EXHIBIT 10.01
WAIVER AGREEMENT
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THIS WAIVER AGREEMENT (this "Agreement"), dated as of May 7, 2007, by and
among CARGO CONNECTION LOGISTICS HOLDING, INC. a Florida corporation (the
"Company"), and ▇▇▇▇▇▇▇▇▇▇ EQUITY PARTNERS, LTD. (the "Buyer").
WITNESSETH
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WHEREAS, the Company issued and the Buyer purchased convertible debentures
in principal amount aggregating $2,350,000 (the "Debentures") pursuant to those
certain secured convertible debentures dated December 28, 2005 and February 13,
2006 (together, the "Secured Debenture");
WHEREAS, on December 28, 2005, the Company issued a warrant (the "Warrant")
to purchase 2,000,000 shares of the Company's common stock (the "Warrant
Shares");
WHEREAS, on December 28, 2005, the Buyer and the Company entered into (i)
that certain Securities Purchase Agreement (the "SPA"), and (ii) that certain
Investor Registration Rights Agreement (the "Registration Rights Agreement");
and
WHEREAS, the parties also wish to enter into other agreements to facilitate
the Company's continuing operations.
NOW, THEREFORE, in consideration of the mutual covenants and other
agreements contained in this Agreement and for other good and valuable
consideration, the receipt and adequacy whereof is hereby acknowledged, the
Company and the Buyer hereby agree as follows:
1. WAIVERS AND AGREEMENTS
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(a) Section 2 of the Registration Rights Agreement required that
(among other things), the Company file an Initial Registration Statement
(as defined in the Registration Rights Agreement) and obtain effectiveness of
the Initial Registration Statement by certain dates. Buyer hereby waives fifty
percent (50%) of the Company's obligation to pay any penalties and charges
relating to such failures, including Liquidated Damages (as that term is defined
in Section 2(c) of the Registration Rights Agreement) that may have accrued
through the date hereof as a result of such non-compliance with the filing and
effectiveness deadlines (collectively referred to as the "Penalties"); provided
that (i) the Company complies with its obligations specified in this Waiver
Agreement and (ii) the Debentures are redeemed on or before June 5, 2007 (the
"Deadline"); provided, however, that upon the delivery by the Company to the
Buyer of significant evidence of a potential financing transaction (the proceeds
of which would, at a minimum, repay the outstanding amounts of principal and
interest with respect to the Debentures) at any time prior to the Deadline, the
Buyer reserves the right to extend the Deadline to June 30, 2007 (the "Extended
Deadline"), and that such consent shall not be unreasonably withheld,
conditioned or denied. For the avoidance of doubt, if the Company fails to
comply with its obligations set forth in this Waiver Agreement or fails to
redeem the Debentures on or before the Deadline, or the Extended Deadline (if
applicable), Liquidated Damages will be deemed to have continued to accrue and
Buyer will remain entitled to payment of 100% of the
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Penalties, and all Penalties relating to any period on or after the date
hereof. The Company and the Buyer agree that the Company may withdraw its
current registration statement on Form SB-2/A (Reg. No. 333-131825) that was
filed with the United States Securities and Exchange Commission (the "SEC") on
July 18, 2006. The Company shall undertake to file a registration statement
covering such number of shares of common stock of the Company equal to one-third
of the number of shares of outstanding common stock held by public stockholders,
not including any shares held by affiliates of the Company, or the common shares
issued or to be issued pursuant to the Secured Debenture (the "Total Registered
Shares"), by the Deadline or the Extended Deadline, if applicable. The Company
shall use its best efforts to obtain the effectiveness of such registration
statement within 60 calendar days after its filing. In the event such
registration statement is filed and declared effective for a number of shares
less than the total number of Shares that would result if the Buyer converted
all of the Debentures eligible for conversion (the "Total ▇▇▇▇▇▇▇▇▇▇ Shares"),
the Company and Buyer agree that, if requested of the Buyer, the Company shall,
within sixty (60) calendar days following such request, but in no event earlier
than the latter to occur of (i) six (6) months after the initial registration
statement has been declared effective and (ii) sixty (60) days after all shares
registered have been sold under the initial registration statement, file
additional registration statements for the maximum shares that may be registered
as advised by the SEC until such time as the Total ▇▇▇▇▇▇▇▇▇▇ Shares have been
registered for resale by the Buyer.
