Exhibit 4.3(c)
CONSENT AND FOURTH AMENDMENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
This CONSENT AND FOURTH AMENDMENT, dated as of April 18, 2006 (this
"Amendment"), is by and among (a) ALLIED HOLDINGS, INC., a Georgia corporation
("Allied Holdings"), and ALLIED SYSTEMS, LTD. (L.P.), a Georgia limited
partnership ("Allied Systems" and, together with Allied Holdings, "Borrowers"),
each, a debtor and debtor-in-possession; (b) the other Credit Parties signatory
hereto (the "Credit Party" and, together with the Borrowers, the "Credit
Parties"); (c) GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent (in
such capacity, the "Administrative Agent"), Collateral Agent, Revolver Agent and
co-Syndication Agent ("GE Capital"); (d) XXXXXX XXXXXXX SENIOR FUNDING, INC., as
Term Loan A Agent, Term Loan B Agent, co-Syndication Agent, co-Bookrunner and
co-Term Loan B Lead Arranger ("Xxxxxx Xxxxxxx"); and (e) the other Lenders
signatory hereto from time to time.
W I T N E S S E T H
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WHEREAS, the Credit Parties, the Lenders party to the Credit Agreement
from time to time, GE Capital and Xxxxxx Xxxxxxx are parties to that certain
Senior Secured, Super-Priority Debtor-in-Possession Credit Agreement, dated as
of August 1, 2005 (including all annexes, exhibits and schedules thereto, and as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, Borrowers have informed the Lenders that certain Events of
Default have occurred or will occur;
WHEREAS, in a letter agreement, dated March 9, 2006, among Borrowers,
the other Credit Parties, the Agents, and the Lenders, the Lenders have agreed
to forbear any exercise of their remedies in connection with certain Events of
Default;
WHEREAS, in a letter agreement, dated April 3, 2006 (the "Forbearance
Extension"), among Borrowers, the other Credit Parties, the Agents, and the
Lenders, the Lenders have agreed to extend the forbearance for the Specified
Events of Default (as defined below) until April 18, 2006; and
WHEREAS, the Administrative Agent and the Requisite Lenders have agreed
to amend the Credit Agreement and consent to certain transactions in the manner,
and on the terms and conditions, provided for herein.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement.
2. Specified Events of Default. Borrowers acknowledge that as of
the date hereof they are and remain in default of the Financial Covenants for
Fixed Charge Coverage Ratio, EBITDA and the Leverage Ratio as set forth in
Section 6.10 and Annex G, clauses (b), (c) and (d) of the Credit Agreement and
as set forth on Schedule A hereto (the "Specified Events of Default").
3. Overadvance Facility. (a) The Term Loan B Agent, in its
discretion, may make additional advances ("Protective Overadvances") of up to
$5,000,000 available to Borrowers in accordance with the terms and conditions
hereof. Any amount of the Protective Overadvances that is repaid prior to the
Maturity Date (as defined below) may not be reborrowed.
(b) Maturity Date. All Protective Overadvances, together
with all interest accrued thereon, are due and payable in full in cash on or
before May 18, 2006 (the "Maturity Date").
(c) Interest. Borrowers shall pay interest on the
Protective Overadvances to the Term Loan B Agent for its own account (or, in the
event that the Term Loan B Lenders in their discretion, participate in the
Protective Overadvances, for the ratable benefit of the Term Loan B Lenders) on
the Maturity Date at the one-month LIBOR Rate plus nine and one-half percent
(9.5%).
(d) Default Rate of Interest. Borrowers shall pay
interest in accordance with the various Loans, including the Protective
Overadvances, made by each Lender at the Default Rate until such time as
Borrowers obtain a commitment, in form and substance satisfactory to the Agents,
for additional funds to be provided on or before June 19, 2006 in an amount of
not less than $20,000,000, at which time the obligation of Borrowers to pay
interest on the Obligations, including the Protective Overadvances, shall revert
back to the applicable non-Default Rate of interest.
