EX-10.50
SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT (NOTES AND WARRANTS)
AND FIRST AMENDMENT TO JOINDER AGREEMENT
THIS SECOND AMENDMENT TO SECURITIES PURCHASE AGREEMENT (NOTES AND
WARRANTS) AND FIRST AMENDMENT TO JOINDER AGREEMENT dated as of May __, 2007 (the
"AMENDMENT"), is entered into by and between Maritime Logistics US Holdings Inc.
(the "COMPANY"), Summit Global Logistics, Inc. (formerly know as Aerobic
Creations, Inc.) ("SHELLCO") and Law Debenture Trust Company of New York, in its
capacity as collateral agent for and on behalf of the Buyers (as defined below)
(in such capacity, "COLLATERAL AGENT"). Capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Agreement (as defined
below).
WHEREAS, the Company, ShellCo, Collateral Agent and the Buyers
(hereinafter defined) entered into that certain Securities Purchase Agreement
(Notes and Warrants) dated as of November 8, 2006 (as amended to date and as
amended, supplemented, extended, renewed, restated, replaced or otherwise
modified from time to time, the "AGREEMENT").
WHEREAS, Company and ShellCo have requested that Buyers and Collateral
Agent (i) waive the Events of Defaults (as defined in the Notes) that occurred
and are continuing as a result of (A) ShellCo's failure to timely deliver the
quarterly financial statements for the quarter ending on December 31, 2006 in
accordance with Section 14(g)(i) of the Notes (in effect prior to the date
hereof), (B) ShellCo's failure to timely deliver the annual financial statements
for the fiscal year ending on December 31, 2006 in accordance with Section
14(g)(ii) of the Notes (in effect prior to the date hereof), (C) changing the
name of ShellCo after the latest date permitted therefor under the Security
Agreement (as defined in the Notes), (D) the failure (if any) of ShellCo and/or
Company to notify the Collateral Agent and/or the Buyers (hereinafter defined)
of the other Existing Events of Default (hereinafter defined) within the time
periods required under the Transaction Documents, (E) failure to pay, through
the date hereof, the default rate of Interest to Noteholders under Section 2(c)
of the Notes arising as a result of the occurrence and continuation of the other
Existing Events of Default (such 2% increase in Interest Rate through the period
ending on the date hereof, the "DEFAULT INTEREST") and (F) ShellCo's failure (if
any) to comply with the financial covenants set forth in Section 14(l) of the
Notes (in effect prior to the date hereof) for the quarter ending on March 31,
2007 (collectively, the "EXISTING EVENTS OF DEFAULT") and (ii) amend the
Agreement in certain respects, including without limitation, to (A) provide for
the amendment and restatement of the Notes issued on the Closing Date and (B)
provide for the issuance of additional secured convertible notes and warrants
(of like tenor to the Notes and Warrants, respectively) (such additional secured
convertible notes, the "NEW NOTES"; such additional warrants, the "NEW
WARRANTS");
WHEREAS, (i) the consent of each of the holders of the Notes (each
individually, a "HOLDER" and collectively, the "HOLDERS"; as further defined
hereinafter) is required to waive the Existing Events of Default and (ii) the
consent of the Holders of at least a majority of the aggregate principal amount
of the Notes now outstanding is required to amend the Agreement as provided
herein;
WHEREAS, each of the Holders has agreed to waive the Existing Events of
Default and to amend the Agreement as provided herein, in each case, subject to
the terms and conditions hereof; and
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WHEREAS, as partial consideration for Holders agreement to waive the
Existing Events of Default and to amend the Agreement in accordance with the
provisions hereof, ShellCo has agreed to amend, restate and replace the Notes
issued on the Closing Date with the Amended and Restated Senior Secured
Convertible Notes (hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the other mutual
covenants contained herein, the receipt and sufficiency are hereby acknowledged,
the parties hereto agree as follows:
SECTION 1. AMENDMENTS.
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a. RECITALS. The reference to "Section 6(o)" set forth in the second
recital to the Agreement is hereby deleted therefrom and "Section 7(y)" is
substituted in lieu thereof.
b. AEROBIC CREATIONS, INC. All references to "Aerobic Creations, Inc."
set forth in the Agreement and the Joinder Agreement (hereinafter defined) shall
mean "Summit Global Logistics, Inc."
c. BUYERS. All references to "Buyers" in the Agreement shall mean (i) in
respect of the period from November 8, 2006 through the day immediately
preceding the date hereof, the "Buyers" referenced on the Schedule of Buyers
attached to the Agreement prior to the date hereof and (ii) in respect of the
period from and after the date hereof, the "Buyers" referenced on the Schedule
of Buyers attached to the Agreement, after giving effect to (A) this Amendment
and (B) any other subsequent amendments to the Schedule of Buyers, as
applicable. Each New Buyer (hereinafter defined) acknowledges and agrees that it
shall be a "Buyer" (and Holder), as of the date hereof, for all purposes under
the Agreement and the other applicable Transaction Documents.
d. HOLDERS. All references to "Holders" in the Agreement shall mean the
holders, from time to time, of the Notes.