(b) No event subject to a waiver or consent herein shall constitute
an "Event of Default" as defined in Section 2(a) of the Secured Debenture
or in Section 1(b)(v) of the Warrant.
2. GOVERNING LAW: MISCELLANEOUS.
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(a) Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of New Jersey without
regard to the principles of conflict of laws. The parties further agree that any
action between them shall be heard in the United States District Court for the
District of New Jersey sitting in Newark, New Jersey for the adjudication of any
civil action asserted pursuant to this paragraph.
(b) Counterparts. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each
party and delivered to the other party. In the event any signature page is
delivered by facsimile transmission, the party using such means of delivery
shall cause four additional original executed signature pages to be physically
delivered to the other party within five days of the execution and delivery
hereof.
(c) Headings. The headings of this Agreement are for convenience of
reference and shall not form part of, or affect the interpretation of, this
Agreement.
(d) Severability. If any provision of this Agreement shall be
invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other jurisdiction.
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(e) Entire Agreement, Amendments. This Agreement supersedes all
other prior oral or written agreements between the Buyer, the Company,
their affiliates and persons acting on their behalf with respect to the matters
discussed herein, and this Agreement and the instruments referenced herein
contain the entire understanding of the parties with respect to the matters
covered herein and therein and, except as specifically set forth herein or
therein, neither the Company nor any Buyer makes any representation, warranty,
covenant or undertaking with respect to such matters. No provision of this
Agreement may be waived or amended other than by an instrument in writing signed
by the party to be charged with enforcement.
(f) Notices. Any notices, consents, waivers, or other communications
required or permitted to be given under the terms of this Agreement must be
in writing and will be deemed to have been delivered (i) upon receipt, when
delivered personally; (ii) upon confirmation of receipt, when sent by facsimile;
(iii) three (3) days after being sent by U.S. certified mail, return receipt
requested, or (iv) one (1) day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such communications
shall be:
If to the Company, to: Cargo Connection Logistics Holding, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Davidoff ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Buyer, to its address and facsimile number set forth beneath its
signature, with copies to the Buyer's counsel. Each party shall provide five
(5) days' prior written notice to the other party of any change in address or
facsimile number.
(g) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
assigns. Neither the Company nor any Buyer shall assign this Agreement or any
rights or obligations hereunder without the prior written consent of the other
party hereto.
(h) No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
(i) Publicity. The Company and the Buyer shall have the right to
approve, before issuance any press release or any other public statement
with respect to the
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transactions contemplated hereby made by any party; provided, however, that
the Company shall be entitled, without the prior approval of the Buyer, to issue
any press release or other public disclosure with respect to such transactions
required under applicable securities or other laws or regulations (the Company
shall use its best efforts to consult the Buyer in connection with any such
press release or other public disclosure prior to its release and the Buyer
shall be provided with a copy thereof upon release thereof).
(j) Further Assurances. Each party shall do and perform, or cause to
be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents,
as the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby. Without limitation of the foregoing, the
Buyer(s) will timely file any reports required under Sections 13(d) or 16(a) of
the Securities Exchange Act of 1934.
(k) No Strict Construction. The language used in this Agreement will
be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
(l) Except as expressly set forth above, all of the terms and
conditions of the Transaction Documents shall continue in full force and
effect, and shall not be in any way changed, modified or superseded. This
Agreement shall provide for waivers, amendments and other terms as specifically
set forth and described herein and shall not be deemed a waiver or amendment to
other terms or conditions of the Transaction Documents.
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IN WITNESS WHEREOF, the Buyer and the Company have caused this Waiver
Agreement to be duly executed as of the date first written above.
BUYER: COMPANY:
▇▇▇▇▇▇▇▇▇▇ EQUITY PARTNERS, CARGO CONNECTION LOGISTICS
LTD. HOLDING, INC.
By: Yorkville Advisors, LLC By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: Investment Manager -------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: President
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Portfolio Manager
Buyer's Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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