Exhibit 10.44
[Execution]
FORBEARANCE AGREEMENT
FORBEARANCE AGREEMENT (this
“Agreement”), dated as of April 16, 2007, is entered
into by and among Fortress Credit Corp., a Delaware corporation, in
its capacity as administrative and collateral agent acting for and
on behalf of the parties to the Loan Agreement (as hereinafter
defined) as lenders (in such capacity, “Agent”), the
parties to the Loan Agreement as lenders (each individually a
“Lender” and collectively, “Lenders”),
Maritime Logistics US Holdings Inc., a Delaware corporation
(“MLI”), Summit Logistics International Inc, a New
Jersey corporation (“Summit”), SeaMaster Logistics
Inc., a Delaware corporation (“SeaMaster”), AmeRussia
Shipping Company Inc., a Delaware corporation (“AmeRussia
Shipping”), FMI International LLC, a Delaware limited
liability company (“FMI International”), Fashion
Marketing, Inc., a New Jersey corporation (“FM”), FMI
International Corp. (West), a New Jersey corporation
(“FMIW”), FMI International Corp., a New Jersey
corporation (“FMII”), Freight Management LLC, a
Delaware limited liability company (“FMLLC”), FMI
Trucking, Inc., a New Jersey corporation (“Trucking”),
FMI Express Corp., a New Jersey corporation
(“Express”), Clare Freight, Los Angeles, Inc., a
California corporation (“Clare”), TUG New York, Inc., a
New York corporation (“TUG NY”), Summit Global
Logistics, Inc. (formerly known as Aerobic Creations, Inc.), a
Delaware corporation (“Parent”), TUG USA, Inc., a New
Jersey corporation, formerly known as Dolphin US Logistics Inc
(“TUG USA”), AMR Investments Inc, a New Jersey
corporation (“AMRI”) and FMI Holdco I, LLC, a Delaware
limited liability company (“FMI Holdco”, and together
with MLI, Summit, SeaMaster, AmeRussia Shipping, FM, FMI
International, FMIW, FMII, FMLLC, Trucking, Express, Clare, TUG NY,
Parent, TUG USA, AMRI and FMI Holdco, each individually, a
“Borrower” and collectively, “Borrowers”),
the parties to the Loan Agreement as guarantors (each individually,
a “Guarantor” and collectively,
“Guarantors”).
W I T N E S
S E T H :
WHEREAS, Agent, Lenders, Borrowers and
Guarantors have entered into financing arrangements pursuant to
which Lenders (or Agent on behalf of Lenders) have made and may
make loans and advances and provide other financial accommodations
to Borrowers as set forth in the Loan Agreement, dated as of
November 8, 2006, by and among Agent, Lenders, Borrowers and
Guarantors (as the same may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, the
“Loan Agreement”, and together with this Agreement, and
all other agreements, documents and instruments at any time
executed and/or delivered in connection therewith or related
thereto, as from time to time amended, modified, supplemented,
extended, renewed, restated, or replaced, collectively, the
“Loan Documents”);
WHEREAS, certain Events of Default under the
Loan Agreement have occurred and are continuing and Borrowers
expect certain other Events of Default referred to below to occur;
and
WHEREAS, Borrowers have requested that Agent
and Lenders forbear from exercising their respective rights and
remedies under the Loan Documents as a result of such existing
and
prospective Events of Default
referred to below and Agent and Lenders are willing to agree to
forbear from exercising such rights and remedies on the terms and
conditions contained herein;
NOW, THEREFORE, in consideration of the
foregoing, the mutual agreements and covenants contained herein,
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions and Interpretation
.
(a) Additional Definitions . As used herein, the following terms shall
have the meanings given to them below:
(i) “Existing Defaults” shall mean,
collectively, the Events of Default that have occurred and are
continuing under the Loan Agreement which are described on Exhibit
A hereto.
(ii) “Forbearance Termination Date”
shall have the meaning given to such term in Section 3(b)
hereof.
(iii) “Prospective Financial Covenant
Defaults” shall mean, collectively, (A) the Events of Default
(if any) arising under Section 8.01(c) of the Loan Agreement that
occur as a result of the failure of Borrowers and Guarantors to
comply with the financial covenants set forth in Section 6.03 of
the Loan Agreement (Total Leverage Ratio; Consolidated Last Twelve
Months EBITDA; Fixed Charge Coverage Ratio) and (B) the Event of
Default (if any) arising under Section 8.01(e) of the Loan
Agreement as a result of the defaults that occurred under the
Senior Convertible Notes pursuant to the failure to comply with the
financial covenants set forth in Section 14(l) of the Senior
Convertible Notes, in each case for the respective periods ending
on March 31, 2007.
(iv) “Sea Master Hong Kong” shall mean
Sea Master Logistics (Holding) Limited, a company organized under
the laws of Hong Kong.
