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 acknowledge
and agree that under no circumstance shall Lenders 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. Lenders hereby irrevocably waive 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 Lenders. 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.


 

















 


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 Lenders;


 


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 $750,000
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, Lenders:


 


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:

  	
   

  	
  HD
  Partners Acquisition Corporation

  
	
   

  	
   

  	
  2601
  Ocean Park Boulevard, Suite 320

  
	
   

  	
   

  	
  Santa
  Monica, CA 90405

  
	
   

  	
   

  	
  Facsimile:
  (310) 399-7303

  
	
   

  	
   

  	
   

  
	
  If to Lenders:

  	
   

  	
  Bruce
  Lederman

  
	
   

  	
   

  	
  2601
  Ocean Park Boulevard, Suite 320

  
	
   

  	
   

  	
  Santa
  Monica, CA 90405

  
	
   

  	
   

  	
  Facsimile:
  (310) 399-7303

  



 


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 Lenders.


 


8.4  Successors and Assigns.
Borrower may not assign its right or duties hereunder without the prior written
consent of Lenders, which consent Lenders 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.


 


8.11  Action
by Lenders Any actions required by or taken by the Lenders pursuant to the
provisions of this Agreement or the Note shall be effective if taken pursuant
to a written document executed by Lenders holding 50.1% or more of the
outstanding principal balance of any unpaid Notes hereunder.


 


[SIGNATURE PAGE FOLLOWS]


 

















 


IN WITNESS WHEREOF, the
parties have executed and delivered this Agreement to one another as of the
date first above written.


 


	
  LENDERS:

  	
   

  	
  /s/ Eddy W. Hartenstein

  	
   

  
	
   

  	
   

  	
  Eddy W. Hartenstein

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Robert L. Meyers

  	
   

  
	
   

  	
   

  	
  Robert L. Meyers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Steven J. Cox

  	
   

  
	
   

  	
   

  	
  Steven J. Cox

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Lawrence Chapman

  	
   

  
	
   

  	
   

  	
  Lawrence Chapman

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Bruce R. Lederman

  	
   

  
	
   

  	
   

  	
  Bruce R. Lederman

  	
   

  
	
   

  
	
   

  
	
  BORROWER:

  	
  HD PARTNERS ACQUISITION CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  	
  Robert
  L. Meyers

  	
   

  
	
   

  	
   

  	
  Robert
  L. Meyers

  
	
   

  	
   

  	
  CFO,
  Treasurer and Director

  
								



 

















 


Schedule A


 


Eddy W. Hartenstein


 


Robert L. Meyers


 


Steven J. Cox


 


Lawrence Chapman


 


Bruce R. Lederman


 

















 


EXHIBIT A


REVOLVING
LINE OF CREDIT NOTE


 


	
  Not to Exceed $750,000 in Principal

  	
   

  	
  , 2006

  



 


For value received, the undersigned HD PARTNERS ACQUISITION CORPORATION, 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 Seven Hundred and Fifty Thousand
Dollars ($750,000), 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 Amended and Restated Subordinated
Revolving Line of Credit Agreement dated as of May 10, 2006 (the “Loan
Agreement”) between Borrower and                          .
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, Lenders 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.


 


 


	
   

  	
  HD PARTNERS ACQUISITION CORPORATION

  
	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: