EX-10.46
FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO PLEDGE AND SECURITY AGREEMENT dated as of May
__, 2007 (the "AMENDMENT"), is entered into by and between Summit Global
Logistics, Inc., a Delaware corporation, formerly known as Aerobic Creations,
Inc. ("COMPANY"), Maritime Logistics US Holdings Inc., a Delaware corporation
("MLI"), SeaMaster Logistics Inc., a Delaware corporation ("SEAMASTER"), FMI
International LLC, a Delaware limited liability company ("FMI INTERNATIONAL"),
TUG USA, Inc., a New Jersey corporation, formerly known as Dolphin US Logistics
Inc ("TUG USA"), AMR Investments Inc, a New Jersey corporation ("AMRI"), FMI
Holdco I, LLC, a Delaware limited liability company ("FMI HOLDCO", and together
with Company, MLI, Seamaster, FMI International, TUG USA, AMRI , collectively
"PLEDGORS" and each a "PLEDGOR") and Law Debenture Trust Company of New York, a
limited purpose trust company chartered by the New York State Banking
Department, in its capacity as collateral agent for and on behalf of the Buyers
(as defined below) (in such capacity, the "COLLATERAL AGENT"). Capitalized terms
used but not defined herein shall have the meanings ascribed to them in the
Pledge Agreement (hereinafter defined).
WHEREAS, Pledgors and Collateral Agent entered into that certain Pledge
and Security Agreement dated as of November 8, 2006 (as amended to date, and as
may be further amended, restated, modified and/or supplemented from time to
time, the "PLEDGE AGREEMENT");
WHEREAS, Pledgors have requested that Buyers and Collateral Agent amend
the Pledge Agreement in certain respects as provided herein;
WHEREAS, the consent of the holders (each individually, a "HOLDER" and
collectively, the "HOLDERS") of at least a majority of the aggregate principal
amount of the Notes (hereinafter defined) now outstanding (the "REQUIRED
HOLDERS") is required to amend the Pledge Agreement as provided for herein;
WHEREAS, the consent and agreement of the Required Holders to amend the
Pledge Agreement as provided for herein is evidenced by the signatures of the
Holders appearing on the signature pages to the Second Amendment (hereinafter
defined).
NOW, THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the receipt and sufficiency are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. AMENDMENTS. The parties hereto agree as follows:
(a) AEROBIC CREATIONS, INC. All references to "Aerobic Creations,
Inc." set forth in the Pledge Agreement shall mean "Summit Global Logistics,
Inc."
(b) NOTEHOLDERS. Each reference to "NOTEHOLDERS" set forth in the
Pledge Agreement shall mean the holders, from time to time, of the Notes.
(c) BUYERS. Each reference to "BUYERS" set forth in the Pledge
Agreement shall mean (i) in respect of the period from November 8, 2006 through
the day immediately preceding the date
1
hereof, the "Buyers" referenced on the Schedule of Buyers attached to the
Securities Purchase Agreement prior to the date hereof and (ii) in respect of
the period from and after the date hereof, the "Buyers" referenced on the
Schedule of Buyers attached to the Securities Purchase Agreement, after giving
effect to (A) the Second Amendment to Securities Purchase Agreement (Notes and
Warrants) and First Amendment to Joinder Agreement dated as of even date hereof
("SECOND AMENDMENT") and (B) any other subsequent amendments to the Schedule of
Buyers, as applicable.
(d) NOTES. Each reference to "NOTES" set forth in the Pledge
Agreement shall mean (i) in respect of the period from November 8, 2006 through
the day immediately preceding the date hereof, the "Notes", as defined in the
Pledge Agreement prior to giving effect to this Amendment and (ii) in respect of
the period from and after the date hereof, the "Notes", as defined in the Pledge
Agreement prior to giving effect to this Amendment, as such Notes are amended
and restated in accordance with the Second Amendment plus the New Notes (as
defined in the Second Amendment), as the foregoing may be amended, restated,
supplemented and/or modified from time to time.
