Exhibit 4.3(e)
EXECUTION VERSION
FIFTH AMENDMENT AND CONSENT TO FINANCING AGREEMENT
FIFTH AMENDMENT AND CONSENT TO FINANCING AGREEMENT, dated as of June
27, 2005 (this "Amendment"), to the Amended and Restated Financing Agreement,
dated as of September 4, 2003, as amended by the First Amendment to Financing
Agreement, dated as of November 23, 2004, the Second Amendment to Financing
Agreement, dated as of April 13, 2005, the Third Amendment and Consent to
Financing Agreement, dated as of May 30, 2005, and the Fourth Amendment and
Consent to Financing Agreement, dated as of June 22, 2005 (such agreement as
amended, and as further amended, restated or otherwise modified from time to
time, being hereinafter referred to as the "Financing Agreement"), by and among
Allied Holdings, Inc., a Georgia corporation (the "Parent"), Allied Systems,
Ltd. (L.P.), a Georgia limited partnership ("Allied Systems" and together with
the Parent, each a "Borrower" and collectively, the "Borrowers"), each
subsidiary of the Parent listed as a "Guarantor" on the signature pages thereto,
the lenders from time to time party thereto (each a "Lender" and collectively,
the "Lenders"), Ableco Finance LLC, a Delaware limited liability company, as
collateral agent for the Lenders (in such capacity, the "Collateral Agent"), and
Xxxxx Fargo Foothill, Inc., a California corporation, formerly known as Foothill
Capital Corporation, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent" and, together with the Collateral Agent, each an
"Agent" and collectively, the "Agents").
W I T N E S S E T H:
WHEREAS, the Borrowers have requested that the Required Lenders
amend the Financing Agreement to modify the multiplier contained in Section
2.04(b)(iv) of the Financing Agreement for the period beginning on the date
hereof and ending on July 5, 2005 (the "Termination Date").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and conditions hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Definitions. All terms used herein that are defined in the
Financing Agreement and not otherwise defined herein are used herein as defined
therein.
2. Amendment to Financing Agreement. Section 2.01(b)(iv) of the
Financing Agreement is hereby amended and restated in its entirety to read as
follows:
"The aggregate principal amount of the Loans and Letter of
Credit Obligations shall not at any time exceed (A) an amount
equal to (x) three and one quarter (3.25) multiplied by (y)
the Consolidated EBITDA of the Parent and its Subsidiaries for
the most recently completed twelve months after giving effect,
if any, to the pro forma adjustments set forth in Schedule
2.01(b)(iv) or (B) the maximum principal amount of
Indebtedness which is permitted to be incurred by the Parent
and its Subsidiaries under clause (i) of the
second paragraph of Section 4.09 of the Indenture less all
outstanding Capital Lease Obligations (as defined in the
Indenture) incurred under such clause (i), provided, however,
that solely for the period commencing on May 1, 2005 and
ending on July 5, 2005, the aggregate principal amount of the
Loans and Letter of Credit Obligations shall not at the end of
any Business Day exceed (A) an amount equal to (x) four (4.00)
multiplied by (y) the Consolidated EBITDA of the Parent and
its Subsidiaries for the most recently completed twelve months
after giving effect, if any, to the pro forma adjustments set
forth in Schedule 2.01(b)(iv) or (B) the maximum principal
amount of Indebtedness which is permitted to be incurred by
the Parent and its Subsidiaries under clause (i) of the second
paragraph of Section 4.09 of the Indenture less all
outstanding Capital Lease Obligations (as defined in the
Indenture) incurred under such clause (i)."
