EX-10.45
FIRST AMENDMENT TO SECURITY AGREEMENT (SECOND LIEN)
THIS FIRST AMENDMENT TO SECURITY AGREEMENT (SECOND LIEN) 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. ("PARENT"), 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, together with
Parent, each a "GRANTOR" and collectively, the "GRANTORS"), 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 Security Agreement (hereinafter defined).
WHEREAS, Grantors and Collateral Agent entered into that certain
Security Agreement (Second Lien) 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 "SECURITY AGREEMENT");
WHEREAS, Grantors have requested that Buyers and Collateral Agent amend
the Security Agreement in certain respects as provided for 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 now outstanding (the "REQUIRED HOLDERS") is required to
amend the Security Agreement as provided for herein;
WHEREAS, the consent and agreement of the Required Holders to amend the
Security 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:
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SECTION 1. AMENDMENTS. The parties hereto agree as follows:
(a) AEROBIC CREATIONS, INC. All references to "Aerobic Creations,
Inc." set forth in the Security Agreement shall mean "Summit Global Logistics,
Inc."
(b) NOTEHOLDERS. Each reference to "NOTEHOLDERS" set forth in the
Security Agreement shall mean the holders, from time to time, of the Notes.
(c) BUYERS. Each reference to "BUYERS" set forth in the Security
Agreement 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 Security
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
Security 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
Security 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.
(e) REPORTING REQUIREMENTS.
(i) Section 5(l) of the Security Agreement is hereby deleted
in its entirety and the following is substituted in lieu thereof:
"INSPECTION AND REPORTING. Each Grantor shall permit the Agent
and representative of Agent and any Noteholder at any time and
from time to time during normal business hours upon prior notice
to such Grantor so long as no Default or Event of Default shall
exist or have occurred and be continuing and at any time without
notice at any time a Default or an Event of Default shall exist
or have occurred and be continuing, no more than two (2) times
in any twelve (12) month period so long as no Default or Event
of Default shall exist or have occurred and be continuing, but
otherwise as the Agent may request, at the reasonable expense of
such Grantor, i) to examine and make copies of and abstracts
from such Grantor's records and books of account, ii) to visit
and inspect its properties, iii) to verify materials, leases,
notes, accounts receivable, deposit accounts and its other
assets, iv) to conduct audits, physical counts, valuations,
appraisals, Phase I and Phase II Environmental Site Assessments
or examinations at the locations of such Grantor and v) to
discuss such Grantor's affairs, finances and accounts with any
of its directors, officers, managerial employees, independent
accountants or any of its other representatives provided, that
if such
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information is reasonably determined by the Company to be
competitively sensitive and to be material, non-public
information, then the Company need not disclose such information
unless such Noteholder(s) first enter(s) into a reasonable
confidentiality agreement relating to such information. In
furtherance of the foregoing, each Grantor hereby authorizes its
independent accountants to discuss the affairs, finances and
accounts of such Grantor (independently or together with
representatives of Grantor) with Agent and representative of any
Noteholder in accordance with this Section 5(l)."
SECTION 2. AMENDMENTS TO SCHEDULES.
(a) Schedule III to the Security Agreement is hereby amended by
adding the following:
------------------------------- -------------------------------- -------------------------------- ----------------------------------
GRANTOR CHIEF PLACE OF BUSINESS AND BOOKS AND RECORDS EQUIPMENT, FIXTURES, GOODS,
CHIEF EXECUTIVE OFFICE (ACCOUNTS AND CHATTEL PAPER) AND INVENTORY
------------------------------- -------------------------------- -------------------------------- ----------------------------------
TUG USA, Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------- -------------------------------- -------------------------------- ----------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Plaza,
Summit Global Logistics, Inc. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------- -------------------------------- -------------------------------- ----------------------------------
SECTION 3. 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 Security
Agreement or any right, power or remedy thereunder, nor constitute a waiver of
any provision of the Security 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 Security 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 Security 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 Security Agreement and/or the Notes. This Amendment
shall be considered part of the Security Agreement.
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(d) This Amendment and the Security 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 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 Security Agreement.
(f) The Grantors 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 Grantors.
(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
Grantors 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 Grantor 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
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SIGNATURE PAGE TO FIRST AMENDMENT TO SECURITY
AGREEMENT (SECOND LIEN)
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.
GRANTORS:
SUMMIT GLOBAL LOGISTICS, INC.
(formerly known as Aerobic Creations, Inc.)
By:________________________________________
Name:
Title:
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 SECURITY
AGREEMENT (SECOND LIEN)
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 SECURITY
AGREEMENT (SECOND LIEN)
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 SECURITY
AGREEMENT (SECOND LIEN)
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 Noteholders.
By: _______________________________________
Name:
Title: _______________________________
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