e. NOTES. All references to "Notes" in the Agreement shall mean (i) in
respect of the period from November 8, 2006 through the day immediately
preceding the date hereof, the "Notes", as defined in the Agreement prior to
giving effect to this Amendment and (ii) in respect of the period from and after
the date hereof, the "Notes", as defined in the Agreement prior to giving effect
to this Amendment, as such Notes are amended and restated in accordance with the
provisions hereof plus the New Notes, as the foregoing may be amended, restated,
supplemented and/or modified from time to time.
f. TRANSACTION DOCUMENTS. All references to "Transaction Documents" in
the Agreement and the other Transaction Documents shall also include the
following documents executed in connection herewith: (i) the First Amendment to
Guaranty ("FIRST AMENDMENT TO GUARANTY"), (ii) the First Amendment to Security
Agreement ("FIRST AMENDMENT TO SECURITY AGREEMENT"), (iii) the First Amendment
to Pledge Agreement ("FIRST AMENDMENT TO PLEDGE AGREEMENT"), (iv) the New Notes,
(v) the Amended and Restated Senior Secured Convertible Notes, (vi) the New
Warrants, (vii) this Amendment, (viii) Waiver and Amendment No. 1 to Warrants
(Notes) and (ix) Waiver and Amendment No. 1 to Registration Rights Agreement
(Notes).
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g. WARRANTS. All references to "Warrants" in the Agreement shall mean
(i) in respect of the period from November 8, 2006 through the day immediately
preceding the date hereof, the "Warrants", as defined in the Agreement prior to
giving effect to this Amendment and (ii) in respect of the period from and after
the date hereof, the "Warrants", as defined in the Agreement prior to giving
effect to this Amendment plus New Warrants, as the foregoing may be amended,
restated, supplemented and/or modified from time to time.
h. INTENTIONALLY OMITTED.
i. USE OF PROCEEDS. Notwithstanding any other provisions set forth in
the Agreement or any of the other Transaction Documents, ShellCo shall be
permitted to use the proceeds from the payment of the Purchase Price
(hereinafter defined) for general corporate purposes, including without
limitation, to pay professional fees (including, without limitation, attorneys'
fees) and other administrative costs and expenses incurred by ShellCo, the
Company and their respective Subsidiaries in connection with the negotiation,
documentation, execution and administration of the New Notes, the Amended and
Restated Senior Secured Convertible Notes and the other agreements, documents
and instruments executed and/or delivered in connection herewith and therewith.
j. INTENTIONALLY OMITTED.
k. INTENTIONALLY OMITTED.
l. RESERVATION OF SHARES. Section 4(l) of the Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
"RESERVATION OF SHARES. For as long as any Buyer owns any Notes or
Warrants, ShellCo shall take all actions necessary to at all times after
the Closing Date have authorized, and reserved for the purpose of
issuance, no less than 130% of the sum of (i) the number of shares of
Common Stock issuable upon conversion of all of the Notes issued at the
Closing and on May __, 2007, (ii) the number of shares of Common Stock
issuable upon exercise of the Warrants issued at the Closing and on May
__, 2007, and (iii) the number of shares of Common Stock issuable upon
exercise of the Common PIPE Warrants (without taking into account any
limitations on the conversion of the Notes or exercise of the Warrants
or Common PIPE Warrants set forth in the Notes, Warrants and Common PIPE
Warrants, respectively)."
m. The last sentence of Section 7(cc) of the Agreement is hereby deleted
in its entirety.
n. NOTICE. Section 9(f) of the Agreement is hereby amended by deleting
"Xxxx X. Xxxxxxx, Xx." therefrom and by substituting "Xxxxx X. Xxxxxxx" and
"Xxxxxxx X. Xxxxxxxxxx" in lieu thereof.
o. SCHEDULE OF BUYERS. The Schedule of Buyers attached to the Agreement
is hereby deleted in its entirety and the attached Schedule of Buyers is
substituted in lieu thereof.
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SECTION 2. NEW BUYER REPRESENTATIONS AND WARRANTIES. Each New Buyer
represents and warrants that (i) it is an "accredited investor" as that term is
defined in Rule 501(a) of Regulation D and (ii) such Buyer is acquiring such New
Note(s), and such New Warrant(s), and upon conversion of such New Note(s) and
exercise of such New Warrant(s) will acquire the Conversion Shares issuable upon
conversion of such New Note(s) and the Warrant Shares issuable upon exercise
thereof, in the ordinary course of business, for its own account and not with a
view towards, or for resale in connection with, the public sale or distribution
thereof, except pursuant to sales registered or exempted under the 1933 Act and
such New Buyer does not have a present arrangement to effect any distribution of
the Securities to or through any person or entity.
SECTION 3. WAIVER OF EXISTING EVENTS OF DEFAULT; ACCRUAL OF DEFAULT
INTEREST.
(a) Effective upon the Second Closing Date (hereinafter defined), the
Collateral Agent and Holders hereby waive the Existing Events of Default through
the date hereof. This waiver is and shall be effective solely for the specific
instance and purpose described herein and is not and shall not be applicable to
any other Events of Default whether now existing or hereafter occurring. The
Collateral Agent and Holders acknowledge and agree that all rights and remedies
of Collateral Agent and Holders that arose as a result of the occurrence of the
Existing Events of Default shall have no force or effect until such rights and
remedies arise anew upon the occurrence of an Event of Default that does not
constitute an Existing Event of Default.