3. Other Agreements. Without any prejudice or impairment
whatsoever to any of the rights and remedies of the Agents or the Lenders
contained in the Financing Agreement or in any other Loan Documents, the Loan
Parties covenant and agree with the Agents and the Lenders (the occurrence of,
the failure to comply with, or the inaccuracy thereof (as applicable), shall
constitute an immediate Event of Default) that:
(a) As of the close of business on June 24, 2005, the outstanding
aggregate principal amount of the Loans is equal to $128,066,781.37 of which
$14,428,465.14 constitutes Revolving Loans, $68,638,316.23 constitutes the Term
Loans, $20,000,000 constitutes the Supplemental Term Loans and $25,000,000
constitutes the Additional Supplemental Term Loans, and the outstanding,
aggregate amount of Letter of Credit Obligations is equal to $43,695,036.45;
(b) (i) for the period commencing on the date of this Amendment
through and including the Termination Date, (i) the aggregate outstanding
principal amount of Revolving Loans as of the end of each Business Day shall not
exceed $19,623,000, and (ii) the Agents and the Lenders shall have no obligation
to make any additional Loans in excess of such amount, and the making of any
additional Loans or other extensions of credit to any Loan Party in excess of
such amount, if any, shall be at the sole and absolute discretion of each of the
Agents and the Lenders;
(c) commencing on the date hereof and continuing until the
Termination Date, the Letter of Credit Obligations shall not exceed
$43,695,036.45 and the Agents and the Lenders shall have no obligation to issue
or otherwise establish (or assist in establishing) any additional Letters of
Credit (including any renewals, increases in or other extensions of any existing
Letters of Credit);
(d) for the period commencing on the date of this Amendment until
the earlier of the Termination Date and the occurrence of any Event of Default,
all of the Obligations shall
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accrue at a rate of interest per annum equal to the rate of interest otherwise
in effect from time to time pursuant to the terms of the Financing Agreement
plus 3.0%, or, if a rate of interest is not otherwise in effect, interest at the
highest rate specified therein for any Loan then outstanding prior to an Event
of Default plus 3.0%;
(e) each of the following events shall constitute an additional
Event of Default under the Financing Agreement: (i) since December 31, 2004, the
occurrence of any of the following (to the extent not otherwise disclosed by the
Parent to the Agents in writing prior to May 30, 2005): any material adverse
effect on any of (A) the operations, business, assets, properties, prospects or
condition (financial or otherwise) of any Borrower or of the Loan Parties taken
as a whole, as determined by any Agent in its sole discretion or (B) the
industries, businesses or markets within which Parent or any of its Subsidiaries
or its customers operate or otherwise conduct business, in each case, as
determined by any Agent in its sole discretion, (ii) since December 31, 2004,
the occurrence of any of the following (to the extent not otherwise disclosed by
the Parent to the Agents in writing prior to May 30, 2005): any material
disruption or general adverse developments in the financial, banking or capital
markets, as determined by any Agent in its sole discretion, and (iii) any Loan
Party or any Affiliate thereof or any Person or entity claiming by or through
such Loan Party or other Person joins in, assists, cooperates or participates as
an adverse witness (except under subpoena) in any suit or other judicial
proceeding against any Agent or Lender or any of their Affiliates relating to
the Obligations or any amounts owing in connection with or related to any of the
transactions contemplated by the Financing Agreement, this Amendment or the
other Loan Documents or any document, agreement, or instrument executed in
connection with any of the foregoing;
(f) commencing on the date of this Amendment and through and
including the Termination Date, the Parent will, on each Business Day at the
earlier of (x) 12:00 noon (New York City time) and (y) the delivery of a Notice
of Borrowing, deliver to the Agents, a certificate from the Chief Executive
Officer, the Chief Financial Officer, the Treasurer, or any Vice President of
the Parent, certifying as to the aggregate outstanding principal amount of the
Revolving Loans and the Letter of Credit Obligations and the Term Loan, the
Supplemental Term Loan and the Additional Supplemental Term Loan, as of the end
of business on the immediately preceding Business Day, and containing such
detail and other information as any Agent may request from time to time;
(g) the Loan Parties shall comply with all of the terms, covenants
and provisions contained in the Financing Agreement and the other Loan Documents
(subject to any applicable grace periods set forth in the Financing Agreement),
as such terms, covenants and provisions are expressly modified by this Amendment
upon the terms set forth herein; and
(h) the Loan Parties shall at any time and from time to time
execute and deliver such further instruments and take such further action as any
Agent may reasonably request to effect the purposes of this Amendment, the
Financing Agreement and the other Loan Documents.
