|
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
<PAGE>
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 Raymond James & Associates, Inc., Alvarez &
Marsal, Inc.
and/or Brown Rudnick Berlack 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
2
<PAGE>
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; provid
| 
