EXHIBIT 4.3(a)
FIRST AMENDMENT
TO FINANCING AGREEMENT
FIRST AMENDMENT, dated as of March 4, 2003 (this
"Amendment"), to the Financing Agreement referred to below, by and among Allied
Holdings, Inc., a Georgia corporation (the "Parent"), and 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 (each a
"Guarantor" and collectively, the "Guarantors"), each of the lenders from time
to time party thereto as a Senior Lender (each a "Senior Lender" and
collectively, the "Senior Lenders"), each of the lenders from time to time
party thereto as a Subordinated Term Loan D Lender (each a "Subordinated Term
Loan D Lender" and collectively, the "Subordinated Term Loan D Lenders" and,
together with the Senior Lenders, each a "Lender" and collectively, the
"Lenders"), Ableco Finance LLC, a Delaware limited liability company
("Ableco"), as collateral agent for the Lenders (in such capacity, the
"Collateral Agent"), and Foothill Capital Corporation, a California corporation
("Foothill"), as administrative agent for the Senior Lenders (in such capacity,
the "Administrative Agent" and together with the Collateral Agent, each an
"Agent" and collectively, the "Agents").
WHEREAS, the Borrowers, the Guarantors, the Lenders and the
Agents are parties to the Financing Agreement dated as of February 25, 2002 (as
amended, modified or supplemented from time to time, the "Financing
Agreement"); and
WHEREAS, the Borrowers have requested the Agents and the
Senior Lenders to amend Sections 7.03(b) and 7.03(c) of the Financing
Agreement. The Agents and the Senior Lenders are willing to agree to such
amendments subject to the execution and delivery of this Amendment by the Loan
Parties; and
NOW THEREFORE, in consideration of the premises and other
good and valuable consideration, the parties hereby agree as follows:
1. Definitions in Amendment. Any capitalized term used
herein and not defined shall have the meaning assigned to it in the Financing
Agreement.
2. Fixed Charge Coverage Ratio. Subsection (b) of
Section 7.03 of the Financing Agreement is hereby amended in its entirety to
read as follows:
"(b) Fixed Charge Coverage Ratio. Permit the Fixed
Charge Coverage Ratio of the Parent and its Subsidiaries for
the twelve (12) consecutive months ending on the month set
forth below to be less than the ratio set forth opposite such
date:
Fixed Charge
Month Coverage Ratio
-------------------------------- --------------
February 2002 0.47:1.0
March 2002 0.61:1.0
April 2002 0.70:1.0
Fixed Charge
Month Coverage Ratio
-------------------------------- --------------
May 2002 0.76:1.0
June 2002 0.81:1.0
July 2002 0.82:1.0
August 2002 0.86:1.0
September 2002 0.84:1.0
October 2002 0.85:1.0
November 2002 0.88:1.0
December 2002 0.88:1.0
January 2003 0.90:1.0
February 2003 0.93:1.0
March 2003 0.96:1.0
April 2003 0.97:1.0
May 2003 0.95:1.0
June 2003 0.96:1.0
July 2003 0.93:1.0
August 2003 0.92:1.0
September 2003 0.93:1.0
October 2003 0.91:1.0
November 2003 0.92:1.0
December 2003 and for each month 0.94:1.0"
thereafter
3. Consolidated EBITDA. Subsection (c) of Section 7.03
of the Financing Agreement is hereby amended in its entirety to read as
follows:
"(c) Consolidated EBITDA. Permit Consolidated EBITDA
of the Parent and its Subsidiaries for the twelve (12)
consecutive months ending on the month set forth below to be
less than the applicable amount set forth below:
Consolidated
Month EBITDA
-------------------------------- --------------
February 2002 $30,600,000
March 2002 $39,500,000
April 2002 $42,225,000
May 2002 $45,400,000
June 2002 $49,265,000
July 2002 $50,760,000
August 2002 $53,870,000
September 2002 $54,270,000
October 2002 $56,150,000
November 2002 $58,330,000
December 2002 $60,000,000
January 2003 $61,595,000
February 2003 $63,325,000
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Consolidated
Month EBITDA
-------------------------------- --------------
March 2003 $65,000,000
April 2003 $63,418,000
May 2003 $63,988,000
June 2003 $64,200,000
July 2003 $64,250,000
August 2003 $64,350,000
September 2003 $64,693,000
October 2003 $65,000,000
November 2003 $65,000,000
December 2003 and for each month $65,000,000"
thereafter
4. Conditions to Effectiveness. This Amendment shall
become effective only upon satisfaction in full, in a manner satisfactory to
the Collateral Agent, of the following conditions precedent (the first date
upon which all such conditions shall have been satisfied being herein called
the "Amendment Effective Date"):
(a) The representations and warranties contained in
Article VI of the Financing Agreement and in each other Loan Document,
certificate or other writing delivered on or on behalf of any Loan Party to any
Agent or any Lender pursuant to the Financing Agreement or any other Loan
Document on or prior to the Amendment Effective Date are true and correct on
and as of such date as though made on and as of such date (except that any
representation and warranty made as of a specific date shall be true and
correct only as of such specific date), and no Default or Event of Default
shall have occurred and be continuing on the Amendment Effective Date or would
result from this Amendment becoming effective in accordance with its terms.
