Exhibit 10.3
EXECUTION COPY
GUARANTY
GUARANTY, dated as of November 8, 2006 made by each of the
undersigned (each a "GUARANTOR", and collectively, the "GUARANTORS"), in favor
of 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 (in such capacity, the "COLLATERAL AGENT") for the benefit of
the Noteholders (as defined below).
W I T N E S S E T H :
WHEREAS, Maritime Logistics US Holdings Inc., a Delaware corporation
(the "COMPANY") and each party listed as a "Buyer" on the Schedule of Buyers
attached thereto (each a "BUYER", and collectively, the "BUYERS" and, together,
with their successors and permitted assigns, the "NOTEHOLDERS") are parties to
the Securities Purchase Agreement dated November 8, 2006 (as amended,
supplemented or otherwise modified from time to time, the "SECURITIES PURCHASE
AGREEMENT"); pursuant to which the Company will cause its parent, Aerobic
Creations, Inc., a corporation organized under the laws of the state of
Delaware, to be known as Summit Global Logistics, Inc. ("PUBCO"), to authorize a
new series of its senior secured convertible notes (as such Notes may be
amended, restated, replaced or otherwise modified from time to time in
accordance with the terms thereof, collectively, the "NOTES"), which Notes shall
be convertible into PubCo's common stock in accordance with the terms thereof;
WHEREAS, pursuant to a joinder agreement dated the date hereof,
PubCo shall become a party to the Securities Purchase Agreement;
WHEREAS, it is a condition precedent to the Buyers purchasing the
Notes that the Guarantors execute and deliver to the Collateral Agent a guaranty
guaranteeing all of the obligations of PubCo under the Securities Purchase
Agreement, the Notes and the Transaction Documents (as defined in the Securities
Purchase Agreement, the "TRANSACTION DOCUMENTS"); and
WHEREAS, each Guarantor has determined that the execution, delivery
and performance of this Guaranty directly benefits, and is in the best interest
of, such Guarantor;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Buyers to perform under the Securities
Purchase Agreement, each Guarantor hereby agrees as follows:
SECTION 1. DEFINITIONS. Reference is hereby made to the Securities
Purchase Agreement and the Notes issued pursuant thereto for a statement of the
terms thereof. All terms used in this Guaranty, which are defined in the
Securities Purchase Agreement or the Notes and not otherwise defined herein,
shall have the same meanings herein as set forth therein.
SECTION 2. GUARANTY. The Guarantors, jointly and severally, hereby
unconditionally and irrevocably, guaranty, as primary obligor and not merely as
surety, the full and punctual payment, as and when due and payable, by stated
maturity or otherwise, of all
Obligations (as defined in the Security Agreement) of PubCo from time to time
owing by it in respect of the Securities Purchase Agreement, the Notes and the
other Transaction Documents, including, without limitation, all interest that
accrues after the commencement of any Insolvency Proceeding (as defined in the
Security Agreement) of PubCo or any Guarantor, whether or not the payment of
such interest is unenforceable or is not allowable due to the existence of such
Insolvency Proceeding, and all fees, commissions, expense reimbursements,
indemnifications and all other amounts due or to become due under any of the
Transaction Documents (such obligations, to the extent not paid by PubCo, being
the "Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) reasonably incurred by the Collateral
Agent in enforcing any rights under this Guaranty. Without limiting the
generality of the foregoing, each Guarantor's liability hereunder shall extend
to all amounts that constitute part of the Guaranteed Obligations and would be
owed by PubCo to the Collateral Agent under the Securities Purchase Agreement
and the Notes but for the fact that they are unenforceable or not allowable due
to the existence of an Insolvency Proceeding involving any Guarantor or PubCo
(each, a "Transaction Party"). Notwithstanding anything to the contrary
contained herein, the liability of Guarantors for the entire Guaranteed
Obligations shall mature and become immediately due and payable upon the
occurrence of any act, condition or event which constitutes an Event of Default
as such term is defined in the Notes. This Guaranty constitutes a guaranty of
payment and not of collection.
SECTION 3. GUARANTY ABSOLUTE; CONTINUING GUARANTY; ASSIGNMENTS.
