EXHIBIT 4.3(c)
THIRD AMENDMENT AND CONSENT TO FINANCING AGREEMENT
THIRD AMENDMENT AND CONSENT TO FINANCING AGREEMENT, dated as of May
30, 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, and the Second Amendment to Financing
Agreement, dated as of April 13, 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 (i) 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 22, 2005 and (ii) the minimum
Consolidated EBITDA contained in Section 7.03(b) of the Financing Agreement for
the twelve (12) consecutive months ending on April 30, 2005 and May 31, 2005,
and the Required Lenders are willing to so amend the Financing Agreement, but
only subject to the terms and conditions set forth in this Amendment.
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. Amendments to Financing Agreement.
(a) 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 22, 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)."
(b) Section 7.03(b) of the Financing Agreement is hereby amended and
restated in its entirety to read as follows:
"Permit Consolidated EBITDA of the Parent and its Subsidiaries
for the twelve (12) consecutive months ending on the last day
of each month to be less than $50,000,000; provided, however,
that Consolidated EBITDA of the Parent and its Subsidiaries
for the twelve (12) consecutive months ending on April 30,
2005 and May 31, 2005 shall not be less than $44,844,000."
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 June 1, 2005, the outstanding aggregate principal amount
of the Loans is equal to $134,087,462.30 of which $20,449,146.12 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 May 30, 2005 through and including
June 8, 2005, the aggregate outstanding principal amount of Revolving Loans as
of the end of each Business Day shall not exceed $21,295,000; (ii) for the
period commencing June 9, 2005 through
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and including June 12, 2005, the aggregate outstanding principal amount of
Revolving Loans as of the end of each Business Day shall not exceed $17,588,000;
and (iii) for the period commencing June 13, 2005 through and including June 22,
2005, the aggregate outstanding principal amount of Revolving Loans as of the
end of each Business Day shall not exceed $19,623,000, and for the period
commencing on the date of this Amendment through and including June 22, 2005,
the Agents and the Lenders shall have no obligation to make any additional Loans
in excess of the amount for the period specified in this clause (b), and the
making of any additional Loans or other extensions of credit to any Loan Party
in excess of such amounts for the applicable period specified in this clause
(b), 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 22,
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 22, 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 the Third Amendment Effective Date):
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 the Third
Amendment Effective Date): 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 June 6, 2005 and through and including June 22, 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
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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.
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.
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(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 Third Amendment Effective
Date after giving effect to this Amendment in accordance with its terms.
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 "Third 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 Third 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 Third 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.
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 Third Amendment Effective Date (A) all references in the
Financing Agreement to "this Agreement",
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"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.
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 Third
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
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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 (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:
THIRD AMENDMENT TO FINANCING AGREEMENT
COLLATERAL AGENT AND LENDER:
ABLECO FINANCE LLC
By: _______________________________________________
Name:
Title:
THIRD AMENDMENT TO FINANCING AGREEMENT
ADMINISTRATIVE AGENT AND LENDER:
XXXXX FARGO FOOTHILL, INC., formerly
known as Foothill Capital Corporation
By: _______________________________________________
Name:
Title:
THIRD 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:
THIRD AMENDMENT TO FINANCING AGREEMENT
A4 FUNDING LP
By: A4 Fund Management Inc.,
its General Partner
By: _______________________________________________
Name:
Title:
THIRD 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:
THIRD AMENDMENT TO FINANCING AGREEMENT
STELLAR FUNDING, LTD.
By: ________________________________________
Name:
Title:
UPPER COLUMBIA CAPITAL COMPANY, LLC
By: ________________________________________
Name:
Title:
THIRD 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:
THIRD AMENDMENT TO FINANCING AGREEMENT
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By: ________________________________________
Name:
Title:
THIRD 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:
THIRD AMENDMENT TO FINANCING AGREEMENT
TEXTRON FINANCIAL CORPORATION
By: ________________________________________
Name:
Title:
THIRD AMENDMENT TO FINANCING AGREEMENT
HCM/Z SPECIAL OPPORTUNITIES LLC,
formerly known as HZ Special Opportunities
LLC
By: Highbridge Capital Management, LLC
By: ________________________________________
Name:
Title:
THIRD 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:
THIRD 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:
