Exhibit 4.3(b)
SECOND AMENDMENT
TO FINANCING AGREEMENT
SECOND AMENDMENT, dated as of April 13, 2005 (this
"Amendment"), to the Amended and Restated Financing Agreement, dated as of
September 4, 2003, as amended by the First Amendment, dated as of November 23,
2004 (as amended, restated, modified, supplemented or otherwise changed from
time to time, the "Financing Agreement"), 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 Lender (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 Wells
Fargo Foothill, Inc., formerly known as Foothill Capital Corporation, a
California corporation ("Foothill"), 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").
RECITALS
The Borrowers, the Agents and the Lenders wish to amend
certain terms and provisions of the Financing Agreement in order to (a) create
an additional supplemental term loan in an aggregate principal amount equal to
$25,000,000 and (b) to amend certain other terms and conditions of the Financing
Agreement, in each case subject to the terms and conditions set forth in this
Amendment. The proceeds of such additional supplemental term loan will be used
to repay the Revolving Loans, to pay fees and expenses related to this Amendment
and to fund working capital of the Borrowers.
NOW, THEREFORE, the Borrowers, the Guarantors, the Agents and
the Lenders hereby agree as follows:
1. Capitalized Terms. All terms which are defined in the
Financing Agreement and not otherwise defined herein are used herein as defined
therein.
2. Amendments to Financing Agreement.
(a) Recitals. The second paragraph of the recitals to
the Financing Agreement is hereby amended and restated in its entirety to read
as follows:
"The Borrowers, the Guarantors, the Lenders and the
Agents wish to amend the Existing Financing Agreement in order to
restructure the Existing Credit Facility and, in that connection, to
amend and restate the Existing Financing Agreement in its entirety, to
provide for (i) the Existing Revolving Credit to be reduced from
$120,000,000 to $90,000,000, including a $50,000,000 subfacility for
the issuance of letters of credit, (ii) the repayment of the Existing
Term Loan D, (iii) the remaining Existing Term Loans, together with a
portion of the loans under the Existing Revolving Credit Facility, to
be amended and restated into a single $100,000,000 term loan (the
outstanding principal balance of which was $74,101,493.94 as of the
Second Amendment Effective Date), (iv) the Commitments (as hereinafter
defined) of the Lenders to be as set forth on Schedule 1.01(A) hereto,
and (v) certain other modifications contained herein. On (a) the First
Amendment Effective Date, the Borrowers, the Guarantors, the Lenders
and the Agents wish to amend the Financing Agreement in order to
provide for a supplemental term loan in the aggregate principal amount
of $20,000,000 and (b) the Second Amendment Effective Date, the
Borrowers, the Guarantors, the Lenders and the Agents wish to amend the
Financing Agreement in order to provide for an additional supplemental
term loan in the aggregate principal amount of $25,000,000."
(b) Existing Definitions. Each of the following
definitions in Section 1.01 of the Financing Agreement is hereby amended and
restated in its entirety to read as follows:
" 'Commitments' means, with respect to each Lender,
such Lender's Revolving Credit Commitment, Term Loan Commitment,
Supplemental Term Loan Commitment and Additional Supplemental Term Loan
Commitment."
" 'Consolidated Net Income' means, with respect to
any Person for any period, the net income (loss) of such Person and its
Subsidiaries for such period, determined on a consolidated basis and in
accordance with GAAP, but excluding from the determination of
Consolidated Net Income (without duplication) (a) any extraordinary or
non recurring gains or losses or gains or losses from Dispositions, (b)
restructuring charges, (c) effects of discontinued operations, (d)
non-cash expenses resulting from the grant of equity compensation to
its employees, (e) any non-cash income or loss attributable to any
intercompany foreign currency transactions, (f) any non-cash income or
loss attributable to any joint venture of any Person, (g) any non-cash
charges relating to the impairment of the Axis Entity's goodwill in an
aggregate amount not exceeding $12,000,000 and (h) any non-cash charges
attributable to not discounting self-insurance reserves previously
discounted in accordance with GAAP in an aggregate amount not exceeding
$12,000,000 in Fiscal Year 2004."
" 'Fee Letter' means, each of (a) the Fee Letter,
dated as of February 25, 2002, among the Borrowers, the Collateral
Agent and the Administrative Agent, (b) the Supplemental Fee Letter,
dated as of September 4, 2003, among the Borrowers, the Collateral
Agent and the Administrative Agent, (c) the Supplemental Term Loan Fee
Letter, (d) the Revolver Fee Letter, (e) the Additional Supplemental
Term Loan Fee Letter and (f) the Supplemental Revolver Fee Letter."
" 'Loan' means the Term Loan, the Supplemental Term
Loan, the Additional Supplemental Term Loan or any Revolving Loan made
by an Agent or a Lender to Allied Systems pursuant to Article II
hereof."