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4. Representations and Warranties. Each Loan Party represents and
warrants to the Agents, the Lenders and the L/C Issuer as follows:
(a) Each Loan Party (i) is a corporation, limited liability
company or limited partnership duly organized, validly existing and in good
standing under the laws of the state, province or other applicable jurisdiction
of its organization, (ii) has all requisite power and authority to conduct its
business as now conducted and as presently contemplated, to execute and deliver
this Amendment and each Loan Document to which it is a party, and to consummate
the transactions contemplated thereby and, in the case of the Borrowers, to make
the borrowings under the Financing Agreement, and (iii) is duly qualified to do
business and is in good standing in each jurisdiction in which the character of
the properties owned or leased by it or in which the transaction of its business
makes such qualification necessary and where the failure to be so qualified
would reasonably be expected to have a Material Adverse Effect.
(b) The execution, delivery and performance by each Loan Party of
this Amendment and the performance by each Loan Party of the Financing
Agreement, as amended hereby, (i) have been duly authorized by all necessary
action, (ii) do not and will not contravene its charter or by-laws, its limited
liability company or operating agreement or its certificate of partnership or
partnership agreement, as applicable, or any applicable law or any contractual
restriction binding on or otherwise affecting it or any of its properties, (iii)
do not and will not result in or require the creation of any Lien (other than
pursuant to any Loan Document) upon or with respect to any of its properties,
and (iv) do not and will not result in any default, noncompliance, suspension,
revocation, impairment, forfeiture or nonrenewal of any permit, license,
authorization or approval applicable to its operations or any of its properties,
which, in the case of this clause (iv), is reasonably expected to have a
Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority is required as a condition to the
(i) due execution, delivery and performance by any Loan Party of this Amendment
or (ii) performance by each Loan Party of the Financing Agreement, as amended
hereby.
(d) Each of this Amendment and the Financing Agreement, as amended
hereby, and the other Loan Document to which any Loan Party is or will be a
party, when delivered hereunder, will be, a legal, valid and binding obligation
of such Person, enforceable against such Person in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws and principles of equity.
(e) The representations and warranties contained herein, in
Article VI of the Financing Agreement and in each other Loan Document are true
and correct on and as of the date hereof as though made on and as of such date,
except to the extent that any such representation or warranty expressly relates
solely to an earlier date (in which case such representation or warranty shall
be true and correct on and as of such earlier date); and no Default or Event of
Default shall have occurred and be continuing on the Amendment Effective Date
after giving effect to this Amendment in accordance with its terms.
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5. Effective Date. This Amendment shall be effective at the last
to occur of the following (the first date upon which all such conditions have
been satisfied being herein called the "Amendment Effective Date"):
(a) the date on which counterparts to this Amendment, signed by
each of the Loan Parties and the Required Lenders, have been executed and
delivered to the Collateral Agent;
(b) the date on which the Collateral Agent shall have received a
certificate of the chief executive officer or the chief financial officer of the
Parent, certifying as to the matters set forth in Section 5(c) hereof;
(c) each of the following shall be true: (i) the representations
and warranties of each Loan Party contained herein and in the other Loan
Documents shall be true and correct on and as of the Amendment Effective Date,
except to the extent such representations and warranties specifically relate to
an earlier date, in which case such representations and warranties shall have
been true and correct on and as of such earlier date, (ii) no Default or Event
of Default shall have occurred after giving effect to this Amendment, and (iii)
since December 31, 2004, except as otherwise disclosed in writing by the Parent
to the Collateral Agent on or prior to the Amendment Effective Date, (A) no
Material Adverse Effect shall have occurred and (B) there shall not have
occurred any event that may reasonably be expected to result in any event
described in paragraph 3(e) of this Amendment;
(d) the date on which the Loan Parties shall have paid all fees
and expenses of the Agents related to this Amendment and the administration of
the Financing Agreement and the other Loan Documents, which have been invoiced
to the Parent on or prior to the date hereof; and
(e) the date on which the Loan Parties shall have paid all fees
and expenses of Xxxxxx, Del Genio, Xxxxx & Co., LLC which have been invoiced to
the Parent on or prior to the date hereof.
