EXHIBIT 4.3(b)
FOURTH AMENDMENT AND CONSENT TO FINANCING AGREEMENT
FOURTH AMENDMENT AND CONSENT TO FINANCING AGREEMENT, dated as of June
22, 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, and the Third Amendment and Consent to
Financing Agreement, dated as of May 30, 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 (i)
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 June 27, 2005, and (ii) consent to, and waive any Event of
Default that would otherwise arise under the Financing Agreement as a result of
any noncompliance by the Loan Parties with Section 3(b)(iii) of the Third
Amendment and Consent to Financing Agreement, dated as of May 30, 2005 (the
"Third Amendment"), by and among the Loan Parties, the Lenders and the Agents,
arising from the aggregate outstanding principal amount of the Revolving Loans
exceeding $19,623,000 by an aggregate principal amount of not greater than
$50,000 as of the close of business on June 17, 2005.
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 June 27, 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. Waiver and Consent.
(a) Pursuant to the request of the Parent and in accordance with
Section 12.02 of the Financing Agreement, and in reliance upon the
representations, warranties and covenants contained in the Loan Documents, the
Required Lenders hereby consent to and waive any Event of Default that would
otherwise arise under the Financing Agreement as a result of any noncompliance
by the Loan Parties with Section 3(b)(iii) of the Third Amendment arising from
the aggregate outstanding principal amount of the Revolving Loans exceeding
$19,623,000 by an aggregate principal amount of not greater than $50,000 as of
the close of business on June 17, 2005.
(b) The waiver and consent in this Section 3 shall be effective only in
this specific instance and for the specific purposes set forth herein and does
not allow for any other or further departure from the terms and conditions of
the Financing Agreement or any other Loan Document, which terms and conditions
shall remain in full force and effect.
4. 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 21, 2005, the outstanding
aggregate principal amount of the Loans is equal to $130,671,335.30 of which
$17,033,019.05 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 June 27, 2005, (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 June 27, 2005,
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 June 27, 2005 and the occurrence of any Event of Default, all of the
Obligations shall 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
June 27, 2005, 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.
5. 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.
(f) 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 Fourth Amendment Effective Date
after giving effect to this Amendment in accordance with its terms.
6. 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 "Fourth 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 6(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 Fourth 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 Fourth 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; and
(d) the date 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
as of the date hereof.
7. 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 Fourth 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 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.
8. 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 Fourth 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.
9. 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 (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.
10. 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.
[remainder of this page intentionally left blank]
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:
COLLATERAL AGENT AND LENDER:
ABLECO FINANCE LLC
By:
-----------------------------------
Name:
Title:
ADMINISTRATIVE AGENT AND LENDER:
XXXXX FARGO FOOTHILL, INC., formerly
known as Foothill Capital Corporation
By:
-------------------------------------
Name:
Title:
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:
A4 FUNDING LP
By: A4 Fund Management Inc.,
its General Partner
By:
------------------------------------
Name:
Title:
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:
STELLAR FUNDING, LTD.
By:
------------------------------------
Name:
Title:
UPPER COLUMBIA CAPITAL COMPANY, LLC
By:
------------------------------------
Name:
Title:
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:
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By:
------------------------------------
Name:
Title:
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:
TEXTRON FINANCIAL CORPORATION
By:
-----------------------------------
Name:
Title:
HCM/Z SPECIAL OPPORTUNITIES LLC, formerly
known as HZ Special Opportunities LLC
By: Highbridge Capital Management, LLC
By:
--------------------------------------
Name:
Title:
XXXXXXX GLOBAL LOAN INVESTORS, LTD.,
formerly known as Xxxxxxx Leveraged Loan
Investors, Ltd.
By:
-------------------------------------
Name:
Title:
XXXXXXX NATIONAL LOAN INVESTORS, LTD.
By:
-----------------------------------
Name:
Title:
