EXECUTION COPY
Exhibit 4.3(e)
April 3, 2006
ALLIED HOLDINGS, INC.
160 Clairemont Avenue
Suite 200
Decatur, Georgia 30030
Attention: Chief Financial Officer
Fax No. 404-370-4206
Re: General Electric Capital Corporation; Allied Holdings, Inc.
Dear Ladies and Gentlemen:
Reference is made to that certain SENIOR SECURED SUPER-PRIORITY
DEBTOR-IN-POSSESSION CREDIT AGREEMENT (as amended, restated, supplemented, or
otherwise modified, the "Credit Agreement"), dated as of August 1, 2005, 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" and individually, a "Borrower"); (b)
the other Credit Parties signatory hereto; (c) GENERAL ELECTRIC CAPITAL
CORPORATION ("GE Capital" or the "Administrative Agent"), as Administrative
Agent, Collateral Agent, Revolver Agent and co-Syndication Agent; (d) MORGAN
STANLEY SENIOR FUNDING, INC., as co-Term Loan B Agent, co-Syndication Agent,
co-Bookrunner and co-Term Loan B Lead Arranger; (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 Arrangers; (f) the
other Lenders signatory hereto from time to time (the "Lenders") and (g) GE
CAPITAL MARKETS, INC., as co-Revolver Lead Arranger and co-Bookrunner.
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Credit Agreement.
1. Extension of Forbearance, (a) Borrowers have previously notified the
Administrative Agent that they anticipated that they would be in default of the
Financial Covenants required by Section 6.10 and Annex G, clauses (c) and (d) of
the Credit Agreement for the 12-month periods ending on January 31, 2006 and
December 31, 2005 (the "Ongoing Events of Default") and have notified the
Administrative Agent that they now anticipate that in addition to the Ongoing
Events of Default, they will be in default of the Financial Covenants required
by Section 6.10 and Annex G, clauses (b), (c) and (d) of the Credit Agreement as
follows:
(i) actual EBITDA for the 12-month period ended on January 31, 2006
will be not less than $36,661,000;
(ii) actual EBITDA for the 12-month period ended on December 31, 2005
will be not less than $34,746,000;
(iii) the actual Leverage Ratio for the 12-month period ended on
January 31, 2006 will be not greater than 5.29:1.0;
(iv) the actual Leverage Ratio for the 12-month period ended on
December 31, 2005 will be not greater than 5.26:1.0;
(v) actual EBITDA for the 12-month period ended on February 28, 2006
will be not less than $36,332,000;
(vi) the actual Leverage Ratio for the 12-month period ended on
February 28, 2006 will be not greater than 5.35:1.0;
(vii) the actual Fixed Charge Coverage Ratio for the 12-month period
ended on December 31, 2005 will be not less than 0.59:1.0; and
(viii) the Events of Default set forth on Schedule A hereto (the
"Specified Events of Default") will occur or will be continuing
(b) In that certain forbearance letter, dated as of March 9, 2006 (the
"Forbearance Letter"), executed by the Agents and the Lenders and acknowledged
by the Borrowers, the Administrative Agent and the Lenders agreed that (i) the
Ongoing Events of Default would not constitute a Default or an Event of Default
for purposes of Section 2.2 of the Credit Agreement and (ii) they would forbear
from exercising their remedies under the Credit Agreement and the other Loan
Documents (both (i) and (ii), the "Forbearance") until April 3, 2006.
(c) Borrowers acknowledge that as of the date hereof the Specified
Events of Default have occurred and are continuing.