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" 'Pro Rata Share' means:
(a) with respect to a Revolving Loan Lender's
obligation to make Revolving Loans and receive payments of interest,
fees and principal with respect thereto, the percentage obtained by
dividing (i) such Lender's Revolving Credit Commitment, by (ii) the
Total Revolving Credit Commitment, provided, that, if the Total
Revolving Credit Commitment has been reduced to zero, the numerator
shall be the aggregate unpaid principal amount of such Lender's
Revolving Loans (including Agent Advances) and its interest in the
Letter of Credit Obligations and the denominator shall be the aggregate
unpaid principal amount of all Revolving Loans (including Agent
Advances) and Letter of Credit Obligations,
(b) with respect to a Term Loan Lender's obligation
to make the Term Loan and receive payments of interest, fees and
principal with respect thereto, the percentage obtained by dividing (i)
such Lender's Term Loan Commitment, by (ii) the Total Term Loan
Commitment, provided that if the Total Term Loan Commitment has been
reduced to zero, the numerator shall be the aggregate unpaid principal
amount of such Lender's portion of the Term Loan and the denominator
shall be the aggregate unpaid principal amount of the Term Loan,
(c) with respect to a Supplemental Term Loan Lender's
obligation to make the Supplemental Term Loan and receive payments of
interest, fees and principal with respect thereto, the percentage
obtained by dividing (i) such Lender's Supplemental Term Loan
Commitment, by (ii) the Total Supplemental Term Loan Commitment,
provided that if the Total Supplemental Term Loan Commitment has been
reduced to zero, the numerator shall be the aggregate unpaid principal
amount of such Lender's portion of the Supplemental Term Loan and the
denominator shall be the aggregate unpaid principal amount of the
Supplemental Term Loan,
(d) with respect to an Additional Supplemental Term
Loan Lender's obligation to make the Additional Supplemental Term Loan
and receive payments of interest, fees and principal with respect
thereto, the percentage obtained by dividing (i) such Lender's
Additional Supplemental Term Loan Commitment, by (ii) the Total
Additional Supplemental Term Loan Commitment, provided that if the
Total Additional Supplemental Term Loan Commitment has been reduced to
zero, the numerator shall be the aggregate unpaid principal amount of
such Lender's portion of the Additional Supplemental Term Loan and the
denominator shall be the aggregate unpaid principal amount of the
Additional Supplemental Term Loan,
(e) with respect to any indemnification obligations
under Section 10.05 arising from or related to the Collateral, the
percentage obtained by dividing (i) the sum of such Lender's Revolving
Credit Commitment and the unpaid principal amount of such Lender's
portion of the Term Loan, the Supplemental Term Loan and the Additional
Supplemental Term Loan, by (ii) the sum of the Total Revolving Credit
Commitment and the aggregate unpaid principal amount of the Term Loan,
the Supplemental Term Loan and the Additional Supplemental Term Loan,
provided, that, if such Lender's Revolving Credit Commitment shall have
been reduced to zero, such Lender's Revolving Credit
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Commitment shall be deemed to be the aggregate unpaid principal amount
of such Lender's Revolving Loans (including Agent Advances) and its
interest in the Letter of Credit Obligations and if the Total Revolving
Credit Commitment shall have been reduced to zero, the Total Revolving
Credit Commitment shall be deemed to be the aggregate unpaid principal
amount of all Revolving Loans (including Agent Advances) and Letter of
Credit Obligations, and
(f) with respect to all other matters, the percentage
obtained by dividing (i) the sum of such Lender's Revolving Credit
Commitment and the unpaid principal amount of such Lender's portion of
the Term Loan, the Supplemental Term Loan and the Additional
Supplemental Term Loan, by (ii) the sum of the Total Revolving Credit
Commitment and the aggregate unpaid principal amount of the Term Loan,
the Supplemental Term Loan and the Additional Supplemental Term Loan,
provided, that, if such Lender's Revolving Credit Commitment shall have
been reduced to zero, such Lender's Revolving Credit Commitment shall
be deemed to be the aggregate unpaid principal amount of such Lender's
Revolving Loans (including Agent Advances) and its interest in the
Letter of Credit Obligations and if the Total Revolving Credit
Commitment shall have been reduced to zero, the Total Revolving Credit
Commitment shall be deemed to be the aggregate unpaid principal amount
of all Revolving Loans (including Agent Advances) and Letter of Credit
Obligations."
" 'Required Lenders' means Lenders whose share of the
Term Loan, the Supplemental Term Loan and the Additional Supplemental
Term Loan aggregate at least 51%, which percentage is obtained by
dividing (i) the aggregate Term Loan Commitment, Supplemental Term Loan
Commitment and Additional Supplemental Term Loan Commitment of each
such Lender over (ii) the sum of the Total Term Loan Commitment, the
Total Supplemental Term Loan Commitment and the Total Additional
Supplemental Term Loan Commitment; provided that, if any such
Commitment shall have been reduced to zero, clause (i) with respect to
such Commitment shall be the aggregate unpaid principal amount of the
Loans of each such Lender relating to such Commitment and clause (ii)
with respect to such Commitment shall be the aggregate unpaid principal
amount of all Loans related to such Commitment."
" 'Required Revolving Lenders' means Lenders whose
Pro Rata Shares (calculated in accordance with clause (a) of the
definition thereof) of the Total Revolving Credit Commitment aggregate
at least 51%; provided, that such Lenders are composed of not less than
two Lenders which have the Revolving Credit Commitments, one of which
(together with its Affiliates) holds no Term Loan, Supplemental Term
Loan or Additional Supplemental Term Loan."
" 'Term Loan Obligations' means any Obligation with
respect to the Term Loan, the Supplemental Term Loan and/or the
Additional Supplemental Term Loan (including, without limitation, the
principal thereof, the interest thereon, and the fees and expenses
specifically related thereto)."
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" 'Total Commitment' means the sum of the Total
Revolving Credit Commitment, the Total Term Loan Commitment, the Total
Supplemental Term Loan Commitment and the Total Additional Supplemental
Term Loan Commitment."
(c) New Definitions. Each of the following
definitions are hereby added to Section 1.01 of the Financing Agreement in the
appropriate alphabetical order:
" 'Additional Supplemental Term Loan' means,
collectively, the loans made by the Additional Supplemental Term Loan
Lenders to Allied Systems on the Second Amendment Effective Date
pursuant to Section 2.01(a)(iv)."
" 'Additional Supplemental Term Loan Commitment'
means, with respect to each Lender, the commitment of such Lender to
make the Additional Supplemental Term Loan to Allied Systems in the
amount set forth in Schedule 1.01(A) hereto, as the same may be
terminated or reduced from time to time in accordance with the terms of
this Agreement."
" 'Additional Supplemental Term Loan Fee Letter'
means the Additional Supplemental Term Loan Fee Letter, dated as of
April 13, 2005, from the Borrowers to the Collateral Agent."
" 'Additional Supplemental Term Loan Lender' means a
Lender with an Additional Supplemental Term Loan Commitment."
" 'Second Amendment Effective Date' means the date on
which all of the conditions precedent to the effectiveness of the
Second Amendment to Financing Agreement, dated as of April 13, 2005, by
and among the Borrowers, the Lenders and the Agents have been fulfilled
or waived."
" 'Supplemental Revolver Fee Letter' means the
Supplemental Revolver Fee Letter, dated as of April 13, 2005, from the
Borrowers to the Administrative Agent."
" 'Total Additional Supplemental Term Loan
Commitment' means the sum of the amounts of the Lenders' Additional
Supplemental Term Loan Commitments."
