Exhibit 4.3(b)
EXECUTION COPY
CONSENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
This CONSENT, dated as of January 30, 2006 (this "Consent"), is by and
among (a) ALLIED HOLDINGS, INC., a Georgia corporation ("Allied Holdings"), and
ALLIED SYSTEMS, LTD. (L.P.), a Georgia limited partnership ("Allied Systems"
and, together with Allied Holdings, "Borrowers"), each, a debtor and
debtor-in-possession; (b) the other Credit Parties signatory hereto (the "Credit
Party" and, together with the Borrowers, the "Credit Parties"); (c) GENERAL
ELECTRIC CAPITAL CORPORATION, as Administrative Agent (in such capacity, the
"Administrative Agent"), Collateral Agent, Revolver Agent and co-Syndication
Agent ("GE Capital"): (d) MORGAN STANLEY SENIOR FUNDING, INC., as co-Term Loan B
Agent, co-Syndication Agent, co-Bookrunner and co-Term Loan B Lead Arranger
("Morgan Stanley"); (e) MARATHON STRUCTURED FINANCE FUND, L.P., as Term Loan A
Agent, co-Term Loan B Agent, Term Loan A Lead Arranger, co-Term Loan B Lead
Arranger and co-Revolver Lead Arranger ("Marathon"); and (f) the other Lenders
signatory hereto from time to time.
WITNESSETH
WHEREAS, the Credit Parties, the Lenders party to the Credit Agreement
from time to time, GE Capital, Morgan Stanley and Marathon are parties to that
certain Senior Secured, Super-Priority Debtor-in-Possession Credit Agreement,
dated as of August 1, 2005 (including all annexes, exhibits and schedules
thereto, and as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"); and
WHEREAS, the Administrative Agent and the Requisite Lenders have
agreed to consent to certain transactions in the manner, and on the terms and
conditions, provided for herein.
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement.
2. Consent. The Credit Parties have informed the Administrative Agent
and the Lenders that the Credit Parties will be unable to deliver their annual
operating plan for Fiscal Year 2006 and related deliveries within the time frame
required by Section 4.1(a) and Annex E, clause (c), and have requested that the
Requisite Lenders extend the date for such delivery to February 28, 2006 (the
"Extension"). As of the Effective Date, subject to the terms hereof, the
Requisite Lenders hereby consent to the Extension.
3. Representations and Warranties. To induce the Requisite Lenders to
enter into this Consent, each of the Credit Parties executing this Consent,
jointly and severally, makes the following representations and warranties:
(a) The execution, delivery and performance by such Credit Party
of this Consent: (i) are within such Credit Party's power; (ii) have been duly
authorized by all necessary corporate, limited liability company or limited
partnership action; (iii) do not contravene any provision of such Credit Party's
charter, bylaws or partnership or operating
agreement as applicable; (iv) do not violate any law or regulation, or any order
or decree of any court or Governmental Authority; (v) do not conflict with or
result in the breach or termination of, constitute a default under or accelerate
or permit the acceleration of any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to which such
Credit Party is a party or by which such Credit Party or any of its property is
bound; (vi) do not result in the creation or imposition of any Lien upon any of
the property of such Credit Party; and (vii) do not require the consent or
approval of any Governmental Authority or any other Person.
(b) This Consent has been duly executed and delivered by or on
behalf of such Credit Party.
(c) Each of this Consent and the Credit Agreement constitutes a
legal, valid and binding obligation of such Credit Party, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
relative to or affecting the enforcement of creditors' rights generally in
effect from time to time and by general principles of equity.
(d) No Default or Event of Default has occurred and is continuing
after giving effect to this Consent.
(e) Other than the commencement of the Chapter 11 Cases, no
action, claim, lawsuit, demand, investigation or proceeding is now pending or,
to the knowledge of such Credit Party, threatened against such Credit Party,
before any Governmental Authority or before any arbitrator or panel of
arbitrators, (i) that challenges such Credit Party's right or power to enter
into or perform any of its obligations under this Consent or the other Loan
Documents to which it is a party, or the validity or enforceability of any Loan
Document or any action taken thereunder, or (ii) that has a reasonable risk of
being determined adversely to any Credit Party and that, if so determined, would
reasonably be expected to have a Material Adverse Effect.
(f) The representations and warranties of such Credit Party
contained in the Credit Agreement and each other Loan Document shall be true and
correct on and as of the Effective Date with the same effect as if such
representations and warranties had been made on and as of such date, except that
any such representation or warranty which is expressly made only as of a
specified date need be true only as of such date.
4. No Other Consents/Waivers. Except as expressly provided herein, (a)
the Credit Agreement shall be unmodified and shall continue to be in full force
and effect in accordance with its terms and (b) this Consent shall not be deemed
a waiver of any term or condition of any Loan Document and shall not be deemed
to prejudice any right or rights which any Agent or any Lender may now have or
may have in the future under or in connection with any Loan Document or any of
the instruments or agreements referred to therein, as the same may be amended
from time to time.
5. Outstanding Indebtedness; Waiver of Claims. The Credit Parties
hereby acknowledge and agree that as of January 30, 2006, the aggregate
outstanding principal amount of the (i) Revolving Loan is $47,448,063.26, (ii)
Term Loan A is $20,000,000 and (iii) Term Loan B is $80,000,000 (collectively,
the "Outstanding Obligations"), and that such principal amounts are payable
pursuant to the Credit Agreement
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without defense, offset, withholding, counterclaim or deduction of any kind.