(a) The Guarantors, jointly and severally, guaranty that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Transaction Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Collateral Agent with respect thereto. The obligations of each
Guarantor under this Guaranty are independent of the Guaranteed Obligations, and
a separate action or actions may be brought and prosecuted against any Guarantor
to enforce such obligations, irrespective of whether any action is brought
against any other Transaction Party or whether any other Transaction Party is
joined in any such action or actions. The liability of any Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and
each Guarantor hereby irrevocably waives, to the extent permitted by law, any
defenses it may now or hereafter have in any way relating to, any or all of the
following:
(i) any lack of validity or enforceability of any Transaction
Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from any Transaction
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Transaction
Party or otherwise;
(iii) any taking, exchange, release or non-perfection of any
Collateral (as defined in the Security Documents), or any taking, release or
amendment or waiver of or consent to departure from any other guaranty, for all
or any of the Guaranteed Obligations;
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(iv) any change, restructuring or termination of the
corporate, limited liability company or partnership structure or existence of
any Transaction Party; or
(v) any other circumstance (including any statute of
limitations) or any existence of or reliance on any representation by the
Collateral Agent that might otherwise constitute a defense available to, or a
discharge of, any Transaction Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Collateral Agent or any other Person upon
the insolvency, bankruptcy or reorganization of any Transaction Party or
otherwise, all as though such payment had not been made.
(b) This Guaranty is a continuing guaranty and shall (i) remain in
full force and effect until the indefeasible cash payment in full of the
Guaranteed Obligations (other than inchoate indemnity obligations) and/or
complete conversion of all of PubCo's obligations under the Notes to equity
securities of PubCo and payment of all other amounts payable under this Guaranty
(other than inchoate indemnity obligations) and shall not terminate for any
reason prior to the respective Maturity Date of each Note (other than payment in
full of the Notes and/or complete conversion of all of PubCo's obligations under
the Notes to equity securities of PubCo) and (ii) be binding upon each Guarantor
and its respective successors and assigns. This Guaranty shall inure to the
benefit of and be enforceable by the Collateral Agent and its successors, and
permitted pledgees, transferees and assigns. Without limiting the generality of
the foregoing sentence, the Collateral Agent or any Noteholder may pledge,
assign or otherwise transfer all or any portion of its rights and obligations
under and subject to the terms of any Transaction Document to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Noteholder herein or otherwise, in each case as
provided in the Securities Purchase Agreement or such Transaction Document.
SECTION 4. WAIVERS. To the extent permitted by applicable law, each
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that the Collateral Agent exhaust any right or take any
action against any Transaction Party or any other Person or any Collateral. The
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated herein and that the waiver set forth in
this Section 4 is knowingly made in contemplation of such benefits. The
Guarantors hereby waive any right to revoke this Guaranty, and acknowledges that
this Guaranty is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
SECTION 5. SUBROGATION. No Guarantor may exercise any rights that it
may now or hereafter acquire against any Transaction Party or any other
guarantor that arise from the existence, payment, performance or enforcement of
any Guarantor's obligations under this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Collateral Agent against any Transaction Party or any other guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the right to
take or receive from any Transaction Party or any other
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guarantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security solely on account of such claim, remedy or
right, unless and until all of the Guaranteed Obligations (other than inchoate
indemnity obligations) and all other amounts payable under this Guaranty (other
than inchoate indemnity obligations) shall have indefeasibly been paid in full
in cash or all of PubCo's obligations under the Notes have been converted to
equity securities. If any amount shall be paid to the Guarantor in violation of
the immediately preceding sentence at any time prior to the earlier to occur of
the payment in full in cash of the Guaranteed Obligations and all other amounts
payable under this Guaranty and the conversion of all of PubCo's obligations
under the Notes to equity securities such amount shall be held in trust for the
benefit of the Collateral Agent and shall forthwith be paid to the Collateral
Agent to be credited and applied to the Guaranteed Obligations and all other
amounts payable under this Guaranty, whether matured or unmatured, in accordance
with the terms of the Transaction Document, or to be held as Collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (a) any Guarantor shall make payment to the Collateral Agent of all
or any part of the Guaranteed Obligations, and (b) all of the Guaranteed
Obligations (other than inchoate indemnity obligations) and all other amounts
payable under this Guaranty (other than inchoate indemnity obligations) shall
indefeasibly be paid in full in cash or all of PubCo's obligations under the
Notes have been converted to equity securities the Collateral Agent will, at
such Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment by such
Guarantor.
