Exhibit 4.3(F)
CONSENT AND FOURTH AMENDMENT TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
This CONSENT AND FOURTH AMENDMENT, dated as of April 18, 2006 (this
"Amendment"), 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
Term Loan A Agent, Term Loan B Agent, co-Syndication Agent, co-Bookrunner and
co-Term Loan B Lead Arranger ("Morgan Stanley"); and (e) 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 and Morgan Stanley 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");
WHEREAS, Borrowers have informed the Lenders that certain Events of
Default have occurred or will occur;
WHEREAS, in a letter agreement, dated March 9, 2006, among Borrowers,
the other Credit Parties, the Agents, and the Lenders, the Lenders have agreed
to forbear any exercise of their remedies in connection with certain Events of
Default;
WHEREAS, in a letter agreement, dated April 3, 2006 (the "Forbearance
Extension"), among Borrowers, the other Credit Parties, the Agents, and the
Lenders, the Lenders have agreed to extend the forbearance for the Specified
Events of Default (as defined below) until April 18, 2006; and
WHEREAS, the Administrative Agent and the Requisite Lenders have
agreed to amend the Credit Agreement and 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. Specified Events of Default. Borrowers acknowledge that as of the
date hereof they are and remain in default of the Financial Covenants for Fixed
Charge Coverage Ratio, EBITDA and the Leverage Ratio as set forth in Section
6.10 and Annex G, clauses (b), (c) and (d) of the Credit Agreement and as set
forth on Schedule A hereto (the "Specified Events of Default").
3. Overadvance Facility. (a) The Term Loan B Agent, in its discretion,
may make additional advances ("Protective Overadvances") of up to $5,000,000
available to Borrowers in accordance with the terms and conditions hereof. Any
amount of the Protective Overadvances that is repaid prior to the Maturity Date
(as defined below) may not be reborrowed.
(b) Maturity Date. All Protective Overadvances, together with all
interest accrued thereon, are due and payable in full in cash on or before May
18, 2006 (the "Maturity Date").
(c) Interest. Borrowers shall pay interest on the Protective
Overadvances to the Term Loan B Agent for its own account (or, in the event that
the Term Loan B Lenders in their discretion, participate in the Protective
Overadvances, for the ratable benefit of the Term Loan B Lenders) on the
Maturity Date at the one-month LIBOR Rate plus nine and one-half percent (9.5%).
(d) Default Rate of Interest. Borrowers shall pay interest in
accordance with the various Loans, including the Protective Overadvances, made
by each Lender at the Default Rate until such time as Borrowers obtain a
commitment, in form and substance satisfactory to the Agents, for additional
funds to be provided on or before June 19, 2006 in an amount of not less than
$20,000,000, at which time the obligation of Borrowers to pay interest on the
Obligations, including the Protective Overadvances, shall revert back to the
applicable non-Default Rate of interest.
(e) Prepayment Premium. In the event that Borrowers shall
voluntarily prepay Term Loan A, Term Loan B, the Protective Overadvances or all
three, Borrowers shall pay a prepayment premium in an amount equal to 1% of the
outstanding amount of the loan unless such prepayment results from a refinancing
provided by the Term Loan B Agent.
(f) Agent Extension. The Term Loan B Agent, in its sole
discretion, may extend, and hereby is authorized to extend, the Maturity Date
for a period of up to an additional 30 days without further action by the
Lenders so long as the following conditions are satisfied (or waived by) the
Term Loan B Agent in its sole discretion:
(i) Borrowers shall have filed a Section 1113(e) motion with the
Bankruptcy Court for interim relief seeking to reduce, and the Bankruptcy Court
shall have granted interim relief reducing, under the applicable provisions of
the Bankruptcy Code, wages and/or benefits by, in the aggregate, approximately
ten percent (10%) of wages per month for the U.S. employees of Allied Systems
and certain other Subsidiaries of Allied Holdings who are represented by the
International Brotherhood of Teamsters and affiliated local unions under the
applicable national collective bargaining agreement;
(ii) Borrowers shall have obtained a commitment letter and a
term sheet in form and substance reasonably acceptable to the Term Loan B Agent
for at least $20,000,000 of new funding to be provided on a basis junior to the
Revolving Loans (the "Additional Financing") on or before May 18, 2006; and
(iii) Borrowers shall have made reasonably satisfactory
progress, as determined by the Term Loan B Agent in its sole discretion, in
implementing the liquidity plan previously delivered to the Lenders.