(d) Commitments. Section 2.01 of the Financing
Agreement is hereby amended as follows:
(i) Section 2.01(a) of the Financing
Agreement is hereby amended by (A) deleting the "and" at the end of
clause (ii) thereof, (B) deleting the period at the end of clause (iii)
thereof and inserting in lieu thereof "; and" and (C) adding a new
clause (iv) immediately thereafter which shall read as follows:
"(iv) each Additional Supplemental Term Loan
Lender severally agrees to make the Additional Supplemental
Term Loan to Allied Systems on the Second Amendment Effective
Date, in an aggregate principal amount not to exceed the
amount of such Lender's Additional Supplemental Term Loan
Commitment."
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(ii) The last sentence of clause (ii) of
Section 2.01(b) of the Financing Agreement is hereby amended and
restated in its entirety to read as follows:
"The aggregate principal amount of (A) the
Supplemental Term Loan made on the First Amendment Effective
Date shall not exceed the Total Supplemental Term Loan
Commitment, and (B) the Additional Supplemental Term Loan made
on the Second Amendment Effective Date shall not exceed the
Total Additional Supplemental Term Loan Commitment."
(iii) The last sentence of clause (iii) of
Section 2.01(b) of the Financing Agreement is hereby amended and
restated in its entirety to read as follows:
"Any principal amount of the Supplemental
Term Loan or the Additional Supplemental Term Loan which is
repaid or prepaid may not be reborrowed."
(iv) Subclause (x) of Section 2.01(b)(iv) of
the Financing Agreement is hereby amended and restated in its entirety
to read as follows:
"(x) three and one quarter (3.25) (or, for
the two-month period commencing April 1, 2005 and ending May 31, 2005, three and
three quarters (3.75)) multiplied by"
(e) Making the Loans. Section 2.02 of the Financing
Agreement is hereby amended as follows:
(i) The second sentence of Section 2.02(a)
of the Financing Agreement is hereby amended and restated in its
entirety to read as follows:
"Such Notice of Borrowing shall be irrevocable and shall
specify (A) the principal amount of the proposed Loan (which,
in the case of a LIBOR Rate Loan, must be in a minimum amount
of $1,000,000 and in integral multiples of $500,000 in excess
thereof), (B) in the case of a Revolving Loan, whether such
Loan is requested to be a Reference Rate Loan or a LIBOR Rate
Loan and, in the case of a LIBOR Rate Loan, the initial
Interest Period with respect thereto, (C) in the case of Loans
requested on the Effective Date, the First Amendment Effective
Date or the Second Amendment Effective Date, whether such Loan
requested is to be a Revolving Loan, the Term Loan, the
Supplemental Term Loan or the Additional Supplemental Term
Loan, (D) the use of the proceeds of such proposed Loan and
(E) the proposed borrowing date, which must be a Business Day,
and, (x) with respect to the Term Loan, must be the Effective
Date, (y) with respect to the Supplemental Term Loan, must be
the First Amendment Effective Date and (z) with respect to the
Additional Supplemental Term Loan, must be the Second
Amendment Effective Date."
(ii) Section 2.02(c)(i) of the Financing
Agreement is hereby amended and restated in its entirety to read as
follows:
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"(c)(i) Except as otherwise provided in this
subsection 2.02(c), all Loans under this Agreement shall be
made by the Lenders simultaneously and proportionately to
their Pro Rata Shares of the Total Revolving Credit
Commitment, the Total Term Loan Commitment, the Total
Supplemental Term Loan Commitment and the Total Additional
Supplemental Term Loan Commitment, as the case may be, it
being understood that no Lender shall be responsible for any
default by any other Lender in that other Lender's obligations
to make a Loan requested hereunder, nor shall the Commitment
of any Lender be increased or decreased as a result of the
default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder, and each Lender shall be
obligated to make the Loans required to be made by it by the
terms of this Agreement regardless of the failure by any other
Lender."
(f) Repayment of Loans. Clause (ii) of Section
2.03(b) of the Financing Agreement is hereby amended and restated in its
entirety to read as follows:
"(ii) The outstanding principal of the Supplemental
Term Loan and the Additional Supplemental Term Loan shall be due and
payable on the Final Maturity Date."
(g) Interest. Clause (c) of Section 2.04 of the
Financing Agreement is hereby amended and restated in its entirety to read as
follows:
"(c) The Supplemental Term Loan and the Additional
Supplemental Term Loan shall each bear interest on the principal amount
thereof from time to time outstanding from the date of the Supplemental
Term Loan and the date of the Additional Supplemental Term Loan, as
applicable, until such principal amount becomes due, at a rate per
annum equal to the greater of (x) the Reference Rate plus 8.50% and (y)
13.25%, provided that if Consolidated EBITDA of the Parent and its
Subsidiaries for the Fiscal Year ending December 31, 2005, exceeds $70
million (to be calculated based upon the annual audited financial
statements of the Parent to be delivered in accordance with Section
7.01(a)(ii)), the Supplemental Term Loan and the Additional
Supplemental Term Loan shall each bear interest on the principal amount
thereof from time to time outstanding from the date that the Parent
delivers its annual audited financial statements pursuant to Section
7.01(a)(ii), together with delivery of its Form 10-K filed with the
SEC, until such principal amount becomes due, at a rate per annum equal
to the Applicable Interest Rate."
(h) Reduction of Commitments. Section 2.05(a) of the
Financing Agreement is hereby amended by inserting a new clause (iv) at the end
thereof which shall read as follows:
"(iv) Additional Supplemental Term Loan. The Total
Additional Supplemental Term Loan Commitment shall terminate at 5:00
p.m. (New York City time) on the Second Amendment Effective Date."
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(i) Optional Prepayment. Section 2.05(b)(ii) of the
Financing Agreement is hereby amended and restated in its entirety to read as
follows:
"(ii) Term Loan, Supplemental Term Loan and
Additional Supplemental Term Loan. Subject to Section 2.06(b), and
after the first anniversary of the Effective Date, Allied Systems may,
upon at least five (5) Business Days' prior written notice to the
Agents, prepay without penalty or premium the principal of the Term
Loan, the Supplemental Term Loan or the Additional Supplemental Term
Loan, or all such Loans, in whole or in part, if, immediately after
giving effect to such prepayment, Availability is greater than
$15,000,000; provided, that, the principal amount of the Supplemental
Term Loan and the Additional Supplemental Term Loan may not be prepaid
until after the aggregate principal amount of the Term Loan is paid in
full. Each prepayment of the Term Loan, the Supplemental Term Loan or
the Additional Supplemental Term Loan made pursuant to this clause
(b)(ii) shall be accompanied by the payment of accrued interest to the
date of such payment on the amount prepaid. Each prepayment of the Term
Loan shall be applied against the remaining installments of principal
due on the Term Loan in the inverse order of maturity."
