EXHIBIT 10.1
AMENDMENT NO. 3
This AMENDMENT NO. 3 (this "Amendment"), dated as of January 29, 2002,
is among (a) Allied Holdings, Inc. (the "Borrower"), (b) Allied Systems (Canada)
Company (the "Canadian Borrower"), (c) Fleet National Bank and the other lending
institutions listed on Schedule 1 to the Credit Agreement (as hereinafter
defined) (collectively, the "Banks"), (d) Fleet National Bank as Administrative
Agent (the "Administrative Agent") for itself and the other Banks, (e) ABN Amro
Bank, N.V., as Documentation Agent (the "Documentation Agent"), (f) The Bank of
Nova Scotia, as the Canadian Agent (the "Canadian Agent"), and (g) BankOne, N.A.
and Bank of America, N.A., as Co-Agents (the "Co-Agents").
WHEREAS, the Borrower, the Canadian Borrower, the Banks, the
Administrative Agent, the Documentation Agent, the Canadian Agent and the
Co-Agents are parties to that certain Amended and Restated Revolving Credit
Agreement, dated as of January 20, 2000 (as amended and in effect from time to
time, the "Credit Agreement"), pursuant to which the Banks, upon certain terms
and conditions, have agreed to make loans to, to issue letters of credit for the
benefit of, and to purchase and accept banker's acceptances for the benefit of
the Borrower and the Canadian Borrower;
WHEREAS, in response to the request of the Borrower and the Canadian
Borrower, the Banks have agreed, on the terms and subject to the conditions set
forth herein, to amend certain provisions of the Credit Agreement, as set forth
herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SS.1. DEFINED TERMS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
SS.2. AMENDMENTS TO CREDIT AGREEMENT. Subject to the satisfaction of
the conditions precedent set forth in Section 6 hereof, the Credit Agreement is
hereby amended as follows:
SS.2.1 DEFINITIONS.
(a) Section 1.1 of the Credit Agreement is hereby amended by
deleting the definitions of "Borrowing Base Reserve Amount", "Maturity Date",
"Maximum Availability Amount", and "Total Commitment" set forth therein and
substituting in lieu thereof the following new definitions:
"Borrowing Base Reserve Amount" - $36,900,000, as such amount
may be increased pursuant to Section 2.9 hereof.
"Maturity Date" - the earlier of (i) February 28, 2002 and
(ii) the day that is one (1) Business Day prior to the date on which
the interest payment on the Subordinated Debt which was originally
payable on February 1, 2002 shall have been extended
pursuant to the amendment to the Subordinated Debt Documents delivered
to the Agent pursuant to Section 6(c) of Amendment No. 3 to this Credit
Agreement (the "Initial Extension Amendment") or pursuant to any
subsequent effective amendment to the Subordinated Debt Documents
delivered to the Agent at least one Business Day prior to the
then-scheduled Maturity Date, and substantially identical to the
Initial Extension Amendment except for the due date of such interest
payment.
"Maximum Availability Amount" - $142,500,000; provided that
the Maximum Availability Amount shall be reduced by an amount equal to
(i) the aggregate amount of Motor Vehicle Operating Lease Obligations
under Rental Agreements entered into by the Borrower and its
Subsidiaries after the Amendment No. 3 Effective Date, (ii) the
principal equivalent amount of all capital leases entered into by the
Borrower and its Subsidiaries after the Amendment No. 3 Effective Date,
and (iii) the aggregate amount of Indebtedness incurred by the Borrower
and its Subsidiaries pursuant to Sections 12.1(d) and (k), in each
case, after the Amendment No. 3 Effective Date. Each such reduction
shall take effect immediately upon the Borrower or such Subsidiary
entering into such lease or incurring such Indebtedness, as the case
may be, and, once made, shall be permanent and irrevocable. In
addition, the Maximum Availability Amount may be reduced pursuant to
Section 2.9 hereof.
"Total Commitment" - the sum of the Total Canadian Commitment
and the Total Domestic Commitment, each as in effect from time to time;
provided that such sum shall not exceed $212,500,000. As of the
Amendment No. 3 Effective Date, the Total Commitment is $212,500,000.