(v) “Sea Master Taiwan” shall mean Sea
Master Logistics (Holding) Ltd., Taiwan Branch, a company organized
under the laws of Taiwan.
(b) Interpretation . All capitalized terms used herein shall have
the meanings assigned to them in the Loan Agreement, unless
otherwise defined herein.
2. Acknowledgements .
(a) Acknowledgment of Obligations. Each Borrower
and Guarantor hereby acknowledges, confirms and agrees that as of
the close of business on April 13, 2007, Borrowers are indebted to
Agent and Lenders in the principal amount of $53,000,000 under the
Loan Documents, together with interest accrued and accruing, and
costs and expenses and other fees and charges now or hereafter owed
by Borrowers to Agent and Lenders, which amounts are
unconditionally owing by Borrowers to Agent and Lenders, all
without offset, defense or counterclaim of any kind, nature or
description whatsoever.
(b) Acknowledgment of Security Interests. Each
Borrower and Guarantor hereby acknowledges, confirms and agrees
that Agent has and shall continue to have valid,
enforceable
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and perfected liens upon and
security interests in the assets and properties of Borrowers
heretofore granted to Agent pursuant to the Loan Documents or
otherwise granted to or held by Agent.
(c) Binding Effect of Documents. Each Borrower and
Guarantor hereby acknowledges, confirms and agrees that: (i) each
of the Loan Documents to which it is a party has been duly executed
and delivered to Agent and Lenders by such Borrower or Guarantor
and each is in full force and effect as of the date hereof, (ii)
the agreements and obligations of such Borrower or Guarantor
contained in such documents constitute the legal, valid and binding
obligations of such Borrower or Guarantor, enforceable against it
in accordance with their respective terms except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or other similar laws
affecting creditors’ rights generally and such Borrower or
Guarantor has no valid defense to the enforcement of such
obligations, and (iii) subject to Section 3(b) hereof, Agent and
Lenders are and shall be entitled to the rights, remedies and
benefits provided for in the Loan Documents.
3. Forbearance as to Certain Events of
Default .
(a) Acknowledgment of Default. Each Borrower and
Guarantor hereby acknowledges, confirms and agrees that the
Existing Defaults have occurred and are continuing, and each of
such Existing Defaults constitutes an Event of Default and, subject
to Section 3(b) hereof, entitles Agent and Lenders to exercise
their respective rights and remedies under the Loan Documents,
applicable law or otherwise. Agent and Lenders have not waived,
presently do not intend to waive and may never waive such Existing
Defaults and nothing contained herein or the transactions
contemplated hereby shall be deemed to constitute any such waiver.
Each Borrower and Guarantor hereby acknowledges and agrees that,
subject to Section 3(b) hereof, Agent and Lenders have the right to
declare the Obligations to be immediately due and payable under the
terms of the Loan Documents.
(b) Forbearance.
(i) In reliance upon the representations,
warranties and covenants of Borrowers and Guarantors contained in
this Agreement, and subject to the terms and conditions of this
Agreement and any documents or instruments executed in connection
herewith, Agent and Lenders agree to forbear from exercising their
respective rights and remedies under the Loan Documents, applicable
law or otherwise, in each case, only with respect to the Existing
Defaults and the Prospective Financial Covenant Defaults, to the
effect that the rights and benefits otherwise available to
Borrowers and Guarantors under the Loan Documents in the absence of
an Event of Default, and such agreement of Agent and Lenders to
forbear from exercising their rights and remedies shall continue
until the earliest of the following dates (the earliest of such
dates being referred to herein as the “Forbearance
Termination Date”):
(A) June 15, 2007, or
(B) the date of the occurrence of any Event of
Default, other than the Existing Defaults and the Prospective
Financial Covenant Defaults.
(ii) Upon the Forbearance Termination Date, the
agreement of Agent and Lenders to forbear shall automatically and
without further action terminate and be of no force
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and effect, it being understood
and agreed that the effect of such termination will be to permit
Agent and Lenders to exercise such rights and remedies immediately,
including, but not limited to, the acceleration of the Obligations,
in each case without any further notice, passage of time or
forbearance of any kind.
(c) No Other Waivers; Reservation of
Rights.
(i) Agent and Lenders have not waived, are not by
this Agreement waiving and have no intention of waiving, any Events
of Default which may have occurred prior to the date hereof or
which may be continuing on the date hereof or any Events of Default
which may occur or may be anticipated to occur after the date
hereof, whether based on the failure to comply with Sections
6.01(a), 6.01(b), 6.02(f), 6.02(m) or 6.03 of the Loan Agreement at
any time hereafter or otherwise and whether Agent or any Lender may
have any notice or information with respect thereto as of the date
hereof, and except as expressly set forth in Section 3(b) hereof,
Agent and Lenders have not agreed to forbear with respect to any of
their rights or remedies concerning any Events of Default (other
than the Existing Defaults and the Prospective Financial Covenant
Defaults) which ma