(b) All Default Interest shall be added to the Principal under the
Amended and Restated Senior Secured Convertible Notes (hereinafter defined), on
a pro rata basis, as of the date hereof and shall not be payable until the
earlier to occur of the Maturity Date (as defined in the Notes) and the
Conversion Date with respect to the conversion of all of the Principal under the
applicable Amended and Restated Senior Secured Convertible Notes to Common Stock
(of ShellCo).
SECTION 4. AMENDMENT AND RESTATEMENT OF NOTES; ISSUANCE OF NEW NOTES AND
NEW WARRANTS
a. PURCHASE OF NEW NOTES AND NEW WARRANTS. Subject to the satisfaction
(or waiver) of the conditions set forth in Sections 9 and 10 below, (i) ShellCo
shall issue and sell to each New Buyer, and each New Buyer severally, but not
jointly, agrees to purchase from ShellCo on the Second Closing Date (hereinafter
defined), (x) the principal amount of New Notes set forth opposite such New
Buyer's name in column (1) on the attached Schedule of Buyers and (y) the
related Warrants to acquire up to that number of Warrant Shares set forth
opposite such New Buyer's name in column (7) on the attached Schedule of Buyers
and (ii) ShellCo shall issue Amended and Restated Senior Secured Convertible
Note(s) to each Buyer (other than the New Buyers), which shall amend, restate
and replace the Note(s) previously issued by ShellCo to such Buyer (together
with the other Amended and Restated Senior Secured Convertible Notes issued to
the other Buyers on the date hereof, the "AMENDED AND RESTATED SENIOR SECURED
CONVERTIBLE NOTES"), and each Buyer (other than the New Buyers), as
consideration for the issuance of the Amended and Restated Senior Secured
Convertible Note(s) to such Buyer, severally, but not jointly, agrees to (A) pay
to ShellCo at the closing the amount set forth opposite such Buyer's name in
column (8) set forth on the attached Schedule of Buyers, (B)
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waive certain rights under the Registration Rights Agreement in accordance with
the Waiver and Amendment No. 1 to Registration Rights Agreement dated as of even
date hereof ("FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT") and (C) return
to ShellCo the Note(s) issued to such Buyer on the Closing Date (the "SECOND
CLOSING").
b. SECOND CLOSING. The date and time of the Second Closing (the "SECOND
CLOSING DATE") shall be 10:00 a.m., New York City time, on the first Business
Day following the satisfaction (or waiver) and notification of ShellCo of
satisfaction (or waiver) of the conditions to the Second Closing set forth in
Sections 9 and 10 below (or such later or earlier date as is mutually agreed to
by ShellCo and each of the Buyers).
c. PURCHASE PRICE. The aggregate purchase price for the New Notes and
the New Warrants and cash purchase price for the Amended and Restated Senior
Secured Convertible Notes to be purchased by the Buyers at the Second Closing
(the "PURCHASE PRICE") shall be payable by Buyers in the amounts set forth
opposite the Buyers' names in column (8) of the attached Schedule of Buyers.
Each New Buyer shall pay $1,000 for each $1,000 of principal amount of New Notes
and related New Warrants to be purchased by such Buyer at the Second Closing.
d. FORM OF PAYMENT. On the Second Closing Date, (i) each Buyer shall pay
its respective portion of the Purchase Price to ShellCo and/or to one or more
designees of ShellCo for the Notes and Warrants to be issued and sold to such
Buyer at the Second Closing, by wire transfer of immediately available funds in
accordance with the Company's or ShellCo's written wire instructions attached
hereto at Exhibit B, and (ii) ShellCo shall deliver to each Buyer the Notes
which such Buyer is then purchasing hereunder along with warrants representing
the Warrants which such Buyer is purchasing, in each case duly executed on
behalf of ShellCo and registered in the name of such Buyer or, subject to
compliance with applicable securities laws, its designee.
SECTION 5. CONSENT. The Collateral Agent and each of the Buyers hereby
consents to the issuance of the New Notes, the New Warrants and Amended and
Restated Senior Secured Convertible Notes notwithstanding any restrictions upon
the issuance of the same set forth in the Agreement (including without
limitation, under Sections 4(i) and 4(j) of the Agreement) or the other
Transaction Documents.
SECTION 6. CLOSING FEE. ShellCo agrees to pay to Collateral Agent, for
the benefit of the Buyers (other than the New Buyers), a closing fee in an
amount equal to TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00), which shall be
(i) payable on the Maturity Date in cash (the "CLOSING FEE") and (ii) paid, in
accordance with clause (i) of this Section 6, pro rata to the Buyers (other than
the New Buyers) who were issued Amended and Restated Senior Secured Convertible
Notes. ShellCo agrees to pay a TWO THOUSAND DOLLAR ($2,000) amendment fee to
Collateral Agent on the date hereof ("AMENDMENT FEE").
SECTION 7. JOINDER.
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(a) ShellCo acknowledges, confirms and agrees that pursuant to that
certain Joinder Agreement dated as of November 8, 2006 by ShellCo ("JOINDER
AGREEMENT"):
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(i) Each of the representations and warranties set forth in
Section 3 (other than the first sentence of Section 3(o)) of the Agreement,
mutatis mutandis, were as of the Closing Date true and correct as if each
reference to the Company contained in such representations and warranties was a
reference to ShellCo (unless otherwise expressly provided herein or in the
disclosure schedules hereto).