SECTION 6. LIMITATION OF GUARANTY. Any term or provision of this
Guaranty or any other Transaction Document to the contrary notwithstanding, the
maximum aggregate amount of the Guaranteed Obligations for which any Guarantor
shall be liable shall not exceed the maximum amount for which such Guarantor can
be liable without rendering this Guaranty or any other Transaction Document, as
it relates to such Guarantor, subject to avoidance under applicable law relating
to fraudulent conveyance or fraudulent transfer (including Section 548 of the
Bankruptcy Code or any applicable provisions of comparable state law)
(collectively, "Fraudulent Transfer Laws"), in each case after giving effect (a)
to all other liabilities of such Guarantor, contingent or otherwise, that are
relevant under such Fraudulent Transfer Laws (specifically excluding, however,
any liabilities of such Guarantor in respect of intercompany Indebtedness to any
Transaction Party to the extent that such Indebtedness would be discharged in an
amount equal to the amount paid by such Guarantor hereunder) and (b) to the
value as assets of such Guarantor (as determined under the applicable provisions
of such Fraudulent Transfer Laws) of any rights to subrogation, contribution,
reimbursement, indemnity or similar rights held by such Guarantor pursuant to
(i) applicable Requirements of Law, (ii) Section 5 of this Guaranty or (iii) any
other contractual obligations providing for an equitable allocation among such
Guarantor and other Subsidiaries or Affiliates of the Company of obligations
arising under this Guaranty or other guaranties of the Guaranteed Obligations by
such parties.
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SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Each Guarantor hereby represents and warrants as of the date
first written above as follows:
(i) The Guarantor (A) is a corporation, limited liability
company or limited partnership duly organized, validly existing and, to the
extent legally applicable in good standing under the laws of the jurisdiction of
its organization as set forth on the signature pages hereto, (B) has all
requisite corporate, limited liability company or limited partnership power and
authority to conduct its business as now conducted and as presently contemplated
and to execute and deliver this Guaranty and each other Transaction Document to
which the Guarantor is a party, and to consummate the transactions contemplated
hereby and thereby and (C) is duly qualified to do business and, to the extent
legally applicable, is in good standing in each jurisdiction in which the
character of the properties owned or leased by it or in which the transaction of
its business makes such qualification necessary except where the failure to be
so qualified or in good standing would not result in a Material Adverse Effect.
(ii) The execution, delivery and performance by the Guarantor
of this Guaranty and each other Transaction Document to which the Guarantor is a
party (A) have been duly authorized by all necessary corporate, limited
liability company or limited partnership action, (B) do not and will not
contravene its charter or by-laws, its limited liability company or operating
agreement or its certificate of partnership or partnership agreement, as
applicable, or any applicable law in any material respect or any contractual
restriction binding on the Guarantor or its properties (except where the
contravention of such contractual restriction would not result in a Material
Adverse Effect), (C) do not and will not result in or require the creation of
any lien (other than Permitted Liens or pursuant to any Transaction Document)
upon or with respect to any of its properties, and (D) do not and will not
result in any default, noncompliance, suspension, revocation, impairment,
forfeiture or nonrenewal of any material permit, license, authorization or
approval applicable to it or its operations or any of its properties unless such
default, noncompliance, suspension, revocation, impairment, forfeiture or
nonrenewal would not have a Material Adverse Effect.
(iii) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority is required in connection
with the due execution, delivery and performance by the Guarantor of this
Guaranty or any of the other Transaction Documents to which the Guarantor is a
party (other than expressly provided for in any of the Transaction Documents).
(iv) Each of this Guaranty and the other Transaction Documents
to which the Guarantor is or will be a party, when delivered, will be, a legal,
valid and binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, suretyship or
other similar laws and equitable principles (regardless of whether enforcement
is sought in equity or at law).
(v) There is no pending or, to the knowledge of the Guarantor,
threatened action, suit or proceeding against the Guarantor or to which any of
the properties of
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the Guarantor is subject, before any court or other governmental authority or
any arbitrator that if adversely determined, could reasonably be expected to
have a Material Adverse Effect.
(vi) The Guarantor (A) has read and understands the terms and
conditions of the Securities Purchase Agreement and the other Transaction
Documents, and (B) now has and will continue to have independent means of
obtaining information concerning the affairs, financial condition and business
of PubCo and the other Transaction Parties, and has no need of, or right to
obtain from any Noteholder, any credit or other information concerning the
affairs, financial condition or business of PubCo or the other Transaction
Parties.
(b) The Guarantor covenants and agrees that until indefeasible full
and final payment of the Guaranteed Obligations (other than contingent
indemnification obligations in respect of which no claim has been asserted)
and/or complete conversion of all of the PubCo's obligations under the Notes to
equity securities of PubCo, it will comply with each of the covenants (except to
the extent applicable only to a public company) which are set forth in Section 4
of the Securities Purchase Agreement as if the Guarantor were a party thereto.