(b) The Agents shall have received counterparts of this
Amendment which bear the signatures of each Borrower, each Guarantor and the
Required Lenders.
(c) The Borrowers shall have paid to the Administrative
Agent, on behalf of the Senior Lenders, an amendment fee equal to $300,000 (the
"Amendment Fee"), in immediately available funds, which Amendment Fee may be
paid using the proceeds of Revolving Loans requested by the Administrative
Borrower on or prior to the Amendment Effective Date. Such Amendment Fee shall
be paid to the Senior Lenders by the Administrative Agent on the date such
Amendment Fee is paid in cash or charged to the Loan Account as follows: (i)
$200,000 to the Senior Lenders holding the Senior Term Loans in accordance with
such Senior Lenders' respective Pro Rata Shares of the Senior Term Loans and
(ii) $100,000 to the Revolving Loan Lenders in accordance with such Senior
Lenders' respective Pro Rata Shares of the Total Revolving Credit Commitment.
(d) All legal matters incident to this Amendment shall
be satisfactory to the Agents and their counsel.
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5. Representations and Warranties. Each Loan Party that
is a party to the Financing Agreement hereby represents and warrants to the
Agents and the Lenders as follows:
(a) Representations and Warranties: No Event of Default.
The representations and warranties herein, in Article VI of the Financing
Agreement and in each other Loan Document, certificate or other writing
delivered on or on behalf of any Loan Party to any Agent or any Lender pursuant
to the Financing Agreement or any other Loan Document on or prior to the
Amendment Effective Date are true and correct on and as of such date as though
made on and as of such date (except as otherwise disclosed in writing by any
Loan Party to any Agent prior to the date hereof), and no Default or Event of
Default has occurred and is continuing as of the Amendment Effective Date or
would result from this Amendment becoming effective in accordance with its
terms.
(b) Organization, Good Standing, Etc. 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, and to execute and deliver this Amendment, and to
consummate the transactions contemplated hereby and by the Financing Agreement,
as amended hereby, 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.
(c) Authorization, Etc. The execution, delivery and
performance of this Amendment and each other Loan Document being executed in
connection with this Amendment by each Loan Party that is a party thereto, and
the performance of the Financing Agreement as amended hereby (i) have been duly
authorized by all necessary action, (ii) do not and will not contravene such
Loan Party's 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 material 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.
(d) Governmental Approvals. No authorization or approval
or other action by, and no notice to or filing with, any Governmental Authority
is required in connection with the due execution, delivery and performance by
such Loan Party of this Amendment or any other Loan Document to which it is a
party being executed in connection with this Amendment, or for the performance
of the Financing Agreement, as amended hereby.
(e) Enforceability of Loan Documents. Each of this
Amendment, the Financing Agreement, as amended hereby, and each other Loan
Document to which such Loan Party is a party is a legal, valid and binding
obligation of such Loan Party, enforceable against such Loan Party in
accordance with its terms, except as such enforceability may be limited by or
subject to any bankruptcy, insolvency, reorganization, moratorium or other
similar laws and principles of equity.