(j) Mandatory Prepayment. Section 2.05(c)(ii) of the
Financing Agreement is hereby amended and restated in its entirety to read as
follows:
"(ii) Allied Systems will immediately prepay the
outstanding principal amount of the Term Loan, the Supplemental Term
Loan and the Additional Supplemental Term Loan in the event that the
Total Revolving Credit Commitment is terminated for any reason."
(k) Application of Payments. Section 2.05(d) of the
Financing Agreement is hereby amended and restated in its entirety to read as
follows:
"(d) Application of Payments. In the absence of an
Event of Default, the prepayment proceeds shall be applied as follows:
(i) if the proceeds are from any Disposition of any Account
Receivable, Inventory or Rolling Stock or any insurance policy or
condemnation award with respect to Inventory or Rolling Stock, such
proceeds shall be applied to the Revolving Loans until paid in full;
(ii) [intentionally omitted];
(iii) if the proceeds are from any Disposition of any
Facility, any other assets of the Loan Parties not described in clause
(i) above or any life insurance policy issued for the benefit of Parent
or any of its Subsidiaries, such proceeds shall be applied, first, to
the Term Loan until paid in full, second, ratably to the Supplemental
Term Loan and the Additional Supplemental Term Loan, until paid in
full, third, to the Revolving Loans until paid in full (and if the
payment is from the proceeds of a Disposition of a Facility, the Total
Revolving Credit Commitment shall be reduced by an amount equal to such
amount of proceeds applied to the Revolving Loans hereunder) and
fourth, to all other Obligations (including, without limitation, the
Prepayment Premium) until paid in full;
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(iv) if the proceeds are from a Disposition of all or
substantially all of the assets or Capital Stock of any Person
(including the proceeds as a result of a Disposition of the Capital
Stock or assets of any Axis Entity) or any insurance which Disposition
or proceeds of insurance includes both (x) Accounts Receivable,
Inventory or Rolling Stock and (y) other assets, such proceeds shall be
applied as follows: (1) an amount equal to the Net Book Value, or if
greater, an amount equal to the amount of Revolving Loans supported by
such assets determined using the effective advance rate under the
Borrowing Base against such Accounts Receivable, Inventory and Rolling
Stock (determined at the time of such Disposition or event resulting in
such insurance proceeds) shall be applied to the Revolving Loans until
paid in full and (2) the remaining proceeds shall be applied first, to
the Term Loan until paid in full, second, ratably to the Supplemental
Term Loan and the Additional Supplemental Term Loan, until paid in
full, third, to the Revolving Loans until paid in full and fourth, to
all other Obligations (including, without limitation, the Prepayment
Premium) until paid in full;
(v) if the proceeds are from Excess Cash Flow pursuant to
paragraph (c)(iv) above, such proceeds shall be applied, first, to the
Term Loan until paid in full, second, ratably to the Supplemental Term
Loan and the Additional Supplemental Term Loan, until paid in full,
third, to the Revolving Loans until paid in full and fourth, to all
other Obligations (including, without limitation, the Prepayment
Premium) until paid in full;
(vi) if the proceeds are from any event set forth in Section
2.05(c)(vi), (c)(vii) (other than proceeds from the Ryder Litigation)
or (c)(viii), such proceeds shall be applied first, to the Term Loan
until paid in full, second, ratably to the Supplemental Term Loan and
the Additional Supplemental Term Loan, until paid in full, third, to
the Revolving Loans until paid in full and fourth, to all other
Obligations (including, without limitation, the Prepayment Premium)
until paid in full; and
(vii) if the proceeds are from the Ryder Litigation, such
proceeds shall be applied as follows: the first $3,000,000 in the
aggregate from the Effective Date to the Revolving Loans until paid in
full and then to the Term Loan until paid in full and then the
remainder ratably to the Supplemental Term Loan and the Additional
Supplemental Term Loan, until paid in full;
Each such prepayment of the Term Loan shall be applied against
the remaining installments of principal of the Term Loan in the inverse order of
maturity."
(l) Early Termination by the Borrowers. The first
sentence of Section 2.06(b) is hereby amended and restated in its entirety to
read as follows:
"If the Total Revolving Credit Commitment is
terminated and all Obligations are paid in full (the
first date on which the Total Revolving Credit
Commitment is terminated and all Obligations are paid
in full is hereafter referred to as the "Facility
Termination Date") prior to the third anniversary of
the Effective Date, Allied Systems shall pay to the
Administrative Agent for the account of the Lenders
an amount equal to: (i) $3,800,000, if the Facility
Termination Date occurs at any time from
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the Effective Date until and including the first
anniversary of the Effective Date and (ii)
$1,900,000, if the Facility Termination Date occurs
at any time after the first anniversary of the
Effective Date until and including the third
anniversary of the Effective Date (such amount
referred to herein as the "Prepayment Premium")."