(e) Prepayment Premium. In the event that Borrowers shall
voluntarily prepay Term Loan A, Term Loan B, the Protective Overadvances or all
three, Borrowers shall pay a prepayment premium in an amount equal to 1% of the
outstanding amount of the loan unless such prepayment results from a refinancing
provided by the Term Loan B Agent.
(f) Agent Extension. The Term Loan B Agent, in its sole
discretion, may extend, and hereby is authorized to extend, the Maturity Date
for a period of up to an additional 30 days without further action by the
Lenders so long as the following conditions are satisfied (or waived by) the
Term Loan B Agent in its sole discretion:
(i) Borrowers shall have filed a Section 1113(e)
motion with the Bankruptcy Court for interim relief seeking to reduce, and the
Bankruptcy Court shall have granted interim relief reducing, under the
applicable provisions of the Bankruptcy Code, wages and/or benefits by, in the
aggregate, approximately ten percent (10%) of wages per month for the U.S.
employees of Allied Systems and certain other Subsidiaries of Allied Holdings
who are represented by the International Brotherhood of Teamsters and affiliated
local unions under the applicable national collective bargaining agreement;
(ii) Borrowers shall have obtained a commitment
letter and a term sheet in form and substance reasonably acceptable to the Term
Loan B Agent for at least $20,000,000 of new funding to be provided on a basis
junior to the Revolving Loans (the "Additional Financing") on or before May 18,
2006; and
(iii) Borrowers shall have made reasonably
satisfactory progress, as determined by the Term Loan B Agent in its sole
discretion, in implementing the liquidity plan previously delivered to the
Lenders.
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(g) Notwithstanding any other provision hereof, it is
understood and agreed that (i) in the event that an additional Event of Default
(other than the Specified Events of Default) occurs, the repayment of the amount
advanced by or due to the Term Loan B Agent or the Term Loan B Lenders under
this Fourth Amendment may be repaid solely as Term Loan B Protective
Overadvances in the tenth order of priority as specified in Section 1.3(c)(iii)
of the Credit Agreement; and (ii) in the absence of an Event of Default (other
than the Specified Events of Default), the Term Loan B Protective Overadvances
may be repaid (a) from Revolving Credit Advances to the extent availability
exists, (b) out of proceeds of Additional Financing permitted or consented to
hereunder, or (c) as is otherwise permitted by this Agreement.
4. Covenants. Each Borrower executing this Amendment jointly and
severally agrees that:
(a) The Credit Agreement shall be amended as follows:
(i) Section (a) of Annex G, Maximum Capital
Expenditures of the Credit Agreement is hereby amended as of the Amendment
Effective Date by deleting the target for maximum Capital Expenditures for the
periods ending on March 31, 2006, April 30, 2006 and May 31, 2006 and
substituting in lieu thereof the following:
12-Month Period Ending Maximum Capital Expenditures per Period
---------------------- ---------------------------------------
March 31, 2006 $32,402,000
April 30, 2006 $34,451,000
May 31, 2006 $34,978,000
(ii) Section (b) of Annex G, Minimum Fixed Charge
Coverage Ratio of the Credit Agreement is hereby amended as of the Amendment
Effective Date by deleting the target for minimum Fixed Charge Coverage for the
periods ending on March 31, 2006, April 30, 2006 and May 31, 2006 and
substituting in lieu thereof the following:
Fiscal Month Ending Minimum Fixed Charge Coverage Ratio
------------------- -----------------------------------
March 31, 2006 0.56:1.0
April 30, 2006 0.56:1.0
May 31, 2006 0.60:1.0
(iii) Section (c) of Annex G, Minimum EBITDA of
the Credit Agreement is hereby amended as of the Amendment Effective Date by (x)