(ii) ShellCo assumed all covenants and obligations of the Company
set forth in the Agreement (including, without limitation, all indemnification
obligations) as if each obligation of the Company and each reference thereto
contained in the Agreement was an obligation of and a reference to ShellCo.
(b) ShellCo, Collateral Agent and Buyers acknowledge and agree that the
representations and warranties set forth in the Joinder Agreement were made as
of the Closing Date.
(c) ShellCo, Collateral Agent and Buyers acknowledge and agree that
clauses A, B, C, D, E, F, G, H, J, K, L, M, N and O of Section 4 of the Joinder
Agreement are hereby deleted in their entirety and the "Intentionally Omitted"
is substituted in lieu thereof.
SECTION 8. MATERIAL NON-PUBLIC INFORMATION. Notwithstanding any other
provisions set forth herein or in any of the other Transaction Documents
(including, without limitation, any reporting and/or notice requirements),
ShellCo shall not, and shall cause its Subsidiaries and each of their respective
officers, directors, employees and agents, not to, provide the Collateral Agent
or Buyers with any material, nonpublic information regarding ShellCo or any if
its Subsidiaries from and after the filing of the 8-K Filing with the SEC
without the express written consent of the Collateral Agent and the applicable
Buyer, as applicable, and such Buyer's and/or Collateral Agent's delivery to
ShellCo of a confidentiality agreement with respect to such information to be
disclosed.
SECTION 9. CONDITIONS TO SHELLCO'S OBLIGATION TO SELL. The obligation of
the ShellCo hereunder to issue and sell the New Notes and the related New
Warrants and the Amended and Restated Senior Secured Convertible Notes to each
applicable Buyer at the Second Closing is subject to the satisfaction, at or
before the Second Closing Date, of each of the following conditions, reasonably
satisfactory to the ShellCo, provided that these conditions are for ShellCo's
benefit and may be waived by ShellCo at any time in its sole discretion by
providing each Buyer with prior written notice thereof:
(a) Each Buyer and Collateral Agent shall have executed each of the
following documents to which it is a party and delivered the same to ShellCo, as
applicable: (i) the First Amendment to Guaranty, (ii) the First Amendment to
Security Agreement, (iii) the First Amendment to Pledge Agreement, (iv) this
Amendment, (v) Waiver and Amendment No. 1 to Warrants (Notes) and (vi) Waiver
and Amendment No. 1 to Registration Rights Agreement (Notes).
(b) Each Buyer shall have delivered to ShellCo or its designee(s) its
portion of the Purchase Price for the New Notes, the New Warrants and the
Amended and Restated Senior Secured Convertible Notes being purchased by such
Buyer at the Second Closing by wire transfer of immediately available funds
pursuant to the wire instructions set forth on Exhibit B
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attached hereto. Each Buyer's delivery of its portion of the Purchase Price to
ShellCo shall constitute and evidence such Buyer's agreement that the conditions
precedent set forth in Section 10 hereof have been satisfied.
SECTION 10. CONDITIONS TO EACH BUYER'S OBLIGATION TO PURCHASE. The
obligation of each Buyer hereunder to purchase, as applicable, the New Notes,
the New Warrants and the Amended and Restated Senior Secured Convertible Notes
at the Second Closing is subject to the satisfaction, at or before the Second
Closing Date, of each of the following conditions, provided that these
conditions are for each Buyer's sole benefit and may be waived by such Buyer at
any time in its sole discretion by providing the ShellCo with prior written
notice thereof:
(a) Each of the Company, ShellCo and each of their Subsidiaries, to the
extent each is a party thereto, shall have executed and delivered to each
applicable Buyer: (i) the First Amendment to Guaranty, (ii) the First Amendment
to Security Agreement, (iii) the First Amendment to Pledge Agreement, (iv) the
New Notes, (v) the Amended and Restated Senior Secured Convertible Notes, (vi)
the New Warrants, (vii) this Amendment, (viii) Waiver and Amendment No. 1 to
Warrants (Notes) and (ix) Waiver and Amendment No. 1 to Registration Rights
Agreement (Notes).
(b) On or prior to Second Closing Date, (i) ShellCo, Fortress Credit
Corp., the Company and certain of the Subsidiaries of ShellCo and Company shall
have entered into and delivered to each of the Buyers and Collateral Agent the
First Amendment to Senior Loan Agreement, in form and substance reasonably
satisfactory to each Buyer, (ii) Fortress Credit Corp., the Company, ShellCo and
the Collateral Agent shall have entered into and delivered to each of the Buyers
and the Collateral Agent the First Amendment to Intercreditor Agreement, in form
and substance reasonably satisfactory to each Buyer ("FIRST AMENDMENT TO
INTERCREDITOR AGREEMENT") and (iii) ShellCo shall have delivered to each of the
Buyers a true and correct copy of the final form of the PIPE Notes and such PIPE
Notes shall be in form and substance reasonably satisfactory to Buyers,
including with respect to subordination of the PIPE Notes to the Notes.