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(g) Notwithstanding any other provision hereof, it is understood
and agreed that (i) in the event that an additional Event of Default (other than
the Specified Events of Default) occurs, the repayment of the amount advanced by
or due to the Term Loan B Agent or the Term Loan B Lenders under this Fourth
Amendment may be repaid solely as Term Loan B Protective Overadvances in the
tenth order of priority as specified in Section 1.3(c)(iii) of the Credit
Agreement; and (ii) in the absence of an Event of Default (other than the
Specified Events of Default), the Term Loan B Protective Overadvances may be
repaid (a) from Revolving Credit Advances to the extent availability exists, (b)
out of proceeds of Additional Financing permitted or consented to hereunder, or
(c) as is otherwise permitted by this Agreement.
4. Covenants. Each Borrower executing this Amendment jointly and
severally agrees that:
(a) The Credit Agreement shall be amended as follows:
(i) Section (a) of Annex G, Maximum Capital Expenditures of
the Credit Agreement is hereby amended as of the Amendment Effective Date by
deleting the target for maximum Capital Expenditures for the periods ending on
March 31, 2006, April 30, 2006 and May 31, 2006 and substituting in lieu thereof
the following:
12-Month Period Ending Maximum Capital Expenditures per Period
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March 31, 2006 $32,402,000
April 30, 2006 $34,451,000
May 31, 2006 $34,978,000
(ii) Section (b) of Annex G, Minimum Fixed Charge Coverage
Ratio of the Credit Agreement is hereby amended as of the Amendment Effective
Date by deleting the target for minimum Fixed Charge Coverage for the periods
ending on March 31, 2006, April 30, 2006 and May 31, 2006 and substituting in
lieu thereof the following:
Fiscal Month Ending Minimum Fixed Charge Coverage Ratio
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March 31, 2006 0.56:1.0
April 30, 2006 0.56:1.0
May 31, 2006 0.60:1.0
(iii) Section (c) of Annex G, Minimum EBITDA of the Credit
Agreement is hereby amended as of the Amendment Effective Date by (x) deleting
the introductory sentence of Section (c) of Annex G of the Credit Agreement in
its entirety and substituting in lieu thereof the following language:
"Borrowers and their Subsidiaries shall have on a consolidated basis
at the end of each Fiscal Month set forth below, EBITDA for the 12-month period
then ended of not less than the amount set forth below opposite such Fiscal
Month:" and
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(y) deleting the target for minimum EBITDA for the periods ending
on March 31, 2006, April 30, 2006 and May 31, 2006 and substituting in lieu
thereof the following:
Fiscal Month Ending Minimum EBITDA
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March 31, 2006 $33,403,000
April 30, 2006 $34,486,000
May 31, 2006 $36,855,000
(iv) Section (d) of Annex G, Maximum Leverage Ratio of the
Credit Agreement is hereby amended as of the Amendment Effective Date by (x)
deleting the introductory sentence of Section (d) of Annex G of the Credit
Agreement in its entirety and substituting in lieu thereof the following
language:
"Borrowers and their Subsidiaries shall have on a consolidated basis
at the end of each Fiscal Month set forth below, a Leverage Ratio of not more
than the ratio set forth below opposite such Fiscal Month:" and
(y) deleting the target for maximum Leverage Ratio for the periods
ending on March 31, 2006, April 30, 2006 and May 31, 2006 and substituting in
lieu thereof the following
Fiscal Month Ending Maximum Leverage Ratio
- ------------------- ----------------------
March 31, 2006 6.02:1.0
April 30, 2006 5.79:1.0
May 31, 2006 5.68:1.0
(b) Borrowers shall provide the Agents and the Lenders with a
13-week cash flow forecast to be updated weekly.
