EX-10.48
[Execution]
AMENDMENT NO. 1 TO INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS AMENDMENT NO. 1 TO INTERCREDITOR AND SUBORDINATION AGREEMENT (this
"Amendment No. 1"), dated as of May 21, 2007, is entered into by and between
Fortress Credit Corp., a Delaware corporation, in its capacity as agent pursuant
to the Senior Creditor Agreements acting for and on behalf of the parties
thereto as lenders (in such capacity, the "Senior Creditor Agent"), the parties
to the Senior Creditor Agreements as lenders (collectively, together with Senior
Creditor Agent, the "Senior Creditors"), 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 acting for and on behalf of the holders of the Convertible Notes (in
such capacity, the "Noteholder Agent"), and the holders of the Convertible Notes
(the "Noteholders"). 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, Senior Creditors, Noteholder Agent and the Noteholders have
previously entered into the Intercreditor and Subordination Agreement, dated as
of November 8, 2006 (as the same now exists or may hereafter be further amended,
modified, supplemented, extended, renewed, restated or replaced, the
"Intercreditor Agreement"); and
WHEREAS, the parties hereto wish to make certain amendments to the
Intercreditor Agreement, and by this Amendment No. 1, the parties desire and
intend to evidence such amendments.
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:
Section 1. DEFINITIONS. All capitalized terms used herein shall have the
meanings assigned to them in the Intercreditor Agreement, unless otherwise
defined herein.
Section 2. AMENDMENTS.
2.1 The second "whereas" clause in the recitals to the Intercreditor
Agreement is hereby amended by deleting the reference to the amount
"$65,000,000" contained therein and substituting the following therefor: " up to
$85,400,833.33".
2.2 Section 1.5 of the Intercreditor Agreement is hereby deleted in
its entirety and the following substituted therefor:
"1.5 "Convertible Notes" shall mean (i) in respect of the period
from November 8, 2006 through May 21, 2007, the "Convertible Notes", as
defined in the Intercreditor
Agreement prior to giving effect to Amendment No. 1 to Intercreditor and
Subordination Agreement, dated as of May 21, 2007 ("Amendment No. 1"),
and (ii) in respect of the period from and after May 21, 2007, (A) the
"Convertible Notes", as defined in the Intercreditor Agreement prior to
giving effect to Amendment No.1, as such Convertible Notes are amended,
restated and replaced by those certain Amended and Restated Senior
Secured Convertible Notes, dated as of May 21, 2007, issued by Summit to
the applicable Noteholders in the aggregate reissuance amount of
$79,900,833.33, (B) the Senior Secured Convertible Notes, dated as of
May 21, 2007, issued by Summit to the applicable Noteholders in the
aggregate original principal amount of $2,500,000 and (C) the Senior
Secured Convertible Notes, dated on or about June 5, 2007, issued by
Summit to Xxxxxxx Xxxxx & Associates, Inc., Xxxxxxx & Marsal, Inc.
and/or Xxxxx Xxxxxxx Xxxxxxx Israels LLP in an aggregate original
principal amount acceptable to Senior Creditor Agent, but in no event to
exceed in the aggregate $3,000,000."
2.3 Section 1.18 of the Intercreditor Agreement is hereby deleted in
its entirety and the following substituted therefor:
"1.18 "Noteholders" shall mean, collectively, the persons listed
on Exhibit C hereto and their respective successors and assigns,
including the purchasers of Convertible Notes pursuant to the Second
Amendment to Securities Purchase Agreement (Notes and Warrants) and
First Amendment to Joinder Agreement, dated on or about May 21, 2007,
and any other person that at any time is the owner or holder, directly
or indirectly, of record or beneficially, of any of the Convertible
Notes; sometimes being referred to herein individually as a
"Noteholder"."
2.4 Exhibit C to the Intercreditor Agreement is hereby deleted in
its entirety and replaced with the Amended and Restated Exhibit C to this
Amendment and all references to Exhibit C in the Intercreditor Agreement are
each hereby amended to refer to such Amended and Restated Exhibit C.
2.5 Section 1.20 of the Intercreditor Agreement is hereby amended by
deleting the reference to the amount "$65,000,000" contained in the last
sentence of such Section and substituting the following therefor: "the sum of
$82,400,833.33 plus the amount of additional Noteholder Debt evidenced by the
Convertible Notes referred to in clause (ii)(C) of the definition of Convertible
Notes set forth in Section 1.5".
