Exhibit 10.2
FIRST AMENDMENT
TO
AMENDED AND RESTATED INTERCREDITOR AGREEMENT
--------------------------------------------
THIS FIRST AMENDMENT TO AMENDED AND RESTATED INTERCREDITOR
AGREEMENT (this
"First Amendment") dated as of October 12, 2006 is by and among
WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association, as successor
by merger to
Congress Financial Corporation, a Delaware corporation, as Agent
(in such
capacity, together with its successors and assigns, if any, the
"Revolving Loan
Agent") for the Revolving Loan Lenders, THE BANK OF NEW YORK, a New
York banking
corporation, as collateral agent (in such capacity, together with
its successors
and assigns, if any, the "Noteholder Collateral Agent") for the
Trustee and the
Noteholders, and AIRLIE OPPORTUNITY CAPITAL MANAGEMENT, L.P., as
collateral
agent (in such capacity, together with its successors and assigns,
if any, the
"Third Priority Collateral Agent") for the Third Priority
Noteholders. The
Revolving Loan Agent, Noteholder Collateral Agent and Third
Priority Collateral
Agent are sometimes individually referred to herein as a "Creditor"
and
collectively as "Creditors."
W I T N E S S E T H:
-------------------
WHEREAS, the Revolving Loan Agent and Revolving Loan Lenders have
entered
into a Second Amended and Restated Loan and Security Agreement,
dated as of
April 22, 2004, as heretofore amended (as amended, supplemented,
and restated or
otherwise modified from time to time, the "Loan Agreement"), among
the Debtors,
the Revolving Loan Agent and the Revolving Loan Lenders parties
thereto,
pursuant to which Debtors may borrow and, subject to the terms and
conditions
specified therein, the Revolving Loan Lenders will from time to
time make loans
in an aggregate principal amount of up to the maximum amount
specified therein
and arrange for letter of credit accommodations in an amount of up
to the
maximum amount specified therein;
WHEREAS, the obligations of Debtors to Revolving Loan Agent and
Revolving
Loan Lenders are secured by certain assets and properties of the
Debtors as set
forth in the Loan Agreement pursuant to which the Debtors granted
to Revolving
Loan Agent for the benefit of the Revolving Loan Lenders a security
interest in
and lien upon the Collateral (as defined in the Loan Agreement);
WHEREAS, the Debtors, the Noteholder Collateral Agent and
Noteholders
entered into an Indenture, dated as of April 22, 2004, as
heretofore amended (as
amended, supplemented, restated or otherwise modified from time to
time, the
"Note Indenture"), with the Noteholder Collateral Agent and The
Bank of New
York, in its capacity as trustee (in such capacity, together with
its successors
and assigns, if any, the "Trustee"), governing the rights and
duties of Debtors
thereunder and under the 12% Senior Secured Notes due 2008 and the
Senior
Secured Floating Rate Notes due 2008 in the original aggregate
principal amount
of $115,000,000;
WHEREAS, the obligations of Debtors to the Noteholders are secured
by
certain assets and properties of the Debtors as set forth in the
Indenture and
the Security Agreement, dated as
of April 22, 2004, as heretofore amended (as amended, supplemented,
restated or
otherwise modified from time to time, the "Security Agreement"),
pursuant to
which the Debtors granted to Noteholder Collateral Agent for the
pro-rata
benefit of the Noteholders a security interest in and lien upon the
Collateral
(as defined in the Security Agreement);
WHEREAS the parties hereto are parties to the Amended and Restated
Intercreditor Agreement dated as of March 3, 2005 (the
"Intercreditor
Agreement");
WHEREAS, pursuant to the Third Supplemental Indenture, dated as of
March
31, 2006, among the Debtors, the Noteholder Collateral Agent and
the Trustee
(the "Third Supplemental Indenture"), the Note Indenture was
amended among other
things to modify the definition of the term "Permitted
Indebtedness" to allow
the amount of secured debt permitted to be incurred pursuant to the
Loan
Agreement to be increased from $20,000,000 to $30,000,000;
WHEREAS, the Note Indenture, as amended by the Third Supplemental
Indenture, provides that the Revolving Loan Lenders shall have a
Permitted Prior
Lien (as defined in the Note Indenture) on the Collateral (as
defined in the
Note Indenture) securing the debt under the Loan Agreement,
including any
increased amount of available borrowings thereunder;
WHEREAS, pursuant to Amendment No 13 to Second Amended and Restated
Loan
Agreement, dated of even date herewith, among Debtors, Revolving
Loan Agent and
Revolving Loan Lenders ("Amendment No. 13 to Loan Agreement"), the
Loan
Agreement was amended among other things to permit the Debtors to
borrow from
the Revolving Loan Lenders up to an additional $10,000,000 of
secured debt
thereunder; and
WHEREAS Section 4.1 of the Intercreditor Agreement permits the
parties
ther