deleting the introductory sentence of Section (c) of Annex G of the Credit
Agreement in its entirety and substituting in lieu thereof the following
language:
"Borrowers and their Subsidiaries shall have on a consolidated basis at
the end of each Fiscal Month set forth below, EBITDA for the 12-month period
then ended of not less than the amount set forth below opposite such Fiscal
Month:" and
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(y) deleting the target for minimum EBITDA for the periods
ending on March 31, 2006, April 30, 2006 and May 31, 2006 and substituting in
lieu thereof the following:
Fiscal Month Ending Minimum EBITDA
------------------- --------------
March 31, 2006 $33,403,000
April 30, 2006 $34,486,000
May 31, 2006 $36,855,000
(iv) Section (d) of Annex G, Maximum Leverage
Ratio of the Credit Agreement is hereby amended as of the Amendment Effective
Date by (x) deleting the introductory sentence of Section (d) of Annex G of the
Credit Agreement in its entirety and substituting in lieu thereof the following
language:
"Borrowers and their Subsidiaries shall have on a consolidated
basis at the end of each Fiscal Month set forth below, a Leverage Ratio of not
more than the ratio set forth below opposite such Fiscal Month:" and
(y) deleting the target for maximum Leverage Ratio for
the periods ending on March 31, 2006, April 30, 2006 and May 31, 2006 and
substituting in lieu thereof the following
Fiscal Month Ending Maximum Leverage Ratio
------------------- ----------------------
March 31, 2006 6.02:1.0
April 30, 2006 5.79:1.0
May 31, 2006 5.68:1.0
(b) Borrowers shall provide the Agents and the Lenders
with a 13-week cash flow forecast to be updated weekly.
5. Additional Amendments to the Credit Agreement. In addition to
the amendments set forth in Section 3(f)(i), the Credit Agreement shall be
amended as follows:
(a) Section 1.3(b)(ii) Mandatory Prepayments of the
Credit Agreement is hereby amended as of the Amendment Effective Date by
deleting the last sentence in its entirety and substituting in lieu thereof the
following:
The following shall not be subject to mandatory
prepayment under this clause (ii): (1) net cash proceeds of
sales or other dispositions of Rolling Stock permitted under
Section 6.8; (2) asset disposition proceeds of less than
$250,000 in the aggregate in any Fiscal Year and (3) asset
disposition proceeds (including, but not limited to, proceeds
resulting from the termination of split-dollar and other life
insurance policies) and proceeds of distributions or loan
repayments from Haul Insurance, in each case that are
reinvested in other assets in the ordinary course of, and
otherwise useful in, Borrowers'
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business within ninety (90) days following receipt thereof; provided
that Borrower Representative notifies Administrative Agent of its
intent to reinvest at the time such proceeds are received and when such
reinvestment occurs Collateral Agent, for the benefit of Agents and
Lenders, receives a first-priority Lien on such replacement assets.
(b) Section 1.3(b)(iii) Mandatory Prepayments of the
Credit Agreement is hereby amended as of the Amendment Effective Date by
deleting such section in its entirety and substituting in lieu thereof the
following:
"(iii) If any Credit Party issues any debt securities (other than
Indebtedness permitted by Sections 6.3(a)(i) and (vii), no later than
the Business Day following the date of receipt of the proceeds thereof,
all Borrowers (in the case of an issuance by a Guarantor) or the
issuing Borrower shall prepay the Loans (and cash collateralize Letter
of Credit Obligations) in an amount equal to all such proceeds, net of
underwriting discounts and commissions and other reasonable costs paid
to non-Affiliates in connection therewith. Any such prepayment shall be
applied in accordance with Section 1.3(c)."
