EXHIBIT 10.3
FIFTH AMENDMENT TO NOTE AGREEMENT
THIS FIFTH AMENDMENT, dated as of February 12, 2002 (this "Fifth
Amendment") to the Note Agreement, dated as of January 15, 1996 (as amended by
the First Amendment to Note Agreement, dated as of April 16, 1997 (the "First
Amendment"), as further amended by the Second Amendment to Note Agreement, dated
as of September 30, 1997 (the "Second Amendment"), as further amended by the
Third Amendment to Note Agreement, dated as of April 13, 2001 (the "Third
Amendment"), and as further amended by the Fourth Amendment to Note Agreement,
dated as of January 28, 2002 (the "Fourth Amendment")) is made between ALLIED
HOLDINGS, INC., a Georgia corporation (the "Company"), and each of the
institutions which is a signatory to this Fifth Amendment (collectively, the
"Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered into
the Note Agreement, dated as of January 15, 1996, as amended by the First
Amendment, the Second Amendment, the Third Amendment and the Fourth Amendment
(as so amended, the "Note Agreement"). The Company heretofore issued the
$40,000,000 12% Senior Subordinated Notes due February 1, 2003 (the "Notes")
pursuant to the Note Agreement.
B. The Company, Allied Systems (Canada) Company, Fleet National Bank
and the other lending institutions listed on Schedule 1 to the Credit Agreement
(as defined hereinafter), Fleet National Bank, as administrative agent, ABN Amro
Bank, N.V., as documentation agent, The Bank of Nova Scotia, as the Canadian
agent, and BankOne, N.A. and Bank of America, N.A., as co-agents, have entered
into that certain Amended and Restated Revolving Credit Agreement, dated as of
January 20, 2000 (as so amended, the "Credit Agreement").
C. The Company and Xxxx Xxxxxxx Life Insurance Company and The
Northwestern Mutual Life Insurance Company have entered into a commitment letter
(the "Commitment Letter"), dated January 24, 2002 and accepted January 28, 2002,
providing for the restructuring of the indebtedness evidenced by the Notes
substantially on the terms described therein (including, without limitation, the
term sheet (the "Term Sheet") attached thereto).
D. In contemplation of the restructuring described in the Commitment
Letter and the Term Sheet, the Company and the Noteholders now desire to modify
the Note Agreement and the Notes in the respects, but only in the respects,
hereinafter set forth.
E. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement unless herein defined or the context
shall otherwise require.
F. All requirements of law have been fully complied with and all other
acts and things necessary to make this Fifth Amendment a valid, legal and
binding instrument according to the terms for the purposes herein expressed have
been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the
conditions precedent to the effectiveness of this Fifth Amendment set forth in
ss.3.1 hereof, and in consideration of other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Company and the
Noteholders do hereby agree as follows:
SECTION 1. MODIFICATIONS.
Notwithstanding any provisions of the Note Agreement and the Notes to
the contrary, the interest payment date scheduled to occur on February 15, 2002,
shall be deferred to the earlier of (a) the date of the closing specified in the
Term Sheet, and (b) March 1, 2002, provided that the amount of interest due on
such deferred payment date shall be the interest accrued and unpaid through the
date of such deferred payment.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
2.1 To induce the Noteholders to execute and deliver this Fifth
Amendment, the Company represents and warrants to each Noteholder (which
representations shall survive the execution and delivery of this Fifth
Amendment) that:
(a) This Fifth Amendment has been duly authorized,
executed and delivered by the Company, and this Fifth Amendment
constitutes the legal, valid and binding obligation, contract and
agreement of the Company, enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws or equitable principles
relating to or limiting creditors' rights generally;
(b) The Note Agreement, as amended by this Fifth
Amendment, constitutes the legal, valid and binding obligations,
contracts and agreements of the Company enforceable against it in
accordance with their respective terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting creditors'
rights generally; and
(c) The execution, delivery and performance by the
Company of this Fifth Amendment (i) have been duly authorized by all
requisite corporate action
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and if required, shareholder action, (ii) do not require the consent or
approval of any governmental or regulatory body or agency, and (iii)
will not violate (x) any provision of law, statute, rule or regulation
or its certificate of incorporation or bylaws, (y) any order of any
court or any rule, regulation or order of any other agency or
government binding upon it, or (z) any provision of any material
indenture, agreement or other instrument to which it is a party or by
which its properties or assets are or may be bound or result in a
breach or constitute (alone or with due notice or lapse of time or
both) a default thereunder; and
(d) as of the date hereof and after giving effect to this
Fifth Amendment, no Default or Event of Default has occurred which is
continuing.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIFTH AMENDMENT.
3.1 This Fifth Amendment shall not be effective until, and shall
become effective when, each and every one of the following conditions shall have
been satisfied:
(a) Executed counterparts of this Fifth Amendment, duly
executed by the Company and the holders of one hundred percent (100%)
of the outstanding principal of the Notes, shall have been delivered to
the Noteholders;
(b) Amendment No. 3 to the Credit Agreement, duly
executed by the Company with all conditions to effectiveness of such
Amendment No. 3 thereto satisfied and a copy of which Amendment No. 3
has been delivered to each Noteholder, shall remain in full force and
effect;
(c) The representations and warranties of the Company set
forth in Section 2 hereof shall be true and correct on and with respect
to the date hereof; and
(d) The Company shall have paid the fees, charges and
disbursements of counsel for the Noteholders to the extent reflected in
a statement of such counsel rendered to the Company prior to the date
hereof.
SECTION 4. REFERENCE TO AND EFFECT ON THE NOTE AGREEMENT.
4.1 This Fifth Amendment shall be construed in connection with and
is a part of the Note Agreement and the Notes and except as modified and
expressly amended by this Fifth Amendment, all terms, conditions and covenants
contained in the Note Agreement and the Notes are hereby ratified and confirmed
and shall be and remain in full force and effect.
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4.2 Except as expressly provided herein, the execution, delivery
and effectiveness of this Fifth Amendment shall not operate as a waiver of: (i)
any right, power or remedy of the Noteholders under the Note Agreement or the
Notes or any of the documents or agreements executed and delivered in connection
therewith, or (ii) any Event of Default under the Note Agreement.
SECTION 5. MISCELLANEOUS.
5.1 Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Fifth Amendment may refer to the Note Agreement without making specific
reference to this Fifth Amendment but nevertheless all such references shall
include this Fifth Amendment unless the context otherwise requires.
5.2 The provisions of this Fifth Amendment shall inure to the
benefit of, and be binding upon, each of the parties hereto and their respective
successors and assigns, including, without limitation, the holders from time to
time of the Notes and any interest therein.
5.3 The descriptive headings of the various Sections or parts of
this Fifth Amendment are for convenience only and shall not affect the meaning
or construction of any of the provisions hereof.
5.4 This Fifth Amendment shall be governed by and construed in
accordance with Illinois law.
5.5 This Fifth Amendment may be executed in any number of
counterparts, each executed counterpart constituting an original, but all of
which together shall constitute only one agreement. Delivery of an executed
counterpart to this Fifth Amendment by telecopier shall be effective as delivery
of a manually executed counterpart to this Fifth Amendment.
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IN WITNESS WHEREOF, the Company and the Noteholders have caused this
Fifth Amendment to be duly executed and delivered all as of the day and year
first above written.
ALLIED HOLDINGS, INC.
By
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Name:
Title:
XXXX XXXXXXX LIFE INSURANCE
COMPANY (formerly Xxxx
Xxxxxxx Mutual Life
Insurance Company)
By
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Name:
Title:
XXXXXXX & CO.
By
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Name:
Title:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By
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Name:
Title:
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