Exhibit 4.3(g)
EXECUTION COPY
CONSENT TO CREDIT AGREEMENT AND LOAN DOCUMENTS
This CONSENT, dated as of May 1,2006 (this "Consent"), 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 Term Loan B
Lead Arranger ("Xxxxxx Xxxxxxx"); and (e) the other Lenders signatory hereto
from time to time.
WITNESSETH
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"): and
WHEREAS, the Administrative Agent and the Requisite Lenders have
agreed 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. Consent. The Credit Parties have informed the Administrative Agent
and the Lenders that the Credit Parties will be unable to deliver their annual
audited Financial Statements for Borrowers for Fiscal Year 2005 and related
deliveries within the time frame required by Section 4.1(a) and Annex E. clause
(d), and have requested that the Requisite Lenders extend the date for such
delivery to May 30, 2006 (the "Extension"). As of the Effective Date, subject to
the terms hereof, the Requisite Lenders hereby consent to the Extension.
3. Representations and Warranties. To induce the Requisite Lenders to
enter into this Consent, each of the Credit Parties executing this Consent,
jointly and severally, makes the following representations and warranties:
(a) The execution, delivery and performance by such Credit Party of
this Consent: (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 Consent has been duly executed and delivered by or on behalf
of such Credit Party.
(c) Each of this Consent 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 Consent, except for the Defaults or Events of
Default set forth in Schedule A Of the Consent and Fourth Amendment, dated as of
April 18, 2006 (the "Consent and Fourth Amendment") by and among Borrowers, the
other Credit Parties, the Administrative Agent, Xxxxxx Xxxxxxx and the other
Lenders thereto.
(e) Other than (i) the commencement of the Chapter 11 Cases and (ii)
the objection to the Consent and Fourth Amendment filed by the Committee, 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 Consent 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 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.
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 and (b) this Consent 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.
5. Outstanding Indebtedness: Waiver of Claims. The Credit Parties
hereby acknowledge and agree that as of May 1, 2006, the aggregate outstanding
principal
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amount of the (i) Revolving Loan is $52,561,198.10, (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.
6. 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 Consent and all other documents and instruments delivered in
connection herewith.
7. Effectiveness. This Consent shall become effective as of the date
hereof (the "Effective Date") only upon satisfaction in full in the judgment of
Administrative Agent of each of the following conditions:
(a) Consent. Administrative Agent shall have received ten (10)
original copies of this Consent duly executed and delivered by the Credit
Parties and the Requisite Lenders. Delivery of an executed counterpart of this
Consent by facsimile shall have the same force and effect as the delivery of an
original executed counterpart of this Consent. Any party delivering an executed
counterpart of any such agreement by facsimile shall promptly deliver (10)
original copies of this Consent to the Administrative Agent.
(b) Payment of Expenses. Borrowers shall have paid to Agents all
costs, fees and expenses invoiced and owing in connection with this Consent 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 Consent shall be true and correct
on and as of the Effective Date.
8. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. Counterparts. This Consent 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 Consent has been duly executed as of the date
first written above.
BORROWERS:
ALLIED HOLDINGS, INC.
By: /s/ XXXXXX X. XXXX
------------------------------------
Name: XXXXXX X. XXXX
Title: EVP
ALLIED SYSTEMS, LTD. (L.P.)
By: /s/ XXXXXX X. XXXX
------------------------------------
Name: XXXXXX X. XXXX
Title: EVP
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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
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XXXXXX XXXXXXX SENIOR FUNDING, INC., as
Term Loan A Agent, Term Loan B Agent,
co-Syndication Agent and Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Authorized Signatory
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XXXXX FARGO FOOTHILL, LLC,
as Lender
By: /s/ XXXXXX XXX
------------------------------------
Name: XXXXXX XXX
Title: VP
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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
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SMBC DIP LIMITED
as Lender
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
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Textron Financial Corporation,
as Lender
By: /s/ XXXX X. XXXXXXX
------------------------------------
Name: XXXX X. XXXXXXX
Title: DULY AUTHORIZED SIGNATORY
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The following Persons are signatory to this Consent 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.
FJ. XXXXXXX DRIVEAWAY LLC
GACS INCORPORATED
LOGISTIC SYSTEMS, LLC
LOGISTIC TECHNOLOGY, LLC
QAT, INC.
RMX LLC
TERMINAL SERVICES LLC
TRANSPORT SUPPORT LLC
By: /s/ XXXXXX X. XXXX
------------------------------------
Name: XXXXXX X. XXXX
Title: EVP
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