(c) Section 1.3(b)(iv) Mandatory Prepayments of the
Credit Agreement is hereby amended as of the Amendment Effective Date by adding
the following language to the end of the provision:
"Notwithstanding the foregoing, Extraordinary
Receipts received from (i) judgments, proceeds of settlements
or other consideration of any kind in connection with any
cause of action, (ii) proceeds resulting from the termination
of split-dollar and other life insurance policies, and (iii)
proceeds of distributions or loan repayments from Haul
Insurance, shall not be subject to mandatory prepayment under
this clause (iv) to the extent such proceeds are reinvested
in other assets in the ordinary course of, and otherwise
useful in, Borrowers' business within ninety (90) days
following receipt thereof; provided that Borrower
Representative notifies Administrative Agent of its intent to
reinvest at the time such proceeds are received and when such
reinvestment occurs Collateral Agent, for the benefit of
Agents and Lenders, receives a first-priority Lien on such
replacement assets.
(d) Section 6.3(a) Indebtedness of the Credit Agreement
is hereby amended as of the Amendment Effective Date by deleting clause (i)
thereof in its entirety and by substituting in lieu thereof a new clause (i) to
read as follows:
"(i) Indebtedness secured by split dollar or other life
insurance policies; provided that recourse for such
Indebtedness is limited to the cash value of such insurance
policies."
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(e) Section 9.2 Appointment of Agents of the Credit
Agreement is hereby amended as of the Amendment Effective Date by deleting the
third and fourth sentences of such Section 9.2 in their entirety and
substituting in lieu thereof the following new sentences:
"Xxxxxx Xxxxxxx is hereby appointed to act on behalf of all
Term Loan A Lenders as 'Term Loan A Agent' under this
Agreement and the other Loan Documents. Xxxxxx Xxxxxxx is
hereby appointed to act on behalf of all Term Loan B Lenders
as 'Term Loan B Agent' under this Agreement and the other
Loan Documents."
(f) Section 9.4 Agents in Individual Capacities of the
Credit Agreement is hereby amended as of the Amendment Effective Date by
deleting Section 9.4 in its entirety and substituting in lieu thereof the
following:
"With respect to its Commitments hereunder, each of GE
Capital and Xxxxxx Xxxxxxx shall have the same rights and
powers under this Agreement and the other Loan Documents as
any other Lender and may exercise the same as though it were
not an Agent; and the term "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include each of GE
Capital and Xxxxxx Xxxxxxx in its individual capacity. Each
of GE Capital and Xxxxxx Xxxxxxx and its respective
Affiliates may lend money to, invest in, and generally engage
in any kind of business with, any Credit Party, any of their
Affiliates and any Person who may do business with or own
securities of any Credit Party or any such Affiliate, all as
if GE Capital and Xxxxxx Xxxxxxx were not an Agent and
without any duty to account therefor to Lenders. Each of GE
Capital and Xxxxxx Xxxxxxx and its respective Affiliates may
accept fees and other consideration from any Credit Party for
services in connection with this Agreement or otherwise
without having to account for the same to Lenders. Each
Lender acknowledges the potential conflict of interest
between GE Capital and Xxxxxx Xxxxxxx as Lenders holding
disproportionate interests in the Loans and GE Capital and
Xxxxxx Xxxxxxx as Agents."
(g) Section 11.2 Amendments and Waivers of the Credit
Agreement is hereby amended as of the Amendment Effective Date by adding the
following at the end of Section 11.2 as new clause (f):
"(f) The Lenders hereby irrevocably authorize the
Collateral Agent, without further action of the Lenders, to
release any Lien on any Collateral constituting property
being sold or disposed of if a release is required or
desirable in connection therewith and if Borrowers certify in
writing to the Collateral Agent that the sale or disposition
is permitted or not otherwise prohibited under this Agreement
or the other Loan Documents (and the Collateral Agent may
rely conclusively on any such certificate, without further
inquiry). Except as provided above
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or expressly provided in any other Loan Document, the Collateral Agent
will not execute and deliver a release of any Lien on any Collateral
without the prior written authorization of all of the Lenders. Upon
request by the Collateral Agent or Borrowers at any time, the
Administrative Agent and the Lenders will confirm in writing the
Collateral Agent's authority to release any such Liens on particular
types or items of Collateral pursuant to this Section 11.2; provided,
however, that (1) the Collateral Agent shall not be required to execute
any document necessary to evidence such release on terms that, in the
Collateral Agent's opinion, would expose the Collateral Agent to
liability or create any obligation or entail any consequence other than
the release of such Lien without recourse, representation, or warranty,
and (2) such release shall not in any manner discharge, affect, or
impair the Obligations or any Liens (other than those expressly being
released) upon (or obligations of Borrowers in respect of) all
interests retained by Borrowers, including, the proceeds of any sale,
all of which shall continue to constitute part of the Collateral."
(h) Section 11.14 Press Releases and Related Matters of
the Credit Agreement is hereby amended as of the Amendment Effective Date by
deleting it in its entirety and substituting in lieu thereof the following:
"Each Credit Party executing this Agreement agrees that
neither it nor its Affiliates will in the future issue any
press releases or other public disclosure using the name of
Xxxxxx Xxxxxxx or GE Capital or any of their affiliates or
referring to this Agreement, the other Loan Documents or the
Related Transactions Documents without at least two (2)
Business Days' prior notice to Xxxxxx Xxxxxxx or GE Capital
and without the prior written consent of Xxxxxx Xxxxxxx or GE
Capital, as applicable, unless (and only to the extent that)
such Credit Party or Affiliate is required to do so under law
and then, in any event, such Credit Party or Affiliate will
consult with Xxxxxx Xxxxxxx or GE Capital, as applicable,
before issuing such press release or other public disclosure.
Each Credit Party consents to the publication by any Agent or
any Lender of advertising material relating to the financing
transactions contemplated by this Agreement using Borrower's
name, product photographs, logo or trademark. Agents reserve
the right to provide to industry trade organizations
information necessary and customary for inclusion in league
table measurements."
(i) Annex A of the Credit Agreement is hereby amended as
of the Amendment Effective Date by deleting the definition of "EBITDA" in its
entirety and substituting in lieu thereof the following new definition:
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"'EBITDA' means, with respect to any Person for any fiscal
period, without duplication, an amount equal to (a)
consolidated net income of such Person for such period
determined in accordance with GAAP, minus (b) the sum of (i)
income tax credits, (ii) interest income, (iii) gain from
extraordinary items for such period, and (iv) any aggregate
net gain (but not any aggregate net loss) during such period
arising from the sale, exchange or other disposition of
capital assets by such Person (including any fixed assets,
whether tangible or intangible, all inventory sold in
conjunction with the disposition of fixed assets and all
securities), in each case to the extent included in the
calculation of consolidated net income of such Person for
such period in accordance with GAAP, but without duplication,
plus (c) the sum of (i) any provision for income taxes, (ii)
Interest Expense, (iii) loss from extraordinary items for
such period, (iv) depreciation and amortization for such
period, (v) amortized debt discount for such period, (vi)
distributions received by such Person pursuant to Section
5.14, and (vii) the amount of any deduction to consolidated
net income as the result of any grant to any members of the
management of such Person of any Stock, in each case to the
extent included in the calculation of consolidated net income
of such Person for such period in accordance with GAAP, but
without duplication. For purposes of this definition, the
following items shall be excluded in determining consolidated
net income of a Person: (1) the income (or deficit) of any
other Person accrued prior to the date it became a Subsidiary
of, or was merged or consolidated into, such Person or any of
such Person's Subsidiaries; (2) the income (or deficit) of
any other Person (other than a Subsidiary) in which such
Person has an ownership interest, except to the extent any
such income has actually been received by such Person in the
form of cash dividends or distributions; (3) the
undistributed earnings of any Subsidiary of such Person to
the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time
permitted by the terms of any contractual obligation or
requirement of law applicable to such Subsidiary; (4) any
restoration to income of any contingency reserve, except to
the extent that provision for such reserve was made out of
income accrued during such period; (5) any write-up of any
asset; (6) any net gain from the collection of the proceeds
of life insurance policies; (7) any net gain arising from the
acquisition of any securities, or the extinguishment, under
GAAP, of any Indebtedness, of such Person; (8) in the case of
a successor to such Person by consolidation or merger or as a
transferee of its assets, any earnings of such successor
prior to such consolidation, merger or transfer of assets;
(9) any deferred credit representing the excess of equity in
any Subsidiary of such Person at the date of acquisition of
such Subsidiary over the cost to such Person of the
investment in
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such Subsidiary; (10) any expense or other liability deducted in the
calculation of net income to the extent such expense or liability is
(i) a pre-petition obligation and (ii) subject to the automatic stay
provisions of the Bankruptcy Code; (11) adverse insurance adjustments
that will affect Borrowers' cash flows after the Termination Date; (12)
non-cash charges and non-cash gains; and (13) professional expenses
incurred by Borrowers and allowed by the Bankruptcy Court in the
Chapter 11 Cases."
