EX-10.49
[Execution]
INTERCREDITOR AND SUBORDINATION AGREEMENT
This Intercreditor and Subordination Agreement ("Intercreditor
Agreement") dated as of May 21, 2007 is by and between Fortress Credit Corp., a
Delaware corporation, in its capacity as agent pursuant to the Senior Creditor
Agreements (as hereinafter defined) acting for and on behalf of the parties
thereto as lenders (in such capacity, the "Senior Creditor Agent" as hereinafter
further defined), the parties to the Senior Creditor Agreements as lenders
(collectively, together with Senior Creditor Agent, the "Senior Creditors" as
hereinafter further defined), and The Law Debenture Trust Company of New York, a
limited purpose trust company chartered by the New York State Banking
Department, in its capacity as agent pursuant to the Noteholder Agreements (as
hereinafter defined) acting for and on behalf of the holders of the PIPE Notes
as defined below (in such capacity, the "Noteholder Agent" as hereinafter
further defined), and the holders of the PIPE Notes (the "Noteholders" as
hereinafter further defined). Senior Creditors, Noteholder Agent and the
Noteholders are sometimes individually referred to herein as "Creditor" and
collectively as "Creditors."
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Summit Global Logistics, Inc., formerly known as Aerobic
Creations, Inc., a Delaware corporation ("Summit"), and certain of its
subsidiaries as set forth on Exhibit A hereto (Summit, together with such
subsidiaries being, collectively, "Borrowers" as hereinafter further defined)
have entered into financing arrangements with Senior Creditors, pursuant to
which Senior Creditors have made term loans and may, upon certain terms and
conditions, make revolving loans and provide other financial accommodations to
Borrowers secured by substantially all of the assets and properties of
Borrowers, and the obligations of Borrowers to Senior Creditors are guaranteed
by the subsidiaries of Summit set forth on Exhibit B hereto (collectively,
"Guarantors" as hereinafter further defined, and together with Borrowers,
collectively, "Debtors" as hereinafter further defined) which guarantees are
secured by substantially all of the assets and properties of Guarantors;
WHEREAS, Summit has issued or is about to issue its Unsecured
Convertible Notes in the original aggregate principal amount of $1,000,000
(collectively, the "PIPE Notes" as hereinafter further defined) pursuant to the
Waiver and Amendment No. 1 to Registration Rights Agreement, dated on or about
the date hereof, by and among Summit and the holders of the PIPE Notes (the
"Waiver and Amendment" as hereinafter further defined), which is not secured by
any assets or properties of Borrowers;
WHEREAS, Creditors desire to enter into this Intercreditor Agreement to
agree upon the terms of the subordination in right of payment of the obligations
of Debtors to the Noteholder Agent and the Noteholders to the obligations of
Debtors to Senior Creditors and related matters;
NOW THEREFORE, in consideration of the mutual benefits accruing to
Creditors hereunder and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto do hereby agree
as follows:
1. DEFINITIONS
As used above and in this Intercreditor Agreement, the following terms
shall have the meanings ascribed to them below:
1.1 "Agreements" shall mean, collectively, the Senior Creditor
Agreements and the Noteholder Creditor Agreements.
1.2 "Borrowers" shall mean, collectively, the companies listed on
Exhibit A hereto, together with their respective successors and assigns,
including, without limitation, a receiver, trustee or debtor in possession on
behalf of any of such persons or on behalf of any such successor or assign; each
sometimes being referred to herein individually as a "Borrower".
1.3 "PIPE Notes" shall mean, collectively, the Unsecured Convertible
Notes issued by Summit pursuant to the Waiver and Amendment payable to the
Noteholders in the original aggregate principal amount of $1,000,000, as the
same now exist or may hereafter be amended, modified, supplemented, renewed,
restated or replaced.
1.4 "Creditors" shall mean, collectively, Senior Creditors and
Noteholder Creditors and their respective successors and assigns; each sometimes
being referred to herein individually as a "Creditor".
1.5 "Debtors" shall mean, collectively, Borrowers and Guarantors;
each sometimes being referred to herein individually as a "Debtor".
1.6 "Default Notice" shall mean any written notice from Senior
Creditor Agent to Noteholder Agent of a Senior Creditor Default sent pursuant to
and in accordance with Section 2.3 hereof.
1.7 "Guarantors" shall mean collectively, the companies listed on
Exhibit B hereto and any other person that at any time after the date hereof
becomes a party to a guarantee in favor of any Senior Creditor in respect of any
of the Senior Debt or any Noteholder Creditor in respect of any of the
Noteholder Debt, together with their respective successors and assigns,
including, without limitation, a receiver, trustee or debtor in possession on
behalf of any of such persons or on behalf of any such successor or assign; each
sometimes being referred to herein individually as a "Guarantor".
1.8 "Insolvency Proceeding" shall mean, as to any Person, any of the
following: (a) any case or proceeding with respect to such Person under the U.S.
