Exhibit 4.3(i)
EXECUTION COPY
CONSENT AND FORBEARANCE EXTENSION TO
CREDIT AGREEMENT AND LOAN DOCUMENTS
This CONSENT AND FORBEARANCE EXTENSION, dated as of May 30, 2006 (this
"Consent and Extension"), 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 Term Loan B Lead Arranger ("Morgan
Stanley"); and (e) the other Lenders signatory hereto from time to time.
W I T N E S S E T H
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, in that certain Consent and Fourth Amendment to Credit Agreement
and Loan Documents, dated as of April 18, 2006, by and among Borrowers, the
Administrative Agent, Morgan Stanley and the Lenders, the Administrative Agent
and the Lenders agreed that (i) the Specified Events of Default (as defined
below) 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 May 18, 2006 with the possibility of an
extension of the May 18 date of up to 30 additional days at the sole discretion
of the Term Loan B Agent;
WHEREAS, in that certain letter agreement, dated May 18, 2006, the Term
Loan B Agent agreed to extend the Forbearance for another 15 days until
June 1, 2006; 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. Specified Events of Default. Borrowers acknowledge that they were 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. Extension of Forbearance.
(a) Borrowers acknowledge that as of the date hereof the Specified
Events of Default have occurred and have not been waived.
(b) Borrowers have requested that, and the Administrative Agent and
the Lenders have agreed to, extend the Forbearance to cover the Specified Events
of Default, as defined herein, commencing on the date hereof and continuing
through the earliest of: (i) June 16, 2006 or (ii) the occurrence of any Event
of Default other than the Specified Events of Default.
4. 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 for Borrowers for Fiscal Year 2005 and related
deliveries by May 30, 2006, the date for such delivery provided for in the
Consent, dated May 1, 2006, and have requested that the Requisite Lenders extend
the date for such delivery to June 16, 2006 (the "Extension"). As of the
Effective Date, subject to the terms hereof, the Requisite Lenders hereby
consent to the Extension.
5. Representations and Warranties. To induce the Requisite Lenders to
enter into this Consent and Extension, each of the Credit Parties executing this
Consent and Extension, jointly and severally, makes the following
representations and warranties:
(a) The execution, delivery and performance by such Credit Party of
this Consent and Extension: (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.
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(b) This Consent and Extension has been duly executed and delivered
by or on behalf of such Credit Party.
(c) Each of this Consent and Extension 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 and Extension, except for the Defaults or
Events of Default set forth in Schedule A hereof.
(e) Other than (i) the commencement of the Chapter 11 Cases and (ii)
[any others], 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 and Extension 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.
6. 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 and Extension 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.
7. Outstanding Obligations; Waiver of Claims. Borrowers acknowledge and
agree that as of May 30, 2006, the aggregate outstanding principal amounts of
the Revolving Loan, the Term Loan A and the Term Loan B are
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$49,621,080.25, $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. 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
8. 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.
9. 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 Extension and all other documents and instruments
delivered in connection herewith.
10. Effectiveness. This Consent and Extension 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 and Extension. Administrative Agent shall have received
this Consent and Extension duly executed and delivered by the Credit Parties and
the Requisite Lenders. Borrowers agree to deliver ten (10) original copies of
this Consent and Extension duly executed and delivered by the Credit Parties but
the delivery of such counterparts shall not be a condition to the effectiveness
hereof. Delivery of an
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executed counterpart of this Consent and Extension by facsimile shall have the
same force and effect as the delivery of an original executed counterpart of
this Consent and Extension. Any party delivering an executed counterpart of any
such agreement by facsimile shall promptly deliver (10) original copies of this
Consent and Extension to the Administrative Agent.
(b) Payment of Expenses. Borrowers shall have paid to Agents all
costs, fees and expenses invoiced and owing in connection with this Consent and
Extension 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 and Extension
shall be true and correct on and as of the Effective Date.
11. GOVERNING LAW. THIS CONSENT AND EXTENSION SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12. Counterparts. This Consent and Extension may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, 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 Consent and Extension by facsimile
shall be equally as effective as delivery of an original executed counterpart of
this Consent and Extension. Any party delivering an executed counterpart of this
Consent and Extension, also shall deliver an original executed counterpart of
this Consent and Extension, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Consent and Extension 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.
13. Loan Document. This Consent and Extension shall be deemed a Loan
Document for all purposes. This Consent and Extension 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.
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IN WITNESS WHEREOF, this Consent and Extension 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: EVP
ALLIED SYSTEMS, LTD. (L.P.)
By: /s/ Thomas H. King
-----------------------------
Name: Thomas H. King
Title: EVP
[Extension Sig Page]
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
[Extension Sig Page]
THE CIT GROUP/BUSINESS CREDIT, INC.
as Lender
By: /s/ Jang S. Kim
--------------------------
Name: Jang S. Kim
Title: VP
[Extension Sig Page]
TEXTRON FINANCIAL CORPORATION
as Lender
By: /s/ Eric R. Hubbard
----------------------------
Name: Eric R. Hubbard
Title: Duly Authorized Signatory
[Extension Sig Page]
MERRILL LYNCH CAPITAL, A DIVISION OF
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC.
as Lender
By: /s/ James Betz
--------------------------
Name: James Betz
Title: Vice President
[Extension Sig Page]
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: Authorized Signatory
[Extension Sig Page]
ALLIED HOLDINGS, INC. 26
The following Persons are signatory to this Consent and Extension 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 H. King
-----------------------
Name: Thomas H. King
Title: EVP
[Extension Sig Page]