5. Additional Amendments to the Credit Agreement. In addition to the
amendments set forth in Section 3(f)(i), the Credit Agreement shall be amended
as follows:
(a) Section 1.3(b)(ii) Mandatory Prepayments of the Credit
Agreement is hereby amended as of the Amendment Effective Date by deleting the
last sentence in its entirety and substituting in lieu thereof the following:
The following shall not be subject to mandatory prepayment under
this clause (ii): (1) net cash proceeds of sales or other dispositions
of Rolling Stock permitted under Section 6.8; (2) asset disposition
proceeds of less than $250,000 in the aggregate in any Fiscal Year and
(3) asset disposition proceeds (including, but not limited to,
proceeds resulting from the termination of split-dollar and other life
insurance policies) and proceeds of distributions or loan repayments
from Haul Insurance, in each case that are reinvested in other assets
in the ordinary course of, and otherwise useful in, Borrowers'
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business within ninety (90) days following receipt thereof; provided
that Borrower Representative notifies Administrative Agent of its
intent to reinvest at the time such proceeds are received and when
such reinvestment occurs Collateral Agent, for the benefit of Agents
and Lenders, receives a first-priority Lien on such replacement
assets.
(b) Section 1.3(b)(iii) Mandatory Prepayments of the Credit
Agreement is hereby amended as of the Amendment Effective Date by deleting such
section in its entirety and substituting in lieu thereof the following:
"(iii) If any Credit Party issues any debt securities (other than
Indebtedness permitted by Sections 6.3(a)(i) and (vii), no later than
the Business Day following the date of receipt of the proceeds
thereof, all Borrowers (in the case of an issuance by a Guarantor) or
the issuing Borrower shall prepay the Loans (and cash collateralize
Letter of Credit Obligations) in an amount equal to all such proceeds,
net of underwriting discounts and commissions and other reasonable
costs paid to non-Affiliates in connection therewith. Any such
prepayment shall be applied in accordance with Section 1.3(c)."
(c) Section 1.3(b)(iv) Mandatory Prepayments of the Credit
Agreement is hereby amended as of the Amendment Effective Date by adding the
following language to the end of the provision:
"Notwithstanding the foregoing, Extraordinary Receipts received
from (i) judgments, proceeds of settlements or other consideration of
any kind in connection with any cause of action, (ii) proceeds
resulting from the termination of split-dollar and other life
insurance policies, and (iii) proceeds of distributions or loan
repayments from Haul Insurance, shall not be subject to mandatory
prepayment under this clause (iv) to the extent such proceeds are
reinvested in other assets in the ordinary course of, and otherwise
useful in, Borrowers' business within ninety (90) days following
receipt thereof; provided that Borrower Representative notifies
Administrative Agent of its intent to reinvest at the time such
proceeds are received and when such reinvestment occurs Collateral
Agent, for the benefit of Agents and Lenders, receives a
first-priority Lien on such replacement assets.
(d) Section 6.3(a) Indebtedness of the Credit Agreement is hereby
amended as of the Amendment Effective Date by deleting clause (i) thereof in its
entirety and by substituting in lieu thereof a new clause (i) to read as
follows:
"(i) Indebtedness secured by split dollar or other life insurance
policies; provided that recourse for such Indebtedness is limited to
the cash value of such insurance policies."
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(e) Section 9.2 Appointment of Agents of the Credit Agreement is
hereby amended as of the Amendment Effective Date by deleting the third and
fourth sentences of such Section 9.2 in their entirety and substituting in lieu
thereof the following new sentences:
"Morgan Stanley is hereby appointed to act on behalf of all Term Loan
A Lenders as 'Term Loan A Agent' under this Agreement and the other
Loan Documents. Morgan Stanley is hereby appointed to act on behalf of
all Term Loan B Lenders as 'Term Loan B Agent' under this Agreement
and the other Loan Documents."
(f) Section 9.4 Agents in Individual Capacities of the Credit
Agreement is hereby amended as of the Amendment Effective Date by deleting
Section 9.4 in its entirety and substituting in lieu thereof the following:
"With respect to its Commitments hereunder, each of GE Capital and
Morgan Stanley shall have the same rights and powers under this
Agreement and the other Loan Documents as any other Lender and may
exercise the same as though it were not an Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated,
include each of GE Capital and Morgan Stanley in its individual
capacity. Each of GE Capital and Morgan Stanley and its respective
Affiliates may lend money to, invest in, and generally engage in any
kind of business with, any Credit Party, any of their Affiliates and
any Person who may do business with or own securities of any Credit
Party or any such Affiliate, all as if GE Capital and Morgan Stanley
were not an Agent and without any duty to account therefor to Lenders.
Each of GE Capital and Morgan Stanley and its respective Affiliates
may accept fees and other consideration from any Credit Party for
services in connection with this Agreement or otherwise without having
to account for the same to Lenders. Each Lender acknowledges the
potential conflict of interest between GE Capital and Morgan Stanley
as Lenders holding disproportionate interests in the Loans and GE
Capital and Morgan Stanley as Agents."
