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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
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