(m) Apportionment of Payments. Section 4.04 of the
Financing Agreement is hereby amended as follows:
(i) Clauses (x), (xi) and (xii) of Section 4.04(b) of the
Financing Agreement are hereby amended and restated in their entirety
to read as follows:
"; (x) tenth, ratably to pay the Term Loan
Obligations in respect of any fees, expense
reimbursements and indemnities then due to the
Supplemental Term Loan Lenders and the Additional
Supplemental Term Loan Lenders until paid in full;
(xi) eleventh, ratably to pay interest due in respect
of the Supplemental Term Loan and the Additional
Supplemental Term Loan until paid in full; (xii)
twelfth, ratably to pay principal of the Supplemental
Term Loan and the Additional Supplemental Term Loan
then due and payable until paid in full; and"
(ii) Section 4.04(e) of the Financing Agreement is hereby
amended and restated in its entirety to read as follows:
"(e) Notwithstanding anything contained in this
Agreement, including, without limitation, Section
2.05(d) and Section 4.04(b), after the occurrence and
during the continuance of an Event of Default, the
proceeds from the Disposition of a Facility shall be
applied to the Obligations in the following order of
priority: (A) first, ratably to pay principal of the
Term Loan then due and payable until paid in full;
(B) second, ratably to pay interest due in respect of
the Term Loan until paid in full; (C) third, ratably
to pay the Term Loan Obligations in respect of any
fees, expense reimbursements and indemnities then due
to the Term Loan Lenders until paid in full; (D)
fourth, ratably to pay principal of the Supplemental
Term Loan and the Additional Supplemental Term Loan
then due and payable until paid in full; (E) fifth,
ratably to pay interest due in respect of the
Supplemental Term Loan and the Additional
Supplemental Term Loan until paid in full; (F) sixth,
ratably to pay the Term Loan Obligations in respect
of any fees, expense reimbursements and indemnities
then due to the Supplemental Term Loan Lenders and
the Additional Supplemental Term Loan Lenders until
paid in full; (G) seventh, ratably to pay the
Obligations in respect of any fees (including any
fees or charges assessed by the L/C Issuer), expense
reimbursements, indemnities and other amounts then
due to the Agents or the L/C Issuer until paid in
full; (H) eighth, ratably to pay the Revolving Loan
Obligations in respect of any fees (including Letter
of Credit Fees), expense reimbursements and
indemnities then due to the Revolving Loan
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Lenders until paid in full; (I) ninth, ratably to pay
interest due in respect of the Agent Advances until
paid in full; (J) tenth, ratably to pay principal of
the Agent Advances until paid in full; (K) eleventh,
ratably to pay interest due in respect of the
Revolving Loans and Reimbursement Obligations until
paid in full; (L) twelfth, ratably to pay principal
of the Revolving Loans and Letter of Credit
Obligations (or, to the extent such Obligations are
contingent, to provide cash collateral in an amount
up to 110% of such Obligations) then due and payable
until paid in full; and (M) thirteenth, to the
ratable payment of all other Obligations then due and
payable (including, without limitation, the
Prepayment Premium)."
(n) Use of Proceeds. Section 6.01(t) of the Financing
Agreement is hereby amended and restated in its entirety to read as follows:
"(t) Use of Proceeds. The proceeds of the Loans shall
be used to (a) (i) in the case of Loans made on the Effective Date,
restructure existing indebtedness of the Borrowers, including the
Existing Term D Loan under the Existing Financing Agreement, and (ii)
in the case of the Supplemental Term Loan and the Additional
Supplemental Term Loan, prepay certain Revolving Loans outstanding on
the First Amendment Effective Date and the Second Amendment Effective
Date, as applicable, (b) pay fees and expenses in connection with the
transactions contemplated hereby, and (c) fund working capital of the
Loan Parties. The Letters of Credit will be used to support the
Canadian Facility, certain cash management arrangements of the Loan
Parties and other general working capital purposes."
(o) Reporting Requirements. Clause (ii) of Section
7.01(a) of the Financing Agreement is hereby amended by adding immediately after
the reference to "90 days" the parenthetical phrase "(or, for the Fiscal Year
2004, 105 days)".
(p) Consolidated EBITDA. Clause (b) of Section 7.03
of the Financing Agreement is hereby amended and restated in its entirety to
read as follows:
"(b) 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
for the twelve (12) consecutive months ending on the last day of each
month from and including December 31, 2004 through April 30, 2005,
Consolidated EBITDA of the Parent and its Subsidiaries shall not be
less than $46,000,000."
(q) Schedules. Schedule 1.01(A) to the Financing
Agreement is hereby amended in its entirety to read as set forth on Annex A
attached hereto.
3. Conditions Precedent. This Amendment shall become effective
only upon satisfaction in full of the following conditions precedent (the first
date upon which all such conditions have been satisfied being herein called the
"Second Amendment Effective Date"):
(a) Representations and Warranties; No Event of
Default. 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 Second Amendment Effective
-11-
Date 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 Second Amendment Effective Date either immediately before or
after giving effect to this Amendment in accordance with its terms.
(b) Delivery of Documents. The Collateral Agent shall
have received on or before the Second Amendment Effective Date, the following,
each in form and substance reasonably satisfactory to the Collateral Agent and,
unless otherwise indicated, dated as of the Second Amendment Effective Date:
(i) counterparts of this Amendment, duly
executed by each of the Loan Parties, the Agents and the Lenders;
(ii) the Additional Supplemental Term Loan
Fee Letter, duly executed by the Borrowers;
(iii) a copy of the resolutions of each Loan
Party, certified as of the Second Amendment Effective Date by an
Authorized Officer thereof, authorizing the execution and delivery of
this Amendment and the other documents to be executed and delivered by
such Person in connection herewith and authorizing the transactions
contemplated hereby and certified by the Secretary of each Loan Party;
(iv) a certificate of an Authorized Officer
of each Loan Party, certifying the names and true signatures of the
representatives of such Loan Party authorized to sign this Amendment
and the other documents to be executed and delivered by such Person in
connection herewith, together with evidence of the incumbency of such
Authorized Officers;
(v) a certificate of the chief financial
officer of the Parent, certifying that after giving effect to the
transactions contemplated by this Amendment and before and after giving
effect to the Additional Supplemental Term Loan and this Amendment,
each of the Borrowers individually is, and the Loan Parties on a
consolidated basis are, Solvent;
(vi) a certificate of an Authorized Officer
of each Borrower, certifying as to the matters set forth in clause (a)
of this Section 3;
(vii) an opinion of counsel for the Loan
Parties, as to such matters as the Collateral Agent may reasonably
request;
(viii) a certificate of the appropriate
official(s) of the state or, federal government or provincial authority
of Canada, as the case may be, of organization certifying as to the
subsistence in good standing of such Designated Loan Party in such
states, provinces or other applicable jurisdiction;
(ix) a certificate of an Authorized Officer
of each Loan Party certifying that the charter and by-laws, limited
liability company agreement, operating
-12-
agreement, agreement of limited partnership or other organizational
documents delivered to the Collateral Agent pursuant to the Existing
Financing Agreement remain in full force and effect and have not been
amended or modified since the Effective Date, in the case of the
Borrowers, and December 31, 2003, in the case of the other Loan
Parties;
(x) a modification (each a "Modification")
to each Mortgage necessary or desirable in order to maintain perfection
and priority of the Lien granted by such Mortgage, referencing, as
necessary, this Amendment, duly executed by the applicable Loan Party,
with respect to each Facility subject to such Mortgage; and
(xi) such other agreements, instruments,
approvals, opinions and other documents as the Collateral Agent may
reasonably request.