(g) Section 11.2 Amendments and Waivers of the Credit Agreement
is hereby amended as of the Amendment Effective Date by adding the following at
the end of Section 11.2 as new clause (f):
"(f) The Lenders hereby irrevocably authorize the Collateral Agent,
without further action of the Lenders, to release any Lien on any
Collateral constituting property being sold or disposed of if a
release is required or desirable in connection therewith and if
Borrowers certify in writing to the Collateral Agent that the sale or
disposition is permitted or not otherwise prohibited under this
Agreement or the other Loan Documents (and the Collateral Agent may
rely conclusively on any such certificate, without further inquiry).
Except as provided above
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or expressly provided in any other Loan Document, the Collateral Agent
will not execute and deliver a release of any Lien on any Collateral
without the prior written authorization of all of the Lenders. Upon
request by the Collateral Agent or Borrowers at any time, the
Administrative Agent and the Lenders will confirm in writing the
Collateral Agent's authority to release any such Liens on particular
types or items of Collateral pursuant to this Section 11.2; provided,
however, that (1) the Collateral Agent shall not be required to
execute any document necessary to evidence such release on terms that,
in the Collateral Agent's opinion, would expose the Collateral Agent
to liability or create any obligation or entail any consequence other
than the release of such Lien without recourse, representation, or
warranty, and (2) such release shall not in any manner discharge,
affect, or impair the Obligations or any Liens (other than those
expressly being released) upon (or obligations of Borrowers in respect
of) all interests retained by Borrowers, including, the proceeds of
any sale, all of which shall continue to constitute part of the
Collateral."
(h) Section 11.14 Press Releases and Related Matters of the
Credit Agreement is hereby amended as of the Amendment Effective Date by
deleting it in its entirety and substituting in lieu thereof the following:
"Each Credit Party executing this Agreement agrees that neither it nor
its Affiliates will in the future issue any press releases or other
public disclosure using the name of Morgan Stanley or GE Capital or
any of their affiliates or referring to this Agreement, the other Loan
Documents or the Related Transactions Documents without at least two
(2) Business Days' prior notice to Morgan Stanley or GE Capital and
without the prior written consent of Morgan Stanley or GE Capital, as
applicable, unless (and only to the extent that) such Credit Party or
Affiliate is required to do so under law and then, in any event, such
Credit Party or Affiliate will consult with Morgan Stanley or GE
Capital, as applicable, before issuing such press release or other
public disclosure. Each Credit Party consents to the publication by
any Agent or any Lender of advertising material relating to the
financing transactions contemplated by this Agreement using Borrower's
name, product photographs, logo or trademark. Agents reserve the right
to provide to industry trade organizations information necessary and
customary for inclusion in league table measurements."
(i) Annex A of the Credit Agreement is hereby amended as of the
Amendment Effective Date by deleting the definition of "EBITDA" in its entirety
and substituting in lieu thereof the following new definition:
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"'EBITDA' means, with respect to any Person for any fiscal period,
without duplication, an amount equal to (a) consolidated net income of
such Person for such period determined in accordance with GAAP, minus
(b) the sum of (i) income tax credits, (ii) interest income, (iii)
gain from extraordinary items for such period, and (iv) any aggregate
net gain (but not any aggregate net loss) during such period arising
from the sale, exchange or other disposition of capital assets by such
Person (including any fixed assets, whether tangible or intangible,
all inventory sold in conjunction with the disposition of fixed assets
and all securities), in each case to the extent included in the
calculation of consolidated net income of such Person for such period
in accordance with GAAP, but without duplication, plus (c) the sum of
(i) any provision for income taxes, (ii) Interest Expense, (iii) loss
from extraordinary items for such period, (iv) depreciation and
amortization for such period, (v) amortized debt discount for such
period, (vi) distributions received by such Person pursuant to Section
5.14, and (vii) the amount of any deduction to consolidated net income
as the result of any grant to any members of the management of such
Person of any Stock, in each case to the extent included in the
calculation of consolidated net income of such Person for such period
in accordance with GAAP, but without duplication. For purposes of this
definition, the following items shall be excluded in determining
