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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 Loan and Security Agreement, dated April 23, 2004, 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, certain Specified Defaults (as defined below) have occurred and are 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 Defaults 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 Defaults, (ii) the date of the occurrence of any Event of Default (as defined in the Term B Loan Agreement), including as a result of any failure of Borrower to comply with the Term Loan Forbearance Agreement.
(c) “ Forecast ” shall mean the initial thirteen (13) week cash flow forecast, in form and substance satisfactory to Agent and delivered to Agent in accordance with Section 4.2 of the Forbearance Agreement, together with any subsequent or amended forecasts delivered to Agent, and acceptable to Agent, in accordance with the terms and conditions of the Forbearance Agreement.
(d) “ Specified Defaults ” shall mean, collectively, (i) the Event of Default arising under Section 10.1(p) of the Loan Agreement due to the failure of Borrower to consummate, by October 15, 2011, a refinancing of the Indebtedness evidenced by the Senior Secured Notes, (ii) the Event of Default arising under Section 10.1(a)(iii) of the Loan Agreement due to the failure of Borrower to comply with Section 9.17 of the Loan Agreement with respect to the four consecutive fiscal quarter period ended September 30, 2011, and (iii) the Event of Default arising under Section 10.1(a)(iii) of the Loan Agreement due to the failure of Borrower to comply with Section 9.18 of the Loan Agreement with respect to the fiscal year ending December 31, 2011.
(e) “ Term Loan 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 Term B Loan Financing Documents.
1.2 Amendment to Definition of Collateral . All references to the term “Collateral” in the Loan Agreement or the other Financing Agreements shall be deemed to include, and each such reference is hereby amended to include, in addition to and without limitation of all other Collateral, the Forbearance Collateral (as defined in the Forbearance Agreement).
1.3 Accrued Accounts . Notwithstanding anything to the contrary contained in the Loan Agreement, the other Financing Agreements or otherwise, (i) in no event shall Accrued Accounts constitute or be deemed Eligible Accounts, (ii) the definition of Eligible Accounts shall not include any Accrued Accounts and (iii) no Accrued Account shall be included in the calculation of the Borrowing Base.
1.4 Amendment to Definition of Borrowing Base . The definition of “Borrowing Base” in Section 1.9 of the Loan Agreement is hereby amended and restated in its entirety as follows:
“Borrowing Base” shall mean, at any time, the amount equal to:
(a) the lesser of:
(i) the amount equal to eighty-five (85%) percent of the Eligible Accounts; or
(ii) the Revolving Loan Limit;
1.5 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 $6,165,140.32, (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 the legal, valid and binding obligations of Borrower, enforceable against Borrower in accordance with the terms thereof, and Borrower has no valid