Each of the Credit Parties hereby waives, releases, remises and forever
discharges Agents, the Lenders and each other Indemnified Person from any and
all claims, suits, actions, investigations, proceedings or demands arising out
of or in connection with the Credit Agreement (collectively, "Claims"), whether
based in contract, tort, implied or express warranty, strict liability, criminal
or civil statute or common law of any kind or character, known or unknown, which
such Credit Parties ever had, now has or might hereafter have against Agents or
the Lenders which relates, directly or indirectly, to any acts or omissions of
Agents, the Lenders or any other Indemnified Person on or prior to the date
hereof; provided that, Credit Parties do not waive any Claim solely to the
extent such Claim relates to any Agent's or any Lender's gross negligence or
willful misconduct.
6. Expenses. Borrowers hereby reconfirm their obligations pursuant to
Section 11.3 of the Credit Agreement to pay and reimburse Agents for all
reasonable costs and expenses (including, without limitation, reasonable fees of
counsel) incurred in connection with the negotiation, preparation, execution and
delivery of this Consent and all other documents and instruments delivered in
connection herewith.
7. Effectiveness. This Consent shall become effective as of the date
hereof (the "Effective Date") only upon satisfaction in full in the judgment of
Administrative Agent of each of the following conditions:
(a) Consent. Administrative Agent shall have received ten (10)
original copies (or facsimile copies to be promptly followed by originals) of
this Consent duly executed and delivered by Credit Parties and the Requisite
Lenders.
(b) Payment of Expenses. Borrowers shall have paid to Agents all
costs, fees and expenses invoiced and owing in connection with this Consent and
the other Loan Documents and due to Agents (including, without limitation,
reasonable legal fees and expenses).
(c) Representations and Warranties. The representations and
warranties of or on behalf of the Credit Parties in this Consent shall be true
and correct on and as of the Effective Date.
8. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY, AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. Counterparts. This Consent may be executed by the parties hereto on
any number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, this Consent has been duly executed as of the date
first written above.
BORROWERS:
ALLIED HOLDINGS, INC.
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & CFO
ALLIED SYSTEMS, LTD. (L.P.)
By: /s/ Thomas H. King
------------------------------------
Name: Thomas H. King
Title: Exec VP & asst Treasurer
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LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION, as
Administrative Agent, Collateral Agent,
co-Revolver Agent and Lender
By: /s/ Charles H Fenton
------------------------------------
Name: Charles H Fenton
Title: Duly Authorized Signatory
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MORGAN STANLEY SENIOR FUNDING, INC., as
co-Term Loan B Agent, co-Syndication
Agent and Lender
By: /s/ Jason Colodne
------------------------------------
Name: Jason Colodne
Title: Authorized Signatory
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MARATHON STRUCTURED FINANCE
FUND, L.P., as Term Loan A Agent, co-Term
Loan B Agent and Lender
By: /s/ Louis T. Hanover
-------------------------------------
Name: Louis T. Hanover
Title: Chief Investment Officer
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FORTRESS CREDIT OPPORTUNITIES I LP,
as Lender
By: /s/ MARC K. FURSTEIN
-------------------------------------
Name: MARC K. FURSTEIN
Title: CHIEF OPERATING OFFICER
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HAMPTON FUNDING LLC, as Lender
By: /s/ M. Cristina Higgins
-------------------------------------
Name: M. Cristina Higgins
Title: Assistant Vice President
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The CIT Group \ Business
Credit Inc., as Lender
By: /s/ Mark J. Long
-------------------------------------
Name: Mark J. Long
Title: Vice President
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Wells Fargo Foothill, LLC, as Lender
By: /s/ Eunnie Kim
-------------------------------------
Name: Eunnie Kim
Title: VP
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The following Persons are signatory to this Consent in their capacity as
Credit Parties and not as the Borrowers.
ACE OPERATIONS, LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King for Axis Group INC
Title: Sole member ACE Operation LLC
AH INDUSTRIES INC.
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
ALLIED AUTOMOTIVE GROUP, INC.
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
ALLIED FREIGHT BROKER LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
ALLIED SYSTEMS (CANADA) COMPANY
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & asst Treasurer
AXIS ARETA, LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King for Kar-Tainer
Title: International sole Member
AXIS Areta, LLC
AXIS CANADA COMPANY
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
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AXIS GROUP, INC.
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & asst Treasurer
AXIS NETHERLANDS, LLC
By: /s/ Thomas H. King
------------------------------------
Name: Thomas H. King for AXIS Group INC
Title: sole member AXIS Netherlands LLC
COMMERCIAL CARRIERS, INC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
CORDIN TRANSPORT LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & asst Treasurer
CT SERVICES, INC.
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
F.J. BOUTELL DRIVEAWAY LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
GACS INCORPORATED
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King for Allied
Title: Automotive Group INC sole member
GACS Incorporated
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LOGISTIC SYSTEMS, LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King for Kar-Tainer
Title: International sole member of
Logistic Systems LLC
LOGISTIC TECHNOLOGY, LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King for Kar-Tainer
Title: International sole member of
Logistic Technology LLC
QAT, INC.
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
RMX LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
TERMINAL SERVICES LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
TRANSPORT SUPPORT LLC
By: /s/ Thomas H King
------------------------------------
Name: Thomas H King
Title: Exec VP & Asst Treasurer
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