(c) The Company, ShellCo and each entity which is a Subsidiary of the
Company immediately prior to the Second Closing Date shall have delivered to
such Buyer a secretary's certificate in the form attached hereto as EXHIBIT C,
executed by the secretary of such Person and dated as of the Second Closing
Date, certifying (A) that the attached written consent of or resolutions adopted
by the board of directors of such Person in connection with this Amendment are
true, complete and correct and remain unamended and in full force and effect,
(B) that the attached certificate of incorporation or certificate of formation
of such Person is true, complete and correct and remains unamended and in full
force and effect, (C) that the attached bylaws or limited liability company
agreement or operating agreement of such Person are true, complete and correct
and remain unamended and in full force and effect and (D) as to the incumbency
and specimen signature of each officer of such Person executing this Agreement,
the other Transaction Documents and any other document delivered in connection
herewith on behalf of such Person.
(d) The representations and warranties of the Company, ShellCo and any
Subsidiary set forth in this Amendment, the Agreement or any other Transaction
Document shall be true and
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correct in all material respects (except for those representations and
warranties that are qualified by materiality or Material Adverse Effect, which
shall be true and correct in all respects) as of the date when made and as of
the Second Closing Date (except with respect to the representation and warranty
set forth in Section 3(k) of the Agreement) as though made at that time (except
for representations and warranties which speak as of a specific date, each of
which shall be true and correct as of such date) and the Company, ShellCo or
each Subsidiary, as applicable, shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by
the Transaction Documents to be performed, satisfied or complied with by such
entity at or prior to the Second Closing Date, except with respect to such
covenants, agreements and conditions that Company, ShellCo and/or their
respective Subsidiaries failed to satisfy or comply with resulting in the
occurrence of the Existing Events of Default. Such Buyer shall have received a
certificate delivered and executed by the President of each of the Company and
ShellCo, dated as of the Second Closing Date, to the foregoing effect and as to
such other matters as may be reasonably requested by such Buyer in the form
attached hereto as EXHIBIT D
(e) Intentionally Omitted.
(f) The Company and ShellCo shall have (i) obtained all governmental,
regulatory or third party consents and approvals, if any, and (ii) made all
filings under all applicable federal and state securities laws (to the extent
such filings must be made on or prior to the Second Closing Date in each case)
necessary to consummate the issuance and the sale of the New Notes and New
Warrants.
(g) The Company shall have delivered to each Buyer such other documents
relating to the transactions contemplated by this Amendment as each Buyer or its
counsel may reasonably request.
(h) ShellCo shall have paid the Amendment Fee to Collateral Agent.
(i) Buyers shall have received a copy of the legal opinion of Xxxxx
Xxxxxxx Berlack Israels LLP, dated as of the Second Closing Date, in
substantially the form of EXHIBIT E attached hereto.
(j) Buyers shall have received a true, correct and complete copy of the
engagement letter of ShellCo with the Consultant, as duly authorized, executed
and delivered by the parties thereto.
SECTION 11. BOARD OF DIRECTORS SEAT. The Required Holders shall have the
right to nominate one member of the ShellCo's board of directors at the next
annual meeting of the ShellCo's shareholders after May 18, 2007 provided that
(i) such member has industry experience satisfactory to ShellCo, (ii) such
member is independent in accordance with the NASDAQ rules regarding independence
of directors and (iii) such member and nomination is subject to the ShellCo's
corporate governance documents and requirements. Until such member is elected to
the ShellCo's board of directors, the Required Holders shall have the right to
nominate an observer to the ShellCo's board of directors provided that such
observer is acceptable to the ShellCo. Notwithstanding the foregoing, Radcliffe
SPC, Ltd., for and on behalf of the Class A Segregated Portfolio, shall not be
entitled to participate under this Section 11 in
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the nomination of an observer to ShellCo's board of directors or in the
nomination of a member to ShellCo's board of directors.
SECTION 12. COLLATERAL AGENT.
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(a) Each New Buyer hereby (x) appoints Law Debenture Trust Company of
New York, as the Collateral Agent for such Buyer under the Securities Purchase
Agreement and the other applicable Transaction Documents, and (y) each New Buyer
hereby authorizes the Collateral Agent (and its officers, directors, employees
and agents) in such capacity to take any and all such actions on its behalf with
respect to the Collateral (as defined in the Security Documents) and the
Obligations in accordance with the terms of this Agreement and the other
applicable Transaction Documents. The Collateral Agent shall not have, by reason
hereof or any of the other Transaction Documents, a fiduciary relationship in
respect of any New Buyer. Neither the Collateral Agent nor any of its officers,
directors, employees and agents shall have any liability to any New Buyer for
any action taken or omitted to be taken in connection herewith or therewith each
New Buyer agrees to defend, protect, indemnify and hold harmless the Collateral
Agent and all of its officers, directors, employees and agents (collectively,
the "CA INDEMNITEES") from and against any losses, damages, liabilities,
obligations, penalties, actions, judgments, suits, fees, costs and expenses
(including, without limitation, reasonable attorneys' fees, costs and expenses)
incurred by such CA Indemnitee, whether direct, indirect or consequential,
arising from or in connection with the performance by such CA Indemnitee of the
duties and obligations of Collateral Agent pursuant to the Securities Purchase
Agreement and to the other applicable Transaction Documents.