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6. Continued Effectiveness of Financing Agreement. Each Loan
Party hereby (i) confirms and agrees that each Loan Document to which it is a
party is, and shall continue to be, in full force and effect and is hereby
ratified and confirmed in all respects except that on and after the Amendment
Effective Date all references in any such Loan Document 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, and (ii) confirms and agrees that to the extent that
any such Loan Document purports to assign or pledge to any Agent, or to grant
to any Agent, a Lien on any collateral as security for the Obligations of the
Borrowers from time to time existing in respect of the Financing Agreement and
the Loan Documents, such pledge, assignment and/or grant of a Lien is hereby
ratified and confirmed in all respects.
7. Miscellaneous.
(a) This Amendment may be executed in any number of
counterparts and by 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.
(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 laws of the State of New York.
(d) Each Loan Party hereby acknowledges and agrees 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 a Loan Party under or in connection
with this Amendment shall have been untrue, false or misleading in any material
respect when made, or (ii) a Loan Party shall fail to perform or observe any
term, covenant or agreement contained in this Amendment.
(e) Notwithstanding anything to the contrary, this
Amendment is not, and shall not be deemed to be, a waiver of, or a consent to
any Event of Default, event with which the giving of notice or lapse of time or
both may result in an Event of Default, or other noncompliance now existing or
hereafter arising under the Financing Agreement and the other Loan Documents.
(f) The Borrowers will pay on demand all reasonable
out-of-pocket costs and expenses of the Agents and the Lenders in connection
with the preparation, execution and delivery of this Amendment, including,
without limitation, the reasonable fees, disbursements and other charges of
Schulte Roth & Zabel LLP, counsel to the Collateral Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered as of the date first above written.
BORROWERS:
ALLIED HOLDINGS, INC.
ALLIED SYSTEMS, LTD. (L.P.)
By: /s/ Tommy Duffy
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Name: Tommy Duffy
Title: Senior V. P., Secretary and
General Counsel
GUARANTORS:
ALLIED AUTOMOTICE GROUP, INC.
ALLIED FREIGHT BROKER, INC.
ALLIED SYSTEMS (CANADA) COMPANY
AUTOMOTIVE TRANSPORT SERVICES, INC.
AXIS ARETA, LLC
AXIS CANADA COMPANY
AXIS GROUP, INC.
AXIS INTERNATIONAL, INC.
AXIS NETHERLANDS, LLC
AXIS NORTH AMERICA, INC.
AXIS TRUCK LEASING, INC.
B&C, INC.
CANADIAN ACQUISITION CORP.
COMMERCIAL CARRIERS, INC.
CORDIN TRANSPORT, INC.
CT GROUP, INC.
CT SERVICES, INC.
F. J. BOUTELL DRIVEAWAY CO., INC.
GACS INCORPORATED
INTER MOBILE, INC.
KAR-TAINER INTERNATIONAL, INC.
LEGION TRANSPORTATION, INC.
OSHCO, INC.
QAT, INC.
RC MANAGEMENT CORP.
RMX, INC.
TERMINAL SERVICE CO.
TRANSPORT SUPPORT, INC.
By: /s/ Tommy Duffy
----------------------------------------
Name: Tommy Duffy
Title: Senior V. P. and
Assistant Secretary
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COLLATERAL AGENT AND A SENIOR LENDER:
ABLECO FINANCE LLC
By: /s/ Kevin Genda
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Name: Kevin Genda
Title: Senior Vice President
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ADMINISTRATIVE AGENT AND A SENIOR LENDER:
FOOTHILL CAPITAL CORPORATION
By: /s/ Greg Gentry
----------------------------------------
Name: Greg Gentry
Title: Vice President
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SENIOR LENDERS:
CONGRESS FINANCIAL CORPORATION (SOUTHERN),
By: /s/ Barry M. Dolin
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Name: Barry M. Dolin
Title: Vice President
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: /s/ Patrick Aarris
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Name: Patrick Aarris
Title: Vice President
TEXTRON FINANCIAL CORORATION
By: /s/ Eric R. Hubbard
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Name: Eric R. Hubbard
Title:
HZ SPECIAL OPPORTUNITIES LLC
By: Highbridge Capital Management, LLC
By: /s/ Daniel Zwirn
----------------------------------------
Name: Daniel Zwirn
Title: Portfolio Manager
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