Bankruptcy Code or any other Federal, State or foreign bankruptcy, insolvency,
reorganization or other law affecting creditors' rights generally or any other
or similar proceedings seeking any stay, reorganization, arrangement,
composition or readjustment of the obligations and indebtedness of such Person
or (b) any proceeding seeking the appointment of any trustee, receiver,
administrator, manager, liquidator, custodian or other insolvency official with
similar powers with respect to such Person or any or all of its assets or
properties or (c) any proceedings for liquidation, dissolution or other winding
up of the business of such Person or (d) any assignment for the benefit of
creditors or any marshaling of assets of such Person.
2
1.9 "Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, security interest, encumbrance
(including, but not limited to, easements, rights of way and the like), lien
(statutory or other), security agreement or transfer intended as security,
including without limitation, any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease or any financing lease
having substantially the same economic effect as any of the foregoing.
1.10 "Noteholder Agent" shall mean The Law Debenture Trust Company of
New York, a limited purpose trust company chartered by the New York State
Banking Department, in its capacity as agent pursuant to the applicable
Noteholder Agreements, and its successors and assigns, including any replacement
or successor trustee or agent or any additional trustee or agent.
1.11 "Noteholder Agreements" shall mean, collectively, the following
(as the same now exist or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced): (a) the PIPE Notes; (b) the Waiver and
Amendment; and (c) all agreements, documents and instruments at any time
executed and/or delivered by any Debtor or any other person to, with or in favor
of Noteholder Agent or any Noteholder in connection therewith or related
thereto.
1.12 "Noteholder Creditors" shall mean, collectively, the Noteholder
Agent and the Noteholders; sometimes being referred to herein individually as a
"Noteholder Creditor".
1.13 "Noteholder Debt" shall mean all present and future
indebtedness, obligations, and liabilities of each Debtor to any Noteholder
Creditor under any of the Noteholder Agreements, whether or not the right of
payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured, unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any Insolvency Proceeding or other similar
proceeding. Without limiting the generality of the foregoing, the Noteholder
Debt includes (a) the obligation to pay principal, interest (including
post-default interest at the then applicable rate), charges, expenses, fees,
attorneys' fees and disbursements, indemnities and other amounts payable by any
such Debtor under any of the Noteholder Agreements, whether now existing or
hereafter arising, whether arising before, during or after the initial or any
renewal term of the PIPE Notes or after the commencement of any Insolvency
Proceeding with respect to such Debtor (including the payment of interest and
other amounts which would accrue and become due but for the commencement of such
case, whether or not such amounts are allowed or allowable in whole or in part
in such case), and (b) the obligation of such Debtor to reimburse any amount in
respect of any of the foregoing that any Noteholder Creditor (in its discretion)
may elect to pay or advance on behalf of such Debtor.
1.14 "Noteholders" shall mean, collectively, the persons listed on
Exhibit C hereto and their respective successors and assigns, and any other
person that at any time is the owner or holder, directly or indirectly, of
record or beneficially, of any of the PIPE Notes; sometimes being referred to
herein individually as a "Noteholder".
1.15 "Payment in full" or "payment in full" shall mean (a) as to any
Senior Debt, the second business day after the ninety-first (91st) day after (i)
the final payment and satisfaction in
3
full in immediately available funds of all of such Senior Debt (other than the
Senior Debt described in clause (a)(ii) of this definition), (ii) the delivery
of immediately available funds as cash collateral (or at the option of Senior
Creditor Agent, instead of such cash collateral, the delivery to Senior Creditor
Agent of a letter of credit issued for the account of Borrowers, in form and
substance reasonably satisfactory to Senior Creditor Agent, by an issuer
acceptable to Senior Creditor Agent and payable to Senior Creditor Agent as
beneficiary) for (A) letters of credit issued under or pursuant to the Senior
Creditor Loan Agreement in an amount equal to one hundred five (105%) percent of
the amount of such letters of credit, (B) any payments that have been
provisionally credited to the Senior Debt and for which Senior Creditor Agent or
other Senior Creditors have not received final payment, (C) any continuing
obligations (contingent or otherwise) that Senior Creditor Agent or any Senior
Creditor has pursuant to any Control Agreement (as such term is defined in the
Senior Creditor Loan Agreement), and (D) liabilities of Senior Creditors in
respect of matters or circumstances known to a Senior Creditor at the time which
are reasonably expected to result in any loss, cost, damage or expense
(including attorneys' fees and legal expenses) to any Senior Creditor for which
Senior Creditors are entitled to indemnification by Debtors and (iii) the
termination of the commitments of the Senior Creditors (but not including for
this purpose the refinancing or replacement of the Senior Creditors) and (b) as
to the Noteholder Debt, the final payment and satisfaction in full in
immediately available funds of all of such Noteholder Debt. If after receipt of
any payment of, or proceeds of collateral applied to the payment of, either any
Senior Debt or Noteholder Debt, as the case may be, any Senior Creditor or
Noteholder Creditor is required to surrender or return such payment or proceeds
to any person for any reason, whether pursuant to any claim of a preference,
fraudulent conveyance or transfer or otherwise, then the Senior Debt or
Noteholder Debt, as applicable, intended to be satisfied by such payment or
proceeds shall be reinstated and continue as if such payment or proceeds had not
been received by such Senior Creditor or Noteholder Creditor, as the case may
be. The term "paid in full" as used herein shall have the same meaning as the
term "payment in full". Notwithstanding anything to the contrary contained
herein, for purposes of this definition, the Noteholder Debt shall not include
the principal amount of the Noteholder Debt in excess of $1,000,000 as reduced
by all payments, whether mandatory or optional, in respect thereof.