(b) Without limiting the generality of the foregoing, each Buyer hereby
irrevocably appoints and authorizes Collateral Agent to execute and deliver the
First Amendment to Intercreditor Agreement, the First Amendment to Security
Agreement, the First Amendment to Guaranty and the First Amendment to Pledge
Agreement (on substantially the terms set forth in the forms of such documents
attached as Exhibit A attached hereto) for and on behalf of such Buyer and to
perform all of the obligations and duties of Collateral Agent provided for
therein, and each Buyer shall be bound by the terms of the Intercreditor
Agreement, the First Amendment to Intercreditor Agreement, the First Amendment
to Guaranty, the First Amendment to Security Agreement and the First Amendment
to Pledge Agreement as if such Buyer were an original signatory thereto. As to
(x) any matters not expressly provided for by this Amendment or the Securities
Purchase Agreement and the other Transaction Documents (including, without
limitation, enforcement of any security interests) and (y) any amendments,
consents or waivers of any Transaction Document, the Collateral Agent shall not
be required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Holders or all
Holders (as applicable), and, in the case of instructions required to be
provided by Required Holders, such instructions of the Required Holders shall be
binding upon all Holders.
SECTION 13. RETURN OF NOTES. Each Buyer (other than the New Buyers)
agrees that upon the issuance of the Amended and Restated Senior Secured
Convertible Note to such Buyer, (i) the Note issued to such Buyer as of the
Closing Date shall be null and void, (ii) such Buyer shall notate conspicuously
"CANCELLED" across each page of such originally issued Note issued to such Buyer
on the Closing Date, (iii) such Buyer agrees to return, within fourteen (14)
days after the date hereof, to ShellCo such originally issued Note issued to it
and (iv) until such
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originally issued Note issued to such Buyer is returned to ShellCo, such Buyer
agrees to indemnify ShellCo for any loss or cost ShellCo may incur as a result
of any other person who is in possession of such Note claiming an ownership
interest in such Note.
SECTION 14. WAIVER. Noteholders and the holders of the Warrants waive
(i) their Purchase Rights under Section 6(a) of the Notes, (ii) their rights
under Section 7(a) of the Notes, and (iii) their rights under Section 2 of the
Warrant, each in connection with the amendment to the Warrants and the issuance
of the Amended and Restated Senior Secured Convertible Notes, the New Notes, the
New Warrants and the PIPE Notes.
SECTION 15. INDEPENDENT NATURE OF BUYERS' OBLIGATIONS AND RIGHTS. The
obligations of each Buyer under any Transaction Document are several and not
joint with the obligations of any other Buyer, and no Buyer shall be responsible
in any way for the performance of the obligations of any other Buyer under any
Transaction Document. Nothing contained herein or in any other Transaction
Document, and no action taken by any Buyer pursuant hereto or thereto, shall be
deemed to constitute the Buyers as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Buyers are
in any way acting in concert or as a group in respect of such obligations or the
transactions contemplated by the Transaction Documents and the Company
acknowledges on behalf of itself and ShellCo that the Buyers are not acting in
concert or as a group in respect of such obligations or the transactions
contemplated by the Transaction Documents. Each Buyer confirms that it has
independently participated in the negotiation of the transaction contemplated by
this Amendment and the Transaction Documents with the advice of its own counsel
and advisors, that it has independently determined to enter into the
transactions contemplated hereby and thereby, that it is not relying on any
advice from or evaluation by any other Buyer, and that it is not acting in
concert with any other Buyer in making its purchase of Securities hereunder or
in monitoring its investment in ShellCo. The Buyers and, to its knowledge, the
Company agree that no action taken by any Buyer pursuant hereto or to the other
Transaction Documents, shall be deemed to constitute the Buyers as a
partnership, an association, a joint venture or any other kind of entity or
group, or create a presumption that the Buyers are in any way acting in concert
or would deem such Buyers to be members of a "group" for purposes of Section
13(d) of the 1934 Act. The Buyers each confirm that they have not agreed to act
together for the purpose of acquiring, holding, voting or disposing of equity
securities of ShellCo. The Company has elected to provide all Buyers with the
same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Buyers. The Company
acknowledges on behalf of itself and ShellCo that such procedure in respect of
the Transaction Documents in no way creates a presumption that the Buyers are in
any way acting in concert or as a "group" for purposes of Section 13(d) of the
1934 Act in respect of the Transaction Documents or the transactions
contemplated hereby or thereby. Except as otherwise set forth herein, in the
Agreement or in the Transaction Documents, each Buyer shall be entitled to
independently protect and enforce its rights, including, without limitation, the
rights arising out of this Amendment, or out of the Registration Rights
Agreement, its Note, its Warrant and the right of set-off under the Guaranties,
and it shall not be necessary for any other Buyer to be joined as an additional
party in any proceeding for such purpose.
SECTION 17 AMENDMENTS TO SCHEDULES.