(b) Section 1.1 of the Credit Agreement is hereby amended by
inserting the following new definition therein:
"Amendment No. 3 Effective Date" - January 29, 2002.
SS.2.2 CONSOLIDATED EBITDA. The table set forth in Section 12.8 of
the Credit Agreement is hereby amended by (i) deleting the amount "$20,300,000"
set forth therein and substituting in lieu thereof the amount "$16,200,000" and
(ii) inserting the following new text at the bottom of such table: "January 31,
2002 - $7,700,000".
SS.2.3 NET TANGIBLE ASSETS TO SENIOR SECURED DEBT. The Credit
Agreement is hereby amended by deleting Section 12.9 thereof substituting in
lieu thereof the following new Section:
SS.12.9 NET TANGIBLE ASSETS TO SENIOR SECURED DEBT. Permit,
at any time, the ratio of (a) Consolidated Net Tangible Assets to (b)
Consolidated Senior Secured Debt to be less than 1.90:1.
SS.2.4 SCHEDULE 1.1. The Credit Agreement is further amended by
deleting Schedule 1.1 thereto and substituting in lieu thereof Schedule 1.1
attached hereto.
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SS.3. COVENANT OF BORROWER, THE CANADIAN BORROWER AND THE
GUARANTORS. Each of the Borrower, the Canadian Borrower and the Guarantors
covenants and agrees with the Banks and the Administrative Agent that they
shall, on or before February 15, 2002, deliver to the Banks and the
Administrative Agent an executed commitment letter evidencing a financing
commitment from one or more financial institutions in an amount sufficient to
repay all of the Obligations on or before the February 28, 2002. The
Administrative Agent shall be reasonably satisfied that such commitment letter
demonstrates a reasonable likelihood that such financing will provide proceeds
in an amount sufficient to repay the Obligations on or before February 28, 2002,
including, without limitation, with respect to (i) conditions precedent to the
closing of such financing and (ii) the financial institution(s) providing such
commitment letter. The parties agree that a failure to satisfy the obligations
set forth in this Section 3 shall constitute a Default and an Event of Default
under the Credit Agreement.
SS.4. AFFIRMATION, ACKNOWLEDGMENT AND AGREEMENT OF THE BORROWER, THE
CANADIAN BORROWER AND THE GUARANTORS. The Borrower, the Canadian Borrower, and
each of the Guarantors hereby affirm and acknowledge to the Banks as follows:
(a) The Borrower and the Canadian Borrower hereby ratify and
confirm all of their Obligations to the Banks, including, without limitation,
the Loans, the Letters of Credit and Bankers' Acceptances, and the Borrower and
the Canadian Borrower hereby affirm their absolute and unconditional promise to
pay to the Banks all indebtedness, obligations and liabilities in respect of the
Loans, the Letters of Credit, the Bankers' Acceptances, and all other amounts
due under the Credit Agreement as amended hereby. The Borrower and the Canadian
Borrower hereby confirm that the Obligations are and remain secured pursuant to
the Security Documents and pursuant to all other instruments and documents
executed and delivered by the Borrower and the Canadian Borrower as security for
the Obligations.
(b) Each of the Guarantors hereby acknowledges the provisions of
this Amendment and hereby reaffirms its absolute and unconditional guaranty of
the Borrower's and the Canadian Borrower's payment and performance of the
Obligations as more fully described in the Guaranties. Each of the Guarantors
hereby confirms that its obligations under the Guaranty to which it is a party
are and remain secured pursuant to the Security Documents to which it is a
party.
SS.5. REPRESENTATIONS AND WARRANTIES. The Borrower, the Canadian
Borrower and the Guarantors hereby represent and warrant to the Banks as
follows:
(a) The execution and delivery by the Borrower, the Canadian
Borrower, and each Guarantor of this Amendment, and the performance by the
Borrower, the Canadian Borrower, and each Guarantor of its obligations and
agreements under this Amendment and the Credit Agreement and the other Loan
Documents as amended hereby, are within the corporate authority of each such
Person, have been duly authorized by all necessary corporate proceedings on
behalf of each such Person, and do not and will not contravene any provision of
law, statute, rule or regulation to which any such Person is subject or any of
such Person's charter, other incorporation papers, by-laws or any stock
provision or any amendment thereof or of any agreement or other instrument
binding upon any such Person.
