SIXTH AMENDMENT TO CREDIT AGREEMENT AND LOAN DOCUMENTS
Exhibit 4.3(k)
SIXTH AMENDMENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
CREDIT AGREEMENT AND LOAN DOCUMENTS
This SIXTH AMENDMENT, dated as of January 5, 2007 (this “Amendment” or the “Sixth
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, Term Loan C Agent,
co-Syndication Agent, co-Bookrunner and co-Term Loan B Lead Arranger (“Xxxxxx Xxxxxxx”);
(e) Xxxxxx Xxxxxxx, as Initial Term Loan C Lender; 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 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, the Credit Agreement has been amended by the First Amendment and Consent to Credit
Agreement and Loan Documents dated as of August 22, 2005; the Second Amendment to Credit Agreement
and Loan Documents dated as of October 26, 2005; the Third Amendment and Consent to Credit
Agreement and Loan Documents dated as of November 16, 2005; the Consent and Fourth Amendment to
Credit Agreement and Loan Documents dated as of April 18, 2006; and the Consent and Fifth Amendment
to Credit Agreement and Loan Documents dated as of June 30, 2006 (the “Fifth Amendment”);
WHEREAS, pursuant to the Fifth Amendment, the Term Loan A, Term Loan B and Term Loan C mature
on June 30, 2007;
WHEREAS, the Borrowers have requested that the maturity date for the Revolving Loans be
extended from February 7, 2007 to March 30, 2007; and
WHEREAS, the Administrative Agent, the Requisite Lenders and the affected lenders, consisting
of the Revolving Lenders, required by Section 11.2(b)(iv) of the Credit Agreement on the terms and
conditions provided for herein have agreed to the Borrowers’ request and to the other amendments
set forth herein.
NOW THEREFORE, in consideration of the promises herein 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. Credit Facility Amendments.
| (a) | Section 1.9 of the Credit Agreement is amended to insert a new section (f) as follows: |
“(f) Amendment
Fee. Upon the Sixth Amendment Effective Date,
Borrowers jointly and severally agree to pay to the
Revolving Lenders a nonrefundable amendment fee in
an amount equal to .125% of the Revolving Loan
Commitment, which fee shall be fully earned upon the
payment thereof.
| (b) | Annex A (Recitals) to Credit Agreement, Definitions. |
(i) Annex A to the Credit Agreement is hereby
amended by inserting the following definition in appropriate
alphabetical order:
“Sixth Amendment Effective Date” means
January 5, 2007.
(ii) The definition of “Commitment Termination Date”
is hereby amended to delete section (a)(i) thereof and
replace it with a new section (a)(i) as follows: “(a)(i)
with respect to the Revolving Loans only, March 30, 2007, or
such later date as may be agreed by the Revolving Lenders,
and”.
(iii) The definition of “Term Loan B Commitment” is
hereby deleted and replaced in its entirety with the
following: “ ‘Term Loan B Commitment’ means (a) as
to any Lender with a Term Loan B Commitment, the commitment
of such Lender to make its Pro Rata Share of the Term Loan B
as set forth on Annex J to the Agreement or in the most
recent Assignment Agreement executed by such Lender, and (b)
as to all Lenders with a Term Loan B Commitment, the
aggregate commitment of all Lenders to make the Term Loan B,
which aggregate commitment shall be Eighty Million Dollars
($80,000,000) on the Closing Date, plus interest paid in
kind and added to principal from time to time after the
Closing Date. After advancing the Term Loan B, each
reference to a Lender’s Term Loan B Commitment shall refer
to that Lender’s Pro Rata Share of the outstanding Term Loan
B.”
(iv) The definition of “Term Loan C Commitment
Amount” is hereby deleted and replaced in its entirety
with the following: “ ‘Term Loan C Commitment
Amount’ means Thirty Million Dollars ($30,000,000), plus
interest paid in kind and added to principal.”
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| (c) | Annex B (Section 1.2) to Credit Agreement, Letters of Credit. |
Annex B to the Credit Agreement is hereby amended by
deleting the last sentence in section (a) thereof and by
inserting the following new sentences in lieu thereof:
“No such Letter of Credit shall have an expiry date that is
more than one year following the date of issuance thereof,
unless otherwise determined by the Administrative Agent, in
its sole discretion (including with respect to customary
evergreen provisions). Each Revolving Lender agrees that,
at the option of the Administrative Agent and the applicable
L/C Issuer, any Letter of Credit may have an expiry date
that is later than the Commitment Termination Date;
provided, however, that if any such Letter of Credit
has not been canceled and returned to the applicable L/C
Issuer on or before the Commitment Termination Date, then
either (i) such Letter of Credit shall have been cash
collateralized in the manner described in clause (c)(ii)
below or (ii) a stand-by letter (or letters) of credit in
guaranty of the Letter of Credit Obligations related to such
Letter of Credit shall have been delivered to the
Administrative Agent in the manner described in clause
(c)(ii) below.”
3. Representations and Warranties. To induce the Agents and Lenders to enter into
this Sixth Amendment, each of the Credit Parties executing this Sixth Amendment, jointly and
severally, makes the following representations and warranties:
(a) Subject to the approval of the Bankruptcy Court and, as applicable, the Canadian Court,
the execution, delivery and performance by such Credit Party of this Sixth 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 and, as
applicable, the Canadian Court.
(b) This Sixth Amendment has been duly executed and delivered by or on behalf of such Credit
Party.