SECTION 8. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, any Noteholder may, and is hereby
authorized to, at any time and from time to time, without notice to the
Guarantors (any such notice being expressly waived by each Guarantor) and to the
fullest extent permitted by law, set-off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by any Noteholder to or for the credit or the
account of any Guarantor against any and all obligations of the Guarantors now
or hereafter existing under this Guaranty or any other Transaction Document,
irrespective of whether or not any Noteholder shall have made any demand under
this Guaranty or any other Transaction Document. Each Noteholder agrees to
notify the relevant Guarantor promptly after any such set-off and application
made by such Noteholder, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of any
Noteholder under this Section 8 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Noteholder
may have under this Guaranty or any other Transaction Document in law or
otherwise.
SECTION 9. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing and shall be mailed, telecopied or
delivered, if to any Guarantor, to it at its address set forth on the signature
page hereto, or if to the Collateral Agent or any Noteholder, to it at its
respective address set forth in the Securities Purchase Agreement; or as to
either such Person at such other address as shall be designated by such Person
in a written notice to such other Person complying as to delivery with the terms
of this Section 9. All such notices and other communications shall be effective
(i) if mailed (by certified mail, postage prepaid and return receipt requested),
when received or three Business Days after deposited in the mails, whichever
occurs first; (ii) if telecopied, when transmitted and confirmation is received,
provided same is on a Business Day and, if not, on the next Business Day; (iii)
if delivered by hand, upon delivery, provided same is on a Business Day and, if
not, on the next Business Day or (iv) one (1) Business Day after deposit with an
overnight courier service in each case properly addressed to the party to
receive the same.
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SECTION 10. CONSENT TO JURISDICTION; SERVICE OF PROCESS AND VENUE.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER
TRANSACTION DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX IN
THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
GUARANTOR HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY
IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE OF NEW YORK AS ITS
AGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING AND
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT ITS ADDRESS
FOR NOTICES AS SET FORTH ON THE SIGNATURE PAGE HERETO AND TO THE SECRETARY OF
STATE OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL
AGENT TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GUARANTOR IN ANY OTHER
JURISDICTION. ANY GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY GUARANTOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF
ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER TRANSACTION DOCUMENTS.
SECTION 11. WAIVER OF JURY TRIAL, ETC. EACH GUARANTOR HEREBY WAIVES
ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
CONCERNING ANY RIGHTS UNDER THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS, OR
UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT
DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION
WITH THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS, AND AGREES THAT ANY SUCH
ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY. EACH GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR
ATTORNEY OF THE COLLATERAL AGENT OR ANY NOTEHOLDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT ANY NOTEHOLDER WOULD
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NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE
FOREGOING WAIVERS. EACH GUARANTOR HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE COLLATERAL AGENT ENTERING INTO THIS AGREEMENT.
SECTION 12. TAXES.
(a) All payments made by any Guarantor hereunder or under any other
Transaction Document shall be made in accordance with the terms of the
respective Transaction Document and shall be made without set-off, counterclaim,
deduction or other defense. All such payments shall be made free and clear of
and without deduction for any present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
EXCLUDING taxes imposed on the net income of any Noteholder by the jurisdiction
in which such Noteholder is organized or where it has its principal lending
office (all such nonexcluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities, collectively or individually, "TAXES"). If any
Guarantor shall be required to deduct or to withhold any Taxes from or in
respect of any amount payable hereunder or under any other Transaction Document;
(i) the amount so payable shall be increased to the extent
necessary so that after making all required deductions and withholdings
(including Taxes on amounts payable to any Noteholder pursuant to this
sentence) each Noteholder receives an amount equal to the sum it would
have received had no such deduction or withholding been made,
(ii) such Guarantor shall make such deduction or withholding,
(iii) such Guarantor shall pay the full amount deducted or
withheld to the relevant taxation authority in accordance with applicable
law, and
(iv) as promptly as possible thereafter, such Guarantor shall
send the Noteholders an official receipt (or, if an official receipt is
not available, such other documentation as shall be satisfactory to the
Collateral Agent, as the case may be) showing payment. In addition, each
Guarantor agrees to pay any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies that
arise from any payment made hereunder or from the execution, delivery,
registration or enforcement of, or otherwise with respect to, this
Agreement or any other Transaction Document (collectively, "OTHER TAXES").