(j) Annex A of the Credit Agreement is hereby amended as
of the Amendment Effective Date by deleting the definition of "Lenders" in its
entirety and substituting in lieu thereof the following new definition:
"'Lenders' means Xxxxxx Xxxxxxx, XX Capital, the other
Lenders named on the signature pages of the Agreement, and,
if any such Lender shall decide to assign all or any portion
of the Obligations, such term shall include any assignee of
such Lender."
(k) Annex A of the Credit Agreement is hereby amended as
of the Amendment Effective Date by deleting the definition of "Term Loan A
Agent" in its entirety and substituting in lieu thereof the following new
definition:
"'Term Loan A Agent' means Xxxxxx Xxxxxxx, in its capacity as
agent for the Term Loan A Lenders, or its successor appointed
pursuant to Section 9.7."
(l) Annex A of the Credit Agreement is hereby amended as
of the Amendment Effective Date by deleting the definition of "Term Loan B
Agent" in its entirety and substituting in lieu thereof the following new
definition:
"'Term Loan B Agent' means Xxxxxx Xxxxxxx, in its capacity as
agent for the Term Loan B Lenders, or its successor appointed
pursuant Section 9.7."
(m) As of the Amendment Effective Date, (i) Xxxxxx
Xxxxxxx (or its successor appointed pursuant to Section 9.7 of the Credit
Agreement) shall constitute the Term Loan A Agent and the sole Term Loan B Agent
under the Credit Agreement and the other Loan Documents, (ii) each reference to
"Term Loan A Agent" in the Credit Agreement and the other Loan Documents
(insofar as such term applied to Marathon prior to such date) shall no longer
apply to Marathon in such capacity, (iii) each reference to "Term Loan A Agent"
in the Credit Agreement and the other Loan Documents shall apply to Xxxxxx
Xxxxxxx (or its successor appointed pursuant to Section 9.7 of the Credit
Agreement) in its capacity as the Term Loan A Agent under the Credit Agreement
and the other Loan Documents, (iv) each reference to "Term Loan B Agent" in the
Credit Agreement and the other Loan Documents (insofar as such term applied to
Marathon prior to such date) shall no longer apply to Marathon in such capacity,
and (v) each reference to "Co-Term Loan B Agent" in the Credit Agreement and the
other Loan Documents shall apply solely to Xxxxxx Xxxxxxx (or its successor
appointed pursuant to Section 9.7 of the Credit Agreement) in its capacity as
the Term Loan B Agent under the Credit Agreement and the other Loan Documents.
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6. Forbearance. Notwithstanding the existence of the Specified
Events of Default, the Administrative Agent and the Lenders agree to extend the
Forbearance for the Specified Events of Default on the terms and conditions set
forth in the Forbearance Extension until the Maturity Date, as such Maturity
Date may be extended by the Term Loan B Agent without further action of the
Lenders as provided for in Section 3(f) hereof.
7. Reservation of Rights. You are hereby advised that the
Administrative Agent and the Lenders specifically reserve all of their rights
and remedies against Borrowers under the Loan Documents and applicable law with
respect to the Specified Events of Default. Neither the Administrative Agent nor
any Lender shall be deemed to have waived any term or condition of the Credit
Agreement or any other Loan Document or, except as specifically set forth
herein, to have agreed to a forbearance with respect to any right or remedy
which the Administrative Agent or the Lenders may now have or in the future may
have under the Credit Agreement or any other Loan Document, at law, in equity or
otherwise, on account of the Specified Events of Default or any other Default or
Event of Default. Neither the Administrative Agent nor any Lender shall by
virtue of any action or omission be deemed to have altered or prejudiced any
rights or remedies under or in connection with the Credit Agreement or under or
in connection with any Event of Default. All of the terms and conditions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect.
8. Representations and Warranties. To induce the Requisite
Lenders to enter into this Amendment, each of the Credit Parties executing this
Amendment, jointly and severally, makes the following representations and
warranties:
(a) Subject to the approval of the Bankruptcy Court, the
execution, delivery and performance by such Credit Party of this Amendment: (i)
are within such Credit Party's power; (ii) have been duly authorized by all
necessary corporate, limited liability company or limited partnership action;
(iii) do not contravene any provision of such Credit Party's charter, bylaws or
partnership or operating agreement as applicable; (iv) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority; (v)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate or permit the acceleration of any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Credit Party is a party or by which such Credit Party
or any of its property is bound; (vi) do not result in the creation or
imposition of any Lien upon any of the property of such Credit Party; and (vii)
do not require the consent or approval of any Governmental Authority or any
other Person other than the Bankruptcy Court.
(b) This Amendment has been duly executed and delivered
by or on behalf of such Credit Party.
(c) Subject to the approval of the Bankruptcy Court, each
of this Amendment and the Credit Agreement constitutes a legal, valid and
binding obligation of such Credit Party, enforceable against it in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws relative to or
affecting the enforcement of creditors' rights generally in effect from time to
time and by general principles of equity.
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(d) No Default or Event of Default has occurred and is
continuing after giving effect to this Amendment, except for the Defaults or
Events of Default set forth on Schedule A hereto.
(e) Other than the commencement of the Chapter 11 Cases,
no action, claim, lawsuit, demand, investigation or proceeding is now pending
or, to the knowledge of such Credit Party, threatened against such Credit Party,
before any Governmental Authority or before any arbitrator or panel of
arbitrators, (i) that challenges such Credit Party's right or power to enter
into or perform any of its obligations under this Amendment or the other Loan
Documents to which it is a party, or the validity or enforceability of any Loan
Document or any action taken thereunder, or (ii) that has a reasonable risk of
being determined adversely to any Credit Party and that, if so determined, would
reasonably be expected to have a Material Adverse Effect.
(f) The representations and warranties of such Credit
Party contained in the Credit Agreement and each other Loan Document, as amended
in accordance with the terms of the applicable agreement, shall be true and
correct on and as of the Amendment Effective Date with the same effect as if
such representations and warranties had been made on and as of such date, except
that any such representation or warranty which is expressly made only as of a
specified date need be true only as of such date.
9. No Other Consents/Waivers. Except as expressly provided
herein, (a) the Credit Agreement shall be unmodified and shall continue to be in
full force and effect in accordance with its terms, (b) this Consent shall not
be deemed a waiver of any term or condition of the Credit Agreement or any other
Loan Document, and (iii) this Consent shall not be deemed an agreement to
forbear with respect to any right or remedy which the Agents or the Lenders may
now have or may have in the future under the Credit Agreement or any other Loan
Document, at law, in equity or otherwise. For avoidance of doubt, the Financial
Covenants set forth in Annex G to the Credit Agreement for all periods
commencing on June 30, 2006 shall be unmodified and shall continue to be in full
force and effect in accordance with the terms of the Credit Agreement. Neither
any Agent nor any Lender shall by virtue of any action or omission be deemed to
have altered or prejudiced any rights or remedies which any Agent or any Lender
may now have or may have in the future under or in connection with the Credit
Agreement, any other Loan Document or any of the instruments or agreements
referred to therein, in each case as the same may be amended from time to time.