10
(a) Schedule 3(a) to the Agreement is hereby amended by adding the
following to the chart titled "Post-Closing" constituting a part thereof:
----------------------------------------------------------------------------------------------------------
Transaction Party Name State of Organization Percentage of Outstanding Capital Stock
or other Equity Interests that is Held
by Company or Target
----------------------------------------------------------------------------------------------------------
Sea Master Logistics (Holding) Ltd., Taiwan Wholly owned by Sea Master Logistics
Taiwan Branch (Holding) Limited
----------------------------------------------------------------------------------------------------------
(b) Schedule 3(n) to the Agreement is hereby amended by adding thereto
immediately following "Payment due to Xxxx Xxxxxxxxxx in the amount of $15,000
for payment made to Salibello & Broder LLP for professional services on October
31, 2006.":
"Senior Secured Covertible Notes dated as of the Second Closing
Date by and among Summit Global Logistics, Inc. and certain
employees and professionals of Summit Global Logistics, Inc. and
its Subsidiaries."
(c) Schedule 3(o) to the Agreement is hereby amended by adding the
following to "(ii)" constituting a part thereof:
"Warrants issued pursuant to restructuring and issued as of the
Second Closing Date
See options and warrants disclosed in ShellCo's public filings"
SECTION 18 DEPOSIT ACCOUNT (PROCEEDS OF PURCHASE PRICE). Notwithstanding
anything to the contrary contained in the Agreement or the other Transaction
Documents, ShellCo and its Subsidiaries shall be permitted to hold the proceeds
of the Purchase Price in a deposit account or investment account that is not
subject to a Control Agreement in favor of the Senior Lender or Collateral
Agent, so long as such funds are available for, and are being used for, the
working capital of Shellco and its Subsidiaries and no Default or Event of
Default exists or has occurred and is continuing. At any time a Default or Event
of Default exists or has occurred and is continuing, promptly upon the Senior
Lender's or Collateral Agent's request, Shellco and its Subsidiaries shall
execute and deliver and cause to be executed and delivered a Control Agreement
for the benefit of Senior Lender and Collateral Agent with respect to such
deposit account or investment account. Collateral Agent agrees that it shall
only be entitled to exercise its rights under such Control Agreement to have
exclusive control with respect to such deposit account or investment account,
and cause funds thereunder to be remitted to Collateral Agent or Senior Lender,
after: (i) the occurrence of an Event of Default under (A) Sections 8.01(a)
and/or 8.01(c) of the Senior Loan Agreement as a result of the failure to comply
with Section 6.03 of the Senior Loan Agreement, or (B) Sections 8.01(f) and/or
8.01(g) of the Senior Loan Agreement; or (ii) the exercise of any enforcement
rights or remedies by or on behalf of Senior Lender or Collateral Agent.
11
SECTION 19 MISCELLANEOUS.
(a) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, be deemed to be an amendment or
modification of, or operate as a waiver of, any provision of the Agreement, the
Joinder Agreement or any right, power or remedy thereunder, nor constitute a
waiver of any provision of the Agreement, the Joinder Agreement or any other
document, instrument and/or agreement executed or delivered in connection
therewith.
(b) This Amendment may be executed in any number of counterparts
(including by facsimile), and by the different parties hereto or thereto on the
same or separate counterparts, each of which shall be deemed to be an original
instrument but all of which together shall constitute one and the same
agreement. Each party agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other party. The
descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof or thereof. Whenever the context
and construction so require, all words herein and in the Agreement in the
singular number herein shall be deemed to have been used in the plural, and vice
versa, and the masculine gender shall include the feminine and neuter and the
neuter shall include the masculine and feminine.
(c) This Amendment, the Agreement and Joinder Agreement may not be
changed, amended, restated, waived, supplemented, discharged, canceled,
terminated or otherwise modified orally or by any course of dealing or in any
manner other than as provided in the Agreement and/or the Notes. This Amendment
shall be considered part of the Agreement and the Joinder Agreement as
applicable.
(d) This Amendment, the Agreement and the Joinder Agreement constitute
the final, entire agreement and understanding between the parties with respect
to the subject matter hereof and thereof, may not be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements between the parties, shall
be binding upon and inure to the benefit of the successors and assigns of the
parties hereto and thereto and supersede all other prior agreements and
understandings, if any, relating to the subject matter hereof. There are no
unwritten oral agreements between the parties with respect to the subject matter
hereof or thereof.
(e) The validity of this Amendment, its construction, interpretation
and enforcement, the rights of the parties hereunder, shall be determined under,
governed by, and construed in accordance with the choice of law provisions set
forth in the Agreement.
(f) ShellCo hereby irrevocably and unconditionally acknowledges,
affirms and covenants to each of the Collateral Agent and the Buyers that as of
May __, 2007, the aggregate outstanding principal amount of the Notes is equal
to $84,400,833.33, the accrued and unpaid interest on the Notes is equal to
$899,337.40, and the amount of accrued and unpaid Late Charges is equal to $0.
(g) In consideration for the foregoing, the Company and its respective
affiliates, successors, assigns, agents, employees and subsidiaries
(collectively, the "Releasors"), as applicable, release and forever discharge
the Collateral Agent, and each of the Buyers, and their respective parents,
subsidiaries, affiliates, officers, directors, employees, agents, attorneys,
12
predecessors, successors and assigns, both present and former (collectively,
together with the Collateral Agent and each of the Buyers, the "Buying
Affiliates"), of and from any and all manner of action and actions, causes of
action, suits, debts, controversies, damages, judgments, executions, claims, and
demands whatsoever, asserted or unasserted, in law or in equity, against any of
the Buying Affiliates which any Releasor ever had or now has on the date hereof,
upon or by reason of any manner, cause, causes or thing whatsoever, in each case
arising in connection with the Transaction Documents, whether presently
existing, suspected, known, unknown, contemplated or anticipated.
