THIRD AMENDMENT AND CONSENT TO CREDIT AGREEMENT AND LOAN DOCUMENTS
Exhibit 4.4(a)
THIRD AMENDMENT AND CONSENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
CREDIT AGREEMENT AND LOAN DOCUMENTS
This THIRD AMENDMENT AND CONSENT, dated as of November 16, 2005 (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 co-Term
Loan B Agent, co-Syndication Agent, co-Bookrunner and co-Term Loan B Lead Arranger (“Xxxxxx
Xxxxxxx”); (e) MARATHON STRUCTURED FINANCE FUND, L.P., as Term Loan A Agent, co-Term Loan B
Agent, Term Loan A Lead Arranger, co-Term Loan B Lead Arranger and co-Revolver Lead Arranger
(“Marathon”); and (f) the other Lenders signatory hereto from time to time.
W I T N E S S E T H
WHEREAS, the Credit Parties, the Lenders party to the Credit Agreement from time to time, GE
Capital, Xxxxxx Xxxxxxx and Marathon 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”); and
WHEREAS, the Administrative Agent and the Requisite Lenders have agreed to amend the Credit
Agreement, and to 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. Amendment to the Credit Agreement. The definition of “EBITDA” set forth in
Annex A of the Credit Agreement is hereby amended as of the Amendment Effective Date (as
defined below) by adding the following text immediately following clause (c)(vii) of such
definition:
“, and (viii) for purposes of calculating compliance with the financial covenants set forth
in Section 6.10, Annex G, for any period that includes the Fiscal Month ended September 30,
2005, self-insured liability charges of such Person taken in such Fiscal Month
provided that the aggregate amount of such charges shall not exceed $3,500,000.”
3. Consent. The Credit Parties have informed the Administrative Agent and the Lenders
that the Credit Parties will be unable to deliver their Financial Statements for the Fiscal Quarter
ended September 30, 2005 and related deliveries within the time frame required by Section 4.1(a)
and Annex E, clause (b), and have requested that the Requisite
Lenders extend the date for such delivery to November 18, 2005 (the “Extension”). As
of the Amendment Effective Date, subject to the terms hereof, the Requisite Lenders hereby consent
to the Extension.
4. 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) 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.
(b) This Amendment has been duly executed and delivered by or on behalf of such Credit Party.
(c) 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.
(d) No Default or Event of Default has occurred and is continuing after giving effect to this
Amendment.
(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 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.
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5. 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 and (b) this Amendment shall not be deemed a waiver of any term or condition of any Loan
Document and shall not be deemed to prejudice any right or rights which any Agent or any Lender may
now have or may have in the future under or in connection with any Loan Document or any of the
instruments or agreements referred to therein, as the same may be amended from time to time.
6. Outstanding Indebtedness; Waiver of Claims. The Credit Parties hereby acknowledge
and agree that as of November 16, 2005, the aggregate outstanding principal amount of the (i)
Revolving Loan is $50,982,412.07, (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 any Claim solely to the extent such Claim relates to any Agent’s or any
Lender’s gross negligence or willful misconduct.
7. Expenses. Borrowers hereby reconfirm their obligations pursuant to Section
11.3 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.
8. 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), in each case to the
extent to the extent previously invoiced to the Borrowers.
(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.
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9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
10. 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 PAGES FOLLOW)
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the date first written above.
| BORROWERS: ALLIED HOLDINGS, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| ALLIED SYSTEMS, LTD. (L.P.) |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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| LENDERS: GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent, Collateral Agent, co-Revolver Agent and Lender |
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| By: | ||||
| Name: | ||||
| Title: | Duly Authorized Signatory | |||
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| XXXXXX XXXXXXX SENIOR FUNDING, INC., as co-Term Loan
B Agent, co-Syndication Agent and Lender |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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| MARATHON STRUCTURED FINANCE FUND, L.P., as Term Loan
A Agent, co-Term Loan B Agent and Lender |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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| [____________], as Lender |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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The following Persons are signatory to this Amendment in their capacity as Credit Parties and
not as the Borrowers.
| ACE OPERATIONS, LLC AH INDUSTRIES INC. ALLIED AUTOMOTIVE GROUP, INC. ALLIED FREIGHT BROKER LLC ALLIED SYSTEMS (CANADA) COMPANY AXIS XXXXX, LLC AXIS CANADA COMPANY AXIS GROUP, INC. AXIS NETHERLANDS, LLC COMMERCIAL CARRIERS, INC CORDIN TRANSPORT LLC CT SERVICES, INC. X.X. XXXXXXX DRIVEAWAY LLC GACS INCORPORATED LOGISTIC SYSTEMS, LLC LOGISTIC TECHNOLOGY, LLC QAT, INC. RMX LLC TERMINAL SERVICES LLC TRANSPORT SUPPORT LLC |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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