consolidated net income of a Person: (1) the income (or deficit) of
any other Person accrued prior to the date it became a Subsidiary of,
or was merged or consolidated into, such Person or any of such
Person's Subsidiaries; (2) the income (or deficit) of any other Person
(other than a Subsidiary) in which such Person has an ownership
interest, except to the extent any such income has actually been
received by such Person in the form of cash dividends or
distributions; (3) the undistributed earnings of any Subsidiary of
such Person to the extent that the declaration or payment of dividends
or similar distributions by such Subsidiary is not at the time
permitted by the terms of any contractual obligation or requirement of
law applicable to such Subsidiary; (4) any restoration to income of
any contingency reserve, except to the extent that provision for such
reserve was made out of income accrued during such period; (5) any
write-up of any asset; (6) any net gain from the collection of the
proceeds of life insurance policies; (7) any net gain arising from the
acquisition of any securities, or the extinguishment, under GAAP, of
any Indebtedness, of such Person; (8) in the case of a successor to
such Person by consolidation or merger or as a transferee of its
assets, any earnings of such successor prior to such consolidation,
merger or transfer of assets; (9) any deferred credit representing the
excess of equity in any Subsidiary of such Person at the date of
acquisition of such Subsidiary over the cost to such Person of the
investment in
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such Subsidiary; (10) any expense or other liability deducted in the
calculation of net income to the extent such expense or liability is
(i) a pre-petition obligation and (ii) subject to the automatic stay
provisions of the Bankruptcy Code; (11) adverse insurance adjustments
that will affect Borrowers' cash flows after the Termination Date;
(12) non-cash charges and non-cash gains; and (13) professional
expenses incurred by Borrowers and allowed by the Bankruptcy Court in
the Chapter 11 Cases."
(j) Annex A of the Credit Agreement is hereby amended as of the
Amendment Effective Date by deleting the definition of "Lenders" in its entirety
and substituting in lieu thereof the following new definition:
"'Lenders' means Morgan Stanley, GE Capital, the other Lenders named
on the signature pages of the Agreement, and, if any such Lender shall
decide to assign all or any portion of the Obligations, such term
shall include any assignee of such Lender."
(k) Annex A of the Credit Agreement is hereby amended as of the
Amendment Effective Date by deleting the definition of "Term Loan A Agent" in
its entirety and substituting in lieu thereof the following new definition:
"'Term Loan A Agent' means Morgan Stanley, in its capacity as agent
for the Term Loan A Lenders, or its successor appointed pursuant to
Section 9.7."
(l) Annex A of the Credit Agreement is hereby amended as of the
Amendment Effective Date by deleting the definition of "Term Loan B Agent" in
its entirety and substituting in lieu thereof the following new definition:
"'Term Loan B Agent' means Morgan Stanley, in its capacity as agent
for the Term Loan B Lenders, or its successor appointed pursuant
Section 9.7."
(m) As of the Amendment Effective Date, (i) Morgan Stanley (or
its successor appointed pursuant to Section 9.7 of the Credit Agreement) shall
constitute the Term Loan A Agent and the sole Term Loan B Agent under the Credit
Agreement and the other Loan Documents, (ii) each reference to "Term Loan A
Agent" in the Credit Agreement and the other Loan Documents (insofar as such
term applied to Marathon prior to such date) shall no longer apply to Marathon
in such capacity, (iii) each reference to "Term Loan A Agent" in the Credit
Agreement and the other Loan Documents shall apply to Morgan Stanley (or its
successor appointed pursuant to Section 9.7 of the Credit Agreement) in its
capacity as the Term Loan A Agent under the Credit Agreement and the other Loan
Documents, (iv) each reference to "Term Loan B Agent" in the Credit Agreement
and the other Loan Documents (insofar as such term applied to Marathon prior to
such date) shall no longer apply to Marathon in such capacity, and (v) each
reference to "Co-Term Loan B Agent" in the Credit Agreement and the other Loan
Documents shall apply solely to Morgan Stanley (or its successor appointed
pursuant to Section 9.7 of the Credit Agreement) in its capacity as the Term
Loan B Agent under the Credit Agreement and the other Loan Documents.
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6. Forbearance. Notwithstanding the existence of the Specified Events
of Default, the Administrative Agent and the Lenders agree to extend the
Forbearance for the Specified Events of Default on the terms and conditions set
forth in the Forbearance Extension until the Maturity Date, as such Maturity
Date may be extended by the Term Loan B Agent without further action of the
Lenders as provided for in Section 3(f) hereof.