6. Ratification and Confirmation.
(a) Except as otherwise expressly provided herein, (i) the
Financing Agreement and the other Loan Documents are, and shall continue to be,
in full force and effect and are hereby ratified and confirmed in all respects,
except that on and after the Amendment Effective Date (A) all references in the
Financing Agreement to "this Agreement", "hereto", "hereof", "hereunder" or
words of like import referring to the Financing Agreement shall mean the
Financing Agreement as amended by this Amendment and (B) all references in the
other Loan Documents to the "Financing Agreement", "thereto", "thereof",
"thereunder" or words of like import referring to the Financing Agreement shall
mean the Financing Agreement as amended by this Amendment, (ii) to the extent
that the Financing Agreement or any other Loan Document purports to pledge to
the Collateral Agent, or to grant to the Collateral Agent, a security interest
in or lien on any collateral as security for the Obligations or Guaranteed
Obligations, such pledge or grant of a security interest or lien is hereby
ratified and confirmed in all respects, and (iii) except as expressly agreed to
in this Amendment, the execution, delivery
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and effectiveness of this Amendment shall not operate as an amendment of any
right, power or remedy of the Agents or the Lenders under the Financing
Agreement or any other Loan Document, nor constitute an amendment of any
provision of the Financing Agreement or any other Loan Document.
(b) Except as expressly set forth herein, this Amendment is not a
waiver of, or consent to, any Default or Event of Default now existing or
hereafter arising under the Financing Agreement or any other Loan Document and
the Agents and the Lenders expressly reserve all of their rights and remedies
under the Financing Agreement and the other Loan Documents, under applicable law
or otherwise.
7. Release. Each Loan Party hereby acknowledges and agrees that:
(a) neither it nor any of its Affiliates has any claim or cause of action
against any Agent, any Lender or the L/C Issuer (or any of their respective
Affiliates, officers, directors, employees, attorneys, consultants or agents)
and (b) each Agent, each Lender and the L/C Issuer has heretofore properly
performed and satisfied in a timely manner all of its obligations to the Loan
Parties and their Affiliates under the Financing Agreement and the other Loan
Documents. Notwithstanding the foregoing, the Agents, the Lenders and the L/C
Issuer wish (and the Loan Parties agree) to eliminate any possibility that any
past conditions, acts, omissions, events or circumstances would impair or
otherwise adversely affect any of the Agents', the Lenders' and the L/C Issuer's
rights, interests, security and/or remedies under the Financing Agreement and
the other Loan Documents. Accordingly, for and in consideration of the
agreements contained in this Amendment and other good and valuable
consideration, each Loan Party (for itself and its Affiliates and the
successors, assigns, heirs and representatives of each of the foregoing)
(collectively, the "Releasors") does hereby fully, finally, unconditionally and
irrevocably release and forever discharge each Agent, each Lender and the L/C
Issuer and each of their respective Affiliates, officers, directors, employees,
attorneys, consultants and agents (collectively, the "Released Parties") from
any and all debts, claims, obligations, damages, costs, attorneys' fees, suits,
demands, liabilities, actions, proceedings and causes of action, in each case,
whether known or unknown, contingent or fixed, direct or indirect, and of
whatever nature or description, and whether in law or in equity, under contract,
tort, statute or otherwise, which any Releasor has heretofore had or now or
hereafter can, shall or may have against any Released Party by reason of any
act, omission or thing whatsoever done or omitted to be done on or prior to the
Amendment Effective Date arising out of, connected with or related in any way to
this Amendment, the Financing Agreement or any other Loan Document, or any act,
event or transaction related or attendant thereto, or the agreements of any
Agent, any Lender or the L/C Issuer contained therein, or the possession, use,
operation or control of any of the assets of any Loan Party, or the making of
any Loans or other advances, or the management of such Loans or advances or the
Collateral.
8. Indemnity and Expenses. Each Loan Party hereby agrees (a) to
indemnify and hold harmless the Agents, each Lender and their shareholders,
partners, members, officers and representatives (each an "Indemnified Person")
from and against any and all claims, damages, liabilities and expenses,
including, without limitation, attorneys' fees and disbursements, which may be
incurred by or asserted against any such Indemnified Person in any
investigation, litigation, suit or action arising out of or relating to (i) the
release pursuant hereto of any security interest, lien, encumbrance or other
charge granted to the Collateral Agent or
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(ii) the payment of any of the Obligations or Guaranteed Obligations as provided
herein; (b) to pay all costs and expenses in connection with the preparation,
execution, delivery, filing and recording of this Agreement, and the performance
of any other acts and the execution of any other documents required to effect
the release of any security pursuant hereto, including, without limitation, the
fees and disbursements of counsel to the Agents; and (c) to pay any and all
stamp and other transfer or filing taxes and fees payable or determined to be
payable in connection with the execution and delivery hereof or any release
document pursuant hereto, and to hold each Indemnified Person harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.
