EX-10.47
FIRST AMENDMENT TO GUARANTY
THIS FIRST AMENDMENT TO GUARANTY dated as of May __, 2007 (the
"AMENDMENT"), is entered into by and between 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"), 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"; together with MLI,
Summit, SeaMaster, AmeRussia Shipping, FM, FMI International, FMIW, FMII, FMLLC,
Trucking, Express, Clare, TUG NY, TUG USA, AMRI and FMI Holdco, each
individually, a "GUARANTOR" and collectively, "GUARANTORS"), 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 Holders (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 Guaranty (hereinafter defined).
WHEREAS, Guarantors executed that certain Guaranty 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 "GUARANTY") in favor of Collateral
Agent, for the benefit of the Buyers;
WHEREAS, Guarantors have requested that Buyers (hereinafter defined) and
Collateral Agent amend the Guaranty 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 Guaranty as provided herein;
WHEREAS, the consent and agreement of the Required Holders to amend the
Guaranty 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:
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(a) AEROBIC CREATIONS, INC. All references to "Aerobic Creations, Inc."
set forth in the Guaranty shall mean "Summit Global Logistics, Inc."
(b) NOTEHOLDERS. Each reference to "NOTEHOLDERS" set forth in the
Guaranty shall mean the holders, from time to time, of the Notes.
(c) BUYERS. Each reference to "BUYERS" set forth in the Guaranty shall
mean (i) in respect of the period from November 8, 2006 through the day
immediately preceding the date 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 Guaranty 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 Guaranty
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 Guaranty prior to
giving effect to this Amendment, as such Notes are amended and restated in
accordance with the Second Amendment plus 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.
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(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 Guaranty or any
right, power or remedy thereunder, nor constitute a waiver of any provision of
the Guaranty 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 Guaranty 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 Guaranty 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 Guaranty and/or the Notes. This Amendment shall be considered
part of the Guaranty.
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(d) This Amendment and the Guaranty 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 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 Guaranty.
(f) The Guarantors 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
Guaranteed 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 Guarantors.
(iii) There are no offsets, counterclaims or defenses to the
Guaranteed Obligations or to the rights, remedies or powers of
the Collateral Agent or any Buyer in respect of any of the
Guaranteed Obligations or any of the Transaction Documents, and
the Guarantors 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 Guarantor 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
Guaranteed 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
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SIGNATURE PAGE TO FIRST AMENDMENT TO GUARANTY
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.
GUARANTORS:
MARITIME LOGISTICS US HOLDINGS
INC.
By:__________________________________________
Name:
Title:
SUMMIT LOGISTICS INTERNATIONAL INC
By:__________________________________________
Name:
Title:
SEAMASTER LOGISTICS INC.
By:__________________________________________
Name:
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO GUARANTY
AMERUSSIA SHIPPING COMPANY INC.
By:__________________________________
Name:
Title:
FMI INTERNATIONAL LLC
By:__________________________________
Name:
Title:
FASHION MARKETING, INC.
By:__________________________________
Name:
Title:
FMI INTERNATIONAL CORP. (WEST)
By:__________________________________
Name:
Title
FMI INTERNATIONAL CORP.
By:__________________________________
Name:
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO GUARANTY
FREIGHT MANAGEMENT LLC
By:__________________________________
Name:
Title:
FMI TRUCKING, INC.
By:__________________________________
Name:
Title:
FMI EXPRESS CORP.
By:__________________________________
Name:
Title:
CLARE FREIGHT, LOS ANGELES, INC.
By:__________________________________
Name:
Title:
TUG NEW YORK, INC.
By:__________________________________
Name:
Title:
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SIGNATURE PAGE TO FIRST AMENDMENT TO GUARANTY
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: ___________________________
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SIGNATURE PAGE TO FIRST AMENDMENT TO GUARANTY
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