(c) Proceedings. All proceedings in connection with
the transactions contemplated by this Amendment, and all documents incidental
hereto, shall be reasonably satisfactory to the Collateral Agent and its
counsel.
(d) Fees, Etc. The Borrowers shall have paid all fees
(including without limitation, the fees pursuant to the Additional Supplemental
Term Loan Fee Letter and the Supplemental Revolver Fee Letter), costs, expenses
and taxes then payable by the Borrowers pursuant to the Financing Agreement and
the other Loan Documents, including, without limitation, Section 2.06 and 12.04
of the Financing Agreement.
4. Further Agreement. The Borrowers further agree to deliver
to the Collateral Agent, within forty-five (45) days after the Second Amendment
Effective Date, (i) a valid and effective title insurance policy issued by a
company and agent acceptable to the Collateral Agent (A) insuring the priority,
amount and sufficiency of the Mortgages, as amended by the Modifications, (B)
insuring against matters that would be disclosed by surveys and (C) containing
any legally available endorsements, assurances or affirmative coverage
reasonably requested by the Collateral Agent for protection of its interests and
(ii) evidence of delivery of each Modification in such office or offices as may
be necessary or, in the opinion of the Collateral Agent, desirable to perfect
the Lien purported to be created thereby or to otherwise protect the rights of
the Collateral Agent and the Lenders thereunder.
5. Representations and Warranties. Each Loan Party represents
and warrants to the Agents, the Lenders and the L/C Issuer as follows:
(a) 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, 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
-13-
qualification necessary and where the failure to be so qualified would
reasonably be expected to have a Material Adverse Effect.
(b) Authorization, Etc. 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) Governmental Approvals. 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) Enforceability of Loan Documents. 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) Representations and Warranties; No Default. 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
Second Amendment Effective Date 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 Second Amendment Effective Date
either immediately before or after giving effect to this Amendment in accordance
with its terms.
6. Continued Effectiveness of the Financing Agreement.
(a) Ratifications. 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 Second 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
-14-
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) 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) No Waivers. 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.
(c) Amendment as Loan Document. Each Loan Party
confirms and agrees that this Amendment shall constitute a Loan Document under
the Financing Agreement. Accordingly, it shall be an Event of Default under the
Financing Agreement if any representation or warranty made or deemed made by any
Loan Party under or in connection with this Amendment shall have been incorrect
in any material respect when made or deemed made or if any Loan Party fails to
perform or comply with any covenant or agreement contained herein.
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
Second 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
-15-
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.
8. New Lender. Upon the effectiveness of this Amendment, Upper
Columbia Capital Company, LLC will be a "Lender" under the Financing Agreement
and the other Loan Documents, agrees to be bound by the terms and conditions of
the Financing Agreement and the other Loan Documents and will have all of the
rights and obligations of a Lender under the Financing Agreement and the other
Loan Documents.
9. Miscellaneous.
(a) Counterparts. 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. Delivery of an
executed counterpart of this Amendment by facsimile or electronic mail shall be
equally effective as delivery of an original executed counterpart of this
Amendment.
(b) Headings. 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) Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
(d) Expenses. Allied Systems will pay on demand all
reasonable fees, costs and expenses of the Agents in connection with the
preparation, execution and delivery of this Amendment and all documents
incidental hereto, including, without limitation, the reasonable fees,
disbursements and other charges of counsel to the Agents.
[remainder of page intentionally left blank; signature pages follow]
-16-
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 ARETA, LLC
AXIS CANADA COMPANY
AXIS GROUP, INC.
AXIS NETHERLANDS, LLC
COMMERCIAL CARRIERS, INC.
CORDIN TRANSPORT, LLC
CT SERVICES, INC.
F.J. BOUTELL DRIVEAWAY LLC
GACS INCORPORATED
KAR-TAINER INTERNATIONAL, LLC
QAT, INC.
RMX LLC
TERMINAL SERVICE LLC
TRANSPORT SUPPORT, LLC
By:
-----------------------------
Name:
Title:
SECOND AMENDMENT TO FINANCING AGREEMENT
COLLATERAL AGENT AND LENDER:
ABLECO FINANCE LLC
By:
-----------------------------
Name:
Title:
SECOND AMENDMENT TO FINANCING AGREEMENT
ADMINISTRATIVE AGENT AND LENDER:
WELLS FARGO FOOTHILL, INC., formerly
known as Foothill Capital Corporation
By:
---------------------------------
Name:
Title:
SECOND AMENDMENT TO FINANCING AGREEMENT
LENDERS:
A3 FUNDING LP
By: A3 Fund Management LLC,
its General Partner
By:
----------------------------------------
Name:
Title:
STYX INTERNATIONAL, LTD.
By: Partridge Hill 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:
SECOND AMENDMENT TO FINANCING AGREEMENT
A4 FUNDING LP
By: A4 Fund Management Inc.,
its General Partner
By:
----------------------------------------
Name:
Title:
SECOND AMENDMENT TO FINANCING AGREEMENT
ADAMS 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:
SECOND AMENDMENT TO FINANCING AGREEMENT
STELLAR FUNDING, LTD.
By:
----------------------------------------
Name:
Title:
SECOND AMENDMENT TO FINANCING AGREEMENT
UPPER COLUMBIA CAPITAL COMPANY, LLC
By:
----------------------------------------
Name:
Title:
SECOND 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:
SECOND AMENDMENT TO FINANCING AGREEMENT
CONGRESS FINANCIAL CORPORATION
(CENTRAL)
By:
----------------------------------------
Name:
Title:
SECOND 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:
SECOND AMENDMENT TO FINANCING AGREEMENT
TEXTRON FINANCIAL CORPORATION
By:
----------------------------------------
Name:
Title:
SECOND AMENDMENT TO FINANCING AGREEMENT
HCM/Z SPECIAL OPPORTUNITIES LLC,
formerly known as HZ Special Opportunities
LLC
By: Highbridge Capital Management, LLC
By:
----------------------------------------
Name:
Title:
SECOND AMENDMENT TO FINANCING AGREEMENT
BERNARD GLOBAL LOAN INVESTORS, LTD.,
formerly known as Bernard Leveraged
Loan Investors, Ltd.