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(b) This Amendment and the Credit Agreement and the other Loan
Documents as amended hereby constitute legal, valid and binding obligations of
the Borrower, the Canadian Borrower, and each Guarantor, enforceable in
accordance with their respective terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or affecting
generally the enforcement of creditors' rights in general, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(c) No approval or consent of, or filing with, any governmental
agency or authority is required to make valid and legally binding the execution,
delivery or performance by the Borrower, the Canadian Borrower, or any Guarantor
of this Amendment or the Credit Agreement and the other Loan Documents as
amended hereby.
(d) The representations and warranties contained in ss.8 of the
Credit Agreement are, after giving effect to this Amendment, true and correct at
and as of the date made and as of the date hereof, except to the extent of
changes resulting from transactions contemplated or permitted by the Credit
Agreement that singly or in the aggregate are not materially adverse, and to the
extent that such representations and warranties relate expressly to an earlier
date.
(e) Each of the Borrower, the Canadian Borrower, and each
Guarantor has performed and complied in all material respects with all terms and
conditions herein required to be performed or complied with by it prior to or at
the time hereof, and as of the date hereof, after giving effect to the
provisions hereof, there exists no Event of Default or Default.
SS.6. EFFECTIVENESS. This Amendment shall become effective upon the
satisfaction of the following conditions precedent on or before 5:00 p.m.
(Boston time) on January 29, 2002:
(a) Receipt by the Administrative Agent of a fully executed
counterpart hereof signed by each of the Borrower, the Canadian Borrower, the
Guarantors and the Banks.
(b) Receipt by the Administrative Agent, for the account of each
Bank executing this Amendment and delivering its signature page to the
Administrative Agent or its counsel on or before 12:00 noon (Boston time) on
January 29, 2002, of an amendment fee in an amount equal to 0.075% of each such
Bank's Total Commitment.
(c) Receipt by the Administrative Agent of a fully executed
amendment to the Subordinated Debt Documents, in form and substance satisfactory
to the Administrative Agent.
(d) Receipt by the Administrative Agent of (i) evidence of proper
corporate authorization by the Borrower, the Canadian Borrower and each of the
Guarantors of this Amendment and (ii) a legal opinion of counsel to the Borrower
and its Subsidiaries, as to usual and customary matters, in each case, in form
and substance satisfactory to the Administrative Agent.
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(e) Payment of all billed fees and expenses of the Administrative
Agent and the Banks in connection with this Amendment (including, without
limitation, those relating to the financial consultant of the Banks, commercial
finance examinations, collateral examinations, collateral appraisals,
environmental surveys, and legal fees and expenses).
Upon the satisfaction of the foregoing conditions precedent, the amendment set
forth in Section 2.2 hereof shall be effective as of December 31, 2001 and all
remaining provisions of this Amendment shall be effective as of the date hereof.
SS.7. NO PRESENT CLAIMS. The Borrower, the Canadian Borrower and
each of the Guarantors acknowledges and agrees that, based upon the facts and
circumstances existing as of the date hereof: (i) none of them has any claim or
cause of action against any of the Banks, their predecessors or successors, or
the Administrative Agent (or any of their directors, officers, employees, agents
or Affiliates); (ii) none of them has any offset right, counterclaim or defense
of any kind against any of their obligations, indebtedness or liabilities to the
Banks, their predecessors or successors, or the Administrative Agent; and (iii)
each of the Banks, their predecessors and successors, and the Administrative
Agent has heretofore performed and satisfied in a timely manner all of its
obligations to the Borrower, the Canadian Borrower and each of the Guarantors.