(c) Subject to the approval of the Bankruptcy Court and, as applicable, the Canadian court,
each of this Sixth Amendment and the Credit Agreement constitutes a legal, valid and binding
obligation of such Credit Party, enforceable against it in
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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
Sixth 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, as amended in accordance with the terms of the applicable agreement,
shall be true and correct on and as of the Sixth Amendment Effective Date with the same effect as
if such representations and warranties had been made on and as of such date, except to the extent
that such representation or warranty expressly relates to an earlier date and except for changes
therein permitted or contemplated by this Agreement.
4. 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 Sixth Amendment shall not be deemed a waiver of any term or condition of the
Credit Agreement or any other Loan Document, and (iii) this Sixth Amendment shall not be deemed an
agreement to forbear with respect to any right or remedy which the Agents, the Lenders or the Term
Loan C 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. No Agent, no Lender and no Term Loan C Lender shall by
virtue of any action or omission be deemed to have altered or prejudiced any rights or remedies
which any Agent, any Lender or any Term Loan C 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.
5. Outstanding Indebtedness; Waiver of Claims. (a) The Credit Parties hereby
acknowledge and agree that as of January 2, 2007, the aggregate outstanding principal amount of the
(i) Revolving Loans (including the outstanding Letter of Credit Obligations) is $87,893,844.90,
(ii) Term Loan A is $20,000,000, (iii) Term Loan B is
$85,708,495.42 and (d) Term Loan C is
$10,643,468.02 (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, the Term Loan C 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
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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, the Lenders or the Term Loan C Lenders which relates, directly or indirectly, to any acts
or omissions of Agents, the Lenders, the Term Loan C 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 such Agent’s, such Lender’s, such Term Loan C Lender’s or such
Indemnified Person’s gross negligence or willful misconduct.
6. Expenses. Borrowers hereby agree to pay to each of the Agents all reasonable
costs, fees and expenses invoiced and owing (including, without limitation, reasonable fees of
counsel to the Agents) incurred in the negotiation, preparation, execution and delivery of this
Sixth Amendment and all other documents and instruments delivered in connection herewith.
7. Effectiveness. This Sixth Amendment shall become effective as of the date hereof
(the “Sixth 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 Sixth Amendment duly executed and
delivered by Credit Parties and the Requisite Lenders. Delivery of an executed counterpart of this
Sixth Amendment by facsimile shall be equally as effective as delivery of an original executed
counterpart of this Sixth Amendment. Any party delivering an executed counterpart of this Sixth
Amendment, also shall deliver an original executed counterpart of this Sixth Amendment, but the
failure to deliver an original executed counterpart shall not affect the validity, enforceability,
and binding effect of this Sixth Amendment.
(b) Payment of Amendment Fee. Borrowers shall have paid to the Revolver Agent, for
the ratable benefit of the Revolving Lenders, the amendment fee in the amount of $162,500.00
described in Section 1.9(f) of the Credit Agreement as amended hereby, which amendment fee
shall be fully earned and non-refundable when paid.
(c) Payment of Expenses. Borrowers shall have paid to Agents all reasonable costs,
fees and expenses invoiced and owing in connection with this Sixth Amendment and the other Loan
Documents.
(d) Representations and Warranties. The representations and warranties of or on
behalf of the Credit Parties in this Sixth Amendment shall be true and correct on and as of the
Sixth Amendment Effective Date.
8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
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9. Counterparts. This Sixth 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 Sixth Amendment has been duly executed as of the date first written
above.
| BORROWERS: ALLIED HOLDINGS, INC. |
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| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: Executive VP – Secretary | ||||
| ALLIED SYSTEMS, LTD. (L.P.) |
||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: Executive VP – Secretary | ||||
| LENDERS: GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent, Collateral Agent, Revolver Agent and Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxxx | |||
| Title: Duly Authorized Signatory | ||||
| XXXXXX XXXXXXX SENIOR FUNDING,
INC., as Term Loan A Agent, Term Loan B Agent, Term Loan C Agent, co-Syndication Agent, Lender and as a Term Loan C Initial Lender |
||||
| By: | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: Authorized Signatory | ||||
| THE CIT GROUP/BUSINESS CREDIT,
INC., as Lender, |
||||
| By: | /s/ Xxxx Xxx | |||
| Name: | Xxxx Xxx | |||
| Title: XX | ||||
| XXXXXXX XXXXX
CAPITAL, A DIVISION OF XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC., as Lender, |
||||||
| By: | /s/ Xxxxxx Xxxxxxx | |||||
| Name: Xxxxxx Xxxxxxx | ||||||
| Title: Assistant Vice President | ||||||
| SMBC DIP LIMITED., as Lender, | ||||||
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: Xxxxxx Xxxxx | ||||||
| Title: Director | ||||||
| TEXTRON FINANCIAL
CORPORATION, as Lender, |
||||||
| By: | /s/ Xxxx X. Xxxxxxx | |||||
| Name: Xxxx X. Xxxxxxx | ||||||
| Title: Duly Authorized Signatory | ||||||
| MARATHON STRUCTURED
FINANCE FUND, L.P., as Lender |
||||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Name: Xxxx X. Xxxxx | ||||||
| Title: Director | ||||||
BLACK DIAMOND CLO
2005-2 LTD., BY BLACK DIAMOND CLO 2005-2 Adviser, L.L.C., its Collateral Manager, as Lender |
||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BLACKPORT CAPITAL FUND LTD.,
as Lender |
||||
| By: | /s/ Xxxxx Xxxxx | |||
| Name: | Xxxxx Xxxxx | |||
| Title: CFO | ||||