2.6 Section 1.22 of the Intercreditor Agreement is hereby deleted in
its entirety and the following substituted therefor:
"1.22 "Securities Purchase Agreement" shall mean the Securities
Purchase Agreement (Notes and Warrants), dated on or about the date
hereof, by and among Summit, Maritime Logistics U. S. Holdings, Inc. and
the Noteholder Creditors executed in connection with the Convertible
Notes and warrants, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced
(including, but not limited to, as amended pursuant to the First
Amendment to Securities Purchase Agreement (Notes and Warrants), dated
January 26, 2007 and the Second
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Amendment to Securities Purchase Agreement (Notes and Warrants) and
First Amendment to Joinder Agreement, dated on or about May 21, 2007).".
2.7 Section 2.11 of the Intercreditor Agreement is hereby deleted in
its entirety and the following substituted therefor:
"2.11 NOTICES. Noteholder Agent shall give to the Senior Creditor
Agent concurrently with the giving thereof to any Debtor, (a) a copy of
any written notice by Noteholder Agent or any Creditor for which it is
an agent of either an event of default under its Agreements with any
Debtor, or written notice of demand of any payment from any Debtor, and
(b) a copy of any written notice sent by such Agent or such Creditor to
any Debtor at any time an event of default under its Agreements with any
Debtor exists stating such Agent's or Creditor's intention to exercise
any of its enforcement rights or remedies, including written notice
pertaining to any foreclosure on any of the Collateral or other judicial
or non-judicial remedy in respect thereof, and any legal process served
or filed in connection therewith; provided, that, the failure of any
party to give notice as required hereby shall not affect the relative
priorities of the respective Liens of Agents and Creditors as provided
herein or the validity or effectiveness of any such notice as against
any Debtor. Any such notice shall not be deemed a Default Notice for
purposes hereof unless such notice expressly so states. Debtors hereby
authorize and consent to each Agent and other Creditor sending any such
notices or providing any other information in each case that has not
been identified to it by a Debtor as material non-public information to
the other Agent or Creditors (but no Agent or Creditor shall have any
obligation or duty to do so) and hereby waive and release any claim or
cause of action against any Agent or Creditor as a result of such notice
or providing such information."
Section 3. JOINDER; REPRESENTATIONS AND WARRANTIES.
3.1 Without limitation of any of the provisions of the Intercreditor
Agreement, each Noteholder that became a Noteholder after November 8, 2006 (each
a "New Noteholder") hereby confirms that it has joined in and agreed to be bound
by each and all of the provisions of the Intercreditor Agreement applicable to a
Noteholder under the Intercreditor Agreement. Without limiting the generality of
the foregoing, each New Noteholder (a) agrees to perform, comply with and be
bound by all terms, conditions and covenants of the Intercreditor Agreement
applicable to any or all of the Noteholders and as applied to such New
Noteholder, with the same force and effect as if such New Noteholder had
originally executed and been an original Noteholder party and signatory to the
Intercreditor Agreement, (b) is deemed to make, and is, in all respects, bound
by all representations and warranties made by a Noteholder as to it and (c)
confirms and agrees that it has appointed and authorized Noteholder Agent in its
capacity as Noteholder Agent to take such action as agent on its behalf to
exercise such powers under the Intercreditor Agreement as are delegated to
Noteholder Agent by the Noteholders pursuant to the terms of the Securities
Purchase Agreement, the Convertible Notes and the Intercreditor Agreement.
3.2 The Noteholder Agent and each Noteholder (whether a New
Noteholder or an existing Noteholder) represents and warrants (in each case
severally only for itself and not
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jointly) to Senior Creditors that:
(a) the execution, delivery and performance of this Amendment No. 1 and
the Intercreditor Agreement by Noteholder Agent is and was within its powers in
its capacity as agent for the Noteholders, has been and was duly authorized by
the Noteholder Creditors (in accordance with the requirements of the Securities
Purchase Agreement), and does not and did not contravene any law, any provision
of any of the Noteholder Agreements or any agreement to which Noteholder Agent
or any Noteholder Creditor is a party or by which it is bound;
(b) 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 Amendment and the 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;
(c) this Amendment No. 1 and the 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 Convertible 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 or
to the Intercreditor Agreement.