1.16 "Person" or "person" shall mean any individual, sole
proprietorship, partnership, corporation (including, without limitation, any
corporation which elects subchapter S status under the Internal Revenue Code of
1986, as amended), limited liability company, limited liability partnership,
business trust, unincorporated association, joint stock company, trust, joint
venture, or other entity or any government or any agency or instrumentality or
political subdivision thereof.
1.17 "Senior Creditor Agent" shall mean Fortress Credit Corp., a
Delaware corporation, and its successors and assigns in its capacity as agent
pursuant to the Senior Creditor Agreements acting for and on behalf of the other
Senior Creditors and any successor or replacement agent.
1.18 "Senior Creditor Agreements" shall mean, collectively, the
Senior Creditor Loan Agreement and all agreements, documents and instruments at
any time executed and/or delivered by any Debtor or any other person to, with or
in favor of any Senior Creditor in connection therewith or related thereto, as
all of the foregoing now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated, refinanced, replaced or restructured
(in
4
whole or in part and including any agreements with, to or in favor of any other
lender or group of lenders that at any time refinances, replaces or succeeds to
all or any portion of the Senior Debt).
1.19 "Senior Creditor Loan Agreement" shall mean the Loan Agreement,
dated on or about the date hereof, by and among Debtors and Senior Creditors, as
the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
1.20 "Senior Creditor Default" shall mean a Default or Event of
Default as such terms are defined in the Senior Creditor Agreements.
1.21 "Senior Creditors" shall mean, collectively, Senior Creditor
Agent and any other person party to the Senior Creditor Agreements as lender
(and including any other lender or group of lenders that at any time refinances,
replaces or succeeds to all or any portion of the Senior Debt or is otherwise
party to the Senior Creditor Agreements as a lender).
1.22 "Senior Debt" shall mean all present and future indebtedness,
obligations, and liabilities of each Debtor to any Senior Creditor under any of
the Senior Creditor Agreements, whether or not the right of payment in respect
of such claim is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, disputed, undisputed, legal, equitable, secured, unsecured,
and whether or not such claim is discharged, stayed or otherwise affected by any
Insolvency Proceeding or other similar proceeding. Without limiting the
generality of the foregoing, the Senior Debt includes (a) the obligation to pay
principal, interest (including post-default interest at the then applicable
rate), charges, expenses, fees, attorneys' fees and disbursements, indemnities
and other amounts payable by any such Debtor under any of the Senior Creditor
Agreements, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the Senior Creditor Loan
Agreement or after the commencement of any Insolvency Proceeding with respect to
such Debtor (including the payment of interest and other amounts which would
accrue and become due but for the commencement of such case, whether or not such
amounts are allowed or allowable in whole or in part in such case), and (b) the
obligation of such Debtor to reimburse any amount in respect of any of the
foregoing that any Senior Creditor (in its discretion) may elect to pay or
advance on behalf of such Debtor.
1.23 "Summit" shall mean Summit Global Logistics, Inc., formerly
known as Aerobic Creations, Inc., a Delaware corporation, together with its
successors and assigns including, without limitation, a receiver, trustee or
debtor in possession on behalf of such person or on behalf of any such successor
or assigns.
1.24 "Waiver and Amendment" shall mean the Waiver and Amendment No. 1
to Registration Rights Agreement, dated on or about the date hereof, by and
among Summit and the Noteholder Creditors in connection with the PIPE Notes, as
the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced.
1.25 TERMS GENERALLY. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation".
5
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified, (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, and as to any Debtor shall be deemed to include a receiver, trustee or
debtor-in-possession on behalf of any of such person or on behalf of any such
successor or assign, (c) the words "herein", "hereof" and "hereunder", and words
of similar import, shall be construed to refer to this Agreement in its entirety
and not to any particular provision hereof, (d) all references herein to
Sections shall be construed to refer to Sections of this Agreement and (e) the
words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
2. SUBORDINATION OF NOTEHOLDER DEBT
2.1 SUBORDINATION. Each Noteholder Creditor hereby subordinates its
right to payment and satisfaction of the Noteholder Debt and the payment
thereof, directly or indirectly, by any means whatsoever, is deferred, to the
indefeasible payment and satisfaction in full of all Senior Debt.
2.2 PERMITTED PAYMENTS. Notwithstanding anything to the contrary
contained in Section 2.1, Senior Creditors hereby agree that, except as
otherwise provided in Section 2.3 hereof, Debtors may make and Noteholders
Creditors may receive and retain regularly scheduled payments of principal and
interest, on an unaccelerated basis, in respect of the Noteholder Debt in
accordance with the terms of the Noteholder Agreements as in effect on the date
hereof.