(b) Each Guarantor hereby indemnifies and agrees to hold the
Collateral Agent and each Noteholder (each an "INDEMNIFIED PARTY") harmless from
and against Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
12) paid by any Indemnified Party as a result of any payment made hereunder or
from the execution, delivery, registration or enforcement of, or otherwise with
respect to, this Agreement or any other Transaction Document, and any liability
(including penalties, interest and expenses for nonpayment, late payment or
otherwise) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification shall be
paid within 30 days from the date on
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which the Collateral Agent or such Noteholder makes written demand therefor,
which demand shall identify the nature and amount of such Taxes or Other Taxes.
(c) If any Guarantor fails to perform any of its obligations under
this Section 12, such Guarantor shall indemnify the Collateral Agent and each
Noteholder for any taxes, interest or penalties that may become payable as a
result of any such failure. The obligations of the Guarantors under this Section
12 shall survive the termination of this Guaranty and the payment of the
Obligations and all other amounts payable hereunder.
SECTION 13. MISCELLANEOUS.
(a) Each Guarantor will make each payment hereunder in lawful money
of the United States of America and in immediately available funds to each
Noteholder, at such address specified by such Noteholder from time to time by
notice to the Guarantors.
(b) No amendment or waiver of any provision of this Guaranty and no
consent to any departure by any Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by each Guarantor and
Collateral Agent and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(c) No failure on the part of Collateral Agent to exercise, and no
delay in exercising, any right hereunder or under any other Transaction Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right hereunder or under any Transaction Document preclude any other or
further exercise thereof or the exercise of any other right. The rights and
remedies of the Collateral Agent and the Noteholders provided herein and in the
other Transaction Documents are cumulative and are in addition to, and not
exclusive of, any rights or remedies provided by law. The rights of the
Collateral Agent and the Noteholders under any Transaction Document against any
party thereto are not conditional or contingent on any attempt by the Collateral
Agent or any Noteholder to exercise any of their respective rights under any
other Transaction Document against such party or against any other Person.
(d) Any provision of this Guaranty that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
(e) This Guaranty shall (i) be binding on each Guarantor and its
respective successors and assigns, and (ii) inure, together with all rights and
remedies of the Collateral Agent hereunder, to the benefit of the Collateral
Agent, the Noteholders and their respective successors, transferees and assigns.
Without limiting the generality of clause (ii) of the immediately preceding
sentence, the Collateral Agent and any Noteholder may assign or otherwise
transfer its rights and obligations under the Securities Purchase Agreement and
such assignee shall thereupon become vested with all of the benefits in respect
thereof granted to the Collateral Agent or Noteholder (and the obligations
related thereto), as the case may be, herein or otherwise. Each Guarantor agrees
that each participant shall be entitled to the benefits of Section 12 with
respect to its participation in any portion of the Notes as if it was a
Noteholder.
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None of the rights or obligations of any Guarantor hereunder may be assigned or
otherwise transferred without the prior written consent of each Noteholder.
(f) This Guaranty reflects the entire understanding of the
transaction contemplated hereby and shall not be contradicted or qualified by
any other agreement, oral or written, entered into before the date hereof.
(g) Section headings herein are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
SECTION 14. This Guaranty and each of the provisions hereof shall be
subject to the Intercreditor Agreement.
SECTION 15. This Guaranty shall be governed by and construed in
accordance with the law of the State of New York applicable to contracts made
and to be performed therein without regard to conflict of law principles.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed by its respective duly authorized officer, as of the date first above
written.
MARITIME LOGISTICS US HOLDINGS INC.
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
SUMMIT LOGISTICS INTERNATIONAL INC
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
SEAMASTER LOGISTICS INC.
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
[Signature Page to Guaranty]
AMERUSSIA SHIPPING COMPANY INC.
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
FMI INTERNATIONAL LLC
By:___________________________________
Name:
Title:
FASHION MARKETING, INC.
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
FMI INTERNATIONAL CORP. (WEST)
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
FMI INTERNATIONAL CORP.
By:___________________________________
Name:
Title:
[Signature Page to Guaranty]
FREIGHT MANAGEMENT LLC
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
FMI TRUCKING, INC.
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
FMI EXPRESS CORP.
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
CLARE FREIGHT, LOS ANGELES, INC.
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
[Signature Page to Guaranty]
TUG NEW YORK, INC.
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
TUG USA, INC. (formerly known as
Dolphin US Logistics Inc)
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
AMR INVESTMENTS INC
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
FMI HOLDCO I, LLC
By:___________________________________
Name:
Title:
Address:
Jurisdiction:
[Signature Page to Guaranty]