3.3 Each Noteholder hereby acknowledges, confirms and agrees that:
(a) the Intercreditor Agreement is in full force and effect as of the date
hereof, and (b) the agreements and obligations of such Noteholder contained in
the Intercreditor Agreement constitute the legal, valid and binding obligations
of such Noteholder, enforceable against it in accordance with their respective
terms.
Section 4. CONSENT TO PAYMENT OF FEES. Notwithstanding anything to the
contrary contained in any of the Agreements, Senior Creditors hereby consent to
Debtors making a payment in the amount of $2,000 to Noteholder Agent as an
amendment fee, in accordance with the terms of the Second Amendment to
Securities Purchase Agreement (Notes and Warrants) and First Amendment to
Joinder Agreement dated on or about May 21, 2007.
Section 5. EFFECT OF THIS AMENDMENT. This Amendment No. 1 and the
instruments and agreements delivered pursuant hereto constitute the entire
agreement of the parties with respect to the subject matter hereof and thereof,
and supersede all prior oral or written communications, memoranda, proposals,
negotiations, discussions, term sheets and commitments with respect to the
subject matter hereof and thereof. Except as expressly amended pursuant hereto
and except for the amendments and waivers expressly contained herein, no other
changes or modifications or waivers to the Loan Documents are intended or
implied, and in all other respects the Intercreditor Agreement is hereby
specifically ratified, restated and confirmed by all parties hereto as of the
effective date hereof. To the extent that any provision of the Intercreditor
Agreement is inconsistent with the provisions of this Amendment No. 1, the
provisions of this Amendment No. 1 shall control.
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Section 6. FURTHER ASSURANCES. The parties hereto shall execute and
deliver such additional documents and take such additional action as may be
necessary to effectuate the provisions and purposes of this Amendment No. 1.
Section 7. GOVERNING LAW. The validity, interpretation and enforcement
of this Amendment No. 1 in any dispute arising out of the relationship between
the parties hereto, whether in contract, tort, equity or otherwise shall be
governed by the internal laws of the State of New York, without regard to any
principle of conflict of laws or other rule of law that would result in the
application of the law of any jurisdiction other than the State of New York.
Section 8. BINDING EFFECT. This Amendment No. 1 shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
Section 9. COUNTERPARTS. This Amendment No. 1 may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original but all of which when taken together shall constitute one and the same
instrument. In making proof of this Amendment No. 1, it shall not be necessary
to produce or account for more than one counterpart hereof signed by each of the
parties hereto. This Amendment No. 1 may be executed and delivered by telecopier
(or other electronic transmission of a manually executed counterpart) with the
same force and effect as if it were a manually executed and delivered
counterpart. Any party delivering an executed counterpart of this Amendment No.
1 by telecopier (or other electronic transmission of a manually executed
counterpart) shall also deliver an original executed counterpart of this
Amendment No. 1, but the failure to deliver an original executed counterpart
shall not affect the validity, enforceability, and binding effect of this
Amendment No. 1 as to such party or any other party.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment No. 1 as of the date first written above.
FORTRESS CREDIT CORP., as Senior Creditor Agent
By:
----------------------------------------
Title:
-------------------------------------
LAW DEBENTURE TRUST COMPANY OF
NEW YORK, as Noteholder Agent
By:
----------------------------------------
Title:
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Signature page to Amendment No. 1 to
Intercreditor and Subordination Agreement
ACKNOWLEDGMENT
Each of the undersigned hereby acknowledges, confirm and agrees to the
prior acknowledgment of Intercreditor and Subordination Agreement, dated as of
as of November 8, 2006, by and among the Senior Creditors, the Noteholder Agent
and the Noteholders (the "Intercreditor Agreement") and agrees that such
acknowledgment does and shall continue to apply to the Intercreditor Agreement
as amended by the foregoing Amendment No. 1 to Intercreditor and Subordination
Agreement.
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]
Signature page to Amendment No. 1 to
Intercreditor and Subordination Agreement
[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]
Signature page to Amendment No. 1 to
Intercreditor and Subordination Agreement
[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:
Signature page to Amendment No. 1 to
Intercreditor and Subordination Agreement