The Borrower, the Canadian Borrower and each of the Guarantors and the Banks and
the Administrative Agent wish to eliminate any possibility that any past
conditions, acts, omissions, events, circumstances or matters would impair or
otherwise adversely affect any of the Banks' or the Administrative Agent's
rights, interests, contracts, collateral security or remedies. Therefore, each
of the Borrower, the Canadian Borrower and each of the Guarantors
unconditionally release, waive and forever discharge (A) any and all
liabilities, obligations, duties, promises or indebtedness of any kind of any of
the Banks, their predecessors and successors, and the Administrative Agent to
any of them, except the obligations to be performed by the Banks, their
successors, or the Administrative Agent hereafter for them as expressly stated
in this Amendment and the other Loan Documents, or as required by applicable
law, and (B) all claims, offsets, causes of action, suits or defenses of any
kind whatsoever (if any), whether known or unknown, which any of them might
otherwise have against any of the Banks, their predecessors or successors, or
the Administrative Agent or any of their directors, officers, employees, agents
or Affiliates for their respective actions or omissions occurring prior to the
date hereof, in either case (A) or (B) above, on account of any condition, act,
omission, event, contract, liability, obligation, indebtedness, claim, cause of
action, defense, circumstance or matter of any kind whatsoever which existed,
arose or occurred at any time prior to the date hereof.
SS.8. NO WAIVER. The Administrative Agent and each of the Banks
hereby expressly reserves all of their rights and remedies under the Credit
Agreement, the other related Loan Documents and applicable law in respect of any
and all Defaults or Events of Default under the Credit Agreement and the other
Loan Documents. Failure of the Administrative Agent or any Bank to exercise any
right or remedy shall not constitute a waiver of that or any other right or
remedy. Nothing contained herein shall constitute a waiver by the Administrative
Agent or the Banks, or otherwise entitle to the Borrower, the Canadian Borrower,
or any Guarantor to a waiver, of any existing or hereafter arising Default or
Event of Default, nor shall the Administrative Agent's or the Banks' execution
and delivery of this Amendment establish a
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course of dealing among the Administrative Agent or the Banks and the Borrower
or in any other way obligate the Administrative Agent or the Banks to hereafter
provide any waiver or further time for payment prior to the enforcement of the
Administrative Agent's or the Banks' security interest or to provide any other
financial accommodations to or on behalf of the Borrower, the Canadian Borrower
or any Guarantor.
SS.9. MISCELLANEOUS PROVISIONS.
(a) This Amendment shall constitute a Loan Document. Except as
otherwise expressly provided by this Amendment, all of the terms, conditions and
provisions of the Credit Agreement shall remain the same. It is declared and
agreed by each of the parties hereto that the Credit Agreement, as amended
hereby, shall continue in full force and effect, and that this Amendment and the
Credit Agreement shall be read and construed as one instrument.
(b) This Amendment is intended to take effect as an agreement
under seal and shall be construed according to and governed by the laws of The
Commonwealth of Massachusetts.
(c) This Amendment may be executed in any number of counterparts
(each of which may be delivered by telecopier), but all such counterparts shall
together constitute but one instrument. In making proof of this Amendment it
shall not be necessary to produce or account for more than one counterpart
signed by each party hereto by and against which enforcement hereof is sought.
(d) The Borrower hereby agrees to pay to the Administrative Agent,
on demand by the Administrative Agent, all reasonable out-of-pocket costs and
expenses incurred or sustained by the Administrative Agent in connection with
the preparation of this Amendment (including reasonable legal fees and
expenses). The Administrative Agent shall be entitled to debit any account
maintained by the Borrower or any of its Subsidiaries with the Administrative
Agent or any Lender or with respect to which the Administrative Agent shall have
entered into an Agency Account Agreement in payment of any amounts due under the
Credit Agreement and the other Loan Documents.
SS.10. CONSENT TO AMENDMENT TO SUBORDINATED DEBT DOCUMENTS. Each of
the Banks consents to the amendment to the Subordinated Debt Documents in the
form attached hereto as Annex A and to any subsequent amendment which further
extends the due date of the February 1, 2002 interest payment on the
Subordinated Debt provided that such amendment is substantially identical to the
amendment attached hereto as Annex A.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
ALLIED HOLDINGS, INC.