2.3 RESTRICTIONS ON PAYMENTS ON NOTEHOLDER DEBT. No payment will be
made or required to be made on account or in respect of any Noteholder Debt at
any time on or after (a) the receipt by the Noteholder Agent of a Default Notice
with respect to the occurrence of a Senior Creditor Default, unless and until
the payment in full of the Senior Debt or Senior Creditor Agent has been
instructed by the Required Lenders (as such term is defined in the Senior Credit
Agreement) that such default has been cured or waived in writing in accordance
with the terms of the Senior Creditor Agreements or (b) the occurrence of an
Event of Default under and as defined in any of the Noteholder Agreements.
2.4 LIMITATION ON REMEDIES. Notwithstanding any rights or remedies
available to the Noteholder Agent or any Noteholder under any of the Noteholder
Agreements, applicable law or otherwise, prior to the payment in full of the
Senior Debt, the Noteholder Agent and the Noteholders shall not, directly or
indirectly, (a) seek to collect from any Debtor (including, without limitation,
from or by way of any collateral) any of the Noteholder Debt or exercise any of
its rights or remedies upon a default or event of default by any Debtor under
the Noteholder Agreements or otherwise, (b) assert any claims or interests in
any collateral (including, without limitation, by setoff, compensation or
notification of account debtors), (c) commence any action or proceeding against
any Debtor or its properties under the U.S. Bankruptcy Code or any other
Insolvency Proceeding, or (d) take any other action against any collateral.
6
2.5 DISTRIBUTIONS.
(a) In the event of any distribution, division, or
application, partial or complete, voluntary or involuntary, by operation of law
or otherwise, of all or any part of the assets of any Debtor or the proceeds
thereof to the creditors of any Debtor or readjustment of the obligations and
indebtedness of any Debtor, whether by reason of liquidation, bankruptcy,
arrangement, receivership, assignment for the benefit of creditors, marshalling
of assets of any Debtor or any other Insolvency Proceeding, or upon the sale of
all or substantially all of any Debtor's assets, then, and in any such event,
(i) Senior Creditors shall first receive payment in full of all of the Senior
Debt prior to the payment of all or any part of the Noteholder Debt, and (ii)
Senior Creditors shall be entitled to receive any payment or distribution of any
kind or character, whether in cash, securities or other property, which is
payable or deliverable in respect of any or all of the Noteholder Debt, except
that a Noteholder Creditor may receive any securities of any Debtor issued
pursuant to a plan of reorganization in any case under the U.S. Bankruptcy Code
or by the corporation succeeding to such Debtor pursuant to such plan of
reorganization, if such securities are subordinate and junior at least to the
extent of the Noteholder Debt as provided herein to the payment in full of all
of the Senior Debt and to the payment of any Senior Debt issued in exchange or
substitution for any Senior Debt then outstanding.
(b) Each Noteholder Creditor hereby authorizes and empowers
the Senior Creditor Agent, for the benefit of itself and the other Senior
Creditors, in any Insolvency Proceeding to file a proof of claim on behalf of
such Noteholder Creditor with respect to the Noteholder Debt owing to such
Noteholder Creditor (i) if such Noteholder Creditor fails to file such proof of
claim prior to thirty (30) days before the expiration of the time period during
which such claims must be submitted, or (ii) if the Senior Creditor Agent, in
good faith, determines that any statements or assertions in a proof of claim
filed by such Noteholder Creditor are not consistent with the terms and
conditions hereof; provided, that, any failure of the Senior Creditor Agent to
file such proof of claim shall not be deemed to be a waiver by any Senior
Creditor of any of the rights and benefits granted herein by any Noteholder
Creditor. Each Noteholder Creditor shall provide Senior Creditor Agent with a
copy of any proof of claim filed by such Noteholder Creditor in any Insolvency
Proceeding.
(c) Each Noteholder Creditor hereby irrevocably grants the
Senior Creditor Agent authority and power in any Insolvency Proceeding, unless
and until this Intercreditor Agreement is terminated in accordance with its
terms: (i) to accept and receive any payment or distribution which may be
payable or deliverable at any time upon or in respect of the Noteholder Debt;
and (ii) to take such other action as may be necessary or advisable to
effectuate the foregoing. Each Noteholder Creditor shall provide to the Senior
Creditor Agent all information and documents necessary to present claims or seek
enforcement as described in the immediately preceding sentence. To the extent
necessary for Senior Creditor Agent to realize the benefits of the subordination
of the Noteholder Debt provided for herein (including the right to receive any
payment and distributions which might otherwise be payable or deliverable in
respect of the Noteholder Debt in any proceeding described in Section 2.5(a) or
otherwise), each Noteholder Creditor shall execute and deliver to Senior
Creditor Agent such instruments or documents (together with such assignments or
endorsements as Senior Creditor Agent shall deem necessary), as may be requested
by Senior Creditor Agent.