10. Outstanding Indebtedness; Waiver of Claims. The Credit Parties
hereby acknowledge and agree that as of April 11, 2006, the aggregate
outstanding principal amount of the (i) Revolving Loan is $90,808,476.00, (ii)
Term Loan A is $20,000,000 and (iii) Term Loan B is $80,000,000 (collectively,
the "Outstanding Obligations"), and that such principal amounts are payable
pursuant to the Credit Agreement without defense, offset, withholding,
counterclaim or deduction of any kind. Each of the Credit Parties hereby waives,
releases, remises and forever discharges Agents, the Lenders and each other
Indemnified Person from any and all claims, suits, actions, investigations,
proceedings or demands arising out of or in connection with the Credit Agreement
(collectively, "Claims"), whether based in contract, tort, implied or express
warranty, strict liability, criminal or civil statute or common law of any kind
or character, known or unknown, which such Credit Parties ever had, now has or
might hereafter have against Agents or the Lenders which relates, directly or
indirectly, to any acts or omissions of Agents, the Lenders or any other
Indemnified Person on or prior to the date hereof; provided that, Credit Parties
do not waive
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any Claim solely to the extent such Claim relates to any Agent's or any Lender's
gross negligence or willful misconduct.
11. Expenses. Borrowers hereby reconfirm their obligations
pursuant to Section 11.3(a) of the Credit Agreement to pay and reimburse Agents
for all reasonable costs and expenses (including, without limitation, reasonable
fees of counsel) incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment and all other documents and instruments
delivered in connection herewith.
12. Effectiveness. This Amendment shall become effective as of the
date hereof (the "Amendment Effective Date") only upon satisfaction in full in
the judgment of Administrative Agent of each of the following conditions:
(a) Amendment. Administrative Agent shall have received
ten (10) original copies (or facsimile copies to be promptly followed by
originals) of this Amendment duly executed and delivered by Credit Parties and
the Requisite Lenders.
(b) Payment of Expenses. Borrowers shall have paid to
Agents all costs, fees and expenses invoiced and owing in connection with this
Amendment and the other Loan Documents and due to Agents (including, without
limitation, reasonable legal fees and expenses).
(c) Representations and Warranties. The representations
and warranties of or on behalf of the Credit Parties in this Amendment shall be
true and correct on and as of the Amendment Effective Date.
13. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
14. Counterparts. This Amendment may be executed by the parties
hereto on any number of separate counterparts and all of said counterparts taken
together shall be deemed to constitute one and the same instrument.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
date first written above.
BORROWERS:
ALLIED HOLDINGS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ALLIED SYSTEMS, LTD. (L.P.)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent, Collateral
Agent, Revolver Agent and Lender
By:
------------------------------------
Name:
----------------------------------
Title: Duly Authorized Signatory
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Term Loan A Agent, Term Loan B Agent,
co-Syndication Agent and Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
, as Lender
----------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE A
SPECIFIED EVENTS OF DEFAULT
1. Section 6.10 and Annex G, clause (c) of the Credit Agreement. Minimum
EBITDA as of the last day of the 12-month period ended on each of
December 31, 2005, January 31, 2006 and February 28, 2006 was less than
$40,535,000, $40,350,000 and $38,972,000, respectively.
2. Section 6.10 and Annex G, clause (d) of the Credit Agreement. The
Maximum Leverage Ratio as of the last day of the 12-month period ended
on each of December 31, 2005, January 31, 2006 and February 28, 2006
was greater than 4.4:1.0, 4.7:1.0 and 4.9:1.0, respectively.
3. Section 6.10 and Annex G, clause (b) of the Credit Agreement. The
Minimum Fixed Charge Coverage Ratio as of the last day of the 12-month
period ended on December 31, 2005 was less than 0.62:1.0.