By:
----------------------------------------
Name:
Title:
BERNARD NATIONAL LOAN INVESTORS, LTD.
By:
----------------------------------------
Name:
Title:
SECOND AMENDMENT TO FINANCING AGREEMENT
ANNEX A
SCHEDULE 1.01(A)
LENDERS AND LENDERS' COMMITMENTS*
<Table>
<Caption>
% of Total
Revolving Revolving % of Total Supplemental
Credit Credit Outstanding Outstanding Term Loan
Name and Address Commitment Commitment Term Loan Term Loan Commitment
- ---------------- ---------- ---------- ----------- ----------- ------------
Ableco Finance LLC - 0 - - 0 - $14,674,541.15 19.80% $12,002,000.00
299 Park Avenue, 23rd Floor
New York, New York 10171
- -----------------------------------------------------------------------------------------------------------------------
A3 Funding LP - 0 - - 0 - - 0 - - 0 - - 0 -
299 Park Avenue, 23rd Floor
New York, New York 10171
- -----------------------------------------------------------------------------------------------------------------------
A4 Funding LP - 0 - - 0 - $ 5,958,753.09 8.04% - 0 -
- -----------------------------------------------------------------------------------------------------------------------
299 Park Avenue, 23rd Floor
New York, New York 10171
- -----------------------------------------------------------------------------------------------------------------------
Styx International, Ltd. - 0 - - 0 - $17,692,818.40 23.88% - 0 -
299 Park Avenue, 23rd Floor
New York, New York 10171
- -----------------------------------------------------------------------------------------------------------------------
The Long Horizons Overseas Fund, Ltd. - 0 - - 0 - $ 6,142,193.87 8.29% - 0 -
299 Park Avenue, 23rd Floor
New York, New York 10171
- -----------------------------------------------------------------------------------------------------------------------
Adams Street CBO 1998-1, Ltd. - 0 - - 0 - $ 3,705,074.70 5.00% - 0 -
135 West 57th Street, 9th Floor
New York, New York 10022
- -----------------------------------------------------------------------------------------------------------------------
1888 Fund, Ltd. - 0 - - 0 - $ 2,208,224.52 2.98% - 0 -
135 West 57th Street, 9th Floor
New York, New York 10022
- -----------------------------------------------------------------------------------------------------------------------
<Caption>
% of
% of Additional Additional
Supplemental Supplemental Supplemental
Term Loan Term Loan Term Loan % of Total
Name and Address Commitment Commitment Commitment Commitment
- ---------------- ------------ ------------ ------------ ----------
Ableco Finance LLC 60.01% - 0 - - 0 - 12.76%
299 Park Avenue, 23rd Floor
New York, New York 10171
- ---------------------------------------------------------------------------------------------------------
A3 Funding LP - 0 - $15,002,500 60.01% 7.17%
299 Park Avenue, 23rd Floor
New York, New York 10171
- ---------------------------------------------------------------------------------------------------------
A4 Funding LP - 0 - - 0 - - 0 - 2.85%
- ---------------------------------------------------------------------------------------------------------
299 Park Avenue, 23rd Floor
New York, New York 10171
- ---------------------------------------------------------------------------------------------------------
Styx International, Ltd. - 0 - - 0 - - 0 - 8.46%
299 Park Avenue, 23rd Floor
New York, New York 10171
- ---------------------------------------------------------------------------------------------------------
The Long Horizons Overseas Fund, Ltd. - 0 - - 0 - - 0 - 2.94%
299 Park Avenue, 23rd Floor
New York, New York 10171
- ---------------------------------------------------------------------------------------------------------
Adams Street CBO 1998-1, Ltd. - 0 - - 0 - - 0 - 1.77%
135 West 57th Street, 9th Floor
New York, New York 10022
- ---------------------------------------------------------------------------------------------------------
1888 Fund, Ltd. - 0 - - 0 - - 0 - 1.06%
135 West 57th Street, 9th Floor
New York, New York 10022
- ---------------------------------------------------------------------------------------------------------
</Table>
- ---------------
* The Lenders and Lenders' Commitments listed herein are current as of
April 13, 2005 and take into account permanent repayments of the Term
Loan since the Effective Date.