(d) Borrowers have requested that, and the Administrative Agent and
the Lenders have agreed to, extend the Forbearance during the Forbearance Period
(as defined below). The Administrative Agent and the Lenders will not charge
interest on any Obligations at the default rate of interest under Section 1.5(d)
of the Credit Agreement retroactively to the date of the occurrence of any of
the Specified Events of Default or during the Forbearance Period. The
Administrative Agent's and the Lenders' continued forbearance from exercising
their remedies relative to the Specified Events of Default during the
Forbearance Period is expressly conditioned on satisfactory compliance by
Borrowers with each of the following (the "Forbearance Conditions"):
(i) all fees, costs and expenses incurred in connection with this
forbearance letter, the Credit Agreement and any other Loan Documents
(including, without limitation, legal fees and expenses and fees and
expenses for a consultant to advise the Agents and the Lenders) shall have
been paid;
(ii) EBITDA for the rolling 12-month periods ending on each of
February 28, 2006, January 31, 2006 and December 31, 2005, in each case as
reflected in the financial information or Financial Statements delivered to
the
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Agents and the Lenders, shall be equal to or better than the applicable
amounts specified in Paragraph l(a) hereof;
(iii) the Leverage Ratio for the rolling 12-month periods ending on
each of February 28, 2006, January 31, 2006 and December 31, 2005, in each
case as reflected in the financial information or Financial Statements
delivered to the Agents and the Lenders, shall be equal to or less than the
applicable ratios specified in Paragraph l(a) hereof;
(iv) the Fixed Charge Coverage Ratio for the rolling 12-month period
ending on December 31, 2005, as reflected in the financial information or
Financial Statements delivered to the Agents and the Lenders, shall be
equal to or greater than the applicable ratio specified in Paragraph l(a)
hereof;
(v) As soon as possible, but in no event later than three Business
Days from the execution date of this forbearance letter, Borrowers shall
file an emergency motion with the Bankruptcy Court seeking approval for
Borrowers to pay the Forbearance Fee (as defined below); and
(vi) As soon as possible, but in no event later than three Business
Days from the execution date of this forbearance letter, Borrowers shall
file an emergency motion with the Bankruptcy Court seeking approval of the
hiring of Glass & Associates as operational advisor to Borrowers at
Borrowers' expense.
The failure of Borrowers to timely perform any Forbearance Condition
shall constitute an immediate Event of Default and will result in the
termination of this Forbearance.
2. Consent. The Credit Parties have informed the Administrative Agent and
the Lenders that the Credit Parties will be unable to deliver their annual
audited financial statements within the time frame required by Section 4.1(a)
and Annex E, clause (d), and have requested that the Requisite Lenders extend
the date for such delivery to May 1, 2006 (the "Extension"). As of the Effective
Date, subject to the terms hereof, the Requisite Lenders hereby consent to the
Extension.
3. Outstanding Obligations. Borrowers acknowledge and agree that as of
March 30, 2006, the aggregate outstanding principal amounts of the Revolving
Loan, the Term Loan A and the Term Loan B are $51,658,506.41, $20,000,000 and
$80,000,000, respectively, and that such principal amounts, plus interest and
fees, are payable pursuant to the Credit Agreement and other Loan Documents
without defense, offset, withholding, counterclaim or deduction of any kind.
4. Forbearance Period. As used herein, Forbearance Period shall mean the
period commencing on the date hereof and continuing through the earliest of
(referred to herein as the "Forbearance Termination Date"): (i) April 18, 2006;
(ii) the occurrence of any Event of Default other than the Specified Events of
Default; (iii) the execution of an amendment to the Credit Agreement; or (iv)
the failure of Borrowers to timely perform
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each of the Forbearance Conditions. On the Forbearance Termination Date, the
forbearance provided herein shall terminate, and the Administrative Agent and
the Lenders shall have the right to exercise any and all remedies under the
Credit Agreement or any other Loan Document, at law, in equity or otherwise.
5. Forbearance Fee. Upon this forbearance becoming effective, Borrowers
jointly and severally agree to pay on a pro rata basis to the Lenders who
consent and deliver their consent to this forbearance letter on or before April
3, 2006 (the "Consenting Lenders"), a fee for agreeing to the Forbearance in an
amount equal to one- half of one percent (0.50%) of the Commitments (the
"Forbearance Fee"), which Forbearance Fee shall be fully earned by the
Consenting Lenders upon execution of this forbearance letter by the Requisite
Lenders (the "Execution Date"). Half of the Forbearance Fee (0.25%) shall be due
and payable upon the Execution Date. The remaining 0.25% of the Forbearance Fee
(the "Remaining Forbearance Fee") shall be payable upon the earlier of (a) 30
days after the Execution Date or (b) the date on which all amounts due and
payable to the Lenders under the Credit Agreement and the other Loan Documents
have been indefeasibly paid in full. Borrowers shall have a ten-day grace period
after the occurrence of (a) or (b) to pay the Remaining Forbearance Fee. The
Administrative Agent shall collect the fee on behalf of the Lenders and shall
pay each Consenting Lender its pro rata share of the fee. Amounts collected and
not distributed to Consenting Lenders shall be credited to Borrowers' account.
The Remaining Forbearance Fee shall be waived if an amendment to the Credit
Agreement is executed.