7
(d) Each Noteholder Creditor hereby agrees that, while it
shall retain the right to vote its claims and, except as otherwise provided in
this Intercreditor Agreement and without limiting the generality of the
provisions set forth below, otherwise act in any Insolvency Proceeding relative
to the applicable Debtor (including, without limitation, the right to vote to
accept or reject any plan of partial or complete liquidation, reorganization,
arrangement, composition, or extension), such Noteholder Creditor shall not: (i)
take any action or vote in any way so as to directly or indirectly challenge or
contest (A) the validity or the enforceability of any of the Senior Creditor
Agreements or the liens and security interests granted to any Senior Creditor
with respect to the Senior Debt, (B) the rights and duties of the Senior
Creditors established in the Senior Creditor Agreements, or (C) the validity or
enforceability of this Intercreditor Agreement; (ii) seek, or acquiesce in any
request, to dismiss any Insolvency Proceeding or to convert an Insolvency
Proceeding under Chapter 11 of the U.S. Bankruptcy Code to a case under Chapter
7 of the U.S. Bankruptcy Code; (iii) seek, or acquiesce in any request for, the
appointment of a trustee or examiner with expanded powers for the applicable
Debtor; (iv) propose, vote in favor of or otherwise approve a plan of
reorganization, arrangement or liquidation, or file any motion or pleading in
support of any plan of reorganization, arrangement or liquidation, unless it
provides that for the payment in full of the Senior Debt or unless the Senior
Creditors have approved of the treatment of their claims with respect to the
Senior Debt under such plan; (v) object to the treatment under a plan of
reorganization or arrangement of the claims with respect to the Senior Debt;
(vi) seek relief from the automatic stay of Section 362 of the U.S. Bankruptcy
Code or any other stay in any Insolvency Proceeding in respect of any
collateral; or (vii) directly or indirectly oppose any relief requested or
supported by the Senior Creditors in connection with the exercise by any Senior
Creditor of its rights or remedies. Until the Payment in Full of the Senior Debt
has occurred, each Noteholder Creditor agrees that it shall not, in or in
connection with any Insolvency Proceeding, file any pleadings or motions, take
any position at any hearing or proceeding of any nature, or otherwise take any
action whatsoever, including, without limitation, with respect to the
determination of any Liens or claims held by any Senior Creditor (including the
validity and enforceability thereof) or the value of any claims of such parties
under Section 506(a) of the Bankruptcy Code or otherwise; provided that each
Noteholder Creditor may file a proof of claim and vote its claims in an
Insolvency Proceeding, subject to the limitations contained in this
Intercreditor Agreement.
(e) Neither the Senior Creditor Agent nor any of the other
Senior Creditors shall in any event be liable for: (i) any failure to prove the
Noteholder Debt; (ii) any failure to exercise any rights with respect thereto;
(iii) any failure to collect any sums payable thereon; or (iv) any impairment or
nonpayment of the Noteholder Debt that results, directly or indirectly, from the
exercise by the Senior Creditor Agent or the other Senior Creditors of any of
their rights or remedies under this Intercreditor Agreement, the Senior Creditor
Agreements or under applicable law.
2.6 PAYMENTS RECEIVED BY ANY NOTEHOLDER CREDITOR. Until the payment
in full of the Senior Debt, should any payment or distribution or security or
instrument or proceeds thereof be received by any Noteholder Creditor in respect
of the Noteholder Debt other than as permitted under Section 2.2 hereof, such
Noteholder Creditor shall receive and hold the same in trust, as trustee, for
the benefit of Senior Creditors, segregated from other funds and property of
such Noteholder Creditor and shall forthwith deliver the same to Senior Creditor
Agent (together with any endorsement or assignment of such Noteholder Creditor
where necessary), for application to
8
any of the Senior Debt. In the event of the failure of such Noteholder Creditor
to make any such endorsement or assignment to Senior Creditor Agent, Senior
Creditor Agent, or any of its officers or employees, are hereby irrevocably
authorized on behalf of such Noteholder Creditor to make the same.
2.7 INSTRUMENT LEGEND AND NOTATION. Any instrument at any time
evidencing the Noteholder Debt, or any portion thereof, shall be permanently
marked on its face with a legend conspicuously indicating that payment thereof
is subordinate in right of payment to the Senior Debt in accordance with and
otherwise subject to the terms and conditions of this Intercreditor Agreement,
and (a) after being so marked, upon the request of Senior Creditor Agent, copies
thereof shall be delivered to Senior Creditor Agent and (b) the original of any
such instrument shall be immediately delivered to Senior Creditor Agent upon
Senior Creditor Agent's request, at any time on or after the occurrence of an
event of default under the Senior Creditor Agreements. In the event any legend
or endorsement is omitted, Senior Creditor Agent or any of its officers or
employees, are hereby irrevocably authorized on behalf of each Noteholder
Creditor to make the same. No specific legend, further assignment or endorsement
or delivery of notes, guarantees or instruments shall be necessary to subject
any Noteholder Debt to the subordination thereof contained in this Intercreditor
Agreement.
