Exhibit 4.3(c)
EXECUTION COPY
CONSENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
This CONSENT, dated as of February 17, 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) each Credit Party 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 co-Revolver
Agent, 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 that
Terminal Services LLC, f/k/a Terminal Service Co. ("Terminal Services"), owns
approximately 1 acre of Real Estate located in Soldotna, Alaska having a legal
description of Lot 16, Block 2, Stubblefield Subdivision Addition No. 4,
According to the Official Plat Thereof, Filed in the Kenai Recording District,
Third Judicial District, State of Alaska Plat #77-85 (the "Alaska Property"),
which has a 2005 tax assessed value of $3,300. The Credit Parties have requested
that the Requisite Lenders, and as of the Effective Date the Requisite Lenders
agree to, (i) waive any Default or Event of Default arising solely as a result
of the Credit Parties' failure to disclose the Alaska Property on Disclosure
Schedule (3.6) of the Credit Agreement and (ii) waive any requirement under the
Credit Agreement and the other Loan Documents that Terminal Services deliver to
the Administrative Agent a Mortgage on the Alaska Property and other documents
relating thereto.
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
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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 February 8, 2006, the aggregate outstanding
principal amount of the (i) Revolving Loan is $53,226,251.76, (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 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.
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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 M. Duffy
------------------------------------
Name: Thomas M. Duffy
Title: Exec Vice President /Secretary
ALLIED SYSTEMS, LTD. (L.P.)
By: /s/ Thomas M. Duffy
------------------------------------
Name: Thomas M. Duffy
Title: Exec Vice President Secretary
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LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent, Collateral
Agent, 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 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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The CIT Group/Business Credit, Inc.,
as Lender
By: /s/ Mark J. Long
------------------------------------
Name: Mark J. Long
Title: Vice President
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FORTRESS CREDIT OPPORTUNITIES I LP,
as Lender
By: /s/ CONSTANTINE DAKOLIAS
---------------------------------
Name: CONSTANTINE DAKOLIAS
Title: CHIEF CREDIT 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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TEXTRON FINANCIAL CORPORATION, as
Lender
By: /s/ ERIC R. HUBBARD
---------------------------------
Name: ERIC HUBBARD
Title: DULY AUTHORIZED SIGNOR
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Wells Fargo Foothill, LLC, as Lender
By: /s/ Eunnie Kim
---------------------------------
Name: Eunnie Kim
Title: Vice President
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SMBC DIP Limited, as Lender
By: /s/ Susumu Ogawa
---------------------------------
Name: Susumu Ogawa
Title: Director
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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
AH INDUSTRIES INC.
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
LOGISTIC SYSTEMS, LLC
LOGISTIC TECHNOLOGY, LLC
QAT, INC.
RMX LLC
TERMINAL SERVICES LLC
TRANSPORT SUPPORT LLC
By: /s/ Thomas M Duffy
------------------------------------
Name: Thomas M Duffy
Title: Exec Vice President / Secretary
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