6. Reservation of Rights. You are hereby advised that the Administrative
Agent and the Lenders specifically reserve all of their rights and remedies
against Borrowers under the Loan Documents and applicable law with respect to
the Specified Events of Default. Neither the Administrative Agent nor any Lender
shall be deemed to have waived any term or condition of the Credit Agreement or
any other Loan Document or, except as specifically set forth herein, to have
agreed to a forbearance with respect to any right or remedy which the
Administrative Agent or the Lenders may now have or in the future may have under
the Credit Agreement or any other Loan Document, at law, in equity or otherwise,
on account of the Specified Events of Default or any other Default or Event of
Default. Neither the Administrative Agent nor any Lender shall by virtue of any
action or omission be deemed to have altered or prejudiced any rights or
remedies under or in connection with the Credit Agreement or under or in
connection with any Event of Default. All of the terms and conditions of the
Credit Agreement and the other Loan Documents are and shall remain in full force
and effect.
7. Miscellaneous. (a) This forbearance letter shall be deemed a Loan
Document for all purposes. This forbearance letter reflects the entire
understanding of the parties with respect to the matters contemplated hereby and
shall not be contradicted or qualified by any other agreement, oral or written,
before the date hereof.
(b) This forbearance letter may be executed in any number of counterparts
and by different parties on separate counterparts, each of which, when executed
and delivered,
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shall be deemed to be an original, and all of which, when taken together, shall
constitute but one and the same letter. Delivery of an executed counterpart of
this forbearance letter by facsimile shall be equally as effective as delivery
of an original executed counterpart of this forbearance letter. Any party
delivering an executed counterpart of this forbearance letter, also shall
deliver an original executed counterpart of this forbearance letter, but the
failure to deliver an original executed counterpart shall not affect the
validity, enforceability, and binding effect of this forbearance letter.
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This forbearance letter shall be construed under and governed by the laws
of the State of New York.
Sincerely,
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
[Forbearance Letter Sig Page]
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
[Forbearance Letter Sig Page]
MARATHON STRUCTURED FINANCE FUND, L.P.,
as Term Loan A Agent, co-Term Loan B
Agent and Lender
By: /s/ Gary L. Lembo
------------------------------------
Name: Gary L. Lembo
Title: Director
[Forbearance Letter Sig Page]
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/ MARC K. FURSTEIN
------------------------------------
Name: MARC K. FURSTEIN
Title: CHIEF OPERATING OFFICER
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WELLS FARGO FOOTHILL, LLC
as Lender
By: /s/ Eunnie Kim
------------------------------------
Name: Eunnie Kim
Title: VP
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TEXTRON FINANCIAL CORPORATION
as Lender
By: /s/ Eric R. Hubbard
------------------------------------
Name: Eric R. Hubbard
Title: Duly Authorized Signatory
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SMBC DIP LIMITED
as Lender
By: /s/ Susumu Ogawa
------------------------------------
Name: Susumu Ogawa
Title: Director
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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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QUADRANGLE MASTER FUNDING LTD.
as Lender
By: /s/ Michael A. Weinstock
------------------------------------
Name: Michael A. Weinstock
Title: Managing Principal
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MERRILL LYNCH CAPITAL, A DIVISION OF
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC.
as Lender
By: /s/ Edward Shuster
------------------------------------
Name: Edward Shuster
Title: Assistant Vice President
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Acknowledged and Agreed
as of the date first above written:
BORROWERS
ALLIED HOLDINGS, INC., a
Georgia corporation
By: /s/ Thomas H. King
------------------------------------
Name: Thomas H. King
Title: EVP
ALLIED SYSTEMS, LTD. (L.P.), a
Georgia limited partnership
By: /s/ Thomas H. king
------------------------------------
Name: Thomas H. King
Title: EVP
[Forbearance Letter Sig Page]
SCHEDULE A
SPECIFIED EVENTS OF DEFAULT
1. Section 6.10 and Annex G, clause (c) of the Credit Agreement. Minimum
EBITDA as of the last day of the 12-month period ended on each of December
31, 2005, January 31, 2006 and February 28, 2006 was less than $40,535,000,
$40,350,000 and $38,972,000, respectively.
2. Section 6.10 and Annex G, clause (d) of the Credit Agreement. The Maximum
Leverage Ratio as of the last day of the 12-month period ended on each of
December 31, 2005, January 31, 2006 and February 28, 2006 was greater than
4.4:1.0, 4.7:1.0 and 4.9:1.0, respectively.
3. Section 6.10 and Annex G, clause (b) of the Credit Agreement. The Minimum
Fixed Charge Coverage Ration as of the last day of the 12-month period
ended on December 31, 2005 was less than 0.62:1.0.
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