SECTION 2. MISCELLANEOUS.
(a) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, be deemed to be an amendment or
modification of, or operate as a waiver of, any provision of the Pledge
Agreement or any right, power or remedy thereunder, nor constitute a waiver of
any provision of the Pledge Agreement or any other document, instrument and/or
agreement executed or delivered in connection therewith.
(b) This Amendment may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto or thereto on the
same or separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Each party agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other party. The
descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof or thereof. Whenever the context
and construction so require, all words herein and in the Pledge Agreement in the
singular number herein shall be deemed to have been used in the plural, and vice
versa, and the masculine gender shall include the feminine and neuter and the
neuter shall include the masculine and feminine.
(c) This Amendment and the Pledge Agreement may not be changed,
amended, restated, waived, supplemented, discharged, canceled, terminated or
otherwise modified orally or by any course of dealing or in any manner other
than as provided in the Pledge Agreement and/or the Notes. This Amendment shall
be considered part of the Pledge Agreement.
(d) This Amendment and the Pledge Agreement constitute the final,
entire agreement and understanding between the parties with respect to the
subject matter hereof and thereof, shall not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements between the parties, shall
be binding upon and inure to the benefit of the successors and assigns of the
parties hereto and thereto and supersede all other prior agreements and
understandings, if
2
any, relating to the subject matter hereof. There are no unwritten oral
agreements between the parties with respect to the subject matter hereof or
thereof.
(e) The validity of this Amendment, its construction, interpretation
and enforcement, the rights of the parties hereunder, shall be determined under,
governed by, and construed in accordance with the choice of law provisions set
forth in the Pledge Agreement.
(f) The Pledgors hereby irrevocably and unconditionally acknowledge,
affirm and covenant to each of the Collateral Agent and the Buyers that:
(i) There are no understandings or agreements relating to
the Obligations other than the Transaction Documents.
(ii) Neither the Buyers, nor the Collateral Agent are in
default under any of the Transaction Documents or otherwise have
breached any obligations to Pledgors.
(iii) There are no offsets, counterclaims or defenses to the
Obligations or to the rights, remedies or powers of the
Collateral Agent or any Buyer in respect of any of the
Obligations or any of the Transaction Documents, and the
Pledgors agree not to interpose (and each does hereby waive and
release) any such defense, set-off or counterclaim in any action
brought by the Collateral Agent or any of the Buyers with
respect thereto.
(iv) Each Pledgor consents to this Amendment and the
transactions contemplated hereby and confirms and reaffirms the
Transaction Documents (as amended hereby), the guarantees,
security interests and other agreements related thereto and the
Obligations thereunder.
(v) As of May __, 2007, the aggregate outstanding principal
amount of the Notes is equal to $84,400,833.33, the accrued and
unpaid interest on the Notes is equal to $899,337.40, and the
amount of accrued and unpaid Late Charges is equal to $0.
REMAINDER OF PAGE INTENTIONALLY BLANK
3
SIGNATURE PAGE TO FIRST AMENDMENT TO PLEDGE AND
SECURITY AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
PLEDGORS:
SUMMIT GLOBAL LOGISTICS, INC.
(formerly known as Aerobic Creations, Inc.)
By:_________________________________________
Name:
Title:
MARITIME LOGISTICS US HOLDINGS INC.
By:_________________________________________
Name:
Title:
SEAMASTER LOGISTICS INC.
By:_________________________________________
Name:
Title:
FMI INTERNATIONAL LLC
By:_________________________________________
Name:
Title:
4
SIGNATURE PAGE TO FIRST AMENDMENT TO PLEDGE AND
SECURITY AGREEMENT
TUG USA, INC.
(formerly known as Dolphin US Logistics Inc)
By:_________________________________________
Name:
Title:
AMR INVESTMENTS INC
By:_________________________________________
Name:
Title:
FMI HOLDCO I, LLC
By:_________________________________________
Name:
Title:
COLLATERAL AGENT:
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Collateral Agent for the Holders
By:_________________________________________
Name:
Title:
5