SECOND AMENDMENT TO FINANCING AGREEMENT
<Table>
<Caption>
% of Total
Revolving Revolving % of Total Supplemental
Credit Credit Outstanding Outstanding Term Loan
Name and Address Commitment Commitment Term Loan Term Loan Commitment
- ---------------- ---------- ---------- ----------- ----------- ------------
Fortwirth CDO Ltd. - 0 - - 0 - $ 3,705,074.70 5.00% - 0 -
135 West 57th Street, 9th Floor
New York, New York 10022
- ----------------------------------------------------------------------------------------------------------------------
Magma CDO Ltd. - 0 - - 0 - $ 1,482,029.88 2.00% - 0 -
135 West 57th Street, 9th Floor
New York, New York 10022
- ----------------------------------------------------------------------------------------------------------------------
Stellar Funding, Ltd. - 0 - - 0 - - 0 - - 0 - $ 2,996,000
135 West 57th Street, 9th Floor
New York, New York 10022
- ----------------------------------------------------------------------------------------------------------------------
Upper Columbia Capital Company, LLC - 0 - - 0 - - 0 - - 0 - - 0 -
- ----------------------------------------------------------------------------------------------------------------------
135 West 57th Street, 23rd Floor
New York, New York 10022
- ----------------------------------------------------------------------------------------------------------------------
Fortress Credit Opportunities I LP - 0 - - 0 - $ 4,260,835.90 5.75% $ 2,000,000
1251 Avenue of the Americas, 16th Floor
New York, New York 10020
Fortress Credit Opportunities II LP - 0 - - 0 - $ 3,149,313.49 4.25% - 0 -
1251 Avenue of the Americas, 16th Floor
New York, New York 10020
- ----------------------------------------------------------------------------------------------------------------------
DB Special Opportunities LLC - 0 - - 0 - $ 3,705,074.70 5.00% $ 1,000,000
1251 Avenue of the Americas, 16th Floor
New York, New York 10020
- ----------------------------------------------------------------------------------------------------------------------
Bernard National Loan Investors, Ltd. - 0 - - 0 - $ 2,452,759.45 3.31% $ 662,000
9 West 57th Street
New York, New York 10019
- ----------------------------------------------------------------------------------------------------------------------
Bernard Global Loan Investors, Ltd. - 0 - - 0 - $ 4,031,121.27 5.44% $ 1,088,000
ABNAMRO/LaSalle Bank
CDO Trust Services
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
- ----------------------------------------------------------------------------------------------------------------------
<Caption>
% of
% of Additional Additional
Supplemental Supplemental Supplemental
Term Loan Term Loan Term Loan % of Total
Name and Address Commitment Commitment Commitment Commitment
- ---------------- ------------ ------------ ------------ ----------
Fortwirth CDO Ltd. - 0 - - 0 - - 0 - 1.77%
135 West 57th Street, 9th Floor
New York, New York 10022
- ------------------------------------------------------------------------------------------------------------
Magma CDO Ltd. - 0 - - 0 - - 0 - 0.71%
135 West 57th Street, 9th Floor
New York, New York 10022
- ------------------------------------------------------------------------------------------------------------
Stellar Funding, Ltd. 14.98% - 0 - - 0 - 1.43%
135 West 57th Street, 9th Floor
New York, New York 10022
- ------------------------------------------------------------------------------------------------------------
Upper Columbia Capital Company, LLC - 0 - $ 3,745,000 14.98% 1.79%
- ------------------------------------------------------------------------------------------------------------
135 West 57th Street, 23rd Floor
New York, New York 10022
- ------------------------------------------------------------------------------------------------------------
Fortress Credit Opportunities I LP 10.00% $ 2,500,000 10.00% 4.19%
1251 Avenue of the Americas, 16th Floor
New York, New York 10020
Fortress Credit Opportunities II LP - 0 - - 0 - - 0 - 1.51%
1251 Avenue of the Americas, 16th Floor
New York, New York 10020
- ------------------------------------------------------------------------------------------------------------
DB Special Opportunities LLC 5.00% $ 1,250,000 5.00% 2.85%
1251 Avenue of the Americas, 16th Floor
New York, New York 10020
- ------------------------------------------------------------------------------------------------------------
Bernard National Loan Investors, Ltd. 3.31% $ 827,500 3.31% 1.88%
9 West 57th Street
New York, New York 10019
- ------------------------------------------------------------------------------------------------------------
Bernard Global Loan Investors, Ltd. 5.44% $ 1,360,000 5.44% 3.10%
ABNAMRO/LaSalle Bank
CDO Trust Services
135 S. LaSalle Street, Suite 1625
Chicago, Illinois 60603
- ------------------------------------------------------------------------------------------------------------
</Table>
SECOND AMENDMENT TO FINANCING AGREEMENT
<Table>
<Caption>
% of Total
Revolving Revolving % of Total Supplemental
Credit Credit Outstanding Outstanding Term Loan
Name and Address Commitment Commitment Term Loan Term Loan Commitment
- ---------------- ---------- ---------- ----------- ----------- ------------
Wells Fargo Foothill, Inc. $30,000,000.00 33.3333% - 0 - - 0 - - 0 -
2450 Colorado Avenue, Suite 3000 West
Santa Monica, California 90404
- ----------------------------------------------------------------------------------------------------------------------
Congress Financial Corporation $24,000,000.00 26.6667% - 0 - - 0 - - 0 -
(Central)
150 South Wacker Drive, Suite 2200
Chicago, Illinois 60606-4401
- ----------------------------------------------------------------------------------------------------------------------
Textron Financial Corporation $15,000,000.00 16.6667% - 0 - - 0 - - 0 -
4550 North Point Parkway, Suite 400
Alpharetta, Georgia 30022
- ----------------------------------------------------------------------------------------------------------------------
Standard Federal Bank National $18,750,000.00 20.8333% - 0 - - 0 - - 0 -
Association
3060 Peachtree Road, Suite 890
Atlanta, Georgia 30305
- ----------------------------------------------------------------------------------------------------------------------
HCM/Z Special Opportunities LLC $ 2,250,000.00 2.5000% $ 933,678.82 1.26% $ 252,000
9 West 57th Street
New York, New York 10019
- ----------------------------------------------------------------------------------------------------------------------
$90,000,000.00 100% $74,101,493.94 100% $ 20,000,000
============== === ============== === ============
<Caption>
% of
% of Additional Additional
Supplemental Supplemental Supplemental
Term Loan Term Loan Term Loan % of Total
Name and Address Commitment Commitment Commitment Commitment
- ---------------- ------------ ------------ ------------ ----------
Wells Fargo Foothill, Inc. - 0 - - 0 - - 0 - 14.35%
2450 Colorado Avenue, Suite 3000 West
Santa Monica, California 90404
- ------------------------------------------------------------------------------------------------------------
Congress Financial Corporation - 0 - - 0 - - 0 - 11.48%
(Central)
150 South Wacker Drive, Suite 2200
Chicago, Illinois 60606-4401
- ------------------------------------------------------------------------------------------------------------
Textron Financial Corporation - 0 - - 0 - - 0 - 7.17%
4550 North Point Parkway, Suite 400
Alpharetta, Georgia 30022
- ------------------------------------------------------------------------------------------------------------
Standard Federal Bank National - 0 - - 0 - - 0 - 8.97%
Association
3060 Peachtree Road, Suite 890
Atlanta, Georgia 30305
- ------------------------------------------------------------------------------------------------------------
HCM/Z Special Opportunities LLC 1.26% $ 315,000 1.26% 1.79%
9 West 57th Street
New York, New York 10019
- ------------------------------------------------------------------------------------------------------------
100% $25,000,000 100% 100%
=== =========== === ===
</Table>
SECOND AMENDMENT TO FINANCING AGREEMENT