3. REPRESENTATIONS AND WARRANTIES
3.1 ADDITIONAL REPRESENTATIONS AND WARRANTIES.
(a) The Noteholder Agent and each Noteholder represents and
warrants (in each case severally only for itself and not jointly) to Senior
Creditors that:
(i) the execution, delivery and performance of this
Intercreditor Agreement by Noteholder Agent is within its powers in its capacity
as agent for the Noteholders, has been duly authorized by the Noteholders (in
accordance with the requirements of the Waiver and Amendment), and does not
contravene any law, any provision of any of the Noteholder Agreements or any
agreement to which Noteholder Agent or any Noteholder is a party or by which it
is bound;
(ii) the Noteholder Agent has been duly appointed and
constituted as agent to act for and on behalf of each Noteholder and has been
irrevocably authorized to execute and deliver this Intercreditor Agreement for
itself and on behalf of each Noteholder and to perform all of its obligations
hereunder, and to take such actions on behalf of each Noteholder as may be
required of it under the terms hereof, without any further consent or approval
of any Noteholder;
(iii) the Noteholder Agent and such Noteholder have
not been granted and do not have any Liens upon the assets and properties of any
Debtor pursuant to the Noteholder Agreements;
(iv) this Intercreditor Agreement constitutes the
legal, valid and binding agreement of Noteholder Agent and such Noteholder and
is enforceable in accordance with its terms and by holding any PIPE Note, shall
be binding on such Noteholder acting by and through the Noteholder Agent as its
agent, notwithstanding that such Noteholder is not a signatory hereto.
9
(b) The Senior Creditor Agent and each Senior Creditor
represents and warrants (in each case severally only for itself and not jointly)
to Noteholder Creditors that:
(i) the execution, delivery and performance of this
Intercreditor Agreement by Senior Creditor Agent is within its powers in its
capacity as agent for the other Senior Creditors, has been duly authorized by
the other Senior Creditors, and does not contravene any law, any provision of
any of the Senior Creditor Agreements or any agreement to which Senior Creditor
Agent or any Senior Creditor is a party or by which it is bound;
(ii) this Intercreditor Agreement constitutes the
legal, valid and binding agreement of Senior Creditor Agent and such Senior
Creditor and is enforceable in accordance with its terms and shall be binding on
such Senior Creditor acting by and through the Senior Creditor Agent as its
agent, notwithstanding that such Senior Creditor is not a signatory hereto.
3.2 WAIVERS; CONSENT TO AMENDMENTS. Notice of acceptance hereof, the
making of loans, advances and extensions of credit or other financial
accommodations to, and the incurring of any expenses by or in respect of, any
Debtor by any Senior Creditor, and presentment, demand, protest, notice of
protest, notice of nonpayment or default and all other notices to which any
Noteholder Creditor and any Debtor are or may be entitled are hereby waived
(except as expressly provided for herein or as to Debtors, in the Agreements).
Each Noteholder Creditor also waives notice of, and hereby consents to, (a) any
amendment, modification, supplement, extension, renewal, or restatement of any
of the Senior Debt or the Senior Creditor Agreements, including, without
limitation, extensions of time of payment of or increase or decrease in the
amount of any of the Senior Debt, the interest rate, fees, other charges, or any
collateral, (b) the taking, exchange, surrender and releasing of collateral or
guarantees now or at any time held by or available to any Senior Creditor for
the Senior Debt, (c) the exercise of, or refraining from the exercise of any
rights against Debtor or any other obligor or any collateral, (d) the
settlement, compromise or release of, or the waiver of any default with respect
to, any of the Senior Debt, and/or (e) the election by any Senior Creditor in
any proceeding instituted under the U.S. Bankruptcy Code, of the application of
Section 1111(b)(2) of the U.S. Bankruptcy Code. Any of the foregoing shall not,
in any manner, affect the terms hereof or impair the obligations of any
Noteholder Creditor hereunder. All of the Senior Debt shall be deemed to have
been made or incurred in reliance upon this Intercreditor Agreement.
3.3 SUBROGATION; MARSHALLING. Noteholder Creditors shall not be
subrogated to, or be entitled to any assignment of any Senior Debt or Noteholder
Debt or of any collateral or guarantees or evidence of any thereof until payment
in full of the Senior Debt. Each Noteholder Creditor hereby waives any and all
rights to have any collateral or any part thereof granted to any Senior Creditor
marshalled upon any foreclosure or other disposition of such collateral by any
Senior Creditor or Debtor.
3.4 NO OFFSET. In the event any Noteholder Creditor at any time
incurs any obligation to pay money to a Debtor, such Noteholder Creditor hereby
irrevocably agrees that it shall pay such obligation in cash or cash equivalents
in accordance with the terms of the contract governing such obligation and shall
not deduct from or setoff against any amounts owed by such Noteholder Creditor
to any Debtor in connection with any such transaction any amounts such
10
Noteholder Creditor claims are due to it with respect to the Noteholder Debt,
until the payment in full of the Senior Debt.
4. MISCELLANEOUS
4.1 AMENDMENTS. Any waiver, permit, consent or approval by any
Creditor of or under any provision, condition or covenant to this Intercreditor
Agreement must be in writing and shall be effective only to the extent it is set
forth in writing and as to the specific facts or circumstances covered thereby.
Any amendment of this Intercreditor Agreement must be in writing and signed by
each of the parties to be bound thereby.
4.2 SUCCESSORS AND ASSIGNS.
(a) This Intercreditor Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of each Creditor and its respective successors, participants and
assigns.