9. Miscellaneous.
(a) This Amendment may be executed in any number of counterparts
and by the different parties hereto in separate counterparts, each of which
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of
this Amendment by facsimile or electronic mail shall be equally effective as
delivery of an original executed counterpart.
(b) Section and paragraph headings herein are included for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of New York applicable to contracts made
and to be performed within such state.
(d) The Loan Parties hereby acknowledge and agree that this
Amendment constitutes a "Loan Document" under the Financing Agreement.
Accordingly, it shall be an Event of Default under the Financing Agreement if
(i) any representation or warranty made by the Borrowers under or in connection
with this Amendment shall have been untrue, false or misleading in any material
respect when made, or (ii) the Loan Parties shall fail to perform or observe any
term, covenant or agreement contained in this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWERS:
ALLIED HOLDINGS, INC.
By: __________________________________________
Name:
Title:
ALLIED SYSTEMS, LTD. (L.P.)
By: Allied Automotive Group, Inc.
By: __________________________________________
Name:
Title:
GUARANTORS:
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
KAR-TAINER INTERNATIONAL, LLC
QAT, INC.
RMX LLC
TERMINAL SERVICE LLC
TRANSPORT SUPPORT, LLC
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
COLLATERAL AGENT AND LENDER:
ABLECO FINANCE LLC
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
ADMINISTRATIVE AGENT AND LENDER:
XXXXX FARGO FOOTHILL, INC., formerly
known as Foothill Capital Corporation
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
LENDERS:
A3 FUNDING LP
By: A3 Fund Management LLC,
its General Partner
By: __________________________________________
Name:
Title:
STYX INTERNATIONAL, LTD.
By: Xxxxxxxxx Xxxx Overseas Management, LLC,
as Investment Manager
By: __________________________________________
Name:
Title:
THE LONG HORIZONS OVERSEAS FUND, LTD.
By: Old Stand Management, L.L.C.,
as Investment Manager
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
A4 FUNDING LP
By: A4 Fund Management Inc.,
its General Partner
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
XXXXX STREET CBO 1998-1, LTD.
By: __________________________________________
Name:
Title:
1888 FUND, LTD.
By: Guggenheim Investment Management,
LLC as Collateral Manager
By: __________________________________________
Name:
Title:
FORTWIRTH CDO LTD.
By: __________________________________________
Name:
Title:
MAGMA CDO LTD.
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
STELLAR FUNDING, LTD.
By: __________________________________________
Name:
Title:
UPPER COLUMBIA CAPITAL COMPANY, LLC
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
FORTRESS CREDIT
OPPORTUNITIES I LP
By: Fortress Credit Opportunities I GP LLC,
its general partner
By: __________________________________________
Name:
Title:
DB SPECIAL OPPORTUNITIES LLC
By: Drawbridge Special Opportunities
Advisors LLC, its Authorized Signatory
By: __________________________________________
Name:
Title:
FORTRESS CREDIT
OPPORTUNITIES II LP
By: Fortress Credit Opportunities II GP LLC,
its general partner
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
STANDARD FEDERAL BANK NATIONAL ASSOCIATION
By: LaSalle Business Credit, LLC, a Delaware
Limited liability company, successor by
merger to LaSalle Business Credit, Inc., a
Delaware corporation, as Agent
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
TEXTRON FINANCIAL CORPORATION
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
HCM/Z SPECIAL OPPORTUNITIES LLC,
formerly known as HZ Special Opportunities LLC
By: Highbridge Capital Management, LLC
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
XXXXXXX GLOBAL LOAN INVESTORS, LTD.,
formerly known as Xxxxxxx Leveraged Loan
Investors, Ltd.
By: __________________________________________
Name:
Title:
XXXXXXX NATIONAL LOAN INVESTORS, LTD.
By: __________________________________________
Name:
Title:
FIFTH AMENDMENT TO FINANCING AGREEMENT