By:
-----------------------------------------
Name:
Title:
ALLIED SYSTEMS (CANADA) COMPANY
By:
-----------------------------------------
Name:
Title:
ALLIED AUTOMOTIVE GROUP, INC.
By:
-----------------------------------------
Name:
Title:
ALLIED SYSTEMS, LTD. (L.P.)
By: Allied Automotive Group, Inc., its
Managing General Partner
By:
-----------------------------------------
Name:
Title:
INTER MOBILE, INC.
By:
-----------------------------------------
Name:
Title:
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LEGION TRANSPORTATION, INC.
By:
-----------------------------------------
Name:
Title:
AUTOMOTIVE TRANSPORT
SERVICES, INC.
By:
-----------------------------------------
Name:
Title:
ALLIED SOUTHWOODS, INC.
By:
-----------------------------------------
Name:
Title:
AXIS GROUP, INC.
By:
-----------------------------------------
Name:
Title:
AXIS INTERNATIONAL, INC.
By:
-----------------------------------------
Name:
Title:
CANADIAN ACQUISITION CORP.
By:
-----------------------------------------
Name:
Title:
KAR-TAINER INTERNATIONAL, INC.
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By:
-----------------------------------------
Name:
Title:
AXIS TRUCK LEASING, INC.
By:
-----------------------------------------
Name:
Title:
AXIS NORTH AMERICA, INC.
By:
-----------------------------------------
Name:
Title:
QAT, INC.
By:
-----------------------------------------
Name:
Title:
OSHCO, INC.
By:
-----------------------------------------
Name:
Title:
TERMINAL SERVICE CO.
By:
-----------------------------------------
Name:
Title:
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RMX, INC.
By:
-----------------------------------------
Name:
Title:
TRANSPORT SUPPORT, INC.
By:
-----------------------------------------
Name:
Title:
F.J. BOUTELL DRIVEAWAY CO., INC.
By:
-----------------------------------------
Name:
Title:
COMMERCIAL CARRIERS, INC.
By:
-----------------------------------------
Name:
Title:
B&C, INC.
By:
-----------------------------------------
Name:
Title:
RC MANAGEMENT CORP.
By:
-----------------------------------------
Name:
Title:
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GACS, INCORPORATED
By:
-----------------------------------------
Name:
Title:
ALLIED FREIGHT BROKER, INC.
By:
-----------------------------------------
Name:
Title:
AXIS NETHERLANDS, LLC
By:
-----------------------------------------
Name:
Title:
AXIS ARETA, LLC
By:
-----------------------------------------
Name:
Title:
LOGISTIC TECHNOLOGY, LLC
By:
-----------------------------------------
Name:
Title:
LOGISTIC SYSTEMS, LLC
By:
-----------------------------------------
Name:
Title:
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AXIS CANADA COMPANY
By:
-----------------------------------------
Name:
Title:
ARRENDADORA DE EQUIPO PARA EL
TRANSPORTE DE AUTOMOVILES,
S. DE R. L. DE C.V.
By:
-----------------------------------------
Name:
Title:
CT GROUP, INC.
By:
-----------------------------------------
Name:
Title:
CT SERVICES, INC.
By:
-----------------------------------------
Name:
Title:
CORDIN TRANSPORT, INC.
By:
-----------------------------------------
Name:
Title:
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FLEET NATIONAL BANK, individually and as
Administrative Agent
By:
-----------------------------------------
Robert L. Wallace
Managing Director
ABN AMRO BANK, N.V.,
individually and as Documentation Agent
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, individually
and as Canadian Agent
By:
-----------------------------------------
Name:
Title:
BANK ONE, NA, individually and as Co-Agent
By:
-----------------------------------------
Name:
Title:
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BANK OF AMERICA, N.A., individually and as
Co-Agent
By:
-----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
-----------------------------------------
Name:
Title:
CREDIT LYONNAIS, NEW YORK BRANCH
By:
-----------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-----------------------------------------
Name:
Title:
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UNION BANK OF CALIFORNIA, N.A.
By:
-----------------------------------------
Name:
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
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