(b) Senior Creditors reserve the right to grant
participations in, or otherwise sell, assign, transfer or negotiate all or any
part of, or any interest in, the Senior Debt and the collateral securing same;
provided, that, Noteholder Creditors shall not be obligated to give any notices
to or otherwise in any manner deal directly with any participant in the Senior
Debt and no participant shall be entitled to any rights or benefits under this
Intercreditor Agreement except through a Senior Creditor. In connection with any
participation or other transfer or assignment, a Senior Creditor (i) may
disclose to such assignee, participant or other transferee or assignee all
documents and information which such Senior Creditor now or hereafter may have
relating to the Senior Debt or the collateral and (ii) shall disclose to such
participant or other transferee or assignee the existence and terms and
conditions of this Intercreditor Agreement.
(c) Noteholder Agent agrees to execute and deliver an
agreement for itself and the Noteholders containing terms substantially
identical to those contained herein in favor of any assignee or transferee of
any or all of the Senior Debt, or any or all rights of Senior Creditors in the
property of Debtor (other than pursuant to a participation) or any third person
who otherwise refinances, succeeds to or replaces any or all of the Senior
Creditors' financing of Debtors pursuant to the Senior Creditor Agreements.
4.3 INSOLVENCY. This Intercreditor Agreement shall be applicable
both before and after the filing of any petition by or against any Debtor under
the U.S. Bankruptcy Code and all converted or succeeding cases in respect
thereof and any other Insolvency Proceedings, and all references herein to any
Debtor shall be deemed to apply to a trustee for such Debtor and such Debtor as
debtor in possession. The relative rights of Senior Creditors and Noteholder
Creditors to repayment of the Senior Debt and the Noteholder Debt, respectively,
and in or to any distributions from or in respect of any Debtor or any
collateral or proceeds of collateral, shall continue after the filing thereof on
the same basis as prior to the date of the petition, subject to any court order
approving the financing of, or use of cash collateral by, such Debtor as debtor
in possession. This Intercreditor agreement shall constitute a subordination
agreement for the purposes of Section 510(a) of the U.S. Bankruptcy Code and
shall be enforceable in any Insolvency Proceeding
11
in accordance with its terms. In the event that an Insolvency Proceeding is
filed in a jurisdiction other than the United States or is governed by any law
of another jurisdiction other than the United States, each reference in this
Agreement to a section of the U.S. Bankruptcy Code shall be deemed to refer to
the substantially similar or corresponding provision of the law applicable to
such Insolvency Proceeding, or in the absence of any specific similar or
corresponding provision of the law, such other general law as may be applied in
order to achieve substantially the same result as would be achieved under each
applicable section of the U.S. Bankruptcy Code.
4.4 BANKRUPTCY FINANCING. If any Debtor shall become subject to a
proceeding under the U.S. Bankruptcy Code and if a Senior Creditor desires to
permit the use of cash collateral or to provide financing to such Debtor under
either Section 363 or Section 364 of the U.S. Bankruptcy Code, each Noteholder
Creditor agrees as follows: (a) adequate notice to such Noteholder shall have
been provided for such financing or use of cash collateral if Noteholder Agent
receives notice two (2) business days prior to the entry of the order approving
such financing or use of cash collateral and (b) no objection will be raised by
such Noteholder Creditor, nor will such Noteholder Creditor support any other
person objecting to, any such financing or use of cash collateral, so long as
(i) the interest rate and other terms are commercially reasonable under the
circumstances and (ii) such financing or use of cash collateral is subject to
the terms of this Intercreditor Agreement. For purposes of this Section, notice
of a proposed financing or use of cash collateral shall be deemed given when
given, in the manner prescribed by Section 4.6 hereof, to Noteholder Agent.
4.5 PRIORITIES UNAFFECTED BY ACTION OR INACTION. The priorities in
right of payment provided for herein shall not be altered or otherwise affected
by any amendment, modification, supplement, extension, renewal, restatement or
refinancing of either the Senior Debt or the Noteholder Debt, nor by any action
or inaction which any Creditor may take or fail to take in respect of any
collateral or the Senior Debt or Noteholder Debt, as the case may be.
4.6 NOTICES. All notices, requests and demands to or upon the
respective parties hereto shall be in writing and shall be deemed duly given,
made or received: if delivered in person, immediately upon delivery; if by
telex, telegram or facsimile transmission, immediately upon sending and upon
confirmation of receipt; if by nationally recognized overnight courier service
with instructions to deliver the next business day, one (1) business day after
sending; and if mailed by certified mail, return receipt requested, five (5)
days after mailing to the parties at their addresses set forth below (or to such
other addresses as the parties may designate in accordance with the provisions
of this Section):
To Senior Creditors Fortress Credit Corp., as Agent
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
12
To Noteholder Creditors: Law Debenture Trust Company of
New York, as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Either Creditor may change the address(es) to which all notices, requests and
other communications are to be sent by giving written notice of such address
change to the other Creditor in conformity with this Section 4.6, but such
change shall not be effective until notice of such change has been received by
the other Creditors.
4.7 COUNTERPARTS. This Intercreditor Agreement may be executed in
any number of counterparts, each of which shall be an original with the same
force and effect as if the signatures thereto and hereto were upon the same
instrument.
4.8 GOVERNING LAW. The validity, construction and effect of this
Intercreditor Agreement shall be governed by the internal laws of the State of
New York but excluding any principles of conflicts of law or other rule of law
that would result in the application of the law of any jurisdiction other than
the laws of the State of New York.
4.9 CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. Each of the
parties hereto hereby irrevocably consents to the non exclusive jurisdiction of
the courts of the State of New York in New York County and the United States
District Court for the Southern District of New York and waives trial by jury in
any action or proceeding with respect to this Intercreditor Agreement.
4.10 COMPLETE AGREEMENT. This written Intercreditor Agreement is
intended by the parties as a final expression of their agreement and is intended
as a complete statement of the terms and conditions of their agreement.
4.11 NO THIRD PARTIES BENEFITTED. Except as expressly provided in
Section 4.2, this Intercreditor Agreement is solely for the benefit of the
Creditors and their respective successors, participants and assigns, and no
other person shall have any right, benefit, priority or interest under, or
because of the existence of, this Intercreditor Agreement.
4.12 DISCLOSURES; NON RELIANCE. Each Creditor has the means to, and
shall in the future remain, fully informed as to the financial condition and
other affairs of any Debtor and no Creditor shall have any obligation or duty to
disclose any such information to any other Creditor. Except as expressly set
forth in this Intercreditor Agreement, the parties hereto have not otherwise
made to each other nor do they hereby make to each other any warranties, express
or implied, nor do they assume any liability to each other with respect to: (a)
the enforceability, validity, value or collectability of any of the Noteholder
Debt or Senior Debt or any guarantee or security which may have been granted to
any of them in connection therewith, (b) any Debtor's title to or right to
transfer any collateral, or (c) any other matter except as expressly set forth
in this Intercreditor Agreement.
13
4.13 TERM. This Intercreditor Agreement is a continuing agreement and
shall remain in full force and effect until the earlier of payment in full of
all Noteholder Debt or payment in full of all Senior Debt.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
14
IN WITNESS WHEREOF, the parties have caused this Intercreditor Agreement
to be duly executed as of the day and year first above written.
FORTRESS CREDIT CORP., as Senior
Creditor Agent
By:_____________________________________
Title:__________________________________
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Noteholder Agent
By:_____________________________________
Title:__________________________________
Each of the undersigned hereby acknowledges and agrees to the foregoing
terms and provisions. By its signature below, the undersigned agrees that it
will, together with its successors and assigns, be bound by the provisions
hereof.
Each of the undersigned acknowledges and agrees that: (i) although it
may sign this Intercreditor Agreement it is not a party hereto and does not and
will not receive any right, benefit, priority or interest under or because of
the existence of the foregoing Intercreditor Agreement, (ii) in the event of a
breach by the undersigned or any Noteholder Creditor of any of the terms and
provisions contained in the foregoing Intercreditor Agreement, such a breach
shall constitute an "Event of Default" as defined in and under the Senior
Creditor Agreements, (iii) it will execute and deliver such additional documents
and take such additional action as may be necessary or desirable in the opinion
of any Creditor to effectuate the provisions and purposes of the foregoing
Intercreditor Agreement and (iv) the Intercreditor Agreement may be amended or
supplemented from time to time without notice to, or the consent of, any of the
undersigned.
MARITIME LOGISTICS US HOLDINGS INC.
By:________________________________
Name:
Title:
SUMMIT LOGISTICS INTERNATIONAL INC
By:________________________________
Name:
Title:
SEAMASTER LOGISTICS INC.
By:________________________________
Name:
Title:
AMERUSSIA SHIPPING COMPANY INC.
By:________________________________
Name:
Title:
FASHION MARKETING, INC.
By:________________________________
Name:
Title:
[SIGNATURES CONTINUE ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
FMI INTERNATIONAL LLC
By:________________________________
Name:
Title:
FMI INTERNATIONAL CORP. (WEST)
By:________________________________
Name:
Title:
FMI INTERNATIONAL CORP.
By:________________________________
Name:
Title:
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:
[SIGNATURES CONTINUE ON NEXT PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
TUG NEW YORK, INC.
By:_________________________________
Name:
Title:
SUMMIT GLOBAL LOGISTICS, INC. (formerly
known as Aerobic Creations, Inc.)
By:________________________________
Name:
Title:
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:
EXHIBIT A
to
INTERCREDITOR AGREEMENT
Borrowers
---------
Maritime Logistics US Holdings Inc.
Summit Logistics International Inc
Sea Master Logistics Inc.
Amerussia Shipping Company Inc.
Fashion Marketing, Inc.
FMI International LLC
FMI International Corp. (West)
FMI International Corp.
Freight Management LLC
FMI Trucking, Inc.
FMI Express Corp.
Clare Freight, Los Angeles, Inc.
TUG New York, Inc.
Summit Global Logistics, Inc.
TUG USA, Inc.
AMR Investments Inc
FMI Holdco I, LLC
EXHIBIT B
to
INTERCREDITOR AGREEMENT
Guarantors
----------
None
EXHIBIT C
to
INTERCREDITOR AGREEMENT
Noteholders
-----------
See Attached
------------