(h) The Company represents and warrants that from and after the Closing Date
until Second Closing Date, no event has occurred and no action has been taken by
the Company that would have entitled the Buyers to exercise their rights under
Section 6 or 7 of the Notes, or that would have entitled the Company to exercise
its rights under Section 8 of the Notes, in each case, after giving effect to
this Amendment.
REMAINDER OF PAGE INTENTIONALLY BLANK
13
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
COMPANY: MARITIME LOGISTICS US HOLDINGS INC.
By: ______________________________________________
Name:_____________________________________________
Title:____________________________________________
SHELLCO: SUMMIT GLOBAL LOGISTICS, INC.
(formerly known as Aerobic Creations, Inc.)
By: ______________________________________________
Name:_____________________________________________
Title:____________________________________________
COLLATERAL AGENT: LAW DEBENTURE TRUST COMPANY OF
NEW YORK, as Collateral Agent for the
Holders/Buyers
By: ______________________________________________
Name:_____________________________________________
Title:____________________________________________
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
SILVER OAK CAPITAL, L.L.C.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
ALEXANDRA GLOBAL MASTER FUND LTD
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
BAY HARBOUR MASTER, LTD.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
BAY HARBOUR 90-1, LTD.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
BHCO MASTER, LTD.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
INSTITUTIONAL BENCHMARK
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
MSS DISTRESSED & OPP. 2
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
CAMOFI MASTER LDC
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
CREDIT SUISSE SECURITIES (USA) LLC
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
DIAMOND OPPORTUNITY FUND, LLC
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
EVOLUTION MASTER FUND LTD SPC,
SEGREGATED PORTFOLIO M
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
GOTTBETTER CAPITAL MASTER, LTD.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
HARVEST CAPITAL, LP
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
HARVEST OFFSHORE INVESTORS, LTD.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
TE HARVEST PORTFOLIO, LTD.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
JMG CAPITAL PARTNERS, LP
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
JMG TRITON OFFSHORE FUND, LTD
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
SHOSHONE PARTNERS, L.P.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
XXXXX PARTNERS, L.P.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
FINDERNE LLC
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
MULSANNE PARTNERS, L.P.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
MATTERHORN OFFSHORE FUND LTD.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
COMMONFUND HEDGED EQUITY
COMPANY
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
GOOD XXXXXXX TRADING CO. S.P.C.
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
RADCLIFFE SPC, LTD. FOR AND ON
BEHALF OF THE CLASS A
SEGREGATED PORTFOLIO
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
WOLVERINE CONVERTIBLE
ARBITRAGE TRADING, LIMITED
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
[MANAGEMENT NOTEHOLDER]
By:_________________________________________
Name:
Title:
SIGNATURE PAGE TO SECOND AMENDMENT TO SECURITIES
PURCHASE AGREEMENT (NOTES AND WARRANTS) AND
FIRST AMENDMENT TO JOINDER AGREEMENT
HOLDER/BUYER:
[MANAGEMENT NOTEHOLDER]
By:_________________________________________
Name:
Title:
SCHEDULE OF BUYERS
------------------
EXHIBIT A
---------
Forms of Documents
(First Amendment to Intercreditor Agreement, First Amendment to Security
Agreement, First Amendment to Pledge Agreement and First Amendment to Guaranty)
SEE ATTACHED
EXHIBIT B
Wire Instructions
BANC OF AMERICA SECURITIES LLC
WIRE INSTRUCTIONS
================================================================================
BANC OF AMERICA SECURITIES LLC WIRE INSTRUCTIONS:
--------------------------------------------------------------------------------
BANK NAME: BK OF NYC
ABA: 000000000
FED MONEY WIRES ACCT: IOC569 GSCS MIC
ACCT NAME: BANC OF AMERICA SECURITIES LLC
PAYMENT DETAILS: 22367505 Summit Global Logistics Inc.
================================================================================
DTC DTC# 0773, INSTITUTIONAL ID #0773
================================================================================
FED ELIGIBLE TREASURIES & BK OF NYC/BASEC
AGENCIES: ABA: 000000000
================================================================================
FED ELIGIBLE MORTGAGE- BK OF NYC/NCMMBS
BACKED: ABA: 000000000
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXXXXXX Xxxx xx Xxx Xxxx
0 Xxxx Xx., 0xx Xxxxx Dealer Clearance, Window B
BAS A/C 014188
============================= ==================================================
PTC ELIGIBLE Participant Contra BNNCM
================================================================================
GSCC Participant # 9510
================================================================================
EUROCLEAR 97694 Free Deliveries
90217 DVP
================================================================================
EXHIBIT C
---------
Form of Secretary's Certificate
SEE ATTACHED
------------
EXHIBIT D
OFFICERS CERTIFICATE
--------------------
SEE ATTACHED
EXHIBIT E
XXXXX XXXXXXX LEGAL OPINION
SEE ATTACHED
