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THIS FORBEARANCE AGREEMENT (this “ Agreement ”), dated as of October 15, 2011, is entered into by and among Trailer Bridge, Inc. (“ Borrower ”), the financial institutions from time to time party to the Loan Agreement (as defined below) as lenders (collectively, the “ Lenders ”) and Wells Fargo Bank, N.A., in its capacity as agent (in such capacity, “ Agent ”) for itself the Lenders.
W I T N E S S E T H :
WHEREAS, Agent, Lenders and Borrower have entered into financing arrangements pursuant to which Agent and Lenders have made and may hereafter make loans and other financial accommodations to Borrower as set forth in (1) the Term Loan and Security Agreement, dated June 14, 2007, by and among Agent, Lenders and Borrower (as the same now exists and may hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced, the “ Loan Agreement ”) and (2) all other agreements, documents and instruments referred to therein or at any time executed and/or delivered in connection therewith or related thereto (all of the foregoing, together with the Loan Agreement, as the same now exist or may hereafter be amended, modified, supplemented, extended, renewed, restated or replaced, being collectively referred to herein as the “ Financing Agreements ”);
WHEREAS, a certain Specified Default (as defined below) has occurred and is continuing under the Financing Agreements; and
WHEREAS, Borrower has requested that Agent and Lenders forbear from exercising their rights and remedies under the Financing Agreements due to the occurrence of the Specified Default and make certain other amendments to the Financing Agreements.
NOW, THEREFORE, in consideration of the foregoing, and the respective agreements, warranties and covenants contained herein, the parties hereto agree, covenant and warrant as follows:
SECTION 1. DEFINITIONS .
1.1 Additional Definitions . As used herein, the following terms shall have the respective meanings given to them below and the Financing Agreements shall be deemed and are hereby amended to include, in addition to and not in limitation of all other definitions, each of the following definitions:
(a) “ Forbearance Agreement ” shall mean the Forbearance Agreement, dated as of October 15, 2011, by and among Borrower, Agent and Lenders, as the same now exists or may hereafter be amended, modified, extended, renewed restated or replaced.
(b) “ Forbearance Termination Date ” shall mean the earlier to occur of (i) October 31, 2011, (ii) the date of the occurrence of any Event of Default other than the Specified Default, (ii) the date of the occurrence of any Event of Default (as defined in the Revolving Credit Facility), including as a result of any failure of Borrower to comply with the Revolving Credit Forbearance Agreement.
(c) “ Revolving Credit Forbearance Agreement ” shall mean a forbearance agreement, in form and substance satisfactory to Agent and Lenders, duly executed by Borrower with respect to certain defaults arising under the Revolving Credit Facility.
(d) “ Specified Default ” shall mean the Event of Default arising under Section 10.1(o) of the Loan Agreement due to the occurrence of an event of default under the Revolving Credit Facility.
1.2 Interpretation . Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.
SECTION 2. ACKNOWLEDGMENTS .
2.1 Acknowledgment of Obligations . Borrower hereby acknowledges confirms and agrees that (a) as of the close of business on October 15, 2011, the aggregate outstanding principal amount of the Obligations is $4,403,127.58, (b) such amount, together with all interest accrued and accruing thereon, and all fees, costs, expenses and other charges now or hereafter payable by Borrower to Agent and Lenders under the Financing Agreements, is unconditionally owing by the Borrower to Agent and Lenders without offset, defense or counterclaim of any kind, nature or description whatsoever and (c) its obligation and liability for the payment and performance of the Obligations pursuant to the Financing Agreements is unconditionally owing to Agent and Lenders without offset, defense or counterclaim of any kind, nature or description whatsoever.
2.2 Acknowledgment of Security Interests . Borrower hereby acknowledges, confirms and agrees that Agent, for the benefit of itself and Lenders, has and shall continue to have valid, enforceable and perfected liens upon and security interests in the Collateral and all other assets and properties of Borrower upon or in which Agent, for the benefit of Lenders, has been granted or holds a lien or security interest.
2.3 Binding Effect of Documents . Borrower hereby acknowledges, confirms and agrees that: (a) each Financing Agreement has been duly executed and delivered by Borrower to Agent and Lenders and is in full force and effect as of the date hereof, (b) the agreements and obligations of Borrower in the Financing Agreements constitute