7. 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.
8. Representations and Warranties. To induce the Requisite Lenders to
enter into this Amendment, each of the Credit Parties executing this Amendment,
jointly and severally, makes the following representations and warranties:
(a) Subject to the approval of the Bankruptcy Court, the
execution, delivery and performance by such Credit Party of this Amendment: (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 other than the Bankruptcy Court.
(b) This Amendment has been duly executed and delivered by or on
behalf of such Credit Party.
(c) Subject to the approval of the Bankruptcy Court, each of this
Amendment 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.
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(d) No Default or Event of Default has occurred and is continuing
after giving effect to this Amendment, except for the Defaults or Events of
Default set forth on Schedule A hereto.
(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 Amendment 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, as amended in
accordance with the terms of the applicable agreement, shall be true and correct
on and as of the Amendment 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.
9. 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, (b) this Consent shall not be deemed a
waiver of any term or condition of the Credit Agreement or any other Loan
Document, and (iii) this Consent shall not be deemed an agreement to forbear
with respect to any right or remedy which the Agents or the Lenders may now have
or may have in the future under the Credit Agreement or any other Loan Document,
at law, in equity or otherwise. For avoidance of doubt, the Financial Covenants
set forth in Annex G to the Credit Agreement for all periods commencing on June
30, 2006 shall be unmodified and shall continue to be in full force and effect
in accordance with the terms of the Credit Agreement. Neither any Agent nor any
Lender shall by virtue of any action or omission be deemed to have altered or
prejudiced any rights or remedies which any Agent or any Lender may now have or
may have in the future under or in connection with the Credit Agreement, any
other Loan Document or any of the instruments or agreements referred to therein,
in each case as the same may be amended from time to time.
10. Outstanding Indebtedness; Waiver of Claims. The Credit Parties
hereby acknowledge and agree that as of April 11, 2006, the aggregate
outstanding principal amount of the (i) Revolving Loan is $90,808,476.00, (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
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any Claim solely to the extent such Claim relates to any Agent's or any Lender's
gross negligence or willful misconduct.
11. Expenses. Borrowers hereby reconfirm their obligations pursuant to
Section 11.3(a) 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 Amendment and all other documents and instruments delivered in
connection herewith.
12. Effectiveness. This Amendment shall become effective as of the
date hereof (the "Amendment Effective Date") only upon satisfaction in full in
the judgment of Administrative Agent of each of the following conditions:
(a) Amendment. Administrative Agent shall have received ten (10)
original copies (or facsimile copies to be promptly followed by originals) of
this Amendment 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 Amendment
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 Amendment shall be true
and correct on and as of the Amendment Effective Date.
13. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Amendment 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 PAGE FOLLOWS)
-12-
LENDERS:
GENERAL ELECTRIC CAPITAL
CORPORATION, as Administrative Agent,
Collateral Agent, Revolver Agent and
Lender
By: /s/ Donald J. Cavanagh
------------------------------------
Name: DONALD J. CAVANAGH
Title: Duly Authorized Signatory
MORGAN STANLEY SENIOR FUNDING,
INC., as Term Loan A Agent, Term Loan B
Agent, co-Syndication Agent and Lender
By: /s/ Jason Colodne
------------------------------------
Name: Jason Colodne
Title: Authorised Signatory
CITGROUP/BUSINESS CREDIT, INC, as Lender
By: /s/ David Rothberg
------------------------------------
Name: David Rothberg
Title: Assistant Vice President
Merrill Lynch Capital, a division of
Merrill Lynch Business Financial
Services Inc, as Lender
By: /s/ Edward Shuster
------------------------------------
Name: Edward Shuster
Title: AVP
SMBC DIP Limited, as Lender
By: /s/ Susumu Ogawa
------------------------------------
Name: Susumu Ogawa
Title: Director
Wells Fargo Foothill, LLC, as Lender
By: /s/ Eunnie Kim
------------------------------------
Name: Eunnie Kim
Title: VP
Textron Financial Corporation, as Lender
By: /s/ Eric R. Hubbard
------------------------------------
Name: ERIC R. HUBBARD
Title: DUCK AUTHORIZED SIGNATORY
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 Ratio as of the last day of the 12-month period ended
on December 31, 2005 was less than 0.62:1.0.