotiate such provision in good
faith, in order to maintain the economic position enjoyed by each party as close
as possible to that under the provision rendered unenforceable. In the event
that the parties cannot reach a mutually agreeable and enforceable replacement
for such provision, then (i) such provision shall be excluded from this
Agreement, (ii) the balance of the Agreement shall be interpreted as if such
provision were so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
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8.8 ENTIRE AGREEMENT.
This Agreement, and the documents referred to herein constitute the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and any and all other written or oral agreements existing between the parties
hereto are expressly canceled.
8.9 EXCULPATION BY LENDER.
The Lender acknowledges that it is not relying upon any person, firm or
corporation, other than the Company and its officers and directors, in making
its investment or decision to invest in the Company.
[Signature Pages Follow]
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The parties have executed this Credit Agreement as of the date first
written above.
COMPANY:
CASTLE BRANDS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇, Chairman & CEO
Address: 29th Floor
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
LENDER:
FROST NEVADA INVESTMENTS TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Trustee
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
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▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